Dagnello v. Long Island Rail Road Company

Decision Date24 March 1961
Docket NumberNo. 173,Docket 26453.,173
Citation289 F.2d 797
PartiesSavino DAGNELLO, Plaintiff-Appellee, v. LONG ISLAND RAIL ROAD COMPANY, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

William F. McNulty, New York City (William J. O'Brien, New York City, and Otto M. Buerger, Jamaica, N. Y., on the brief), for defendant-appellant.

Arnold B. Elkind, New York City (Irwin R. Karassik and Zelenko & Elkind, New York City, on the brief), for plaintiff-appellee.

Before MEDINA, FRIENDLY and SMITH, Circuit Judges.

MEDINA, Circuit Judge.

On March 26, 1959 Savino Dagnello, a yard brakeman in the employ of appellant Long Island Rail Road Company had his left leg amputated when it was run over by two freight cars in the railroad's Pitkin Avenue Yard in Brooklyn, New York. Negligence on the part of the railroad was conceded, and the case went to the jury on the issues of contributory negligence and the amount of the damages to be assessed. The jury rendered a verdict against the railroad for $130,500. Although not requested to do so, the jury of its own volition, but closely following the various elements of damage discussed in Judge Weinfeld's charge, set forth the items of damage as follows, deducting 10% for contributory negligence:

                  1. Loss of salary to date ...... $ 10,000
                  2. Compensation for amount of
                     salary he may forego because
                     of injury — $38,000 at
                     4½%, $1710 per year ......   38,000
                  3. Compensation for pain and
                     suffering and loss of limb ..   97,000
                                                   ________
                        Total Settlement ......... $145,000
                        Less 10% .................   14,500
                                                   ________
                                                   $130,500
                

The only point argued before us is that the trial judge abused his discretion in refusing to order a new trial, or direct a remittitur, on the sole ground that the $97,000 awarded for "pain and suffering and loss of limb" was too high.

In limine appellee challenges our power to consider this question. Moreover, the facts of this case are such as to present the problem in its simplest form. The atmosphere of the trial was precisely what it should have been. There were no incidents, or appeals to prejudice or passion to play upon the sympathy of the jury. The evidence was amply sufficient to warrant a finding of liability. If there was any abuse of discretion in the refusal of the trial judge to set aside the verdict, it was solely because the amount of the verdict was too high. But appellee argues that, in the absence of some erroneous ruling on matters of evidence or in the instructions to the jury, or some indication that the trial judge thought he lacked power to set aside the verdict for excessiveness, or something to show that the verdict was the result of passion or prejudice or bias on the part of the jury, we lack power to review the alleged abuse of discretion by the trial judge in refusing to set aside the verdict for mere excessiveness. Appellee insists that our power of review is limited to questions of law and that, if we were to hold it was an abuse of discretion to refuse to set aside the verdict, we would be deciding a question of fact, or "personal discretion," and not a question of law, in violation of the Seventh Amendment.

While the intermediate appellate courts of the States and in most instances the State courts of last resort have for many years exercised the power we are said to lack,1 in the federal system the subject has been one of seemingly endless controversy. Our own decisions 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 non-reviewability of decisions on motions for a new trial based on the inadequacy or excessiveness of the damages." Moore's Federal Practice, Vol. 6, p. 3834. Curiously enough, most of the cases make no reference whatever to the Seventh Amendment.

We hold that the question at issue is within our competency to decide and we shall state in some detail the reasons we think support this conclusion.

The Supreme Court Cases

The Supreme Court cases would seem to indicate that the power exists, see Bainbrich v. Hammond Iron Works, 10 Cir., 1957, 249 F.2d 348, 349, but there is no clear and unequivocal holding to that effect. Old limitations based upon appeals by writ of error, and the fact that the motion for a new trial was not part of the trial record at common law and could not be included in the bill of exceptions,2 have long since been eliminated by changes in the applicable statutes and rules, and more enlightened views vis-a-vis procedural obstacles. See Federal Rules Civ.Proc., Rule 75, 28 U.S. C.A.; Fairmount Glass Works v. Cub Fork Coal Co., 1933, 287 U.S. 474, 482, 53 S.Ct. 252, 77 L.Ed. 439; Harrison v. United States, 2 Cir., 1925, 7 F.2d 259, 262.

