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Kulodzej v. Lehigh Valley Railroad Co.

Decided: February 24, 1956.

STANESLAW KULODZEJ, PLAINTIFF-RESPONDENT,
v.
LEHIGH VALLEY RAILROAD COMPANY, DEFENDANT-APPELLANT



Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.

Freund

On March 9, 1954 the plaintiff, a laborer employed by the defendant, was digging with a pick in a ditch of hard rock or shale, when a small stone or piece of shale struck his right eye. On March 18 he complained to his doctor that he could not see out of his right eye. Upon examination the doctor found the eye had been perforated and four days later it was enucleated.

Although the plaintiff has been in this country since 1911, he does not read or write, speaks only Polish and at the trial testified through an interpreter.

On May 5, 1955, for the purpose of obtaining a release from the plaintiff, there was a meeting of the plaintiff, a Polish interpreter, and representatives of the defendant. The plaintiff by his mark signed a release for the sum of $500, less a lien of $119 for sickness payments made to him by the United States Railroad Retirement Board. At the trial he testified that when he made his mark at the end of the release he was of the impression that the consideration was not for the loss of his eye, but for "compensation." The defendant claims that the purpose of the release was fully explained to the plaintiff, both in English and in Polish, by the interpreter. Admittedly, the defendant paid all medical and hospital expenses theretofore incurred.

The instant suit was brought under the Federal Employers' Liability Act, 45 U.S.C.A. ยง 51 et seq. , which provides for application of the rule of comparative negligence. The claim was made that the defendant was negligent in not furnishing the plaintiff with eye goggles while he was digging rock or stone. The defendant denied the occurrence of the

accident and alleged contributory negligence, stating it had furnished goggles to the plaintiff and that the execution of the release constituted a complete bar to the instant action.

The jury returned a verdict of $6,500 in favor of the plaintiff, the foreman stating that the jury found the defendant "negligent, along with contributory negligence on the part of the plaintiff. We arrived at the sum of $10,000: the percentages were Lehigh Valley 65% negligent, plaintiff 35% negligent. So the verdict is $6,500."

The defendant's motion for a new trial was denied. Pending the present appeal the defendant petitioned the Supreme Court for certification, which was denied.

The defendant argues on this appeal that the conduct of the plaintiff's attorney prevented a fair trial; that it was prejudicial and improper for him to state to the jury his opinion of the amount they should award as damages; and that the verdict invalidating the release and on the issue of negligence was against the weight of the evidence.

The issue of negligence, as well as that concerning the validity of the release arising from the contention that the plaintiff did not understand it as a complete discharge of all claims he might have, was for the jury.

It is obvious from a reading of the record that the litigation was bitterly contested. The trial consumed three days, during the course of which the defendant's attorney made no less than 69 objections. During the plaintiff's summation an additional eight objections were made. For some objections no reason was given; for others, objection was made because the question or remark related to matters not in evidence or misstated the testimony. All of this was in the presence of the jury. In general, although not in every instance, no request was made to the court to admonish the jury to disregard the remarks of the plaintiff's attorney. However, during the ...


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