skill, thrifty economic habits, prospects for increases in pay and advancement, and other circumstances, the jury could reasonably have anticipated that his earning capacity would have increased to some extent as time passed, with perhaps some decreases in old age. In these two fields, i.e., costs of maintenance and the stability of prospective earnings, reasonable minds can differ in determining the amounts to be employed respectively in abatement and enhancement of the awards. The evidence in these two respects would give the jury considerable latitude in making their estimates, and mathematical calculations based upon figures conjured up by the court would be of little help.
In the interest of justice, the court does not feel that it is compelled to grant a new trial unconditionally because the verdicts are excessive. Northern Pacific R. Co. v. Herbert, 1886, 116 U.S. 642, 646, 6 S. Ct. 590, 29 L. Ed. 755. However, it is our judgment that, in order to do justice between the parties, the plaintiff should be required to remit, in the death action, all monies awarded under the verdict in excess of $ 68,566.80, and in the survival action, all monies awarded under the verdict in excess of $ 9,000. See the opinion of Judge Delehant in Rice v. Union Pacific R. Co., D.C.D.Neb.Omaha Div.1949, 82 F.Supp. 1002, and the cases collected therein. If plaintiff fails to file a stipulation to that effect within twenty days a new trial will be ordered.
On Third-party Action
In the third-party action tried in the above case, the verdict was in favor of Duquesne Slag Products Company, the third-party defendant. The original defendant, Baltimore and Ohio Railroad Company, moved for a new trial in its action against Duquesne. Eleven reasons were assigned on the 25th of October, 1952, the day following the verdict; a twelfth reason was assigned on the 28th of October, following the death of the trial judge on October 26th; eight reasons were assigned on December 18, 1952; and four reasons were assigned on December 15, 1953. The latter four reasons were the result of this court's request for reargument with particular reference to the instructions which the trial judge gave to the jury.
We have reviewed each of these assignments, although those emphasized by B. & O. were overruled in our opinion filed December 8, 1953, in the contest between the plaintiff and B. & O.
The assignments relating to the weight of the evidence and those relating to the court's instructions were not pressed by B. & O. in its original brief; if it is deemed that they are now given undue prominence by this court on its own motion, the situation may be attributed to the vicarious performance of the duties of the trial judge -- a difficult task recognized as such by our superiors in Gordon v. Robinson, 3 Cir., 1954, 210 F.2d 192.
There was considerable evidence that Duquesne Slag was negligent and that its negligence was a contributing cause of Patton's death.
Several Duquesne employees
knew that the B. & O. slag cars had defective brakes and knew that they had run away on prior occasions. Mr. Mitz, Duquesne's general superintendent, was aware that these cars had defective brakes. Notwithstanding, no extraordinary precautions were taken to protect persons working downgrade of these cars in case they worked loose, viz.: the switch between the cars being repaired downgrade and these four cars being unloaded upgrade was not thrown; this action would have afforded more time to warn repairmen working under or between the cars (T. 623). No derailer was placed to protect the car repairmen downgrade. No danger whistle was provided.
On the other hand, the evidence shows that some additional safety measures were taken to prevent the four cars from moving, viz.: the brakes were first applied by air; 4 X 4 oak blocks were placed under a wheel of every car; a metal skate was placed under the front left wheel of the front car downgrade; the handbrakes on all four cars were tightened as far as they would go by use of a brake club.
Mr. Mitz, who was called as a witness by B. & O., testified that good railroad technique was exercised in applying the brakes to this equipment and that he considered the protective measures taken to have been adequate (T. 614).
Despite these extra precautions, the jury could have found Duquesne negligent in the use of cars known by its employees to have brakes that would not hold, Restatement, Torts, § 307, and that the extra safety measures taken were not reasonably cautious in the circumstances. There was evidence that the engineer and brakeman lacked necessary technical knowledge; that they failed to 'bleed' off the air in the brakes to attain proper tension; that they failed to affix the skate in the safest manner under the car wheel.
Also, as in accidents caused by unattended motor vehicles, the jury could properly have inferred negligence, because in the ordinary course of things such accidents do not happen if the person in control of the car uses proper care; see Endler v. United States, D.C.M.D.Pa.1951, 101 F.Supp. 332, for an example.
