work which was done by Casey had been completed and accepted in October, and the accident did not occur until the following April, and despite a discrepancy in testimony as to where the tunnel was located with reference to the situs of the accident, and the prerequisite element of exclusive control on the part of Casey was most doubtful and questionable, nevertheless, because of defense counsel's persistence in his request for a charge on res ipsa loquitur, the jury was instructed on the doctrine in the claim of the Railroad against Casey.
Assuming, however, that should the circumstances of the accident not even justify a charge to the jury on res ipsa loquitur, the verdict could well be sustained on the rudiments of simple negligence. In this connection plaintiff submitted proof to the effect that defendant was required to insert timbers in an effort to buttress the ground as a result of the earth being partly washed away; that rats had infested the area; and that fire occurred underneath the hump necessitating certain excavation on the part of the Railroad. With respect to its charge on negligence, the court followed the mandate of this Circuit as to the requirements of proof. Kendrick v. Piper Aircraft Corp., 3 Cir., 265 F.2d 482.
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 crush fracture of the twelfth thoracic vertebra and damage to the intervertebral disc above said vertebra with extensive damage to the nerve supply resulting in extensive pain, necessitating back manipulations and aid of a back brace for one year. In addition, based upon defendant's own testimony plaintiff suffered traumatic neurosis, which condition continued on the date of trial. He was permanently disabled to the extent of 20%, and for all practical purposes is unable to carry on the occupation of a brakeman.
Plaintiff, age thirty-five, has a life expectancy of 36.3 years. His loss of earnings until date of trial was approximately $ 20,000. Assuming the loss of earnings based upon the hourly rate presently provided in the type of work plaintiff performed, his wage expectancy until attaining the age of sixty-five would approximate $ 170,000. It is well known in railroad parlance that seniority begets higher status in job assignments. Based upon the probabilities as indicated by medical testimony, this expectancy has been most substantially or completely destroyed.
I am further compelled to recognize that in considering an award for pain and suffering, the jury was required to consider actual pain experienced and a span of probable pain the future encompassing many years in time to come.
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 Philadelphia, 3 Cir., 190 F.2d 825; Lebeck v. William A. Jarvis, Inc., 3 Cir., 250 F.2d 285; Thomas v. Conemaugh & Black Lick Railroad, supra.
I am satisfied that the award was commensurate with the amount of damages evinced in the record.
In considering the instant motion for new trial, I have evaluated the complete record and exhibits with meticulous care, and I am convinced, upon recapitulation of all the credible evidence, that the quantum of proof is such that a jury could reasonably conclude that the negligence of the Pennsylvania Railroad was the sole cause of plaintiff's injuries; that Casey was guilty of no act of negligence which contributed to the accident, nor did Casey breach its contract with Pennsylvania Railroad which justified or entitled Pennsylvania Railroad to recover against Casey.
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 $ 91,000, and that the verdict in favor of Casey and against the Railroad was not against the evidence, weight of the evidence or the law.
An appropriate Order is entered.