Rice v. Union Pacific R. Co.

• Citation: 82 F. Supp. 1002
• Decision Date: 19 January 1949
• Docket Number: Civ. No. 103-47.
• Parties: RICE v. UNION PACIFIC R. CO.
• Court: U.S. District Court — District of Nebraska

82 F. Supp. 1002

RICE v. UNION PACIFIC R. CO.

Civ. No. 103-47.

United States District Court D. Nebraska, Omaha Division.

January 19, 1949.

Everett C. Pilcher and Robert W. Haney, both of Omaha, Neb., for plaintiff.

T. F. Hamer, George C. Holdrege and R. B. Hamer, all of Omaha, Neb., for defendant.

DELEHANT, District Judge.

On October 8, 1948, after trial of the issues in this cause, the jury returned a general verdict for the plaintiff in the sum of $11,000.00 and also made answers, entirely consistent with the general verdict, to three special interrogatories submitted at the defendant's request; and the court, in accordance with Rule 49(b) Federal Rules of Civil Procedure, 28 U.S.C.A., directed the entry of judgment accordingly. Within the time allowed therefor, the defendant served and filed its motion to set aside the answers to the interrogatories and for a new trial. The motion has been submitted upon oral argument and briefs of counsel for the respective parties.

Two of the grounds assigned in the motion may be considered very briefly.

One is prejudicial misconduct of counsel for the plaintiff occurring in the closing argument in her behalf. Putting aside any question of the adequacy and timeliness of the notation of exception to such argument, the court is satisfied that the language, pointed out by counsel in the course of oral argument upon the motion, falls far short of misconduct of counsel.

Then, it is contended that the general verdict and special answers of the jury are contrary to the weight of the evidence. Reserving for individual consideration the amount of the verdict, the court can not grant that position. It is quite true that there was considerable evidence before the jury upon which it could have arrived at a verdict, and made answers, directly at variance with its actual findings. But evidence in substantial, and not minuscule, measure was also before it whose clear and positive tendency was to support both the general verdict and the special findings. And, after careful consideration of the entire record, the court is persuaded not only that there was adequate evidence to require the submission of the case to the jury, but, more significantly, that there was a manifest and sharp dispute in the conflicting substantial evidence for the respective parties upon which the jury's verdict should be accorded controlling effect. In other words, a verdict in behalf of either party would have been supported by adequate sustaining evidence, and invulnerable to the charge that it was contrary to the weight of the evidence. In that situation, the verdict and findings of the jury should not be disturbed.

It is true, as counsel for the defendant have argued, that a trial judge confronted with a motion for a new trial on the ground that the verdict is contrary to the weight of the evidence, may not properly deny the motion solely because, upon the trial, there was sufficient evidence in support of the position of the prevailing party to require the submission of the issues to the jury. The true rule has been clearly stated by Chief Judge Parker in Garrison v. United States, 4 Cir., 62 F.2d 41, 42; and repeated by him in Roedegir v. Phillips, 4 Cir., 85 F.2d 995, and Ætna Casualty & Surety Co. v. Yeatts, 4 Cir., 122 F.2d 350, as follows:

"Where there is substantial evidence in support of plaintiff's case, the judge may not direct a verdict against him, even though he may not believe his evidence or may think that the weight of the evidence is on the other side; for, under the constitutional guaranty of trial by jury, it is for the jury to weigh the evidence and pass upon its credibility. He may, however, set aside a verdict supported by substantial evidence where in his opinion it is contrary to the clear weight of the evidence, or is based upon evidence which is false; for, even though the evidence be sufficient to preclude the direction of a verdict, it is still his duty to exercise his power over the proceedings before him to prevent a miscarriage of justice. See Felton v. Spiro, 6 Cir., 78 F. 576. Verdict can be directed only where there is no substantial evidence to support recovery by the party against whom it is directed or where the evidence is all against him or so overwhelmingly so as to leave no room to doubt what the fact is. Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720. Verdict may be set aside and new trial granted, when the verdict is contrary to the clear weight of the evidence, or whenever in the exercise of a sound discretion the trial judge thinks this action necessary to prevent a miscarriage of justice."

