as to the present addresses of three possible witnesses. He mentioned that the addresses had been previously furnished by defendant as being San Antonio, but inquired as to their present whereabouts and then inquired as to the whereabouts of one Cleo McCoy, an employe of defendant. It is to be noted that Mr. Evans at no time mentioned McCoy as being a possible witness. At the pretrial, defendant's counsel was unable to furnish any information as to the present whereabouts of employe McCoy. The pre-trial was held February 23, 1954. The trial commenced April 14, 1954. Defendant offered the witness McCoy on its side. During cross-examination it was brought out that defendant had taken a statement from this witness some three weeks prior to trial. Defendant's counsel offered the pre-trial record, being the statement made by Mr. Evans on this question, for the purpose stated by Mr. Martin to be, 'The purpose is obviously to explain why we didn't have a statement from Mr. McCoy at any time prior, and how we got his name as a possible witness.' It is noted that Mr. Evans, at the pre-trial, did not state that McCoy would be a witness or that he had any knowledge of material facts. Plaintiff's objection as to this matter was sustained, but defense counsel was informed that he was not restricted in his proof and that he might prove the fact as to when defendant became aware that McCoy knew anything concerning the accident. Defense counsel stated in discussion of the matter with the Court, that, 'we had no idea McCoy knew anything about it until Mr. Evans told us.' The record fails to show that plaintiff's counsel indicated that McCoy had any knowledge as to the accident. During the summation, plaintiff's counsel referred to McCoy as being an employe of the railroad and that defendant did not approach him or talk to him for almost two years after the accident, and then they brought him in, in an attempt to show that plaintiff was intoxicated. It appears to the Court that the jury understood the situation and that a fair interpretation of the summation on this point was simply an attempt to impress upon the jury the fact that defendant was using one of its own employees as a witness as to a vital point in the case and under the evidence, such an argument was not prejudicial to defendant and that there was no error in the ruling made.
Fifth. As to the Closing Argument of Plaintiff's Counsel Being Improper and Prejudicial.
At the close of plaintiff's summation to the jury, defendant's counsel requested a side bar conference. He then cited to the Court five specific instances of improper argument in the summation. One related to the witness, Mr. Deck; another related to interrogatory No. 15, which has been mentioned; and another point related to a matter of railroad benefits and the last related to pain and suffering and inconvenience; and also Mr. Martin objected to a reference to a recent study in medicine on the loss of an arm. At the start of the side bar, defense counsel said:
'In the course of the closing address, Mr. Evans repeatedly argued what he said was lack of fairness on the part of the defense, one of the items being that Mr. Deck -- and as best I could write it down, his words were -- 'last August, when his deposition was taken, couldn't remember anything about the train or about the lights.' Now, that is an argument which is completely unsupported by the evidence and Mr. Evans knows it. It is improper argument.'
In discussing this matter, it is pointed out that the case was hard fought, but in the opinion of the Court, fairly tried by both counsel. The trial record indicates that there were some thirty-six objections to items offered in evidence, yet the verbal exchanges between counsel were polite and courteous. The case was tried in a generally calm and quiet trial atmosphere.
Further, in considering this matter, the Court has in mind the principles as to what is proper and correct in a summation as set forth in the discussions in New York Central Railroad Co. v. Johnson, 279 U.S. 310, 49 S. Ct. 300, 73 L. Ed. 706; Missouri-K.-T. R. Co. of Texas v. Ridgway, 8 Cir., 191 F.2d 363, 29 A.L.R.2d 984; Beck v. Wings Field, Inc., 3 Cir., 122 F.2d 114; London Guarantee & Accident Co. v. Woelfle, 8 Cir., 83 F.2d 325; and the very recent case in this Circuit, Robinson v. Pennsylvania Railroad Co., 214 F.2d 798, in which the opinion of Judge Staley was filed July 14, 1954.
Defendant here asserts that the verdict was the result of passion and prejudice against defendant, aroused by plaintiff's improper remarks in his summation. In the summation, which required thirty-seven pages to print in the record, defense counsel points to some six instances of improper remarks. Generally the statements which are objected to are those in which plaintiff's attorney used the words or phrases, 'a complete lack of fairness,' 'is that being fair,' 'is that what we want,' 'was that an act of fairness,' and in one instance only, 'is that being honest.'
As to whether a new trial should be granted because of improper arguments of defendant's counsel, I have in mind that in the trial of cases to a jury in Federal Courts, the arguments of counsel must be confined to the issues of the case, the applicable law, pertinent evidence and such legitimate inferences as may properly be drawn therefrom. See London Guarantee & Accident Co. v. Woelfle, supra. In the case before me, there were no such 'repeated accusations against opposing counsel and client and repeated references to matters entirely foreign to the real issues before the jury', as Judge Staley mentions in the Robinson case (214 F.2d 801). If the summation was in some respects improper, the impropriety was a mere isolated lapse, which in the opinion of the Court amounted to very little when viewed and compared with the evidence as a whole. One dictionary definition of the word 'fairness' is 'candor in argument.' This Court believes that the verdict of the jury in this case was based on the weight of the evidence on the question of negligence, which was clear, rather than upon the argument of plaintiff's counsel to the jury. The jury made special findings on defendant's negligence and plaintiff's contributory negligence. The jury was cautioned that plaintiff was entitled 'to a fair trial on all the points that he has raised before you' and that the defendant, 'the Pennsylvania Railroad Company, a corporation, is entitled to the same fair and impartial consideration of its side of the case.' In weighing the evidence on the motion for a new trial, it is believed that the overwhelming weight of the evidence as to liability favors plaintiff and is against defendant.
Sixth. As to the Amount of the Verdict.
However, under the evidence, it is believed that the verdict is excessive. Plaintiff was born in the year 1898. His life expectancy was shown to be 19.19 years. His background and training was such that he must be classed as a common laborer and considering his age and training and the evidence relating to his earnings, $ 2,500 a year is the maximum which plaintiff could earn in the future. In all likelihood his earnings would diminish as he grew older. However, he was disabled as a result of the injuries and unquestionably at present he is a derelict on the labor market. Under the evidence, the present worth of his future earnings from the time of the trial onward could not exceed $ 30,000. Having in mind that he would be entitled to $ 5,000 for the two years intervening from the time he was hurt until the time of the trial, his maximum recovery for earnings is not in excess of $ 35,000. This sum from the amount of the verdict leaves $ 37,000 for physical injuries, expenses, pain and suffering, etcetera. The medical testimony in the case came from reliable witnesses. There is no doubt but what plaintiff received severe and permanent injuries and suffered considerable pain. It is believed, however, that $ 18,000 is ample with respect to this item of damage. An order will be entered requiring plaintiff to remit so much of the verdict as is in excess of $ 53,000, otherwise a new trial will be granted.
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