La France v. New York, New Haven and Hartford R. Co.

• Decision Date: 30 January 1961
• Docket Number: Civ. No. 8386.
• Citation: 191 F. Supp. 164
• Court: U.S. District Court — District of Connecticut
• Parties: Peter LA FRANCE, Plaintiff, v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Defendant.

191 F. Supp. 164

Peter LA FRANCE, Plaintiff, v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Defendant.

Civ. No. 8386.

United States District Court D. Connecticut.

January 30, 1961.

William A. Blank, Brooklyn, N. Y., Robert C. Zampano, of Zampano & Mager, East Haven, Conn., for plaintiff.

Thomas J. O'Sullivan, New Haven, Conn., for defendant.

TIMBERS, District Judge.

Defendant moves, pursuant to Rule 59 (a), Fed.R.Civ.P., 28 U.S.C.A., for a new trial.

The action was brought pursuant to the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60, to recover damages for personal injuries sustained by plaintiff while employed as a brakeman by defendant on July 6, 1959 in defendant's East Classification Yard at North Haven, Connecticut. At the time of the accident plaintiff was engaged in attempting to throw a switch which, after having been partly thrown by plaintiff, suddenly sprang back to its original position, resulting in the injuries of which he complained.

After a five day trial, the jury returned a verdict in favor of plaintiff in amount of $90,000.

Defendant's motion for a new trial sets forth fourteen numbered claims which fall generally into four categories: (1) that the verdict is contrary to law and contrary to the evidence; (2) that the Court erred in the admission and exclusion of evidence; (3) that the Court erred in denying defendant's application to permit the jury to observe a demonstration of the operation of the switch at the scene of the accident; and (4) that the verdict is excessive.

The Court, in the exercise of its discretion, denies defendant's motion for a new trial.

The Court will state briefly its reasons for denying defendant's motion, taking up each of the four categories of claims alleged by defendant as a basis for its motion.

(1) Defendant's Claims That Verdict Is Contrary To Law And Contrary To The Evidence.

To the extent that defendant's claims (Nos. 1 and 2) that the verdict is contrary to law and contrary to the evidence are based on the alleged insufficiency of the evidence to support the verdict, it should be noted that defendant did not move "for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief" at the close of plaintiff's case pursuant to Rule 41(b), Fed.R.Civ.P.; nor did defendant move for a directed verdict at the close of plaintiff's case nor at the close of all the evidence pursuant to Rule 50, Fed.R.Civ.P.¹

Defendant therefore has waived its right to question the sufficiency of the evidence to support the verdict.²

Moreover, defendant did not file any requests to charge and did not object to the Court's charge. Accordingly, under Rule 51, Fed.R.Civ.P., defendant has waived its right to claim any errors in the charge as a basis for its assertion that the verdict is contrary to law.³

Despite the doubtful basis, if any, for defendant's claims that the verdict is contrary to law and contrary to the evidence, the Court, in the light of the present motion, nevertheless has reviewed the evidence and has reexamined the law under which the case was submitted to the jury. The Court holds that there is sufficient evidence to support the verdict and that the verdict is not contrary to law. If defendant had made timely motions for a dismissal under Rule 41(b) and for a directed verdict under Rule 50, the Court would have denied such motions.

(2) Defendant's Claims That Court Erred In The Admission And Exclusion Of Evidence.

Defendant claims that the Court erred in admitting evidence offered by plaintiff with respect to the customary manner of throwing a switch such as that involved in the instant case (No. 5); evidence with respect to the defective operation of that switch prior to the accident (No. 14); and opinion evidence with respect to the reasons for the defective operation of that switch, and as to the meaning of certain language in a memorandum from defendant's superintendent to plaintiff's fellow employees concerning the accident here involved (Nos. 6 and 13).

Defendant also claims that the Court erred in excluding evidence offered by it with respect to tests of the switch subsequent to the accident (Nos. 7, 8 and 9).

The Court, in the light of the present motion, has reviewed each of its rulings with respect to the admission and exclusion of evidence claimed by defendant to have been erroneous. While the Court is under no illusions of infallibility as to such rulings, nothing has been brought to the Court's attention by defendant in support of its present motion to cause the Court to change its rulings, much less to convince the Court that, had it ruled otherwise with respect to the admission and exclusion of the evidence in question, the jury's verdict would have been different.

