Kelly v. Illinois Cent. Gulf R. Co.

• Decision Date: 10 December 1982
• Docket Number: No. 81-0381-CV-W-9-6.,81-0381-CV-W-9-6.
• Citation: 552 F. Supp. 399
• Parties: Ronald D. KELLY, Plaintiff, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant.
• Court: U.S. District Court — Western District of Missouri

552 F. Supp. 399

Ronald D. KELLY, Plaintiff, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant.

No. 81-0381-CV-W-9-6.

United States District Court, W.D. Missouri, W.D.

December 10, 1982.

Donald G. Stouffer, Marshall, Mo., for plaintiff.

John W. Cowden, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, Mo., for defendant.

MEMORANDUM AND ORDER DENYING MOTION FOR NEW TRIAL OR REMITTITUR

SACHS, District Judge.

Plaintiff Kelly, a recently promoted railroad conductor in his mid-thirties, lost the lower part of his left leg after falling near a moving train in the railroad yard at Slater, Missouri. The fall was occasioned by debris left in the yard, apparently a generator belt similar to the broken fan belt on an automobile, which probably became entangled in Kelly's legs as he walked along the darkened tracks in the night-time. Recent heavy rain left pools of water which somewhat impeded walking and possibly concealed view of the generator belt. Kelly was in charge of the train, and had signaled for the train to begin moving out of the yard while he continued walking toward the rear of the train, to board the caboose after inspecting the cars.

Although an attempt was made to save his foot, which was almost completely severed, gangrene set in, and an amputation was required. During his recovery, Kelly worked as a boat salesman at the Lake of the Ozarks, and earned some $7,500 annually, approximately $20,000 less than his prospective income as a conductor. The stump of his leg became chronically and severely painful, however, due to an unusual growth of nerve endings. A second below-the-knee amputation was required. Shrinking in the stump will now require a new prosthesis. There is no sound basis for predicting serious additional physical complications, however, and no claim is asserted for possible new problems. The loss of Kelly's leg has considerably reduced the physical activity feasible for him, somewhat limiting his vocational choices, his opportunities for work around the house, and his recreational activities.

The major difference in testimony relating to damages in this FELA case was provided by two economists. Professor Shulenburger, called by defendant railroad company (ICG), relied on governmental statistics showing the average income differential suffered by disabled persons (25%), and calculated likely economic loss at $238,410. Kelly's economist, Professor Ward, using the $7,500 post-injury income figure as a guide, calculated economic loss, reduced to present value, at $676,970.¹

The jury found total damages to be $1,250,000, generally in accordance with plaintiff's proof and present claims, and deducted 10% for contributory negligence, leaving an award of $1,125,000.

ICG contends the non-economic losses should be valued, at maximum, at between $300,000 and $400,000. Kelly contends about $600,000 was probably allowed by the jury and is a reasonable or possibly insufficient figure.²

ICG seeks a new trial, or a remittitur. It asks that total damages be reduced to a maximum of $600,000, and that the Court allow plaintiff only $300,000, because Kelly is said to have shared equally in any negligence.

1. Contributory negligence.

ICG is in error in asking the Court to order a remittitur based on the Court's view of the contributory negligence percentage. The Court cannot increase the jury's allocation to contributory negligence. Akermanis v. Sea-Land Service, Inc., 688 F.2d 898, 902 (2d Cir.1982). If the Court should conclude that the jury's allocation is clearly contrary to the weight of the evidence, the Court could, of course, grant a new trial.

Kelly correctly avers that the contributory negligence issues are not far removed from an "assumption of risk" issue which Congress has barred as a defense. 45 U.S.C. § 54. However, the jury did not interpose this issue as a complete defense. Moreover, Kelly's role as the person controlling both the movement of the train and his own physical motions (standing to await the caboose or walking toward it) places his conduct under scrutiny for contributory negligence. He chose to start the train while continuing to walk, knowing the general hazards involved. ICG was directly responsible for the condition of the yard, however, including the lighting, the footing, the drainage system and the debris collection. Because Kelly was in most immediate control and had the best personal knowledge of all hazards, if the Court were making an allocation it would most likely have placed contributory negligence at 50%, or perhaps 33 1/3 % (taking into account ICG's greater duty in providing a safe place for its employees to work). The jury's decision thrusting almost the entire duty of care on ICG is questionable, but is not so clearly unreasonable as to require a new trial.

The Court therefore accepts the jury's decision to allocate 90% of the damage recovery to Kelly.

2. Alleged excessive damages

The Seventh Amendment commands the utmost judicial restraint in reexamining any fact tried by a jury. Any such reexamination is "full of delicacy and difficulty." Blunt v. Little, 3 Fed.Cas. 760, 761 (D.Mass.1822 — Story, Circuit Justice) (No. 1578). Under current standards, it is said that a new trial or remittitur may only be ordered when the trial court is convinced that the first trial has resulted in a "miscarriage of justice." Fireman's Fund Ins. Co. v. Aalco Wrecking Co., Inc., 466 F.2d 179, 187 (8th Cir.1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1371, 35 L.Ed.2d 592 (1973). "Ordinarily, remittitur is to be granted by a trial court only where the verdict is `so grossly excessive as to shock the conscience of the court'". Ouachita Nat. Bank v. Tosco Corp., 686 F.2d 1291, 1295 (8th Cir.1982). The test has been phrased in this district as "whether the trial judge is left with the definite and firm conviction that a clear miscarriage of justice has occurred." Seven Provinces Ins. Co., Ltd. v. Commerce & Industry Ins. Co., 65 F.R.D. 674, 688 (W.D. Mo.1975 — Becker, Chief Judge). Judge Becker's adjectives are not to be disregarded. Former Chief Judge Oliver quoted, with apparent approval, a comment comparing federal and state practice, concluding with a lawyer's generalization that "`in the federal courts ... you keep what you get and both sides know it ...'". Beanland v. Chicago, Rock Island & Pacific R. Co., 345 F.Supp. 220, 224 n. 1 (W.D.Mo. 1972), rev'd. on other grounds, 480 F.2d 109 (8th Cir.1973).

It would appear that remittiturs are less frequent in this district in personal injury cases than in cases in which a damage evaluation or calculation can be more clearly determined from the evidence. United States v. 86.52 Acres of Land, 250 F.Supp. 619, 621 (W.D.Mo.1966 — Oliver, J.). But see Pierce v. Der Wienerschnitzel International, Inc., 313 F.Supp. 740 (W.D.Mo.1970 — Becker, Chief Judge) (personal injury remittitur).

The limits of appropriate district court restraint are marked by the 1981 decision in Stineman v. Fontbonne College, 664 F.2d 1082 (8th Cir.1981). In that case both the trial judge and Senior District Judge Nichol, sitting on appeal by designation, would have allowed an $800,000 verdict for loss of an eye to stand, even in the absence of pain and suffering at the level presented in this case, and absent significant proof of future economic loss. I am confident that the same judges would have accepted an $80,000 verdict. The appellate majority, however, consisting of Judges Heaney and Henley, reversed and required a remittitur, but only to the sum of $600,000.³

The judicially-approved $600,000 award in Stineman establishes a guideline which mandates, in my judgment, that there be no significant remittitur in the present case. Although this Court as trier might have evaluated the evidence entirely differently, it is the duty of the Court to restrain its sense of "shock" if the Seventh Amendment is to be given full play. A personal injury verdict which one judge may consider to be two or three times...