Gilbert v. St. Louis-San Francisco R. Co., LOUIS-SAN

• Decision Date: 20 June 1975
• Docket Number: LOUIS-SAN,No. 74-1733,74-1733
• Citation: 514 F.2d 1277
• Parties: Anne Russell GILBERT, etc., Plaintiff-Appellant-Cross Appellee, v. The ST.FRANCISCO RAILROAD COMPANY, Defendant-Appellee-Cross Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1277

514 F.2d 1277

Anne Russell GILBERT, etc., Plaintiff-Appellant-Cross Appellee, v. The ST. LOUIS-SAN FRANCISCO RAILROAD COMPANY,

Defendant-Appellee-Cross Appellant.

No. 74-1733.

United States Court of Appeals, Fifth Circuit.

June 20, 1975.

William J. Donald, Tuscaloosa, Ala., Roscoe B. Hogan, Birmingham, Ala., for plaintiff-appellant-cross appellee.

L. Vastine Stabler, Jr., W. Stancil Starnes, Birmingham, Ala., for defendant-appellee-cross appellant.

Appeals from the United States District Court for the Northern District of Alabama.

Before GIBSON, ^* THORNBERRY and AINSWORTH, Circuit Judges.

THORNBERRY, Circuit Judge:

In this diversity appeal the numerous assignments and cross-assignments which are properly presented for review reduce down to two issues: (1) whether the record contains substantial evidence so that the district judge correctly overruled the defendant's motions for instructed verdict and judgment NOV; and (2) whether the plaintiff has made the requisite showing of abuse of discretion by the trial judge in his conditioning of denial of defendant's motion for new trial upon plaintiff's acceptance of a $165,000 remittitur of punitive damages. Finding no basis for disturbance of either ruling, we affirm the remitted judgment of $60,000 in favor of the plaintiff.

Anne Russell Gilbert brought this action under the Alabama Homicide Act, Tit. 7 Ala.Code § 123 (1960), to recover for the wrongful death of her husband. The Act creates a cause of action for punitive damages in favor of the personal representative of a deceased whose death is caused by the " wrongful act, omission, or negligence" of a defendant or its agents. ¹ The remedy under the Act is punitive only; the jury's monetary award is not calculated to reflect ordinary compensable items such as loss of support, funeral expenses, or perhaps loss of society. E. g., Painter v. Tennessee Valley Authority, 5 Cir. 1973, 476 F.2d 943; Bonner v. Williams, 5 Cir. 1966, 370 F.2d 301; Geohagan v. GMC, 1973, 291 Ala. 167, 279 So.2d 436; Blount Bros. Constr. Co. v. Rose, 1962, 274 Ala. 429, 149 So.2d 821; Bell v. Riley Bus Lines, 1952, 257 Ala. 120, 57 So.2d 612. The purposes, instead, have been variously described as follows:

In arriving at the amount of damages which should be assessed, the jury should give due regard to the enormity or not of the wrong and to the necessity of preventing similar wrongs. The punishment by way of damages is intended not alone to punish the wrongdoer, but as a deterrent to others similarly minded. Mobile Light & P. Co. v. Nicholas, (232 Ala. 213, 169 So. 298,) supra; Louisville & N.R. Co. v. Bailey, 245 Ala. 178, 16 So.2d 167; Shirley v. Shirley, 261 Ala. 100, 73 So.2d 77.

Liberty National Life Ins. Co. v. Weldon, 1957, 267 Ala. 171, 186, 100 So.2d 696, 713.

Although the amount of the damages to be awarded rests largely within the jury's discretion, see, e. g., General Tel. Co. of Alabama v. Cornish, 1973, 291 Ala. 293, 280 So.2d 541, the Alabama Supreme Court has consistently emphasized that this discretion is not an arbitrary one, but a "legal, sound and honest discretion." Mobile Light & P. Co. v. Nicholas, 1936, 232 Ala. 213, 167 So. 298, 305. Accord, General Tel. Co. of Alabama v. Cornish, supra, 280 So.2d at 545; Liberty National Life Ins. Co. v. Weldon, supra, 267 Ala. at 171, 100 So.2d at 713. In cases in which trial courts have ordered remittiturs upon findings of jury bias, prejudice, passion, corruption "or other improper motive or cause," the Alabama Supreme Court has indulged a presumption in favor of the trial court's action. This presumption is based on the trial judge's "observation of all the witnesses who testified in the case and other incidents of the trial which cannot be reflected in the transcript and which are not available for observation by us." Airheart v. Green, 1958, 267 Ala. 689, 104 So.2d 687, 690; see also Birmingham Electric Co. v. Thompson, 1948, 251 Ala. 465, 37 So.2d 633. To the extent that Alabama has expressed a public policy to govern trial court remissions of damages in suits brought under that state's Homicide Act, the policy contemplates that "the amount of the verdict and the severity of the punishment are graded according to the degree of culpability." Airheart v. Green, supra, 267 Ala. at 693, 104 So.2d at 691; see Mobile Elec. Co. v. Fritz, 1917, 200 Ala. 692, 77 So. 235, 236.

