'Mr. Ivory: That reminds me of an old story down on the farm where I was raised * * *'
(Mr. Ivory continued his address to the jury. Balance of argument not relevant to the question raised.)
A careful scanning of the testimony indicates that the comment made by counsel for plaintiff was not a misstatement of the facts. The witness, whose testimony was being referred to, did use the word 'should' on one occasion but on others used the word 'could':
'Q. Will you point out to the jury the place where you say a brakeman could ride on the car and from which he could open the angle cock with the brake club? A. Mr. Ivory, the picture doesn't take in this side of the car where the brakeman should be standing.' (Emphasis supplied.) (Page 336 of testimony.)
In addition, the Court impressed on the jury at the time the question arose and in the general charge that the jurors were the sole judges of the facts and the inferences to be drawn therefrom.
Excessiveness of Verdict
Plaintiff was 40 years of age at the time of trial, was married and had two small children. He was a high school graduate and had attended college for 3 1/2 years. His prior work record included janitor work at a school, work in a service station, in an A. & P. store, and on a farm. He had gone to work for the Montour Railroad in January 1945, at which time he passed a physical examination. His health prior to the accident had been excellent. Aside from a tonsillectomy as a child and an appendectomy in 1929 and one or two minor accidents from which he promptly fully recovered, he had had no illnesses. His record while in the employ of the defendant showed that during the 18 months before the accident he had worked overtime in each of the 36 bi-weekly pay periods except one, that being a period in which there was no work available because of a strike.
Plaintiff's damages to the time of trial consisted of pain, suffering and inconvenience, and medical and hospital bills totaling $ 1,122 and loss of wages (twenty-two months at $ 300 per month) of $ 6,600. His total monetary loss was $ 7,722. This does not include the cost of the hospitalization, etc. furnished by the defendant which, by stipulation of counsel, amounted to $ 2,350 and is to be deducted from the amount ultimately paid by the defendant.
Since the accident the plaintiff has been severely crippled, ridden with constant pain, unable to work and compelled to wear an uncomfortable brace and to sleep, when sleep comes upon him, in a plaster case. He has been rendered incapable of moving about in a normal manner, being forced to walk in an ungainly fashion, throwing his body and limbs about and attracting the pitying attention of those who see him. He will require further medical care and attention, and it is extremely improbable that he will ever again be able to engage in a gainful occupation. Plaintiff's life will always be one filled with pain, suffering and inconvenience. In short, he is and will be a truthfully pitiful figure of a man. In view of the extreme monetary loss which the plaintiff has experienced, the impairment or total loss of earning power, and the severe pain, suffering and inconvenience which has been and will continue for the balance of his life, it is not unreasonable to assume that the jury made some reduction for contributory negligence in the verdict which was returned.
The court should not set aside a verdict on the ground that it is excessive unless it is so high as to shock the conscience. In the absence of any showing that the jury was biased or acted capriciously or unreasonably, the court will not interfere with the verdict. Foresman v. Pepin, D.C., 71 F.Supp. 772, affirmed, 3 Cir., 161 F.2d 872.
It is my considered judgment that the verdict rendered was not against the evidence, weight of the evidence or the law, and I must assume that the jury followed the instructions of the court. Boice v. Bradlye, D.C., 92 F.Supp. 750, 751.
Accordingly, the motion to set aside the verdict for the plaintiff and to enter judgment for the defendant, and the motion for a new trial are denied.
It has been stipulated and agreed between the parties that the verdict received by the plaintiff and any judgment entered thereon should be reduced in the amount of $ 2350.
An appropriate order is entered.
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