Eichel v. New York Central Railroad Company

• Decision Date: 20 June 1963
• Docket Number: No. 359,Docket 27991.,359
• Parties: Walter A. EICHEL, Plaintiff-Appellee, v. NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

319 F.2d 12 (1963)

Walter A. EICHEL, Plaintiff-Appellee, v. NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellant.

No. 359, Docket 27991.

United States Court of Appeals Second Circuit.

Argued May 8, 1963.

Decided June 20, 1963.

Jerome H. Shapiro, Gerald E. Dwyer, New York City (Edward J. Murphy, New York City, of counsel), for appellant.

Richard C. Machcinski (Zelenko & Elkind, New York City), for appellee.

Before FRIENDLY, KAUFMAN and MARSHALL, Circuit Judges.

FRIENDLY, Circuit Judge.

Plaintiff, Walter A. Eichel, who had been employed by defendant New York Central Railroad Co. for 40 years, brought two actions against it in the District Court for the Southern District of New York under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60, which were consolidated for trial. The first alleged two separate injuries — one on September 17, 1957, when Eichel, while serving as assistant conductor on a passenger train, allegedly injured his left hip by being thrown against a steel door jamb when the train suddenly gave a series of jolts and lurches, and another on March 13, 1959, when, while serving as road freight conductor on a traveling switcher, he allegedly was subjected to undue strain in attempting to operate a defective coupler and sustained an injury to his left groin, resulting in a hernia for which he underwent surgery. The second action alleged a third injury, on December 13, 1960, when plaintiff, while serving as a freight brakeman and standing on top of a moving boxcar, allegedly re-injured his left hip as the result of being thrown off his feet when the train came to a sudden stop. Eichel lost no time from work as a result of the 1957 accident, but was out four months owing to the groin injury and hernia in 1959, and had not worked at all since the 1960 accident, by which he claimed to have been permanently disabled.

Trial took place late in 1962 before Judge Foley, of the District Court for Nevada, and a jury, and consumed the greater part of seven days. The jury brought in special verdicts for defendant on the 1957 injury, for plaintiff in the sum of $5,500 on the 1959 injury, and for plaintiff in the sum of $51,500 on the 1960 injury. Defendant has satisfied the portion of the judgment relating to the 1959 injury and does not contest it; plaintiff has not appealed from the judgment on the 1957 injury. We have before us only defendant's appeal from the judgment on the 1960 injury. Defendant's position is that, so far as the finding of liability is concerned, it "recognizes the restricted scope of review of a jury verdict in Federal Employers' Liability Act cases when there has been a trial proper in all respects and is not presently seeking dismissal." It contends, however, that the trial was affected by two errors calling for reversal: (1) the $51,500 verdict was grossly excessive in the circumstances and should shock the conscience of the Court; and (2) the District Court committed prejudicial error in excluding evidence — offered by defendant for the purpose of impeaching plaintiff's testimony as to his reasons for not going back to work — that plaintiff was receiving a disability pension in the amount of $190 a month. We find merit in defendant's second point and accordingly reverse and remand for a new trial, limited, however, to the issues of injury and resulting damages; we affirm the judgment as to the determination of negligence.

