The opinion of the court was delivered by: GOURLEY
This is an action under the Federal Employers' Liability Act to recover damages for injuries sustained while plaintiff was employed as a brakeman for Monongahela Railway Company. 45 U.S.C.A. § 51 et seq.
Upon jury trial verdict was returned in favor of plaintiff in the amount of $ 149,388.
In answer to specific interrogatories, the jury found the total amount of damages to be $ 186,735 but attributed twenty per cent of the negligence which was a proximate cause of the accident to plaintiff.
The sole matter before the court is defendant's motion for new trial.
Defendant filed timely motion for new trial assigning the following reasons:
1. The verdict was grossly excessive and appears to have been rendered under the influence of sympathy, passion or prejudice.
2. The jury's finding as to the total amount of damages suffered by the plaintiff was not supported by sufficient, competent and credible evidence.
3. The verdict was contrary to the law and the evidence.
5. The Court erred in sending the jury out for further deliberation instead of reforming the general verdict in open court in accordance with the original finding as to total damages and percentage of negligence attributable to the plaintiff, as shown by the answers of the jury to interrogatories propounded by the court.
6. The Court erred in overruling motion of defendant's attorney to withdraw a juror because of improper arguments made by plaintiff's attorney in his closing speech to the jury, and in permitting plaintiff's attorney to present improper and unwarranted arguments.
7. Repeated criticism of defendant's attorney by the Court was prejudicial to the defendant.
8. The Court erred in requiring defendant's attorney on two occasions to state if his purpose in offering certain testimony through the witness Vickers was to have the jury infer that plaintiff is assured of future employment by the defendant. The prejudice to the defendant was accentuated by the reference made to this matter in the closing speech of plaintiff's attorney to the jury.
9. The Court erred in admitting over objection certain testimony of the witness Titler, and in denying motion of defendant's attorney to withdraw a juror made in connection therewith.
10. The Court erred in admitting certain evidence offered by plaintiff and in other rulings relating to admission or exclusion of testimony.
Approximately eight months after filing the instant motion, defendant filed a supplementary list of ten additional reasons in support of its motion relating to court rulings during course of trial and alleging improper and abusive remarks on the part of plaintiff's counsel in his closing address. I am satisfied that a court may not grant a motion for new trial on reasons assigned after the ten day period for filing and serving the motion has expired. Schuyler v. United Air Lines, D.C., 94 F.Supp. 472, 477, affirmed, 3 Cir., 188 F.2d 968; Cheffey v. Pennsylvania R. Co., D.C., 79 F.Supp. 252; Fine v. Paramount Pictures, 7 Cir., 181 F.2d 300; Baird v. Aluminum Seal Co., D.C., 149 F.Supp. 874, 3 Cir., 250 F.2d 595.
Assuming, however, that this court is in error in its views relative to issues raised after the expiration of the ten day limitation in filing reasons for motion for new trial, I shall consider the merits of all issues raised both during and subsequent to the period authorized under the Federal Rules of Civil Procedure, rule 59, 28 U.S.C.A.
The additional reasons presented after the ten day period had expired are as follows:
1. The court erred in overruling objection of defendant's attorney to questions propounded to witness Keene as to why the trainmen switched Arkwright mine on the blind when they did not regard such procedure as either in accordance with the Company rules or safe.
2. The court erred in admitting over objection the testimony of plaintiff that four men have been made regular yardmasters by appointment to ...