Sharkey v. Penn Central Transportation Company

• Decision Date: 01 March 1974
• Docket Number: No. 163,Docket 73-1611.,163
• Citation: 493 F.2d 685
• Parties: John R. SHARKEY, Sr., Plaintiff-Appellee, v. PENN CENTRAL TRANSPORTATION COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

493 F.2d 685 (1974)

John R. SHARKEY, Sr., Plaintiff-Appellee, v. PENN CENTRAL TRANSPORTATION COMPANY, Defendant-Appellant.

No. 163, Docket 73-1611.

United States Court of Appeals, Second Circuit.

Argued November 20, 1973.

Decided March 1, 1974.

COPYRIGHT MATERIAL OMITTED

Jesse C. Sable, New York City (Arnold B. Elkind, New York City, on the brief), for plaintiff-appellee.

John F. Scully, Hartford, Conn. (Cooney, Scully & Dowling, Joseph P. Cooney, David T. Ryan, Hartford, Conn. of counsel), for defendant-appellant.

Before LUMBARD, MANSFIELD and MULLIGAN, Circuit Judges.

MULLIGAN, Circuit Judge:

This is an appeal from an order of the United States District Court, District of Connecticut, Hon. Robert C. Zampano, Judge, denying the defendant's motion for a new trial. The plaintiff has sued for damages pursuant to the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60, because of injuries sustained on August 20, 1969, while he was employed as a ticket collector-conductor by the defendant. After a jury trial, a verdict in favor of the plaintiff in the sum of $125,000 was returned on May 16, 1972. In his ruling below on defendant's motion for a new trial, Judge Zampano directed that the jury verdict be set aside and a new trial be granted unless within 15 days the plaintiff filed a remittitur of all sums in excess of $93,750. The plaintiff thereupon filed a consent on March 22, 1973. This appeal by the defendant followed. The judgment of the District Court is hereby reversed and a new trial is ordered.

On August 20, 1969, plaintiff conductor was working on the New York Division of the Penn Central R.R., on train N48 running between New York, Stamford and New Canaan, Connecticut. On the run from Stamford to New Canaan, N48 was scheduled to meet train N49, a nine-car train which was proceeding south from New Canaan. N48 was ordered to pull into the Dale siding just north of Springdale Station to permit N49 to pass. The engineer of N48 was given appropriate orders by the tower operator at Stamford. However, N48 did not pull into the siding but in fact collided head on with train N49 at 8:19 p. m. some 710 feet past the Hoyt Street crossing which is located north of the Dale siding. Four people were killed and 40 people sustained injuries as a result of the collision. The defendant has raised no questions here with respect to its liability.

Plaintiff at the time of the accident was 53 years old and had been employed by the railroad for some 28 years. He was confined to the Stamford Hospital for 25 days following the incident. His final hospital diagnosis was as follows:

(1) Concussion, Multiple Abrasions, and Contusions of Both Legs, Chest, and Abdomen.

(2) Traumatic Myositis, Cervical, Lumbosacral, and Dorsal Spine.

(3) Anxiety Reaction.

The plaintiff suffered no broken bones, and his hospital treatment consisted primarily of bed rest, medication and tranquilizing drugs.

After his discharge from the hospital in February, 1970, the plaintiff reported to a company doctor for an examination in an effort to return to work, but was found to have a left inguinal hernia. This had not been detected in his initial medical examination and the plaintiff submitted to an operation to correct the hernia. In May, 1970, he was certified as fit to return to work, but on May 17, when he actually reported, he was advised that he was being held out of service pending an investigation into his responsibility for the train wreck on August 20, 1969. The plaintiff testified that this news upset him, that it "hit me kind of hard," and there was psychiatric evidence of a "post-traumatic conversion hysteria," sometimes called a post-traumatic anxiety neurosis with conversion symptoms. The plaintiff was provided a hearing by the railroad to determine his responsibility for the accident and he was represented at the hearing by the union. As a result of the hearing, he was discharged. An administrative appeal has apparently been taken from that decision.

I

The principal argument raised on appeal relates to the question of the responsibility of the defendant for the aggravation of the plaintiff's post-traumatic anxiety neurosis by reason of his discharge by the railroad. It seems clear that in an FELA action for damages the plaintiff is not entitled to recover for wages lost solely by reason of his discharge. His appropriate remedy for this monetary loss is an administrative proceeding pursuant to the Railway Labor Act, 45 U.S.C. § 153 First (i). Andrews v. Louisville & N. R. R. Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972). In such a proceeding, the National Railroad Adjustment Board (Board) may direct reinstatement as well as lost wages. However, it does not appear to be disputed that any mental distress created by an improper firing is not compensable in the administrative proceeding. Cf. St. Clair v. Teamsters Local 515, 422 F.2d 128, 132 (6th Cir. 1969); Brady v. Trans World Airlines, Inc., 244 F.Supp. 820 (D.Del.1965), aff'd, 401 F.2d 87 (3d Cir. 1968), cert. denied, 393 U.S. 1048, 89 S.Ct. 680, 21 L.Ed.2d 691 (1969).