The plaintiff's theory in this case was subsequent negligence, which closely parallels the doctrine of discovered peril followed by other states in our Circuit. The evidence showed that the intestate, a trespasser, was hunting on land across which the defendant railroad's right-of-way proceeded. The decedent went upon a tressel in the right-of-way, and was killed after being struck by defendant's train.

Underlying factual issues were sharply contested at the trial. The tressel was approximately 114 feet long, running north-south. The decedent had parked his pick-up truck near the northeast end of the tressel. He was struck on a clear day by a northbound train some 28 feet short of the tressel's north end, or so the jury could find from the testimony concerning the earliest evidence of bodily remains. Beyond these facts, plaintiff attempted to prove from post-accident examination of sand deposits left on the tracks that the train traveled nearly 850 feet past the point of impact before coming to a halt. South of the tressel the track takes a slight curve to the left. Members of the train crew, the only surviving eyewitnesses, testified that upon rounding the curve they first recognized the decedent as a human at a point some 500-600 feet south of the tressel's south end. The plaintiff contended by way of demonstrative evidence, based on an observation height of 12 feet (the height of vantage from the locomotive), that the crew must have recognized the intestate's figure at a point 200 to 300 feet farther south. Engineer Coffman testified that he sounded his whistle and applied the emergency brake upon first recognition. Three other railroad engineers testified on the basis of their experience that the train, traveling at 35 to 40 m. p. h., could have been brought to a complete stop within 600-750 feet. In order to account for the impact, Conductor Brown testified that the decedent was standing only 10-12 feet north of the tressel's south end when first sighted. He added that the decedent appeared to commence running northward along the tressel at the time of the sighting. Another crew member, Ballard, testified that the decedent was more nearly to the center of the tressel, standing still. Ballard's description was based on observation said to have occurred at an estimated 150-200 feet south of the tressel. Plaintiff contended that it was not until the train reached that point that the decedent became aware of its approach.

Defensively, the railroad denied negligence and asserted subsequent contributory negligence. A deputy sheriff described the tressel for the jury. Near its terminals the tressel is elevated approximately five to seven feet. Toward the center the elevation increases to 15-20 feet. Conductor Brown testified that upon first recognition of the decedent, the elevation was about five feet. This testimony was in connection with Brown's estimate that the intestate's location was 10-12 feet north of the tressel's south end. He stated that as the decedent trotted northward along the track, the crew members yelled at decedent to jump, but to no avail. Under plaintiff's version of the facts, the decedent did not realize the train's presence until a jump from the tressel would have been unsafe. This theory was based on the inference that the decedent was then near the middle of the tressel, which was based largely on the evidence that the impact occurred 28 feet south of the north terminal.

Although he considered the case a thin one, the district judge submitted the dispute to the jury and overruled the defendant's peremptory motions. In this the district court was correct. The issues of discovery of peril, subsequent negligence, and subsequent contributory negligence were vigorously contested as to times, places, and distances. Each side's theory was well within the parameters recognized by Alabama law. See, e. g., Alabama Great Southern R.R. v. Evans, 1972, 288 Ala. 25, 256 So.2d 861; Southern Ry. Co. v. Cunningham, 1932, 224 Ala. 642, 141 So. 561; Central of Georgia Ry. Co. v. Ellison, 1917, 199 Ala. 571, 75 So. 159; Central of Georgia Ry. Co. v. Blackmon, 1910, 169 Ala. 304, 53 So. 805; Central R.R. & Banking Co. v. Vaughan, 1890, 93 Ala. 209, 9 So. 468. Likewise, the federal requirement of a conflict in substantial evidence was met with respect to each side's case. See Boeing Co. v. Shipman, 5 Cir. 1969, 411 F.2d 365 (en banc). The lawsuit was properly submitted to the jury.

The jury returned a verdict of $225,000. Plaintiff accepted under protest a remittitur of all but $60,000, conditioned upon denial of defenda...