Searfoss v. Lehigh Valley R. Co.

• Decision Date: 01 April 1935
• Docket Number: No. 253.,253.
• Parties: SEARFOSS v. LEHIGH VALLEY R. CO.
• Court: U.S. Court of Appeals — Second Circuit

76 F.2d 762 (1935)

SEARFOSS v. LEHIGH VALLEY R. CO.

No. 253.

Circuit Court of Appeals, Second Circuit.

April 1, 1935.

Stephen A. Machcinski, of New York City (Edward J. McCrossin, of New York City, of counsel), for plaintiff-appellee.

Alexander & Green, of New York City (H. S. Ogden, of New York City, of counsel), for defendant-appellant.

Before MANTON, L. HAND, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

This action was brought under the Federal Employers' Liability Act (45 USCA § 51 et seq.) to recover for personal injuries sustained by the plaintiff when returning from work at the end of the day on a railroad motorcar provided by the defendant for that purpose and operated by an employee of the defendant upon defendant's railroad. The plaintiff was a track repairman in the employ of the defendant. On August 1, 1933, the motorcar upon which he was riding with some twenty other such employees ran into a caboose at the end of a freight train of the defendant which had stopped on a sharp curve where it was hidden from the view of the operator of the motorcar until he reached a point so near the caboose that he was unable, at the speed he was running, to stop in time to avoid collision.

The defendant does not deny the jurisdiction of the court under the act, supra, as applied to the facts in this case; nor that the motorcar was being operated at an excessive and negligent rate of speed. The only other claimed negligent act of the defendant in stopping its train as it did was not submitted to the jury.

The jury returned a substantial verdict for the plaintiff which the defendant moved to set aside. The motion was denied upon condition that a remittitur be filed as to a portion of the amount, and after that was done the judgment on the verdict from which this appeal was taken was entered.

Two errors are claimed. One relates to the basis upon which the court fixed the amount of the remittitur upon the filing of which the denial of the motion to set aside the verdict was conditioned and the other to the exclusion of evidence.

The verdict as returned by the jury was for $43,000. The motion to set it aside being made at once, the court stated that it was excessive and should be reduced to $20,000. Counsel for the plaintiff, however, having asked and been granted permission to submit a brief before final action on the motion, succeeded in having the motion held for further consideration.

The court later re-announced its decision to set aside the verdict and grant a new trial unless the plaintiff consented to a reduction. In so doing a short memorandum was filed in which it was stated that in the previous announcement immediately after the reception of the verdict no thought had been given to the counsel fee and necessary expenses the plaintiff would have to pay. Presumably the expenses referred to were the expenses of the trial. This was the reason given for making a reduction of the verdict to $30,000 instead of to $20,000 the condition upon which the motion was denied. Obviously it was not a sound reason, for the only recovery for trial expenses to which the plaintiff is entitled is limited to his taxable costs. But despite this, there was no reversible error. The first expression of the court's opinion as to the amount of the verdict decided nothing. The matter remained open until the eventual decision was made. That decision was an exercise of the court's discretion in favor of the defendant even though not so much in its favor as it had been led to expect. Where the claimed excessiveness of a verdict is not purely a matter of law — as where the maximum recovery permitted by a statute has been exceeded — but is only one of judgment as to the amount proved by the evidence, the decision rests with the trial court. Southern Railroad Co. v. Bennett, 233 U. S. 80, 34 S. Ct. 566, 58 L. Ed. 860. This court lacks the power to review as a...