of damages. This procedure has been frequently, if not regularly, employed by counsel in final argument as a basis of assisting lay jurors in evaluating damages. At no time did counsel for the plaintiff, in his hypothetical illustrations, suggest or intimate that the figures he employed represented the specific damages in the case at trial. But even assuming that defendant's objection is well taken, counsel for the defendant made no such objection during or at the close of the address or, for that matter, at any time prior to the filing of the motion for new trial.
Such a complaint must be made during or at the close of the address. Failure to make timely objection effectively bars a subsequent complaint. Chicago & N.W. Ry. Co. v. Green, 8 Cir., 164 F.2d 55; St. Louis Southwestern Ry. Co. v. Ferguson, 8 Cir., 182 F.2d 949.
I am satisfied that this court conducted the trial of this case with a sense of strict impartiality and fairness. A hotly contested case, as this one proved to be, inevitably aroused comment of the court or counsel, which isolated from context or devoid of the atmosphere or manner in which it was spoken may raise doubts of propriety. Nevertheless, no comment in this record, when taken in the proper perspective and balance of the entire record could be deemed to have improperly influenced the jury, nor was any comment intended or calculated to do so. Conry v. Baltimore & O.R. Co., D.C., 112 F.Supp. 252, affirmed 3 Cir., 209 F.2d 422.
5. Was the Verdict Excessive and Based on Passion and Prejudice?
Counsel for defendant contends that the verdict was contrary to the evidence in that it was excessive. As a result of this accident, plaintiff had suffered a herniation of the intervertebral disc and extensive damage to the muscles, ligaments and soft tissues of the neck and back. His condition was extremely painful necessitating frequent medication for pain, with pain increasing upon physical activity. He was totally disabled for his former occupation as a brakeman and any other work involving physical exertion.
In addition, plaintiff suffered sexual impotency as a result of said accident.
Plaintiff, age 39, has a life expectancy of 35.9 years. His loss of earnings until date of trial was approximately $ 8,000. He incurred medical bills in the amount of $ 1,400. Plaintiff's annual continuing wage loss was $ 6,400 per annum. Assuming annual earnings of $ 6,400 and a work expectancy to age 65 of 26 years, plaintiff's probable loss in earning power would amount to the present worth of $ 166,400.
Further recognizing that 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 possible long period of time of the equivalent of plaintiff's potential life span.
I cannot but help conclude that the award was commensurate with the amount of damages evinced in the record. The verdict was certainly not so large as to shock the judicial conscience. Thomas v. Conemaugh & Black Lick Railroad Company, 3 Cir., 234 F.2d 429.
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 that the violation of the Safety Appliance Acts was the proximate cause of the accident resulting in plaintiff's injuries. 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 the employer's violation of the provisions of the Safety Appliance Acts caused plaintiff's 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 Company, supra.
Upon most thorough study and evaluation of the credible evidence and exhibits, I am convinced that the quantum of proof establishes that the verdict rendered was not against the evidence, weight of the evidence, or the law.
Motion for new trial is refused.
An appropriate order is entered.