Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendant, a common carrier engaged in interstate commerce, appeals from a $22,500 judgment entered in plaintiff's favor in an action he had brought under the Federal Employers' Liability Act (45 U.S.C.A. , § 51 et seq.) to recover damages for injuries suffered while in the railroad's employ.
Plaintiff claimed that while performing his duties as brakeman on the evening of December 1, 1957 he was seriously injured as a result of being thrown from a freight car on which he was riding when it was switched onto a wrong track and collided with a car standing there. Defendant denied negligence and pleaded contributory negligence in mitigation of damages, pursuant to 45 U.S.C.A. , § 53. It contended that plaintiff had jumped from the car before it stopped.
At the close of plaintiff's case defendant rested without presenting any testimony. Plaintiff then moved for a directed verdict, claiming there was no controversy as to how the accident happened. Defendant insisted there was, but the trial judge granted the motion. He ruled there was no factual question presented as to defendant's negligence, and also ruled out contributory negligence. The result was that the case went to the jury on the question of damages
only. It returned a $22,500 verdict for plaintiff by a vote of 10-2.
Defendant at once moved for an order setting aside or reducing the verdict because it was excessive. After hearing argument the trial judge said:
"Gentlemen, the Court is not inclined to change jury verdicts. It is elemental the only grounds upon which a verdict can be changed by a Court is not because he thinks the verdict should be different than rendered by the jury. This motion is a motion to set aside the verdict on the ground it is excessive. Under the rules and the cases, verdicts can only be set aside, generally, where it is found the jury reached that verdict either by reason of passion, prejudice, mistake or partiality.
This plaintiff had a fractured skull. He is 23 years old. No one can foretell what that fracture might result in in his future life; but I am constrained to do this:
I will reduce the verdict to $15,000.00 if the defendant will pay. Otherwise, I will let the verdict stand at $22,500.00. If the defendant will pay the $15,000.00 and the plaintiff will not take $15,000.00, then I will set it aside as to damages only."
Plaintiff's attorney immediately agreed to accept the reduced sum. Defendant asked for time to consider the matter and later informed the court it would not agree to paying $15,000. The trial judge thereupon entered an order denying defendant's motion. Defendant's appeal "from the whole of the judgment entered" followed.
The facts are these: At the time of the accident plaintiff brakeman was riding a coal hopper car down an incline in defendant's Croxton classification yard. Trains coming in from the road are pushed by engine up the south side of a "hump." As each car reaches the top it is cut off and a brakeman rides it down the other side by gravity, the car being switched by employees onto one of 50 tracks. A yardmaster designates the particular track where the car is to go, transmitting his orders to the brakeman through a conductor, the man who cuts the car off the train at the top of the hump.
Plaintiff claims that at 7:45 on the evening in question he was instructed to ride a 70-ton hopper car onto track 3
of the classification yard. When the car had been pushed up the hump he tested the brake, which was operated by a wheel at the top of the rear of the car. Below the wheel is an iron platform where the brakeman stands; alongside it and to the left is an iron ladder, the bottom rung being at a level with the floor of the car. Immediately around the corner and on the side of the car is another ladder, the lowest rung being only a step above the ground.
After plaintiff had tested the brake and found it in good working order, he signaled for the engine to move the car over the top of the hump. As this was done, the car was cut off from the rest of the train behind it and proceeded down into the yard at about 20-25 miles an hour. Plaintiff testified that as he started down the grade the brake was in partially applied position. The distance to the bottom of the incline is about ten car lengths, or 400-500 feet. Track 6 is located at the bottom of the incline, and track 3 about five car-lengths past the track 6 switch. The classification yard was lighted. Plaintiff found himself going onto track 6 instead of track 3, and then saw a stationary car ahead of him, about 120 feet from where his car had been switched onto track 6. He said that at that moment he was standing with one foot on the platform and the other on the rung alongside.
Plaintiff further testified that when he realized his car was on track 6 he tried to take up the slack in the brake but found he could not stop the car. At the same time, he said, "I was trying to move around from one ladder to the other [on the side] until I could jump or climb down, whichever I had a chance to do." The ladder on the side of the car would have allowed him to get closer to the ground and jump off. However, there was a collision and he was knocked off the car.
Plaintiff claims he hurt his head and back. He was taken to a hospital where he was confined for six days, after which time the company doctor cared for him about a month. ...