assignment constituted an unsafe and dangerous working place and that such conditions were a proximate cause of the accident.
It is only when the plaintiff's act is the sole cause -- when defendant's act is no part of the causation -- that defendant is free from liability under the Act. Grand Trunk Western Ry. Co. v. Lindsay, 233 U.S. 42, 34 S. Ct. 581, 58 L. Ed. 838.
I am satisfied that the record evinces sufficient credible evidence to support the findings of the jury.
The motion for arrest of judgment or for judgment notwithstanding the verdict must be refused.
Motion for New Trial
It is contended:
(1) The verdict was against the evidence, the weight of the evidence and the law.
(2) The verdict was excessive.
It is not claimed that the instructions given by the court were in error or that they failed to state correct principles of law. Nor is it contended that any prejudicial error was committed during course of trial.
In considering the instant motion for new trial, I have evaluated the complete record and exhibits with meticulous care.
Upon careful scrutiny of testimony elicited from plaintiff's witnesses, I am satisfied that it is consistent, coherent and logically sound, and indeed, creates such inferences from which the jury could have reasonably concluded the negligent conduct of defendant.
To summarily expunge this testimony, and substitute the personal opinion of the court, would do violence to the processes and purport of the jury trial. The instant jury appears to have given most studied consideration to the evidence.
Upon recapitulation of all the credible evidence, I am convinced that the quantum of proof is such that a jury could reasonably conclude that failure of defendant railroad to provide plaintiff with a safe place to work was a proximate cause of his injury.
It is my considered judgment that the verdict rendered was not against the evidence, weight of the evidence, or the law.
Counsel for the defendant maintains that the verdict was contrary to the weight of the evidence in that it was excessive. It is axiomatic that a verdict may not be set aside on the ground that it is excessive unless it be so high as to shock the conscience of the court, or it appears that the jury was biased or acted capriciously or unreasonably. Foresman v. Pepin, D.C., 71 F.Supp. 772, affirmed, 3 Cir., 161 F.2d 872.
The jury rendered a total verdict of $ 77,500 and determined that the plaintiff was 42% contributorily negligent, thus reducing the amount of the verdict to $ 44,950.
As a result of this accident, the plaintiff sustained a fracture of the neck of the femur and was rendered totally disabled. Plaintiff was 47 years old at the time of trial, and possessed a life expectancy 22 to 25 years.
His loss of earnings until date of trial was $ 8,525.60. PlaintiffS annual continuing wage loss was $ 4,945 per annum. Projecting this wage loss over the plaintiff's life expectancy, without any consideration being given to pain or suffering, future loss of earnings could amount to $ 133,364.60.
Since the accident the plaintiff has been severely crippled, ridden with pain and discomfort, and rendered incapable of carrying on remunerative employment.
This Circuit has sustained an award of $ 126,182.24 to a forty-four year old plaintiff who was permanently and totally disabled, and had been repeatedly hospitalized and suffered greatly. Trowbridge bridge v. Abrasive Co. of Philadelphia, 3 Cir., 190 F.2d 825.
I am satisfied that the award was commensurate with the amount of damages evinced in the record.
Defendant's motion for new trial will be refused.
Plaintiff's Motion for New Trial Limited to Issue of Contributory Negligence
Plaintiff contends that the jury's determination of the percentage of contributory negligence of which the plaintiff was guilty had no basis in fact, and therefore requests a new trial confined solely to the question of the percentage of plaintiff's contributory negligence.
Again I must conclude that the issue of contributory negligence is for the jury, and that the evidence elicited from both plaintiff's and defendant's witnesses supports a reasonable basis from which the finding of contributory negligence could be sustained.
Plaintiff's motion for new trial limited to the issue of contributory negligence will be refused.
An appropriate order is entered.