James R. Russell, Jr. v. The Monongahela Railway Company, A Corporation, 262 F.2d 349, 3rd Cir. (1958)

262 F.
2d 349
James R. RUSSELL, Jr.,

v.
The MONONGAHELA RAILWAY COMPANY, a
Corporation, Appellant.
No. 12600.
United States Court of Appeals Third Circuit.

Argued October 9, 1958.
Decided December 30, 1958.
COPYRIGHT MATERIAL OMITTED Samuel W. Pringle, Pittsburgh,

Pa. (Pringle, Bredin & Martin, Pittsburgh, Pa., on the brief), for appellant.
Albert D. Brandon, Pittsburgh, Pa. (Frederic G. Weir, Calvin K. Prine,
Oliver, Brandon & Shearer, Pittsburgh, Pa., on the brief), for appellee.
Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.
STALEY, Circuit Judge.
This is an appeal from a judgment for the plaintiff 1 in a Federal Employer's

Liability Act2 case. Plaintiff was injured by a train operated by defendant at the
Arkwright Mine located near Maidsville, West Virginia. He was working as a
brakeman on a yard crew performing a blind switching operation,3 that being
the practice generally followed by crews servicing this mine. Plaintiff, after
endeavoring to throw a certain switch which did not function properly,
attempted to apply the emergency airbrakes. A violent jerk occurred as he was
swinging around the corner of the car to get where he could open the angle
cock, and his left foot, which was on the end-sill grab iron, slipped causing him
to fall from the car. Although he attempted to push himself away from the car
as he fell, his left foot was caught between the wheel and the rail, resulting in
the injury which is the subject of this action. The verdict was for the plaintiff in
the amount of $149,388.4
The railroad-defendant, appellant here, urges that the trial court abused its
discretion in refusing to grant a new trial due to the excessiveness of the
verdict, the admission of testimony in regard to defendant's employment policy

which contradicted written contract provisions, and improper and prejudicial
remarks of plaintiff's counsel in his closing argument.
3
Initially, defendant contends that the verdict was so grossly excessive as to

show that the jury disregarded the evidence, being influenced instead by
sympathy, passion and prejudice, and that the refusal of the trial judge to grant
a new trial on this ground was a clear abuse of discretion. There is little, if any,
dispute as to the nature of the injury sustained by the plaintiff and as to his
medical history subsequent to the accident. Plaintiff suffered almost complete
traumatic amputation of the left foot and lower leg at a point just above the
ankle, with accompanying fractures and crushing damage to the muscular tissue
of the lower leg. Two operations involving further amputation of his leg have
been performed and in addition an excision was performed on a draining sinus.
The mental shock resulting from the accident was extreme. Immediately
following the accident, plaintiff was conscious and subject to excruciating pain.
Although he has been fitted for a prosthesis, recurrent infection has prevented
wearing of it from time to time. Reemployment as a yard freight brakeman is
not considered feasible due to the fact that it involves boarding and alighting
from rapidly moving railroad cars. At the time of trial, plaintiff was 35 years
old and had a life expectancy of 37.6 years and an earning capacity, prior to the
accident, in excess of $6,000 a year. There was evidence from which the jury
could find that pain, suffering, and inconvenience of a most substantial nature
have existed and will continue to some degree as long as plaintiff lives.
Additionally, it could be found that he has never obtained a good stump so that
he suffers from its painful breakdown on occasion.
This court has succinctly and frequently stated that the question of
excessiveness of a verdict is primarily a matter to be addressed to the sound
discretion of the trial court. Its determination that the verdict is not excessive
will not be disturbed upon appeal unless a manifest abuse of discretion is
indicated. Lebeck v. William A. Jarvis, Inc., 3 Cir., 1957, 250 F.2d 285;
Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 1951, 190 F.2d 825;
Dubrock v. Interstate Motor Freight System, 3 Cir., 143 F.2d 304, certiorari
denied, 1944, 323 U.S. 765, 65 S.Ct. 119, 89 L.Ed. 613. Only where the verdict
is so grossly excessive as to shock the judicial conscience will this court reverse
the determination of the trial judge and grant a new trial. Thomas v.
Conemaugh & Black Lick R. R. Co., 3 Cir., 1956, 234 F.2d 429. It is not within
the province of this court to determine what would be a fair recompense for the
injuries sustained by the plaintiff; rather, it is our duty to determine whether the
trial judge, weighing all the evidence on the question of damages, has exercised
his considered judgment as to a rational verdict in a judicial manner. In the
instant case the trial judge acknowledged that the verdict appeared "to be of
great magnitude and subject to severe scrutiny." After a careful cataloguing of
the various elements of damage brought forth during the trial, he concluded
that in view of the extraordinary trauma which plaintiff endured he could not
conclude that the verdict was excessive or shocked the conscience of the court.
We are not of the opinion that the trial judge abused his discretion in arriving at
this conclusion, and therefore further review by this court would be unjustified.
5
Defendant also asserted in its brief that plaintiff's negligence was much greater
than the twenty per cent found by the jury. However, defendant recognizes that
"this question alone is not subject to appellate review * * *." Apparently, its
contention, although not specifically articulated, is that the percentage of
contributory negligence found by the jury is an indication of the passion and
prejudice which motivated the jury. Suffice it to say that the conclusion we
have reached in the preceding paragraph necessarily disposes of this contention.
As to the testimony admitted by the court regarding defendant's employment

