over which the plaintiff had to pass was a circumstance of negligence which obviously made the plaintiff's already difficult task more difficult and was a factor which the jury well might consider in determining whether the work assigned to plaintiff was of such a nature that it demanded more employees than were provided.
Defendant further contends that plaintiff's case is deficient on the issue of whether plaintiff's injuries were attributable to the accident of April 19, 1952, in view of defendant's medical and hospital reports indicating that plaintiff had sustained an injury in June of 1951.
In this connection, the defense was based entirely upon records kept by its own employees. The degree of injury sustained on the different dates was heatedly contested by the parties, with conflicting and irreconcilable testimony, and became an issue of paramount importance in the jury's deliberation. The court, therefore, directed a specific interrogatory to the jury, in answer to which the jury concluded that the injuries in this proceeding were the proximate result of an accident on April 19, 1952.
I see no merit in defendant's argument that the verdict was arbitrary and capricious. The jury appears to have given most studied consideration to the evidence.
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 the 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 the 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 choice of conflicting versions of the way the accident happened, the decision as to which witness is telling the truth and the inferences to be drawn from the uncontroverted facts and the controverted facts are questions for the jury. If there is a reasonable basis in the record for concluding that it was negligence of the employer which caused the injury, it would be an invasion of the jury's function for the court to draw contrary inferences or to conclude that a different conclusion would be more reasonable. Thomas v. Conemaugh & Black Lick Railroad Co., 3 Cir., 234 F.2d 429.
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 sufficient manpower constituted an unsafe place to work and 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, and was not arbitrary or capricious.
Counsel for defendant contends that the verdict was contrary to 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.
As a result of this accident, plaintiff suffered a permanent injury to the disc structure of his spine, resulting in a disease known as arachnoiditis, with a prognosis that said condition would become progressively worse. Plaintiff's life expectancy is 35.9 years. His loss of earnings until date of trial was $ 8,432.71. Plaintiff's annual continuing wage loss was $ 1,000 per annum. In considering an award for pain and suffering, the jury was required to consider actual pain experienced and a span of probable pain in the future encompassing a period of thirty-six years. The jury further had the right to consider plaintiff's medical testimony indicating a progressively worsening condition of the plaintiff that could render him completely and totally disabled.
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.
An appropriate order is entered.