the verdict is against the weight of the evidence.
Plaintiff sustained a ventral hernia, requiring three distinct operations and necessitating the installation of tantalum mesh. He presently has a large ventral hernia approximately the size of a grapefruit. Because of the deteriorated condition of plaintiff's abdominal wall and the attendant dangers, surgery is not recommended. Pain, suffering and inconvenience of a most substantial nature has existed and will continue to one degree or the other as long as the plaintiff lives. It is undisputed that plaintiff is unfit to engage in heavy industrial work. Plaintiff was forty-two years of age at time of trial with a life expectancy of 31.4 years. Based upon the medical prognosis and the attendant circumstances surrounding plaintiff's condition, together with an evaluation of plaintiff's limited education and training, a jury well might conclude that plaintiff within the near future may prove unemployable with a potential loss of future earnings approximating $ 160,000. Pain, suffering, inconvenience and disfigurement, and their accompanying impact upon the psychological make-up and perspective upon plaintiff's life is appalling.
Permissible differences in arriving at verdicts must be allowed between juries. The economics of the situation in the period involved should be considered. The amount of the verdict must be viewed in the light of what it is capable of purchasing.
I cannot conclude, in view of the extraordinary trauma which plaintiff endured, that an award of $ 60,000 is excessive and shocks the conscience of the court, or that it appears that the jury was biased or acted capriciously or unreasonably. Thomas v. Conemaugh & Black Lick R. Co., supra.
As this Circuit has frequently reiterated, while an award may be high, it should stand if there is ample evidence to justify it. It is not my prerogative to arbitrarily substitute my judgment for that of the jury. Trowbridge v. Abrasive Co. of Phila., 3 Cir., 190 F.2d 825; Lebeck v. William A. Jarvis, Inc., 3 Cir., 250 F.2d 285.
In Point Eighteen it is contended that the court erred in its charge on the test of liability.
It is most significant that the defendant has selected an isolated excerpt from the court's charge. The charge must be considered as a whole with a view of determining the impression conveyed thereby to the jury, and determining whether the charge was misleading. McLeod v. Union Barge Line Co., D.C., 95 F.Supp. 366, affirmed 3 Cir., 189 F.2d 610. A detailed reading of the entire charge will disclose that the court reviewed in great detail negligence, causal relationship, proximate cause and contributory negligence, and most assiduously advised the jury of plaintiff's burden of proof both as to negligence and causation.
The excerpt of the charge to which defendant objects is an identical statement of the latest expression by the Supreme Court of the United States as to the basis of liability under the Federal Employers' Liability Act. Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S. Ct. 443, 1 L. Ed. 2d 493.
Judge Hastie, in a most learned opinion, has indicated that the quoted language merely reiterates the commonly accepted rule of law that the role of a defendant's negligence in helping bring about the injury may be small. It does not suggest that an FELA plaintiff can carry his burden of proof without evidence that the role was real. Dessi v. Pennsylvania, Railroad Co., 3 Cir., 251 F.2d 149.
In considering the instant motion for new trial, I have evaluated the complete record and exhibits with meticulous care. I have carefully scrutinized the testimony, and 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.
It is my considered judgment that the verdict rendered was not against the evidence, weight of the evidence, or the law.
After again applying most reflected judgment to the record, I believe that under all the credible evidence justice sustains plaintiff's right to recover in the amount of $ 60,000.
An appropriate order is entered.