policy, it is asserted that it was inconsistent with the written contract between
the defendant railroad and the Brotherhood of Railroad Trainmen, representing
defendant's employees. The specific clause relating to reemployment of
disabled employees states: "Effort will be made to furnish employment suitable
to their capacity to men who have been injured in the discharge of their duties."
Defendant relies upon the well-established maxim of law that a contract which
is clear and explicit in its terms may not be altered by oral testimony. Even
assuming the proper application of the maxim to the facts of this case, such
reliance is wholly unjustified. Defendant itself first introduced testimony
through Vickers, trainmaster in charge of the transportation department of the
railroad, in regard to the future employment possibilities of the plaintiff. Only
when the plaintiff attempted to rebut this testimony and the inferences that
could be drawn therefrom did defendant bring before the court the contract
clause and base its objection thereon. The trial judge, in order to determine the
proper scope of rebuttal testimony, properly inquired of defendant's counsel as
to the relevancy and purpose of Vickers' testimony. This inquiry was wholly
within the bounds of judicial propriety. See Norwood v. Great American
Indemnity Co., 3 Cir., 1944, 146 F.2d 797; Kettenbach v. United States, 9 Cir.,
202 F. 377, certiorari denied, 1913, 229 U.S. 613, 33 S.Ct. 772, 57 L.Ed. 1352.
The subsequent admission of testimony by Titler, General Chairman of the
Brotherhood of Railroad Trainmen on the Monongahela Railway, in rebuttal to
the evidence elicited from Vickers was clearly within the discretion of the trial
judge. As was stated in Kettenbach v. United States, 202 F. at page 385:
"The trial judge in a federal court is not a mere presiding officer. It is his
function to conduct the trial in an orderly way with a view to eliciting the truth,
and to attaining justice between the parties. It is his duty to see that the issues
are not obscured, that the trial is conducted in a proper manner, and that the
testimony is not misunderstood by the jury, to check counsel in any effort to
obtain an undue advantage or to distort the evidence, and to curtail an
unnecessarily long and tedious or iterative examination or cross-examination of
witnesses."
8
Defendant also contends that the failure of the trial judge to grant a new trial on
the basis of the improper and prejudicial closing argument of plaintiff's counsel
was error. In this regard it must be noted that defendant objected to only three
matters during plaintiff's summation: a remark concerning efforts made by
defendant to delay the trial, a statement relative to the testimony proffered by
defendant concerning its reemployment intentions as regards plaintiff, and
discussion of figures as to plaintiff's possible loss of earnings. Only the latter
two objections were timely renewed upon the motion for a new trial.
In actuality these latter two objections, although made separately, relate to one
and the same line of argument a summation concerning plaintiff's possibility
of reemployment by the railroad. Counsel for plaintiff in discussing the
testimony of Titler and contrasting it with the testimony of defendant's witness,
Vickers, pointed out to the jury the limited authority of the latter official.
Certainly the discussion was relevant and related to evidence that had been
admitted during the trial. The entire issue of reemployment possibilities had
been opened up by defendant through the testimony of Vickers and the
reasonable inferences to be drawn therefrom.
10
Specifically, defendant objects to the fact that plaintiff's counsel alluded to the
ownership of the defendant railroad by other railroads. Out of the context of the
issue raised by defendant this argument might be improper and prejudicial.
However, considered in the light of the authority of Vickers to bind the
defendant, it appears to be within the bounds of propriety. The scope of
authority granted Vickers by the owners of defendant railroad was pertinent
and indeed crucial in regard to his testimony and a legitimate matter for
argument.
11
Further, defendant objects to the presentation to the jury by plaintiff of figures