Counsel for Dagnello rely strongly upon some general language in the opinion of Mr. Justice Brandeis in Fairmount Glass Works v. Cub Fork Coal Co., 1933, 287 U.S. 474, at pages 481-482, 53 S.Ct. 252, at page 254, but the opinion expressly disclaims, at page 485, 53 S.Ct. at page 255, any flat decision of the question of power now before us. There had been a verdict of $1 for plaintiff, and it was claimed that, even allowing for the maximum due to defendant on its counterclaim, there would still be a balance of $18,500 due to plaintiff, if there was any liability on the part of defendant to plaintiff. As we read the opinion, and as other courts have construed it,3 the decision rested upon the supposition that the jury may well have found for defendant, and have expressed themselves in terms of a verdict of $1 for plaintiff because (287 U.S. at page 484, 53 S.Ct. at page 255) "the jury wished the costs to be taxed against the defendant." Mr. Justice Stone and Mr. Justice Cardozo dissented and took the position that the verdict must be regarded as for plaintiff on the subject of liability and that it was, as matter of law, inadequate.

The next case, Affolder v. New York, C. & St. L. R.R., 339 U.S. 96, at page 101, 70 S.Ct. 509, at page 511, 94 L.Ed. 683, decided in 1950, has been relied upon by some courts in favor of the power of review,4 because the opinion of Mr. Justice Clark states, "We agree with the Court of Appeals that the amount of damages awarded by the District Court's judgment is not monstrous in the circumstances of this case," citing Barry v. Edmunds, 1886, 116 U.S. 550, 6 S.Ct. 501, 29 L.Ed. 729, from which it appears that the word "monstrous" comes from the old English case of Beardmore v. Carrington, 2 Wilson K. B. 244, 95 Eng. Rep. 790, 793, decided in 1764.

In Affolder the amount of the verdict was $95,000, and on the motion to set aside the verdict the trial judge granted a remittitur of $15,000, which was accepted by plaintiff. On appeal the Eighth Circuit adhered to its traditional rule and held, 174 F.2d 486, at page 493, "The assignment of error that the verdict is excessive is not properly addressed to this court." Accordingly, we find in the dictum above referred to no more than a hint that, possibly, if the amount of a verdict were "monstrous" a court of appeals would have the power to review as matter of law the exercise of discretion by a trial judge, on a motion for a new trial, in refusing to set aside such a verdict as excessive.

The last case in the series is Neese v. Southern Railway, 1955, 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60. That was a death case arising under the Federal Employers' Liability Act, 45 U.S.C.A. § 51, and the verdict in favor of the administrator was for $60,000. The trial judge granted a remittitur of $10,000, and judgment was entered for $50,000. As the Fourth Circuit has for many years held that it has power to review an alleged abuse of discretion by the trial judge in refusing to set aside a verdict as excessive, see Virginian Ry. Co. v. Armentrout, 4 Cir., 1948, 166 F.2d 400, 4 A.L.R.2d 1064, the evidence was considered at some length and the conclusion arrived at that $50,000 was "far beyond the pale of any reasonable probability and entirely without support in the record," and the case was remanded for a new trial "confined to the issue of damages." Southern Railway Co. v. Neese, 4 Cir., 1954, 216 F.2d 772, 776. In the following brief Per Curiam the Supreme Court reversed:

"We reverse the judgment of the Court of Appeals * * * without reaching the constitutional challenge to that court\'s jurisdiction to review the denial by the trial court of a motion for a new trial on the ground that the verdict was excessive. Even assuming such appellate power to exist under the Seventh Amendment, we find that the Court of Appeals was not justified, on this record, in regarding the denial of a new trial, upon a remittitur of part of the verdict, as an abuse of discretion. For apart from that question, as we view the evidence we think that the action of the trial court was not without support in the record, and accordingly that its action should not have been disturbed by the Court of Appeals."

We infer from this that the essence of the problem before us now is not whether the statute creating the appellate powers of the federal Courts of Appeals is not sufficiently broad,5 but whether the Seventh Amendment should be construed as forbidding this particular species of appellate review as a "reexamination" of the "facts" otherwise than "according to the rules of the common law." This question the Supreme Court has expressly reserved for future determination. See Neese v. Southern Railway, supra. And there the matter stands for the present.

The Rulings in Other Circuits

After some changes of position, mostly by way of overruling earlier cases denying the power of review, the...

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