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April 28, 1944


The opinion of the court was delivered by: WYCHE

Plaintiff, an American seaman, instituted this suit, under the Jones Act, 38 Stat. 1185, 41 Stat. 1007, 46 U.S.C.A. ยง 688, to recover damages for certain personal injuries which he sustained in the course of his employment.

He was a member of the crew, as an oiler, on the defendant's steamship "E. H. Blum" which departed from Philadelphia southbound on February 15, 1942, under wartime regulations. The following day the vessel encountered heavy fog and in accordance with routing instructions headed for the Chesapeake Bay with the intention of anchoring overnight inside the Bay. The vessel arrived at the junction buoy between 6:30 p.m. and 7 p.m., which was about four to five miles east of Cape Henry, where it was required that all vessels must be identified by a naval patrol boat and obtain a pilot before proceeding into the harbor. All mariners had been warned that the entrance to Chesapeake Bay had been mined as a wartime measure. After arrival at the junction buoy the vessel headed toward the entrance to the Bay and thereafter, shortly after 8:30 p.m. (Standard Time) the vessel came into contact with submerged mines which caused three explosions about fifteen or twenty minutes apart.

 The evidence discloses that after the first explosion, plaintiff took his assigned position at the lifeboat and stood by for further orders; when it appeared that the vessel might be saved, he returned below into the engine room, but the second explosion caused the ship to list and founder and the Captain gave the order to abandon ship; that he then ascended to the deck and proceeded to the position to which he had been assigned; that his regular position was in the boat and it was his duty when it was being lowered to fend it off the side of the vessel with an oar; that instead of permitting him to take his regularly assigned position in the boat, the mate instructed him to remain on deck and help lower the boat; that this job was customarily performed by able seamen who were trained for the particular work; and that after the boat was lowered into the water, he then started to descend the lifeline and because it was not held taut below, he swung back and forth against the side of the ship, as a result of which he lost his grip on the lifeline and plunged about forty feet into the lifeboat below.

 Most serious of plaintiff's injuries were multiple fractures of his left leg and ankle, sprain of the right ankle and lower back muscles. He was picked up shortly thereafter by a Coast Guard patrol boat and taken the following day to the United States Marine Hospital in Norfolk, Virginia, where, among other things, on February 18th a closed reduction and application of cast were performed to the fractures of the left tibia and fibula. He remained in the hospital until March 20, 1942, when he was permitted to return home to Philadelphia with his leg in a cast. He returned twice to this hospital for further treatment and change of the cast, and thereafter was treated by the defendant's physician for a period of about one year.

 Plaintiff applied to the defendant for reemployment in May of 1943, and after further examination by the defendant's physician, Dr. Bates, was told not to do any climbing, or work on uneven surfaces nor should he be on his feet any more than was necessary. He was put to work as a storeroom helper but when his leg swelled in a short time, he asked for a sedentary job so that he could keep off his feet. He was told to return in three days, so that his request could be taken under consideration. When he returned, he was advised that it was a "tough break" but that they had nothing for him that he could do. Plaintiff has since been under medical care of Dr. Walkling.

 There is no dispute in the medical testimony. Plaintiff will never be able to return to sea, nor will he be able to engage in any occupation which will require walking or standing on this leg for any length of time. The medical testimony shows that the only kind of work which he can perform regularly is sedentary in nature.

 At the time of the accident, plaintiff was twenty-seven years of age. He first started going to sea in 1931, when he was sixteen years of age, and since then, when not going to sea, has held jobs as a track-walker and welder. At the time of the accident, he was earning $116.50 per month plus "found", war bonus and overtime.

 Upon interrogatories submitted, the jury found, (1) that the explosions occurred within a mined area at the entrance to Chesapeake Bay; (2) that the "Blum" failed to blow a proper signal for a pilot; (3) that the defendant was negligenct in the manner in which the "Blum" was navigated; (4) that the defendant was negligent (a) in ordering plaintiff to assist lowering the lifeboat, and (b) in failing to secure the lifeline below while plaintiff was descending into the lifeboat; (5) a verdict for the plaintiff in the total sum of $25,000, itemized as follows: for pain and suffering $1,000; for loss of wages from the date of the accident to the time of trial $5,600; and for loss of future earning power the sum of $18,400; (6) and that the answers to the interrogatories were not based upon speculation.

 Defendant now moves the court to set aside the jury's verdict, and for a new trial upon the ground, among others, that the verdict is excessive.

