Dunton v. Hines
| Decision Date | 15 September 1920 |
| Docket Number | 577. |
| Citation | 267 F. 452 |
| Parties | DUNTON v. HINES, Director General of Railroads. |
| Court | U.S. District Court — District of Maine |
Matthew McCarthy, of Rumford, Me., and William R. Pattangall, of Augusta, Me., for plaintiff.
Charles B. Carter, of Lewiston, Me., for defendant.
This case is now before the court upon defendant's motion for a new trial, after a verdict for the plaintiff in the sum of $38,625. The defendant asks the court to set aside the verdict:
First. Because the evidence discloses no liability on the part of the defendant; and
Second. Because the amount of the verdict is excessive. The action is brought under the federal Employers' Liability Act (Comp St. Secs. 8657-8665). The declaration sets forth that the plaintiff was a federal employe within the meaning of the act; that the defendant was in violation of the Safety Appliance Act, in that the running board on the roof of car No. M.C. 55129 was out of repair; and that, by reason of this lack of repair, the plaintiff suffered injury, causing great suffering and the amputation of both legs.
On February 7, 1919, the day of the injury, the plaintiff was employed as a brakeman by the United States Railroad Administration. He was then 28 years old. While in the exercise of his duties, in moving out four empty cars from a siding, and while upon the roof of one of the cars, he slipped on the running board, and pitched over upon the track, where he was run over, and suffered the loss of both legs. At the trial he contended that the car upon which he was hurt was the fourth, or rear, car in the train. The defendant contended that the car upon which the injury occurred was not the fourth car-- the car having the defective running board-- but the third car, which had no defect. The principal issue of fact was upon this point.
1. The defendant now urges that the physical facts proven and shown in the record are uncontradicted by any competent testimony that the faulty running board was on the fourth car from the engine; but that the blood, bone, and flesh from Dunton's body, where the train hit him, were found on the wheels and truck frame under the westerly end of the third car; that the train was moving in a westerly direction; that the testimony that Dunton fell from the forward end of the fourth car is inconsistent with these and other physical facts; that this leads to the irresistible conclusion that Dunton could not have fallen from the fourth car; that the proven physical facts are conclusive against inconsistent and irreconcilable oral testimony; that such oral testimony, when confronted with these physical facts, must be regarded as incredible; and that therefore the jury had before it no competent evidence upon which to base its verdict.
The plaintiff testifies that he fell from the fourth car. Although he was, for a long time after the injury, incapable of memory, his testimony is of some value. He is corroborated by Quigley, who testifies that he saw him fall from the fourth car; that the alarm was given at the moment he fell and that the car could not have proceeded more than half its length after the alarm was given. It appears from the testimony that the last time Dunton was seen on the ground he was standing near the end of the fourth car, just before the train was set in motion, and there is some evidence tending to show that the accident occurred so soon after he went up to the top of the train that he could not have had time to go the length of the car. There was further evidence tending to show that the plaintiff fell from the defective car, and not from the car which had no defect. There was also testimony to the effect that, after the injury, the third car was pushed up the track, over the rails where the plaintiff says he fell; and it is urged that whatever blood stains and clots were found on the third car would have readily got there by this movement of the car over the track. It is true that uncontradicted physical facts should have great weight with the jury; but I cannot say that the testimony offered by the plaintiff is incompetent, or that it should not have been regarded by the jury. It is clearly a case of conflicting evidence. The jury had the witnesses before them. I cannot conclude that they had no competent evidence upon which to base their verdict, or that it is a case where only one inference could fairly be drawn from the whole testimony. I cannot say, then, that the verdict was so clearly against the weight of evidence that I ought to set it aside.
2. Were the damages excessive?...
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