Before McLAUGHLIN, GANEY and SMITH, Circuit Judges.
McLAUGHLIN, Circuit Judge.
In this Federal Employers' Liability Act (45 U.S.C.A. § 51 et seq.) claim, plaintiff was injured when, while riding a hopper car, the latter was struck from the rear by another car, causing plaintiff to be thrown to the ground.
The case was tried to a jury which gave a verdict in favor of the plaintiff in the sum of $25,000. There was no trial indication that plaintiff's work for the defendant, prior to the accident, had been unsatisfactory. At the trial, the evidence in his behalf was to the effect that in five years plaintiff's then physical condition might interfere with his job performance. The defense medical testimony did not suggest any present or future deterioration of plaintiff's ability to carry on with his employment.
Following the trial, defendant refused to permit plaintiff to return to work. It based this on a medical examination of plaintiff by its medical officer after the trial, upon plaintiff's trial testimony and the medical opinions of his doctor. Plaintiff moved for a new trial for additional damages or on damages alone. Defendant also sought a new trial on the ground the verdict was excessive. The court allowed plaintiff a new trial on damages only.
Prior to the new trial the parties agreed that if a qualified orthopedic surgeon acceptable to both sides, found plaintiff physically qualified for his position of car rider that he would be paid the amount of the first trial verdict with interest and permitted to return to work. Plaintiff was so examined and determined to be fit. The parties then through their attorneys agreed that "the matter shall be at an end." The railroad in the stipulation stated that "Mr. Slage is qualified for all the duties of a trainman" and that it "will permit Mr. Slage to resume his work on the Railroad."
The agreement closed with the following paragraphs:
" (c) If said physician determines that Mr. Slage is not, by reason of any condition in the areas aforesaid, disqualified from performing the duties of a trainman, the Railroad shall, within ten days of the date on which it receives the report of said physician, permit Mr. Slage to resume his work on the Railroad and shall pay Mr. Slage the wages which he would have earned had he worked on each day work was available to him from the first day on which he was disqualified or restricted to the date on which he is permitted to return to duty.
"9. All the foregoing is subject to the availability of work under existing rules, regulations and agreements to one holding the seniority held by Mr. Slage.
"10. Should the Railroad fail to reinstate Mr. Slage as required by Paragraph 8(c) above, the matter shall be brought to the attention of his Honor, Judge Gourley and the case shall be re-opened and tried on such issues as his Honor, Judge Gourley shall, in his sole discretion, deem proper."
On the basis of the agreement, the case was marked settled and dismissed with prejudice. Thereafter defendant advised plaintiff that he had been off duty for such a length of time that he was required to again be examined on the book of rules and the time table before being allowed to go back to work. Plaintiff, on the advice of his attorney, refused to take the named examinations. A petition for the enforcement of settlement was filed on behalf of the plaintiff. The trial court without taking any testimony, on its own motion set aside the settlement and ordered the trial to be had. The trial resulted in a verdict of $72,500 in favor of the plaintiff. This appeal by the defendant is from the resultant judgment.
Appellant first seeks to justify its refusal to allow plaintiff to return to his position after the first trial and thus to validate its contention that the award of a new trial on damages only was unwarranted. It cites plaintiff's trial testimony and that of his doctor.It does not refer to its own trial evidence that Slage was then physically able to return to work. It also cites the post trial examination by its doctor (who had been a trial witness), stressing what plaintiff told that doctor as another reason why it was right in refusing him work. It does not mention or attack the holding of the district judge that "Medical testimony was offered by the plaintiff that in approximately five years the condition experienced by the plaintiff might interfere with the performance of his duties as a railroader, but it was not disputed, under the testimony offered by the plaintiff, that for a period of at least four to five years the employee would be able to pursue his employment and perform the duties assigned to him." We find no merit in the point raised.
Appellant next urges that a new trial was not necessary because plaintiff had adequate remedy at law through the employment contract between his labor organization and defendant under the Railway Labor Act. It asserts that the identical issue was considered in Payne v. Pullman Company, 13 Ill.App.2d 105, 141 N.E.2d 83 (1957).
Neither Payne or the other decisions cited by appellee deal with the situation before us. They are not applicable here. In the one reported opinion we have seen covering our exact problem, Judge J. Skelly Wright in Barnes v. Public Belt R.R. Commission, etc., 101 F.Supp. 200, 203 (D.C.E.D.La.1951) held that "Under Title 45, Section 51 United States Code Annotated [Federal Employers' Liability Act], this court has jurisdiction of the claim by plaintiff against his employer for damages suffered by him through the negligence of his employer. The Railway Labor Act, 45 U.S.C.A. §§ 151-188, has no application to a claim for damages to the employee resulting from the negligence of an employer railroad." See generally Elgin, Joliet & ...