Vivian v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 13 July 1961
• Docket Number: No. 6785,6785
• Citation: 1961 NMSC 93,363 P.2d 620,69 N.M. 6
• Parties: Tom VIVIAN, Plaintiff-Appellee Cross-Appellant, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Defendant-Appellant Cross-Appellee.
• Court: New Mexico Supreme Court

Page 620

363 P.2d 620

69 N.M. 6

Tom VIVIAN, Plaintiff-Appellee Cross-Appellant, v. ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Defendant-Appellant Cross-Appellee.

No. 6785.

Supreme Court of New Mexico.

July 13, 1961.

B. G. Johnson, Albuquerque, for appellant.

Lorenzo A. Chavez, Arturo G. Ortega, and Melvin L. Robins, Albuquerque, for appellee.

NOBLE, Justice.

This is an action under the Federal Employers' Liability Act (Title 45 U.S.C.A. Sec. 51 et seq.) for personal injuries sustained by plaintiff while working for the Atchison, Topeka & Santa Fe Railway Company, and claimed to have resulted from the negligence of defendant and by reason of its failure to furnish a safe place to work.

Plaintiff was a member of a section gang unloading rails from a flat car at the time of the injury complained of. A crane on a preceding car lifted the rails and laid them on the roadbed, and plaintiff and another employee used bars to pry the rails into position for the crane to hook onto them. The work train moved along slowly so that the rails were unloaded approximately end to end. As the crane was lifting a rail plaintiff, in crossing from the car bearing the rails to the one behind it, or in trying to pay another rail, slipped and fell to the ground receiving injuries. It was contended that the railway company failed to provide a safe place for plaintiff to work and that the work train was negligently operated.

The railway company alleged contributory negligence. The jury returned a verdict of $40,000 and found that plaintiff's negligence contributed to his injury to the extent of 50%, thereby reducing the actual judgment to $20,000. This appeal and a cross-appeal result from the verdict and judgment thereon.

This appeal rests mainly upon the single contention that the amount of the verdict is not supported by substantial evidence, is grossly excessive and that a new trial should be granted or a remittitur ordered. Before reaching that question, however, we are required to first resolve the question as to whether we are governed on that subject by the federal decisions or by the law of the forum.

Defendant urges that, though the action is brought under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., nevertheless, in reviewing whether the verdict of a jury is excessive we are in a procedural area and apply the law of the forum. On the other hand, plaintiff contends that the federal decisions are controlling and urges us to overrule Rivera v. Atchison, T. & S. F. Ry. Co., 61 N.M. 314, 299 P.2d 1090. The federal courts are restricted in reviewing a claimed excessive verdict by the Seventh Amendment to the Constitution of the United States, which reads:

'In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.'

The federal decisional law on the right to review a claimed excessive verdict was reviewed by this court in Padilla v. Atchison, T. & S. F. Ry. Co., 61 N.M. 115 295 P.2d 1023, decided March 11, 1956, where we held we were governed, in reviewing a verdict for damages arising under the Employers' Liability Act, by the decisions of the federal courts, and could not review such verdict for excessiveness in the absence of anything in the record indicating the verdict was the result of passion or prejudice. State courts, however, are not restricted by the Seventh Amendment. Rivera v. Atchison, T. & S. F. Ry. Co., supra; Minneapolis & St. Louis R. Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961. Concerning the latter decision see Dice v. Akron, Canton & Youngstown R. Co., 342 U.S. 359, 72 S.Ct. 312, 96 L.Ed. 398.

In Rivera v. Atchison, T. & S. F. Ry. Co., supra, decided July 31, 1956, we overruled the Padilla decision, saying at page 319 of 61 N.M., at page 1093 of 299 P.2d:

'Upon a further consideration of the question, we believe that in cases arising in State Courts under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., all procedural matters, including review of verdicts for excessiveness, are governed by the law of the forum and not by the Federal Decisional Law.'

