Marty v. Erie R. Co.

• Decision Date: 12 July 1960
• Docket Number: No. A--377,A--377
• Citation: 163 A.2d 167,62 N.J.Super. 458
• Parties: James MARTY, Plaintiff-Respondent, v. ERIE RAILROAD COMPANY, a corporation, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 458

62 N.J.Super. 458

163 A.2d 167

James MARTY, Plaintiff-Respondent, v. ERIE RAILROAD COMPANY, a corporation, Defendant-Appellant.

No. A--377.

Superior Court of New Jersey Appellate Division.

Argued May 23, 1960.

Decided July 12, 1960.

James J. Langan, Jersey City, for appellant (Lamb, Langan & Blake, Jersey City, attorneys).

Seymour Margulies, Jersey City, for respondent (Frank V. Golden, Jersey City, attorney; Levy, Lemken & Margulies, Jersey City, of counsel; Seymour Margulies, Jersey City, on the brief).

Before Judges GOLDMANN, CONFORD and FREUND.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Defendant, a common carrier engaged in interstate commerce, appeals from a $22,500 judgment entered in plaintiff's favor in an action he had brought under the Federal Employers' Liability Act (45 U.S.C.A., § 51 et seq.) to recover damages for injuries suffered while in the railroad's employ.

Plaintiff claimed that while performing his duties as brakeman on the evening of December 1, 1957 he was seriously injured as a result of being thrown from a freight car on which he was riding when it was switched onto a wrong track and collided with a car standing there. Defendant denied negligence and pleaded contributory negligence in mitigation of damages, pursuant to 45 U.S.C.A., § 53. It contended that plaintiff had jumped from the car before it stopped.

At the close of plaintiff's case defendant rested without presenting any testimony. Plaintiff then moved for a directed verdict, claiming there was no controversy as to how the accident happened. Defendant insisted there was, but the trial judge granted the motion. He ruled there was no factual question presented as to defendant's negligence, and also ruled out contributory negligence. The result was that the case went to the jury on the question of damages only. It returned a $22,500 verdict for plaintiff by a vote of 10--2.

Defendant at once moved for an order setting aside or reducing the verdict because it was excessive. After hearing argument the trial judge said:

'Gentlemen, the Court is not inclined to change jury verdicts. It is elemental the only grounds upon which a verdict can be changed by a Court is not because he thinks the verdict should be different than rendered by the jury. This motion is a motion to set aside the verdict on the ground it is excessive. Under the rules and the cases, verdicts can only be set aside, generally, where it is found the jury reached that verdict either by reason of passion, prejudice, mistake or partiality.

'This plaintiff had a fractured skull. He is 23 years old. No one can foretell what that fracture might result in in his future life; but I am constrained to do this:

'I will reduce the verdict to $15,000.00 if the defendant will pay. Otherwise, I will let the verdict stand at $22,500.00. If the defendant will pay the $15,000.00 and the plaintiff will not take $15,000.00, then I will set it aside as to damages only.'

Plaintiff's attorney immediately agreed to accept the reduced sum. Defendant asked for time to consider the matter and later informed the court it would not agree to paying $15,000. The trial judge thereupon entered an order denying defendant's motion. Defendant's appeal 'from the whole of the judgment entered' followed.

The facts are these: At the time of the accident plaintiff brakeman was riding a coal hopper car down an incline in defendant's Croxton classification yard. Trains coming in from the road are pushed by engine up the south side of a 'hump.' As each car reaches the top it is cut off and a brakeman rides it down the other side by gravity, the car being switched by employees onto one of 50 tracks. A yardmaster designates the particular track where the car is to go, transmitting his orders to the brakeman through a conductor, the man who cuts the car off the train at the top of the hump.

Plaintiff claims that at 7:45 on the evening in question he was instructed to ride a 70-ton hopper car onto track 3 of the classification yard. When the car had been pushed up the hump he tested the brake, which was operated by a wheel at the top of the rear of the car. Below the wheel is an iron platform where the brakeman stands; alongside it and to the left is an iron ladder, the bottom rung being at a level with the floor of the car. Immediately around the corner and on the side of the car is another ladder, the lowest rung being only a step above the ground.