Evidence of the usual or customary manner of throwing a switch was admissible on the ground that the act of throwing a switch is beyond the scope of the common knowledge and experience of jurors.⁴

Evidence of the defective operation of the switch approximately two months prior to the accident—a defective operation which was reported immediately to the yardmaster—was admissible to show knowledge on the part of defendant and therefore notice to defendant of the defect.⁵

Opinion evidence as to the reasons for the defective operation of the switch and as to the meaning of language in a memorandum from defendant's superintendent to plaintiff's fellow employees concerning the accident was admissible through testimony of a witness who possessed peculiar knowledge on these matters not common to mankind in general, the witness Beebe (an employee of defendant called by plaintiff) having had 4 years' experience as a brakeman and 3½ years as a yard conductor in the freight yard where the accident occurred, and his opinion testimony being based on personal observation of the operation of the switch in question.⁶

Evidence offered by defendant with respect to the operation of the switch at various times after the accident was excluded on the ground that defendant had failed to lay a proper foundation by showing that conditions were similar to or approximated those at the time of the accident.⁷

(3) Defendant's Claim That Court Erred In Denying Defendant's Application To Permit Jury To Observe Demonstration Of Operation Of Switch At Scene Of Accident.

Defendant claims (No. 10) that "The Court erred in refusing to permit defendant to take the jury to view the scene." At the trial, defendant clearly stated to the Court that it did not wish to have the jury taken to the freight yard merely to view the scene of the accident.

Defendant, however, did request that the jury be taken to the scene of the accident to observe a demonstration of the operation of the switch. The Court, in the exercise of its discretion, denied this application on the grounds (i) that the demonstrative evidence defendant thus sought to adduce would not add sufficiently to the jury's overall knowledge of the facts to warrant such a time-consuming disruption of the trial; (ii) that the testimony and exhibits, including photographs, had conveyed to the jury, at least as effectively as such a demonstration, a reasonably accurate description of the operation of the switch; and (iii) that defendant had failed to establish that conditions at the time of the trial—17 months after the accident—were substantially the same as at the time of the accident (for example, the temperature on July 6, 1959, the date of the accident, as a matter of judicial notice, was substantially higher than on December 2, 1960, the date of defendant's application to view the operation of the switch, when it was below freezing.⁸

(4) Defendant's Claim That Verdict Is Excessive.

Defendant claims (No. 3) that "The verdict is excessive and appears to have been given under the influence of passion and prejudice."

This Court on the instant motion for a new trial has the power to consider defendant's claim that the verdict is excessive and, if appropriate, to order a remittitur.⁹ Such power, however, should not be exercised in the absence of a clear showing that the verdict is excessive.¹⁰

Defendant, in support of its claim that the verdict is excessive, has directed the attention of the Court to a number of F.E.L.A. cases involving disc and back injuries in which verdicts less than that returned by the jury in the instant case have been held to be excessive.¹¹ Plaintiff on the other hand has cited a number of cases in which plaintiffs have recovered, by way of settlement¹² or judgment,¹³ amounts comparable to that awarded by the jury in the instant case.

In the last analysis, however, the question of whether a verdict is excessive must be determined on the basis of the evidence in the particular case.

In the instant case it was stipulated that plaintiff's earnings as a brakeman during the period of 2½ years prior to the accident were at the rate of approximately $4,300 per year; that his loss of earnings between the date of the accident and the time of trial amounted to $6,450; and that, at age 40, his life expectancy is 31.17 years.

On the basis of plaintiff's loss of earnings, both past and future, and discounting at a rate of not less than 4%¹⁴ the present value of that portion of the jury's verdict which represents loss of future earnings, the verdict, to the extent that it embraces loss of earnings, cannot be considered excessive.

The element of loss of earnings, however, was but one portion of plaintiff's proof of damages. The uncontroverted medical testimony established that plaintiff sustained spinal injuries, consisting of an involvement of one of the vertebral bodies and a herniation of its intervertebral disc which required an operation for its removal; and that he had sustained permanent injuries, including an unstable lower back and impairment of the function of his lower body and extremities. The weight to be given such testimony, including that of an orthopedist and a...