 Courts have, and sometimes exercise, the power to set aside verdicts on the ground of excessiveness, yet it is a power to be cautionsly used. Brown v. Evans, C.C., 17 F. 912, affirmed Evans v. Brown, 109 U.S. 180, 3 S. Ct. 83, 27 L. Ed. 898. Courts in general are most reluctant to disturb a jury's verdict on the ground of excessiveness where the damages are unliquidated and there is no fixed measure of mathematical certainty. This is particularly significant with respect to damages in tort actions for personal injuries. Armit v. Loveland, 3 Cir., 115 F.2d 308, 314. The texts and the authorities are consistent in holding that a verdict of the jury will not be set aside as excessive unless it be clearly shown that the jury either disregarded the instructions of the court or was influenced by passion, prejudice or corruption, or other improper motives. "Of the various formulae that have been allowed by the courts for the determination of the question whether a verdict is excessive, the following one, employed by Chancellor Kent, in a libel case has been frequently quoted or paraphrased with approval in passing upon objections to verdicts as being excessive: 'The damages, therefore, must be so excessive as to strike mankind, at first blush, as being, beyond all measure, unreasonable, and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line; for they have no standard by which to ascertain the excess.' The formula which is perhaps most frequently used is to the effect that to warrant interference the verdict must be so excessive as to appear to have been given under the influence of passion or prejudice." 15 Am.Jur. 623. A verdict should not be set aside simply because it is excessive, in the mind of the court, but only when it is so grossly excessive as to shock the court's sense of justice, and the impropriety of allowing it to stand is manifest. Boyle v. Ward, D.C.Pa. 39 F.Supp. 545; Malone v. Montgomery Ward & Co., D.C.Miss., 38 F.Supp. 369; Peltomaa v. Katahdin Pulp & Paper Co., C.C., 149 F. 282. When there is any margin for a reasonable difference of opinion in the matter, the view of the court should yield to the verdict of the jury, rather than the contrary. Smith v. Pittsburgh & W.R. Co., C.C., 90 F. 783.The court must respect the verdict of the jury in fact as well as in pretense or theory and must not interfere or substitute its own judgment for that of the jurors, for to do so would violate a constitutional privilege to have the fair verdict of the jury and not the fair judgment of the court. However, it may be expressed by a court, summarized, the rule is that, the trial judge will not interfere with a jury's verdict simply because it is greater than his own estimate; only where the verdict is so grossly excessive as to shock the conscience of the court and clearly manifest that it was the result of caprice, passion, partiality, prejudice, corruption, or other improper motives, will the court intervene; and the theory always is that a court will not set aside a verdict on this ground in an action of this character except in extreme and exceptional cases. Brown v. Evans, supra.

 Guided by the foregoing well-settled principles of law, applied to the facts of this case, I have concluded to let the verdict of the jury stand, although if I had tried the case without a jury, I would have given judgment for the plaintiff in a lesser amount for loss of future earning power.

 The award for pain and suffering in the sum of $1,000 is quite conservative under the circumstances of this case. Cf. Carroll v. United States, 2 Cir., 133 F.2d 690. The record shows that plaintiff endured considerable suffering not only at the time of the accident, but at the time of trial, more than two years later, his leg and ankle were still swollen and not free from pain. The amount of this award furnishes some evidence that the jury was not influenced by unlawful or improper motives. The defendant agrees that this award is reasonable, but argues that the award for past losses in the amount of $5,600, and the award for $18,400 for loss of future earnings, are excessive and not sustained by the evidence.

 As to the award for $5,600, defendant contends that in calculating past losses only the basic wage should be considered, to the exclusion of the value of the "found" and war bonus.Plaintiff does not claim the value of "found" in this element of damage, but does claim the war bonus. I am satisfied that the jury's verdict did not include "found" but did include war bonus. It is conceded that the basic salary was $116.50 per month, and it is also admitted in the defendant's answer that the plaintiff was entitled to war bonus in accordance with the decisions of the United States Maritime War Emergency Board. This Board was created by a proclamation of the President of the United States to provide for a uniform system of war bonus and war risk insurance to govern all vessels documented under the laws of the United States. The court may take judicial notice of Presidential proclamations as well as Federal regulations and statutes. Caha v. United States, 152 U.S. 211, 14 S. Ct. 513, 38 L. Ed. 415; Mather v. Clyde S.S. Co., 2 Cir., 37 F.2d 49. The plaintiff testified that he was informed by his superior officer that the crew were to be paid 100% war bonus. The defendant objected to this testimony on the ground that the best evidence was the written records showing what the members of the crew were paid. Plaintiff called for the production of the written records which were in the defendant's possession. The court permitted the plaintiff's testimony, with the understanding that defendant would have ample opportunity to look into its records and produce them to contradict the plaintiff's testimony. Defendant informed the court that the records were at Fort Mifflin Terminal, which I understand is only a fifteen minute ride from the Court House where the trial was being held. The trial concluded some two and one half days later during which time the defendant neither produced the records, nor offered any explanation, nor any evidence to contradict the plaintiff's testimony upon this question. If plaintiff's understanding of the bonus agreement were incorrect, defendant should have produced testimony to contradict his testimony upon this question; failure to produce it made the ...

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