Staley, Hastie and Ganey, Circuit Judges.
James Thompson, a longshoreman and citizen of Pennsylvania, won a general verdict of $22,500 for damages resulting from an injury he received on February 27, 1953, aboard the S.S. Duke of Athens, a vessel owned and operated by Trent Maritime Company, Ltd., a corporation organized and existing under the laws of the United Kingdom. B. H. Sobelman & Co., the stevedore and employer of Thompson, which contracted to unload the No. 3 hold of the vessel, obtained a verdict of no liability in the third-party action against it by the shipowner for indemnity. The shipowner filed post-trial motions for a new trial, the one in the original action in personam set forth excessiveness of the verdict as a ground, and the other in the third-party action listed as the grounds alleged error by the trial court in refusing to charge as requested by the shipowner, and the jury's disregard of the court's charge as to the obligation of the stevedore to the shipowner. The trial court, on October 4, 1963, allowed the motion for a new trial in the original action if Thompson "failed to remit all the damages above the sum of $15,000 * * * within ten days from service of the order."*fn1 It denied the motion for a new trial in the third-party or indemnity action. 222 F. Supp. 221 (E.D.Pa., 1963). Thompson refused to remit $7,500, and submitted to a new trial limited to the issue of damages. At the second trial the jury found them to be $10,000. Judgment on this verdict was entered on March 19, 1964.
Thompson has appealed from the $10,000 judgment and requests that that judgment and the order of October 4, 1963, as amended, be reversed and the judgment of $22,500 entered May 7, 1963, in the original action be reinstated.
The shipowner has appealed from the judgment, also entered on May 7, 1963, in favor of the stevedore in the third-party action, and asks that the denial of its motion for a new trial in that action be set aside. The stevedore's motion to dismiss the shipowner's appeal as being untimely was denied by this court. 343 F.2d 200 (C.A.3, 1965).
Thompson contends that the trial court had no basis for awarding a new trial on the issue of damages in the original action. The court had allowed the motion on the ground that in its considered judgment the $22,500 verdict was grossly excessive and bore no proportion to the injury received or the damages sustained. In its opinion the only explanation for the size of the verdict was the jury's failure to isolate the foot injury from the subsequent amputation of Thompson's left leg in December of 1957. The court felt that a "fair amount consistent with the injury and the damages sustained would be $15,000." It reached the latter amount by attributing $660.50 to special damages (i.e., $560.00 in lost wages and $100.50 for medical expense), and the remainder of $14,339.50, without apportioning it among those various items, to (1) pain and suffering -- past and future, and (2) loss from impairment of earning power resulting from the injury to Thompson's right foot.
We think the trial court's action in ordering a remittitur is without support in the record.*fn2 Our examination of that record fails to disclose that any "undesirable or pernicious influence" regarding damages had obtruded into the trial,*fn3 and the shipowner points out none. It argues, agreeably with the trial court's conclusion, that the only explanations for the amount of the verdict was either the jury's sympathy for Thompson's unfortunate physical condition or that body's failure to separate damages flowing from the foot injury in the one instance and the amputation in the other. The probability that either one of these possible explanations is correct is too remote.
Unquestionably the amputation of Thompson's leg below the left knee as the result of an injury he received on December 28, 1957, was a complicating factor in the ascertainment of damages in the original action. In fairness to the shipowner and the stevedore, the effect of the second injury on Thompson's earning power was a fact which had to be exposed to the jury. The latter's awareness of this injury was not an insurmountable obstacle to its reaching a just verdict as to damages. Neither the shipowner nor the stevedore raised any objection on that account. At the beginning of its charge the trial court told the jury that this case must be decided upon rules of law and justice and not sympathy. Regarding the issue whether damages were payable and in what amount, the court instructed the jury no less than five times that whatever amount they might award Thompson must be related solely to his right foot injury. During this part of the charge it again reminded the jury that they must eliminate entirely from their minds any sympathy or other emotion insofar as the 1957 occurrence is concerned.
Additionally, the trial court, in concluding that the verdict was excessive, failed to take into account certain factors, supported by the evidence, foremost among them being Thompson's diminution of wages after the injury. His formal education ended in grammar school, and his primary occupation was the installing of hardwood floors. Since that work was both seasonal and unsteady, he augmented his earnings by working on the waterfront. Though that work was not as safe as hardwood floor work, it was better paying. At the time of injury to his right foot, he was 43 years of age and prior to that injury he had no physical disabilities. From the beginning of 1951 to the time of trial in May of 1963, his wage record is as follows:
Longshoreman Hardwood Floor Total
Year Wages Wages Annual Wages