The court below recognized that the plaintiff could not recover for lost wages, such claim being within the jurisdiction of the Board, and the jury was instructed that this was "not a case involving a breach of contract action for a wrongful discharge of employment." However, the court did permit admission of evidence that the plaintiff had in fact been discharged "to let the jury know why this man did not go back to work." The jury should have been more forcefully instructed that the fact that the plaintiff did not return to work for the railroad was not their concern in this case and that no damages for lost earnings were to be awarded. Having brought the fact of discharge to the attention of the jury during the direct examination of the plaintiff, counsel for the plaintiff on summation not only emphasized his loss of wages, which admittedly was not the concern of the jury, but also went to great lengths to underscore the fact that the railroad had made a scapegoat of a faithful employee of 28 years.¹

It is apparent that the verdict here was unconscionable and reflected a prejudice against the carrier, exacerbated by an intemperate summation which resulted in a punitive verdict. The damages originally awarded totalled $125,000. Plaintiff suffered no broken bones or permanent physical disability as a result of the accident. The final diagnosis of plaintiff's physician, Dr. Moriarty, referred to above, indicates that his physical injuries were not severe. A hernia resulting from the accident was later discovered and corrected without difficulty. Plaintiff's mental condition had substantially improved by the time of trial. Finally, plaintiff was hospitalized for his injuries for less than four weeks. Under the circumstances, the verdict was clearly excessive.² While the trial court recognized this, the remittitur was nonetheless totally unrealistic. In fact, it is difficult to understand on what basis it was computed. We are therefore convinced that the judgment here must be reversed and a new trial ordered. Kelly v. New York, N.H. & H. R.R., 138 F.Supp. 82 (D.Mass.1956).

Since the district court will be confronted on retrial with a number of questions now raised by the appellant, we deem it advisable to resolve them on this appeal.

II

Appellant claims that it was improper for trial counsel for the plaintiff to indicate to the jury the amount of money which should be awarded for the damages suffered by his client. In FELA cases, the law to be applied concerning the propriety of counsel's argument to the jury is federal law rather than the law of the state. See Eaton v. Long Island R.R., 398 F.2d 738 (2d Cir. 1968); Kodack v. Long Island R.R., 342 F.2d 244, 247 (2d Cir. 1965); Lanni v. Wyer, 219 F.2d 701 (2d Cir. 1955). Chicago, St.P., M. & O. R.R. v. Arnold, 160 F.2d 1002 (8th Cir. 1947). Cf. McDonald v. United Airlines, Inc., 365 F.2d 593 (10th Cir. 1966); Yeargain v. National Dairy Products Corp., 317 F.2d 779 (8th Cir. 1963). We believe that the matter of estimating damages for the guidance of the jury is best left largely to the discretion of the trial judge, and that, if he decides to permit the argument, no error will be committed at least where counsel makes clear that his figures are only suggestions, and the court instructs the jurors that the suggestions are not binding on them. See Waldron v. Hardwick, 406 F.2d 86, 89 (7th Cir. 1969); Baron Tube Co. v. Transport Ins. Co., 365 F.2d 858 (5th Cir. 1966); Rush v. Cargo Ships & Tankers, Inc., 360 F.2d 766, 769 (2d Cir.), cert. denied, 385 U.S. 842, 87 S.Ct. 96, 17 L.Ed.2d 75 (1966). However, the "suggestion" by trial counsel here that the jury could compensate Sharkey for his lost wages until he was 65 years of age was clearly inappropriate and should not be permitted on retrial.

III

Appellant also argues that the trial court improperly permitted Dr. Lawrence I. Kaplan to testify to the medical history given by Sharkey to this physician some 19 months after the accident. It is urged that Dr. Kaplan was consulted by plaintiff, not for the purpose of receiving treatment, but in order to obtain an opinion which was later to be used in the trial of this case. It is urged that the evidence is hearsay, which, in these circumstances, is particularly unreliable since there exists an incentive to a patient to exaggerate in statements to a physician who is employed merely to testify on his behalf. Brown v. Blauvelt, 152 Conn. 272, 205 A.2d 773, 774 (1964).

However, it should be noted that the trial judge here made an initial finding that Sharkey had established at least a prima facie foundation that he went to see Dr. Kaplan for medical purposes on advice of Dr. Moriarty, the examining physician. This finding cannot be reversed on appeal if it is fairly supported by the evidence. Gila Valley, G. & N. Ry. v. Hall, 232 U.S. 94, 103, 34 S.Ct....