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September 10, 1948


The opinion of the court was delivered by: MURPHY

Plaintiff brought an action under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60, to recover for injuries sustained while employed in interstate commerce as a brakeman at the defendant's Port Richmond Railroad Yard in Philadelphia. In a trial otherwise free from error the jury returned a verdict for the plaintiff in the sum of $ 15,000. Defendant moves for a new trial on the sole ground that the amount of the verdict is grossly excessive.

When the verdict was returned we advised counsel at side bar that we thought the amount of the verdict was excessive. Of course, the court is not bound by expressions made at the time. Searfoss v. Lehigh Valley R. Co., 2 Cir., 1935, 76 F.2d 762 at page 763; Cole v. Loew's Inc., D.C.S.D. Cal. 1948, 76 F.Supp. 872, at page 874. However, after a study of the briefs of counsel and an independent study of the authorities and, in the light thereof, a thorough consideration of the testimony, we are confirmed in our judgment that the verdict was grossly excessive, and that the cause should be submitted to another jury unless the plaintiff is willing to remit a part of the damages awarded.

 Considering as true all testimony in plaintiff's favor and giving him the benefit of all reasonable inferences deductible therefrom, the testimony shows that plaintiff while engaged in shifting operations on October 10, 1946, was injured as a result of being caught between a standing car on Track 22 and a moving car on Track 23 at a point where there was insufficient clearance for plaintiff's safety. Plaintiff was 'rolled and twisted' and dropped to the ground conscious but in great pain in chest and body. He was taken to the hospital where, upon arrival, he was in a state of shock; blood plasma was administered, oxygen by nasal catheter, and morphine, X-rays taken and the chest strapped.

 December 11, 1946, X-rays revealed that all the ribs were in the process of healing, the two displaced ribs having, however, overlapped.

 After examination by the family physician on December 30, 1946, plaintiff returned to his old job January 7, 1947. He has, with the exception of thirty-two days, continued working steadily, including Sundays, up to the time of trial, May 24, 1948, a period of slightly over sixteen and one-half months. The time lost plaintiff attributed to his injury; occasions when on a previous day plaintiff had performed unusually hard work and felt the necessity of taking the following day off.

 Although at first plaintiff felt pain in his chest upon every movement, his condition improved so that later he felt pain only when there was a change in the weather or when he was obliged to do strenuous work. The family physician testified this condition will continue. To the extent that the ribs overlapped there would be a decrease in plaintiff's chest expansion. The record does not indicate how much. The roentgenologist said 'to some extent'; the family doctor 'not too violently'; the defendant's surgeon that there was no external evidence of any change in the chest or rib structure and no objective deformity. To the extent that any reduction has taken place, it will cause plaintiff to breathe more frequently and tire more easily when exercising.

 Since January 7, 1947, to the date of trial, plaintiff worked for some time as a conductor, lighter work than that of brakeman, and while doing the lighter work did not experience discomfort except when the weather changed. Having six years seniority, plaintiff was qualified to act as conductor but cannot obtain a permanent position as such until the seniority roster permits. At the time of trial he was again working as a brakeman.

 The special damages consisted of the bill of the family physician, $ 36; time lost between October 10, 1946, and January 7, 1947, eighty-eight days, and from the time of returning to work until trial, thirty-two days, or a total of one hundred twenty days. If plaintiff had worked as a brakeman at $ 11.46 per day, such loss would be $ 1,375.20; as a conductor at $ 12.31 per day, $ 1,477.20 or an aggregate total of $ 1,411.20 or $ 1,513.20.

 Where the damages are unliquidated and there is no fixed measure of mathematical certainty, no precise rule or yardstick for translating injury into money, courts in general are reluctant to disturb a jury's verdict on the gound of excessiveness. This is particularly true in respect to damages in tort actions for personal injury. Armit v. Loveland, 3 Cir., 1940, 115 F.2d 308, 314; Dubrock v. Interstate Motor Freight System, 3 Cir., 1944, 143 F.2d 304; Scott v. Baltimore & O.R. Co., 3 Cir., 1945, 151 F.2d 61, 64, 65; 15 Am.Jur., Damages, 204, p. 620, Section 366, p. 804.

 Ordinarily in these cases the damages must depend very much upon the good sense and sound, deliberate judgment of the jury upon all the facts and circumstances of the particular case. Illinois Cent. R. Co. v. Barron, 1866, 72 U.S. 90, 105, 106, 5 Wall. 90, 105, 106, 18 L. Ed. 591.

 'The discretion of the jury as to the amount of damages to be awarded, while very wide, is not an arbitrary or unlimited discretion, but * * * must be exercised reasonably, intelligently, and in harmony with the testimony before it * * * ' 15 Am.Jur., Damages, 366, p. 804.

 'All that the court can do is to see that the jury approximates a sane estimate, or, as it is sometimes said, see that the results attained do not shock the judicial conscience.' 15 Am.Jur.,Id., 205, p. 622. 'The court will review the amount of a verdict only where it is so grossly excessive as would shock our sense of justice, and the impropriety of ...

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