Upon these considerations it seemed that a new trial should be granted because the verdict was against the weight of the evidence. In opposition thereto is the consideration that B. & O., in addition to the aforementioned testimony of Superintendent Mitz, urged the admission in evidence, strangely enough over the objections of Duquesne,
of Exhibit 'S', which detailed the extra safety measures taken by the Duquesne employees, presumably because of their prior knowledge of the defective brakes, and containing his ultimate conclusion that 'I can find no evidence in this accident as far as I have investigated of any negligence or carelessness' on the part of Duquesne Slag or its employees (T. 626). By this testimony it seems irrefutable that B. & O. extended an invitation to the jury to exonerate Duquesne and accordingly, with some misgivings, we have determined not to disturb their acceptance.
A study of the instructions of the court in the light of the rather strong evidence of negligence on the part of Duquesne, leads us to the opinion that the jury was confused on how to assess responsibility against Duquesne. We observe that the trial judge told the jury (T. 707) that they were to decide whether or not Duquesne was legally 'responsible,' but when the jury asked the following question: 'Can responsibility in this case be assessed on both B. & O. and Duquesne Slag Products Co.?' (T. 712) the court responded in writing: 'In answer to Question No. 1, the answer is 'No. Your verdict can be as follows, if you have so decided: 1. We, the jury, find in favor of the plaintiff and against the B. & O. Railroad in certain amounts,' blank, blank.' (T. 713.)
Further, no explanation was offered the jury concerning the legal effect of contribution, or why they could not return a verdict against Duquesne in a certain amount of money if they found Duquesne responsible.
The jury's second question to the court was: (If B. & O. and Duquesne were both responsible) 'can jury determine percentage of award against each?' To which the court responded: 'You cannot determine the percentage. The percentage is no concern of yours. Consult B on the guide
handed you with your verdict form. It will answer your questions. Do not concern yourself with percentages (T. 713).' We do not think that the guide adequately answered the questions which the situation relative to damages evidently had created in the minds of the jury.
But no objections were made by B. & O. under Rule 46, F.R.C.P., at the time the written answers were prepared and sent to the jury. Indeed the answers seemed to have been prepared with the cooperation and assent of the counsel for all parties (T. 713). Moreover, no specific objections were made to the charge on any of the various phases connected with the third-party issue. This is a fatal omission under Rule 51, F.R.C.P.; McDonald v. Pennsylvania R. Co., 3 Cir., 1954, 210 F.2d 524; Kieffer v. Blue Seal Chemical Co., 3 Cir., 1952, 196 F.2d 614, 616; Biggans v. Hajoca Corp., 3 Cir., 1950, 185 F.2d 982, 986, especially when it does not appear that fundamental error which might obviate objections is involved, and we do not detect any such fundamental error in the charge as a whole.
As heretofore stated, B. & O. in its reasons for new trial did not charge error in the above mentioned particulars until after the court on its own motion ordered further argument with particular reference to the instructions. After considerable delay for various causes, including illness of Duquesne's counsel, we now have his brief and it is convincing that this court is prohibited from granting a new trial on its own initiative for reasons assigned over one year after the entry of judgment. Rule 59(b), F.R.C.P., provides:
'(b) Time for Motion. A motion for a new trial shall be served not later than 10 days after the entry of the judgment.'
Rule 59(d), F.R.C.P., provides:
'(d) On Initiative of Court. Not later than 10 days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and in the order shall specify the grounds therefor.'
Rule 6(b), F.R.C.P., specifically provides that the court may not extend the time for taking any action under Rules 59(b) and 59(d). See McHugh v. Audet, D.C.M.D.Pa.1947, 72 F.Supp. 394, 403.
Consideration has been given to that part of Rule 63 which provides that if a substitute judge 'is satisfied that he cannot perform those duties (of the trial judge) because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.' It is our opinion that the emphasized phrase does not include those reasons for a new trial which might occur to the mind of a substitute judge many months after the case was tried.
An order refusing a new trial in the third-party action will be entered.