On motion to set aside verdict.
Lynch, J.s.c. (temporarily assigned).
In this matter, brought under the Federal Employers' Liability Act (hereinafter called "FELA"), 45 U.S.C.A. § 51 et seq., the trial resulted in a jury verdict in favor of the plaintiff in the following amounts: (a) for the death of plaintiff's decedent husband in the sum of $58,500, and (b) for the pain and suffering of decedent prior to his death, in the amount of $6,000.*fn1
The essential facts are as follows,
On October 26, 1962 plaintiff's decedent, while working as a clerk in the office of defendant railroad, suffered a myocardial infarction. His distress was known to his superiors, and a fellow employee requested decedent's immediate superior to obtain a doctor. None was obtained. Finally, decedent
decided to go home to see his own physician and, while being attended by him, died. This was approximately four hours after the original attack. The theory of negligence alleged against defendant was that it failed in its duty to render medical aid under the "humane instincts" doctrine expressed in Szabo v. Pennsylvania R.R. Co., 132 N.J.L. 331 (E. & A. 1945).
Defendant moves for an order setting aside the jury verdict on grounds which may be summarized as follows: (1) the verdict is contrary to the weight of evidence, is the result of passion, prejudice, sympathy or bias and is contrary to law; (2) the court erred in submitting issues to the jury for consideration and in failing to grant defendant's motion at the end of plaintiff's and the entire case; (3) the court was in error in permitting into evidence the contract between the railroad and the union, and (4) the court erred in submitting the mortality tables to the jury for consideration.
At oral argument defendant was granted leave to file a brief in support of its position. The brief subsequently filed argued only with respect to grounds 2, 3 and 4, above. In considering the motion the court will deal first with those grounds and will thereafter treat ground 1.
RE DEFENDANT'S POINT I: "PLAINTIFF DID NOT PROVE THAT ANY ALLEGED NEGLIGENCE OF DEFENDANT WAS THE CAUSE OF DEATH."
Under this point defendant argues that plaintiff's case was deficient because "at no time during the trial did any one state that if * * * medical aid had been obtained plaintiff's decedent husband would have lived." Putting it another way, defendant argues that "there is no evidence that he would not have died anyway * * *."
Citing Cowdrick v. Pennsylvania R.R. Co., 132 N.J.L. 131 (E. & A. 1944), certiorari denied 323 U.S. 799, 65 S. Ct. 555, 89 L. Ed. 637 (1945), defendant asserts the principle that in addition to proof of a wrongful act, plaintiff must also prove "the existence of such circumstances as would
justify the inference that her husband's death was caused thereby."
The question here is: what "cause" is sufficient under FELA? The test, established by the landmark case of Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S. Ct. 443, 1 L. Ed. 2 d 493 (1957), is whether the negligence of defendant "played any part, even the slightest, in producing the * * * death for which damages are sought" (352 U.S., at p. 506, 77 S. Ct., at p. 448), or ...