On appeal from the Hudson County Circuit Court.
For the respondent, John Winans.
For the appellant, Wall, Haight, Carey & Hartpence.
The opinion of the court was delivered by
DALY, J. This suit was brought in the Hudson Circuit Court under the Federal Employes' Liability act by the plaintiff, Howard W. Steiner, against the Pennsylvania Railroad Company, defendant, for compensation for injuries of the plaintiff while he was engaged on April 17th, 1926, in the performance of his services as a freight brakeman at the Potomac yards of the company near Washington, District of Columbia. He was injured by having his right hand caught in the coupler of a car, which he was in the act of adjusting, through the sudden forward movement of a locomotive, resulting in practically the loss of the right hand. The medical evidence was to the effect there was a one hundred per cent,
loss of the function of the hand and that the plaintiff would be better off if the hand were cut off at the wrist. The interstate character of the plaintiff's employment at the time of the injury is admitted.
The trial on March 14th, 1929, resulted in a verdict in favor of the plaintiff for $25,000; and, the next day judgment for that amount, with costs, was entered in the court below. On March 18th, 1929, the defendant company took a rule to show cause why the verdict should not be set aside and a new trial granted on the grounds that the verdict was "excessive, contrary to the charge of the court, and the result of the bias, prejudice and passion of the jury;" the rule reserving to the defendant all exceptions taken and objections noted at the trial, and also, staying execution. After several efforts to dispose of the rule, a rule was entered on May 8th, 1930, on plaintiff's motion, vacating a former decision to reduce the verdict to $15,000 and directing that the defendant's rule to show cause be discharged provided plaintiff stipulated for a reduction of the verdict to $20,000; otherwise, defendant's rule would be made absolute. Stipulation agreeing to this reduction was filed in the clerk's office on May 19th, 1930; defendant served notice of appeal which was filed May 23d, 1930. Grounds of appeal were filed June 13th, 1930.
Plaintiff-respondent urges that the appeal was not taken within one year from the entry of the final judgment. This is not so. In Morgan v. Bowman, 103 N.J.L. 542, Mr. Justice Parker, speaking for the Supreme Court, said that "if a rule to show cause is allowed, the postea, under the former practice, might, nevertheless, be filed and a judgment entered, but it was only a judgment nisi, supplemented by final judgment nunc pro tunc in case of the discharge of rule to show cause, and by the same token a nullity if such a rule be made absolute. * * * But the judgment entered pursuant to rule 116, on immediate filing of the postea, is no more final than one entered under old rule 35. Until the determination of the rule to show cause by a discharge it cannot be treated
as a final judgment." See, also, Patterson v. Loughridge, 46 Id. 138. The issuance of the rule to show cause in this case suspended the judgment entered, and there was no final judgment until after the rule to show cause was discharged.
Taking up the grounds of appeal, the defendant in his brief contends that there are six questions involved.
1. Should not the trial court have directed a verdict in favor of defendant, because (a) no negligence of defendant was shown as the proximate cause of the injuries complained of; (b) the proximate cause of said injuries was plaintiff's own voluntary act in placing himself in a dangerous position without apprising the engineman of his position; (c) the release is a bar to plaintiff's alleged cause of action? We hold from the proofs in this case, the trial judge was justified in presenting all these questions to the jury. As to the weight and sufficiency of the evidence, this was disposed of by the allowance and determination of the rule to show cause which alleged therein the reason that the verdict was the result of "bias, prejudice and passion of the jury," this being equivalent to saying it was against the weight of the ...