See also Hawkins v. Sims, 4 Cir., 137 F.2d 66; Mt. Adams, etc., Ry. Co. v. Lowery, 5 Cir., 74 F. 463; Bain v. United States, 6 Cir., 262 F. 664; General American Life Ins. Co. v. Central Nat. Bank 6 Cir., 136 F.2d 821; Applebaum v. United States, 7 Cir., 274 F. 43; Adams v. United States, 7 Cir., 116 F.2d 199; Childs v. Radzevich, 78 U.S.App.D.C. 235, 139 F.2d 374; Pruitt v. Hardware Dealers Mut. Fire Ins. Co., 5 Cir., 112 F.2d 140; Daffinrud v. United States, 7 Cir., 145 F.2d 724. Moreover, the trial judge in ruling upon a motion for a new trial on the ground that a verdict is contrary to the weight of the evidence, is called upon to exercise a substantial measure of discretion. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 85 L.Ed. 147; United States v. Socony-Vacuum Oil Co., 510 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129; Paine v. St. Paul Union Stockyards Co., 8 Cir., 28 F.2d 463; Ætna Casualty & Surety Co. v. Reliable Auto Tire Co., 8 Cir., 58 F.2d 100; Simmonds v. Capital Transit Co., 79 U.S.App.D.C. 371, 147 F.2d 570; Ecker v. Potts, 72 U.S.App.D.C. 174, 112 F.2d 581; General American Life Ins. Co. v. Central National Bank, supra; Youdan v. Majestic Hotel Management Corporation, 7 Cir., 125 F.2d 15; Daffinrud v. United States, supra; Dvess v. W. W. Clyde & Co., 10 Cir., 132 F.2d 972; Ætna Casualty & Surety Co. v. Yeatts, supra; Francis v. Southern Pac. Co., 10 Cir., 162 F.2d 813; General Accident Fire & Life Assurance Corporation v. Dickinson, D.C.Cal., 61 F. Supp. 153. That discretion is not arbitrary, but is a mature judicial discretion which it is his duty to administer rather than to refuse to exercise. Paine v. St. Paul Union Stockyards Co., supra.

The court has respected the admonition of the foregoing rules and authorities during its consideration of the present motion in all of its several aspects; and that observation has equal application to the points already adverted to and to the discussion which is now offered.

It is finally and earnestly argued that the verdict is excessive, and, together with the special answers, is the result of passion and prejudice. The court has considered this assignment in both of its phases, first, in the manner in which it is presented, as a ground for an unconditional order vacating the verdict and awarding a new trial, and secondly, as a reason for an order granting a new trial unless a determined excess in the amount of the recovery is remitted by the plaintiff. The presentation of a motion for a new trial in comparable situations ordinarily invites an examination of both of those alternatives, for the requirement of a remittitur is essentially the imposition of a condition upon the allowance of the motion.

No feature or incident of the trial is, or could be, cited as an impulse to the intrusion of passion or prejudice into the deliberations of the jury. Such factors may not be found in the present case, unless they are to be deduced from the amount of the verdict itself. Therefore, the more significant of the plaintiff's injuries should be recalled and considered in relation to the verdict.

Those injuries are attributable to a grade crossing collision, in the early morning of July 21, 1947, within the city of Omaha, between a switching box car of the defendant and an automobile owned and being driven by a young man, now her husband, in which the plaintiff, then unmarried, was riding as a passenger. They reasonably required the immediate hospitalization of the plaintiff, which continued for some fourteen days, and her medical and surgical treatment regularly and frequently during that period, and occasionally thereafter.

No fractures or bone dislocations resulted from the collision. The plaintiff sustained a traumatic shock from which she suffered during the earlier portion of her hospital treatment, and a cerebral concussion. As a result, principally of those factors, she was semi-conscious during the period of from forty-eight to seventy-two hours after the impact and was restless and nervous then and for some not exactly determinable time thereafter. Her face was lacerated and bruised, and punctured in several places by glass spiculæ. The facial lacerations included several minor wounds, and two large ones. Of the latter, one extended in a somewhat irregular course downward and to the right from about one and one-half inches above the extreme inner margin of her right eye across the center of the eye lid, (but without invasion of the eye tissue or any observable cutting of the thin covering lid itself), and from the outer margin of the eye some three inches outward and down the cheek; and the other proceeded from a point about three inches below, and slightly forward from, the right ear, towards the front and downward along the outer margin of the jaw, and thence upward and towards the left into the lower lip slightly to the right of its median line. Both of those wounds were deep, and the one first described, though probably resulting from contact with a single object, was not strictly continuous and might be regarded as two distinct cuts. Her right wrist was deeply lacerated, with the exposure, but no severance of tendons, and her right leg was cut. She also received abrasions of both her knees and many bruises about her head, thighs and legs and over her body generally.

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