The rule announced in the Rivera decision finds support in well reasoned decisions of other jurisdictions. See Avance v. Thompson, 320 Ill.App. 406, 51 N.E.2d 334; Joice v. Missouri-Kansas-Texas R. Co., 354 Mo. 439, 189 S.W.2d 568, 161 A.L.R. 383; Counts v. Thompson, 359 Mo. 485, 222 S.W.2d 487; St. Louis-San Francisco Ry. Co. v. King, Okl., 278 P.2d 845. We reaffirm the rule announced by this court in Rivera v. Atchison, T. & S. F. Ry. Co., supra.

Having decided that the law of New Mexico governs in determining whether the verdict is excessive, we are confronted with ascertaining the standard to be applied, and if excessive, the effect of that fact on the verdict.

The decisions of this court were reviewed in Montgomery v. Vigil, 65 N.M. 107, 332 P.2d 1023, and the rule announced in Hall v. Stiles, 57 N.M. 281, 258 P.2d 386, 389, approved. The rule of Hall v. Stiles, supra, is that 'the mere fact that a jury's award is possibly larger than the court would have given is not sufficient to disturb a verdict' and the findings of the jury will not be disturbed as excessive except in extreme cases, such as where 'it results from passion, prejudice, partiality, sympathy, undue influence, or some corrupt motive where palpable error is committed by the jury, or where the jury has mistaken the measure of damages.' (Emphasis added) Montgomery v. Vigil, supra, 65 N.M. at page 113, 332 P.2d at page 1027; Jackson v. Southwestern Public Service Co., 66 N.M. 458, 349 P.2d 1029.

It is true that we are not bound by the doctrine of comparative verdicts and recognize that each case must be determined upon its own facts and circumstances; nevertheless, we do recognize that a consideration of other verdicts and a comparison of the facts and circumstances is helpful, and are aware that the value of all things are arrived at on a relative basis. Montgomery v. Vigil, supra; Jackson v. Southwestern Public Service Co., supra.

Plaintiff's injuries consisted of a broken bone in his right hand that healed with a slight angulation so that a small lump appears on the surface, but his hand has a full range of motion and good strength, with no remaining swelling. One rib was fractured and the two adjoining were cracked, but the ribs healed completely with regular alignment. Prior to the accident plaintiff had an arthritic condition of his back with narrowing of the fifth lumbar inter-space which caused him difficulty. There was some additional injury or aggravation of the back conditon as a result of the fall as is evidenced by some atrophy of the right leg after the accident but no other objective symptoms. Discomfort attendant upon certain uses of the right leg and back are expected to be permanent. There was evidence of pain and suffering. Plaintiff testified that the pain resulting from the injury to the hand was 'Not very much.', with greater pain from the fractured ribs during the healing period. Plaintiff testified that he suffered pain from his back prior to the accident but more pain subsequent thereto.

It is agreed that plaintiff's loss of earnings during the twelve weeks healing period was $864, but there is no testimony of any other loss of earnings or decreased earning ability as a result of the accident. He was 66 years of age at the time of trial, and had returned to work for the railroad about three months after the accident at the same position and wage and continued such work for approximately two years, when he retired.

A careful review of the evidence of pain, suffering, loss of earnings, and physical injuries, convinces us that there is no substantial evidence to support a verdict in the amount of $40,000 and that the verdict is so grossly excessive as to require an inference that it resulted from passion, prejudice, partiality, sympathy or that the jury did not apply the correct measure of damages.

Under the Federal Employers' Liability Act a verdict is required to be reduced by any percentage the jury may find that the negligence of the employee contributed to the accident. In this case, the jury found that the negligence of plaintiff proximately contributed to his injuries to the extent of 50%. Plaintiff, by cross-appeal, complains that there is no substantial evidence to support the finding of contributory negligence and that it was error to submit that issue to the jury. It is urged by plaintiff that instead of contributory negligence the evidence shows only assumption of risk. The doctrine of assumption of risk was abolished by the 1939 amendment to the Federal Employers' Liability Act, Title 45 U.S.C.A. Sec. 53, and is not available as a defense in an action brought under the Act. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610. See Bourguet v. Atchison, T. & S. F. Ry. Co., 65 N.M. 207, 334 P.2d 1112.

In actions under the Federal Employers'...