After plaintiff had tested the brake and found it in good working order he signaled for the engine to move the car over the top of the hump. As this was done, the car was cut off from the rest of the train behind it and proceeded down into the yard at about 20--25 miles an hour. Plaintiff testified that as he started down the grade the brake was in partially applied position. The distance to the bottom of the incline is about ten car lengths, or 400--500 feet. Track 6 is located at the bottom of the incline, and track 3 about five car-lengths past the track 6 switch. The classification yard was lighted. Plaintiff found himself going onto track 6 instead of track 3, and then saw a stationary car ahead of him, about 120 feet from where his car had been switched onto track 6. He said that at that moment he was standing with one foot on the platform and the other on the rung alongside.

Plaintiff further testified that when he realized his car was on track 6 he tried to take up the slack in the brake but found he could not stop the car. At the same time, he said, 'I was trying to move around from one ladder to the other (on the side) until I could jump or climb down, whichever I had a chance to do.' The ladder on the side of the car would have allowed him to get closer to the ground and jump off. However, there was a collision and he was knocked off the car.

Plaintiff claims he hurt his head and back. He was taken to a hospital where he was confined for six days, after which time the company doctor cared for him about a month. From July to October 1958 he was treated by his own doctor, Dr. Levitov, who prescribed pills for his headaches and applied heat treatments to his back. At the time of trial in October 1959 plaintiff complained that he still had severe headaches once or twice a week; his back hurt him, particularly at night; and he vomited 'maybe once every three weeks or a month.' In all, he lost some 60 days' work in the 22 months intervening between the accident and the trial, including the four weeks before he returned to work at the end of 1957.

Defendant's first contention is that the court erred in striking the defense of contributory negligence. The Federal Employers' Liability Act, 45 U.S.C.A., § 51 et seq., originally passed in 1908, abolished the defense of negligence of a fellow servant and substituted comparative negligence for contributory negligence. Assumption of risk was abolished as a defense in 1939 53 Stat. 1404; 45 U.S.C.A., § 54. Section 3 of the act, now 45 U.S.C.A., § 53, provides:

'In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: * * *'

unless the accident occurred because of the employer's violation of a safety statute--not the case here.

Although plaintiff had testified that he had been knocked off the car by the force of the collision, vigorous cross-examination developed the following:

'Q. You didn't jump? A. No, sir.

'Q. You are sure? A. The only thing, I was trying to come around from the stand and the ladder on the west end of the car to get on the side of the car to come down, when the cars hit.

'Q. You didn't jump? A. You could call it between a jump and getting knocked off, if you wanted to.

'Q. Which was it? That makes a difference. A. Well, I was coming down the ladder so I could get down, when the cars hit.' (Italics ours.)

More significant on the question of whether plaintiff jumped or was knocked off the car is what appears in the hospital record. Plaintiff's attending physician was Dr. Moriarity. The history taken by another physician when plaintiff was admitted to the hospital states, under 'Present Complaint,' that 'Patient white male admitted to hospital in ambulance complaining of laceration in the head produced when he jumped from box car to avoid crashed (sic) by another car.' Essentially the same entry was made by that doctor in the 'Summary' section of the 'Physical Examination' sheets. Dr. Moriarity almost immediately referred his patient to Dr. Winokur to report on possible brain injury. Dr. Winokur's findings, based on an examination he made the morning of December 3, 1957 and set out at length in the 'Consultation Sheet' of the hospital record, include the following: 'History from Pt.--on 12--1--57 he jumped off a moving coal car--struck mid--frontal--no unconsc.--Laceration--got up and then passed out for 5 min.--Complained of headache & dizziness.' Dr. Winokur's examination revealed a '3 cm. laceration mid-frontal behind hairline--Alert. Oriented. Exam. Neg.' X-rays showed a linear fracture of the right temporal area.

Turning to Dr. Moriarity's own 'Progress Notes' in the hospital record, there appears under date of December 1, 1957, the day of the accident, the following:

'Man jumped from moving box car to avoid fetch-up with another car. Sustained 2 laceration of frontal scalp 2 above hairline. Was not unconscious. No other apparent injuries.'

The entry was signed by Dr. Moriarity.

Plaintiff's attorney offered the hospital records at the close of his client's testimony, and they were admitted without objection. The court suggested that both co...