from which the jury might determine loss of future earnings. Some of the
figures, such as his earning power prior to the accident, were already in
evidence. However, other figures, such as the problematical amount plaintiff
might be able to earn in the future, were not. The trial judge overruled the
objection of the defendant to this line of argument but offered counsel for the
defendant an opportunity to reply to it, which was accepted. We do not think

the statement was prejudicial. The opportunity afforded defendant to reply to
this argument and the precise charge of the trial court cured any possible harm
that might have been done.
12
Approximately eight months after filing its motion for a new trial, defendant
supplied a supplementary list of ten additional reasons in support of its motion
for a new trial. The district court was of the opinion that under Rule 59(b) of
the Federal Rules of Civil Procedure, 28 U.S.C.A., it lacked authority to grant a
new trial on reasons assigned after the ten-day period for filing and serving the
motion had expired. We agree with the district court. Francis v. Southern
Pacific Co., 10 Cir., 1947, 162 F.2d 813, affirmed, 1948, 333 U.S. 445, 68 S.Ct.
611, 92 L.Ed. 798; Cheffey v. Pennsylvania R. R. Co., D.C.E.D.Pa.1948, 79
F.Supp. 252; McHugh v. Audet, D.C. M.D.Pa.1947, 72 F.Supp. 394; 10
Cyclopedia of Federal Procedure 34.17 (3d ed. 1952); 6 Moore, Federal
Practice 59.09 [2] (2d ed. 1953). And see Fine v. Paramount Pictures, Inc., 7
Cir., 1950, 181 F.2d 300; Schuyler v. United Air Lines, Inc., D.C.M.D.Pa.1950,
94 F. Supp. 472, affirmed per curiam, 3 Cir., 1951, 188 F.2d 968. But even
were this not so, we would be constrained to affirm the trial court inasmuch as
the lack of objection to these matters at the trial and the failure to assign them
in the original motion for new trial clearly indicates that the defendant itself did
not consider these items significant and prejudicial.
13
The defendant urges that counsel for the plaintiff was permitted to argue
irrelevant issues to the jury in his closing address. Where, through inadvertence
or imprudence, an isolated irrelevant issue is raised and presented to the jury, it
is for the trial court to determine, in its discretion, whether a caution to the jury
may not be sufficient to eradicate its prejudicial effect. This court will reverse
only for an abuse of such discretion. Smith v. Philadelphia Transp. Co., 3 Cir.,
173 F.2d 721, certiorari denied, 1949, 338 U.S. 819, 70 S. Ct. 63, 94 L.Ed. 497.
Where numerous irrelevant issues of a prejudicial nature are raised and
presented to the jury by both parties, this court, on appeal, will reverse and
grant a new trial. Robinson v. Pennsylvania R. R. Co., 3 Cir., 1954, 214 F.2d
798. In the instant case a number of irrelevant issues, some highly prejudicial,
were brought into the trial and argued to the jury. All of these issues were,
without exception, raised by defendant. Ordinarily, in such case, if the trial
court in its discretion decides that an admonition to the jury by the court is not
sufficient, it may grant a mistrial to the innocent party. If, however, the
innocent party chooses to proceed with the trial and take its chance with the
jury, it may be granted a reasonable opportunity by the court to meet the
irrelevant issues by presentation of evidence and argument.
14
The judgment of the district court will be affirmed.
Notes:
1
The opinion of the district court is reported at D.C.W.D.Pa.1958, 159 F.Supp.

650
35 Stat. 65, as amended, 53 Stat. 1404, 45 U.S.C.A. 51
The switching movements were executed without having trainmen so placed

that visual signals could be passed from one end of the movement to the other.
This method of doing the work is referred to as "blind switching."
In answer to specific interrogatories, the jury found the total amount of

damages to be $186,735 but attributed twenty per cent of the negligence which
was a proximate cause of the accident to the plaintiff

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262 F.

James R. RUSSELL, Jr.,

United States Court of Appeals Third Circuit.

COPYRIGHT MATERIAL OMITTED Samuel W. Pringle, Pittsburgh,

This is an appeal from a judgment for the plaintiff 1 in a Federal Employer's

verdict, the admission of testimony in regard to defendant's employment policy

Initially, defendant contends that the verdict was so grossly excessive as to

As to the testimony admitted by the court regarding defendant's employment

Further, defendant objects to the presentation to the jury by plaintiff of figures

defendant an opportunity to reply to it, which was accepted. We do not think

The judgment of the district court will be affirmed.

The opinion of the district court is reported at D.C.W.D.Pa.1958, 159 F.Supp.

35 Stat. 65, as amended, 53 Stat. 1404, 45 U.S.C.A. 51

The switching movements were executed without having trainmen so placed

In answer to specific interrogatories, the jury found the total amount of

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