Kelly v. New York, New Haven & Hartford Railroad Co.

• Decision Date: 31 January 1956
• Docket Number: Civ. A. No. 54-760.
• Citation: 138 F. Supp. 82
• Parties: David W. KELLY v. NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY.
• Court: U.S. District Court — District of Massachusetts

138 F. Supp. 82

David W. KELLY v. NEW YORK, NEW HAVEN & HARTFORD RAILROAD COMPANY.

Civ. A. No. 54-760.

United States District Court D. Massachusetts.

January 31, 1956.

William H. Lewis, Jr., Boston, Mass., for plaintiff.

William J. Noonan, Boston, Mass., for defendant.

ALDRICH, District Judge.

This is an action under the Federal Employers' Liability Act, 45 U.S.C. A. § 51 et seq., in which the defendant moves for a new trial on the ground that the verdict of the jury was against the law, and excessive. While the amount is high, particularly in the light of positive evidence of contributory negligence by the plaintiff, I would not set it aside for that reason alone. I consider that fact only in relation to plaintiff's claim that any errors committed with respect to damages were not prejudicial.

The plaintiff was chef on one of the defendant's dining cars. On November 2, 1953, he was involved in an argument and stabbed by one Wright, a fellow employee, over a personal matter. The plaintiff claims that the defendant had prior notice of Wright's belligerent tendencies, and should have discharged him. While the evidence warranting such a conclusion is weak, I do not feel it inadequate. On the other hand it is clear that the plaintiff had been instructed sometime before the stabbing to report any further episodes of Wright's misconduct and failed to do so, a matter which came out in the hearing about to be referred to, and was a legitimate ground of complaint by the defendant.

Following November 2 the plaintiff and Wright were both convicted of assault and battery in the state court, and fined. The plaintiff's injuries were disabling. In February he reported he was able to return to work. The defendant conducted a hearing, and both plaintiff and Wright were discharged. Plaintiff appealed the discharge through union channels. Wright did not appeal. Subsequently the defendant wrote the union it had concluded Wright was principally at fault, and that the plaintiff would be reinstated as of that date. In connection with this reinstatement plaintiff formally waived any claim that the discharge entitled him to back wages.

I allowed plaintiff to introduce this letter to the union over defendant's objection because I felt the admission that Wright was primarily responsible for the fight was material to plaintiff's negligence case. However, before argument I cautioned counsel that he was not to claim damages due to a wrongful discharge in any way. Thereafter he argued to the jury with relation to the discharge hearing,

"They must justify themselves in some way. * * * So what do they do? This is one of the rottenest things I have seen in many a day. They take a faithful employee who has been working for the railroad since 1930, a man sixty-two years of age. Think of it! He has been stabbed! And they start an investigation to fire him! * * * Such a lot of nonsense! A farce — if it weren't so tragic."

Counsel then said he "guessed he was getting overwound." Upon the court's voicing its agreement counsel somewhat magnanimously observed,

"Well, I'll let that pass. That's a matter of

...