(b) Was there sufficient evidence of negligence on the part of Louis A. Bahr to support a verdict against his master and principal, Pneumatic?
(c) Was there sufficient evidence of the status of Louis A. Bahr as an employee of Pneumatic performing his duties in furtherance of the business of Pneumatic to support a verdict against Pneumatic?
(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 motions for new trial, I have evaluated the complete record and exhibits with meticulous care.
Upon careful scrutiny of testimony elicited from plaintiff's witnesses, and from a most thorough evaluation of testimony and evidence produced by Knox and Pneumatic, I am satisfied that the jury could have reasonably concluded the negligent conduct of both defendants.
To substitute the personal opinion of the court would do violence to the processes and purport of the jury trial. This jury appears to have given most studied consideration to the evidence.
Knox contends, however, that even if it were negligent, its negligence was superseded by the negligent act of Louis A. Bahr, acting in behalf of Pneumatic, which should exonerate Knox from liability.
Section 447 of the Restatement of Torts provides:
'The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if
'(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or
'(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or
'(c) the intervening act is a normal response to a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent.'
Upon recapitulation of all the credible evidence, I am convinced that the quantum of proof is such that a jury could reasonably conclude failure of Knox to properly test and recondition the engine was the proximate cause of plaintiff's injury and that Pneumatic's failure to properly inspect the unit before placing it in operation was the substantial concurrent cause.
It is my considered judgment that the verdict rendered was not against the evidence, weight of the evidence, or the law.
Counsel for defendants maintain 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 is 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.
As a result of this accident, the plaintiff sustained a comminuted fracture of the tibia and a fracture of the fibula of the left leg, resulting in a low grade osteomyelitis, a shortening of the leg with permanent impairment in function. In addition, he sustained cerebral concussion and experiences severe headaches.
The plaintiff has been required to undergo major surgery and has been ridden with pain and discomfort.
In view of plaintiff's background being that of a laborer in heavy work and his permanent disability from carrying on such labor as a result of the injury, as well as the guarded prognosis indicative of future complications and deterioration, I am satisfied that the award was commensurate with the amount of damages evinced in the record.
Defendants' motions for new trial will be refused.
An appropriate order is entered.