The evidence as to the circumstances of the accident came solely from Eichel. He testified that about 9:30 p. m. on December 13, 1960, he was serving as the rear end brakeman on a train crew which, with an engine and a caboose, was switching cars in and about an industrial siding near Elmsford, N. Y. In addition to the engine and caboose, the train being maneuvered at the time consisted of eight empty boxcars; these were to be pushed in a southerly direction by the engine which was coupled next to the caboose at the northerly end of the train. Having dropped off the train to close a switch, Eichel got back on and climbed a ladder to the top of the boxcar at the front, or southerly, end; he took a position there for the purpose of observing the track ahead and, if necessary, signaling the engineer to stop. He stood in the center of the car on the running board provided for that purpose; it had serrated edges designed to provide a good grip for the trainman's boots. Looped over his forearm was a small electric lantern that he used for signaling. The train started up and had moved approximately one full length, going at about five miles per hour, "when suddenly the train stopped and I was thrown upwards in the air and my feet up and I landed on my left hip." Eichel attributed the suddenness of the stop to the engineer's negligent use of the straight valve, which operates the air brakes in the engine alone, rather than the automatic valve, which operates them throughout the train. After the stop the train resumed movement to the south and Eichel, after "rolling around on that roof of the car," eventually managed to get to his feet. He subsequently signaled the engineer to stop at a crossing and, having climbed down with difficulty, told him to stop again at the Elmsford station, which was just ahead and just short of the crew's immediate destination. At the station Eichel got off and reported his injury to the agent on duty; he remained inside while his fellow crewmen were running the train around so as to place the engine at the front rather than the rear end. When this had been done and the crew members joined him in the station, he told them of his injury; he then rode in the caboose as the train returned to the Bronx, where it stopped specially to let him off near his home. He slept very little that night and in the morning consulted the company physician and was admitted to a hospital, where X-rays were taken and he stayed for a week; after leaving the hospital he underwent further X-rays and treatments.

On cross-examination, Eichel admitted that the train might have been moving as slowly as four or even three miles an hour; that he had previously testified on deposition that the train only "practically" came to a stop; that a railroad rule required a brakeman in a switching operation to expect stops at all times and protect himself accordingly; that his alleged fall did not break the lantern or dislodge it from his arm; that he said nothing about the accident to the engineer when the train stopped at the crossing (where it would have had to stop anyway); that on several previous occasions his left hip, as the result of either the 1957 injury or a concededly pre-existing arthritic condition, had suddenly given way and caused him to fall — an experience which defense counsel suggested might have been repeated on the top of the boxcar; and that he had originally falsified his age to obtain his job with defendant back in 1920. The railroad did not call any witnesses of its own as to the circumstances of the accident; in particular, it failed to call the other members of the train crew, although all of them, including the engineer, were present in court and had been instructed by the judge, at the railroad's request, to remain available to testify.

On the issue of damages, it was conceded that at the time of the accident Eichel was earning $7,951.52 a year in defendant's employ; that he was then almost 58 years old and thus had a little more than seven years remaining before the compulsory retirement age of 65; that he had not worked at all since the accident; and that he was single and had never been married. Concerning the extent of the injury suffered, Eichel testified that his left hip had been "constantly painful" since; that the pain caused him to wake up "three, four, five times during the night"; and that he did not have the proper use of his left leg. Although conceding that even before the 1960 accident he had been limping, had had pain in his left hip, and had occasionally fallen, he claimed that "the pain is much more severe now and I don't have the freedom of my leg at all." His medical expert, who had examined him before and after the 1960 accident, testified that, although the before-and-after X-rays disclosed no notable change in the condition of the left hip, the expert's conclusion in 1961 had been that "the injury which he sustained on December 13, 1960 had markedly aggravated the symptoms * * *." Defendant's medical witness, as might be expected, gave more weight to the X-rays and testified that "None of these accidents aggravated the osteoarthritis of the hip." On the question of Eichel's ability to work, his medical witness testified to having concluded, upon examining plaintiff in January, 1961, that the 1960 accident "had disabled him from returning to work," and said also that "I don't see how he would have been able to engage in any manual labor that required him to be on his feet, such as a brakeman or moving about in a railroad yard or on a train.' In addition, Eichel introduced the reports of two other doctors who had examined him in January, 1961, and described him as "completely disabled." Defendant's medical witness, on the other hand, testified that upon examining Eichel in August, 1961, "I stated that this patient might be given work at floor levels * * *. And I further said that this man should adapt himself to work which does not require climbing or standing on top of moving cars." Eichel himself testified that he had not worked since the accident "because of the pain in my hip" and because "I don't have the proper use of my leg." He admitted under cross-examination, however, that he "could do some work" if it was "ground level work where I wasn't required to lift or climb or push things, or work long hours in all kinds of weather," and also that he had not attempted to get any such work either from the railroad or from another employer. It was further brought out that Eichel occasionally rakes leaves and cuts...