In my opinion the motion for a new trial should be granted. The verdict here was clearly against the weight of the evidence and, further, was excessive.
According to the plaintiff's testimony, he started ashore at about 5:55 P.M. and the lights were then burning. The defendant's witness Bierling testified that the lights went out at 5:40 P.M. Defendant's witness Witte also testified that the lights went out at 5:40 P.M. and that this occurrence and the time of its happening were noted in a "log book". With respect to the time of the happening of the accident, the plaintiff testified (N.T. p. 9) that he finished his work about 5:30 P.M.; that he then took his bath and started ashore.He fixed the time that he started ashore as "approximately five or ten minutes to six". The plaintiff's normal afternoon shift, he testified, was from 4:00 to 6:00 P.M. Accepting the plaintiff's statement that he finished his work as a messman at 5:30 P.M., it seems highly improbable that he was able to take a bath and ready himself within ten minutes so as to leave the ship by 5:40 P.M., when the defendant's witnesses testified the lights went out. Even assuming for the sake of argument that the lights went out somewhere between 5:50 and 6:00 P.M., it seems unlikely that the plaintiff could have finished his work at 5:30 P.M., taken his bath, left the ship, entered the pier, and traversed the 18 or 20 feet of the pier, as he testified.
In this connection, it must be recalled that the plaintiff testified that the distance between the doorway to the pier and the edge of the pier was about 20 or 22 feet, while actual measurements taken by the defendant and testified to by its witnesses disclosed that the width of the pier was 58 feet 11 inches. It is well settled that where actual measurements are taken by a witness, testimony as to such measurements as to distance must prevail over "guesses" testified to by another witness.
Taken all in all, I am of the opinion that the verdict was against the weight of the evidence and was a "sympathy" verdict in every respect.
As to the excessiveness of the verdict:
Plaintiff was taken to the hospital following the accident and remained there until January 30, a period of two weeks, when he was discharged with the notation on the hospital records that his condition was "good". The injuries suffered by the plaintiff consisted of abrasions and contusions, mostly to the left hand and to the left side in the region of the ribs. There were no fractures. Treatment consisted of external medication, diathermy, and strapping; also internal medication. On February 12, almost two weeks following his discharge from the hospital, the plaintiff consulted Dr. Chaess.
Dr. Chaess's examination revealed pain in the right occipital and right parietal region of the head; pain in the back of the neck and on the left side of the neck. Plaintiff felt pain on moving his neck or rotating his head, and pain of the left rib and left chest and left ankle; he suffered abrasions and contusions. Treatment lasted from February 12 to March 25. The plaintiff made ten visits to the doctor during that period, and the doctor's bill was $30. The doctor discharged him on March 25, at which time he did not consider the patient fully recovered, but felt that treatment could do no more, and advised the plaintiff to "lay off and take it easy for a few months with the hope that everything would right itself". The plaintiff's side was no longer strapped when the doctor discharged him, but he was still complaining of headache, dizziness and limitation of function of the left hand. The doctor testified that in his opinion the plaintiff had suffered injury to the soft tissue between the lateral and ulnar nerves of the left arm. At the time of the patient's discharge he still had some difficulty with his left leg in walking, but it was greatly improved under the heat therapy. The doctor advised the plaintiff to wear a corset for a while as a support and to relieve pain.
The plaintiff's salary at sea was computed by him at $113.50 a month, consisting of $77.50 in cash plus maintenance. He also testified that it cost him about $20 or $25 a week to live in Philadelphia (off the ship). He testified that he did not "get to feeling very good until about some time in July" when he resumed his duties. He returned to work on July 10, 1941, so that he was away from his employment for approximately six months.
There was no very cogent testimony, however, that the plaintiff was actually disabled from work for six months. The nature of the injuries does not impress me as being such as to cause so long a cessation from a steward's duties.As previously stated, there were no fractures. The plaintiff's physician, upon cross-examination, seemed content to sum up the injuries as consisting of a sprain or sprain plus contusions. There was no treatment after March. I think the plaintiff was physically able to return to work earlier.Under all the circumstances, I think the verdict is substantially excessive.
It is ordered that the defendant's Motion for Judgment N.O.V. be and it is hereby denied, and that the defendant's motion for a new trial be and it is hereby granted.
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