findings both that the deceased's conduct did not cause the accident and that the railroad's negligence did.'
Another proposition under point number 2 is that the court did not properly emphasize the question of contributory negligence and its effect on damages. I think that what defendant actually complains of is that the court did not, at each point at which damages were mentioned, reiterate the effect of contributory negligence on such damages. Contributory negligence and its effect on damages was clearly dealt with at the outset of the charge and was called to the attention of the jury on at least two other occasions, one at the conclusion of the damage phase of the charge.
Defendant has also taken out of context the reference of the court to full recovery of loss of wages up to the time of trial and argued that this took away from the jury any question of diminution thereof for any reason. The charge clearly indicates that that expression was used to contrast recovery of past losses with awards for loss of future earnings which the jury was required to reduce to present value. It was in that connection and in that connection only that the expression was used. It was made abundantly clear to the jury that if it found plaintiff guilty of contributory negligence, that finding would require them to reduce all damages by the proportion attributable to plaintiff's negligence.
A further complaint under this point is that the court characterized certain evidence as 'positive' and other evidence as 'opinion'. In answer to this complaint, I feel that it is fully answered by the quotation of the portion of the charge referred to: 'There are two kinds of evidence in this case. There is positive evidence in this case and there is opinion evidence. You have the testimony of the plaintiff Lewis and of Mr. Hewitt and that is positive testimony. They say that they were there. They say 'We saw certain things. We are eye witnesses. We were there and we saw it and this is the fact'. That is positive testimony. They saw something. They looked at it. On the other hand, you have opinion evidence, after-the-fact evidence. Both are important, and it is for you to determine the value of each. You have the testimony of the men who came on the scene afterwards and who say, 'From the result that we saw there, it is our distinct opinion that that was a run through switch'.'
I do not feel that the jury was at all misled as to what, if any, technical difference there might be between positive and opinion evidence. It was pointed out that two witnesses were testifying as to the facts of the accident and the defendant's witnesses were testifying as to how, in their opinion, the accident happened based upon what they in fact saw after the accident happened. Nothing more was intended and I can see nothing to confuse or mislead the jury.
A further point advanced by the defendant in support of its motion for a new trial is that the court should not have allowed the jury to consider the size of the switch banner or marker. It argues that since the plaintiff failed to show that the banner was different than banners used on other switches of similar lines, the jury could not find that it was an inadequate signal. What the usual practice is on a railroad affords some evidence from which a jury may find that such a signal is reasonable, but the jury is not bound to so find. The court specifically instructed the jury that it could consider whether it was the type of banner or marker that the plaintiff could or should have seen under the conditions that existed on the day of the accident in question. This had a direct bearing on the question, raised by the defendant, of contributory negligence on the part of the plaintiff, and it also had a bearing on whether defendant was negligent in failing to provide a signal of sufficient size to be seen from a safe distance. This was just one of the many factors submitted by the court for consideration of the jury on the overall question of negligence and contributory negligence.
Finally, the defendant has requested the court to either reduce the verdict or grant a new trial on the ground that this verdict is grossly excessive. Samuel B. Lewis, the plaintiff, was thirty-two years of age at the time of injury and was thirty-four years old at the time of trial. His earning power at the time of the accident was agreed upon as $ 395 per month. He had a life expectancy of 32.50 years from the time of trial. There was ample evidence in this case from which the jury might have found that this man was permanently and totally disabled. That the injuries were serious and painful is unquestioned. Considering the seriousness of the injury, plaintiff's age, loss of earning power, and pain and suffering, an award in this amount is certainly not such as to shock the conscience of the court and justify interference with the jury's determination.
An order will be entered in accordance with this opinion.
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