West v. Richmond, F. & P. R. Co.

• Decision Date: 16 October 1975
• Docket Number: No. 74--2063,74--2063
• Parties: George H. WEST, Jr., Appellee, v. RICHMOND, FREDERICKSBURG & POTOMAC RAILROAD COMPANY, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 290

528 F.2d 290

George H. WEST, Jr., Appellee, v. RICHMOND, FREDERICKSBURG & POTOMAC RAILROAD COMPANY, Appellant.

No. 74--2063.

United States Court of Appeals, Fourth Circuit.

Argued March 5, 1975.

Decided Oct. 16, 1975.

Samuel W. Hixon, III, and George R. Humrickhouse, Richmond, Va. (David R. Johnson and Williams, Mullen & Christian, Richmond, Va., on brief), for appellant.

Raymond H. Strople, Portsmouth, Va. (Willard J. Moody, Bernard, Miller & Moody, McMurran & Miller, Portsmouth, Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, WIDENER, Circuit Judge, and HALL, District Judge. ^*

WIDENER, Circuit Judge:

The plaintiff, an employee of the defendant, Richmond, Fredericksburg and Potomac Railroad Company, Inc. (RF&P), brought suit under the Federal Employer's Liability Act (FELA), 45 U.S.C. § 51 et seq., to recover damages for injuries sustained in the course of his employment. The jury returned a verdict of $110,500 for the plaintiff. The district court denied motions for a new trial or, in the alternative, a motion to alter or amend the judgment and for a judgment notwithstanding the verdict, and entered judgment for the full amount. From this judgment, the defendant appeals.

The principal point raised on appeal is that the verdict is excessive. We affirm.

The plaintiff was a brakeman with the RF&P. On September 22, 1971, he was working on a local freight train between Fredericksburg and Richmond. While stepping off of the slow moving engine to throw a switch, he stepped on some loose round gravel and slipped, jamming his right wrist as he fell forward. The gravel apparently came from a nearby loading chute. The plaintiff, without immediate medical treatment, continued with the train back to Richmond. He was there taken to a hospital, where examination by a physician disclosed that he had suffered a severe comminuted fracture of the distal right radius which extended into the joint.

The medical testimony showed that the plaintiff suffered a permanent 15% impairment of the upper extremity. The movement of his wrist was substantially impaired, and he continued to suffer pain. Traumatic arthritis has resulted and plaintiff's broken arm has been shortened by one-half inch. The evidence was that if the pain continued and if he continued to work as a brakeman, an operation to perform a wrist fusion would become necessary within one to four years. After such an operation, the plaintiff would no longer be able to do the work he was doing. No evidence was presented as to whether his injury would hinder other work. But there was no evidence in the record he had performed other work, or was able to.

The defendant claims as error that the district court used an improper standard in its consideration of whether or not to set aside the verdict as to damages and grant a new trial, and that the proper standard is set out in Williams v. Nichols, 266 F.2d 389 (4th Cir. 1959). In that case, we held that a trial court in ruling on a motion for a new trial must consider the motion 'according to the analysis and appraisal by the trial court of the weight of all the evidence . . .,' (emphasis in original), Williams, p. 393, and not consider the evidence in the light most favorable to the plaintiff. The verdict should be set aside if it is against the clear weight of the evidence or would result in a miscarriage of justice. The defendant urges that the district court did not follow the standard of Williams but instead looked at the evidence as it could be construed most favorably to the plaintiff.

The district court, in its oral opinion and order denying the motion, stated that it understood the jury was not free to 'give just what they want' and that it should grant the motion when satisfied by 'more than just a suspicion that justice has not been served.' The court weighed all the evidence, and other pertinent factors, Williams, p. 393, and found that it was reasonable to assume that the jury adopted the plaintiff's evidence and reasonable inferences therefrom. The defendant had called no witnesses and offered no evidence except a stipulation as to wages, and the trial court noted the noncontroversial nature of the defense as to damages. The court concluded that the judgment was 'generous' but not 'inordinate or outrageous,' and relying on Grunenthal v. Long Island Ry. Co., 393 U.S. 156, 89 S.Ct. 331, 21 L.Ed.2d 309 (1968), for the test to be applied, entered judgment for the full amount found by the jury.

Grunenthal was an FELA case where, as here, the trial court denied defendant's motion to set aside the verdict as being excessive. The Court of Appeals reversed, and was itself reversed by the Supreme Court which held that the trial court had not abused its discretion. The trial court there had indulged "in a fairly accurate estimate of factors to which the jury gave attention, and favorable response, in order to arrive at the verdict announced." Grunenthal, p. 158, 89 S.Ct. p. 333. It had concluded that the jury may well have adopted the plaintiff's contentions in their entirety and so found the verdict was not outrageous or unreasonable. Twice in the opinion the Supreme Court said, as to loss of future earnings, that, since there was support in the record for the trial court's view that the jury might properly have found the verdict it returned, its action should not have been disturbed, and the court...