Comiskey v. Pennsylvania Railroad Company, 159

Decision Date06 January 1956
Docket NumberDocket 23758.,No. 159,159
Citation228 F.2d 687
PartiesKatherine COMISKEY, Plaintiff-Appellee, v. The PENNSYLVANIA RAILROAD COMPANY, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

David J. Mountan, Jr., New York City (Conboy, Hewitt, O'Brien & Boardman, New York City, on the brief), for defendant-appellant.

Aaron A. Cohen, New York City, for plaintiff-appellee.

Before CLARK, Chief Judge, and MEDINA and WATERMAN, Circuit Judges.

CLARK, Chief Judge.

Plaintiff, Katherine Comiskey, and her husband, Philip, brought this action against the defendant railroad under the Federal Employers' Liability Act, 45 U. S.C. § 51 et seq., for a back injury alleged to have been suffered by her in defendant's employment and as a result of its negligence. At the time of the alleged injury she was working in the outside parcels section of defendant's baggage department located in the basement of the General Post Office in New York City, assisting in separating parcel post packages on a conveyor belt. The material allegations of negligence consisted of claims that defendant (1) failed to provide an adequate number of workers to handle the freight and baggage; (2) failed to provide competent, skillful, and suitable employees; (3) improperly directed and permitted the plaintiff to handle heavy freight and baggage, although it or its responsible employees knew that the plaintiff was not capable of performing such work; and (4) failed to provide plaintiff with lighter work or with safe and suitable work. The action in favor of Philip Comiskey was dismissed at the beginning of trial and is not before us. The case of Katherine Comiskey was submitted to the jury, which returned a verdict in her favor for $40,000. Defendant made motions to set aside the verdict and for a new trial, and raised the issue of excessive damages.

The evidence adduced by Katherine Comiskey in support of her allegations presented a sufficient question for submission to the jury. The testimony showed that the defendant did not stop the plaintiff from working on the job of sorting parcel post, where she had to handle packages weighing up to approximately 70 pounds, after she had complained that the work was too heavy for her. Whether or not she was forced to work beyond her strength and without adequate assistance was properly left to the jury to determine. The verdict of the jury was large, but we do not think in the present posture of the case we should attempt to decide if in the light of all the evidence it was so excessive as to require a new trial. For we think that under the circumstances this issue...

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14 cases
  • Jehl v. Southern Pac. Co.
    • United States
    • California Supreme Court
    • June 2, 1967
    ...not forbid remittitur. (Cf. Union Pacific R.R. Co. v. Hadley, 246 U.S. 330, 334, 38 S.Ct. 318, 62 L.Ed. 751; Comiskey v. Pennsylvania Railroad Co. (2d Cir. 1956) 228 F.2d 687, 688.) The order granting a new trial limited to damages shall stand affirmed unless the trial court in its discreti......
  • Burch v. Reading Company
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • March 16, 1956
    ...Ed. 441; Robak v. Pennsylvania R. Co., D.C.E.D.Pa.1949, 81 F.Supp. 841, affirmed, 3 Cir., 1949, 178 F.2d 485; and Comiskey v. Pennsylvania R. Co., 2 Cir., 1956, 228 F.2d 687. 18 There is no evidence that plaintiff had been given such heavy work previously that she was worn out by it on the ......
  • La France v. New York, New Haven and Hartford R. Co.
    • United States
    • U.S. District Court — District of Connecticut
    • January 30, 1961
    ...Butler v. General Motors Corporation, 2 Cir., 1957, 240 F.2d 92, 93, and cases cited at page 93, note 2; Comiskey v. Pennsylvania Railroad Company, 2 Cir., 1956, 228 F.2d 687, 688; Texas Pacific-Missouri Pacific Terminal Railroad of New Orleans v. Welsh, 5 Cir., 1950, 179 F.2d 880, 882, and......
  • Dagnello v. Long Island Rail Road Company
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 24, 1961
    ...on the point have not been consistent. Compare, e. g., Powers v. Wilson, 2 Cir., 1940, 110 F.2d 960, with Comiskey v. Pennsylvania R. R., 2 Cir., 1956, 228 F. 2d 687, 688. Indeed, Professor Moore classifies us with the Eighth Circuit as "the most adamant expounders" of the "old doctrine of ......
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