The opinion of the court was delivered by: MASTERSON
On February 27, 1964, the plaintiff, Francis J. Peterson, instituted suit in this Court against Calmar Steamship Corporation, hereafter referred to as Calmar, to recover damages he allegedly incurred as a result of an accident on June 10, 1963. At the time of the accident Peterson was working as a longshoreman, assisting in the loading of cargo aboard a vessel owned by Calmar, i.e. the S/S "Marymar". In his complaint Peterson charged that the accident resulted from Calmar's negligent supervision of the loading operation and/or from the allegedly unseaworthy condition of the S/S "Marymar".
The case came to trial on November 17, 1967, and, with the agreement of counsel, the Court severed the issue of liability from the issue of damages. (N.T. Liability Case, p. 7). On November 22, 1967, counsel waived a jury trial of the liability issue and the Court, acting as the fact-finder, decided that Calmar was liable to the plaintiff for injuries which he had sustained as a result of the June 10th accident, because the accident had been caused by the unseaworthy condition of the S/S "Marymar". (N.T. Liability Case, p. 380), and (N.T. Damage Case, p. 2), (All future references to the transcript will be to the transcript of the "Damage Case"). A jury was sworn to try the damage aspect of the case and, on December 2, 1967, the jury returned a verdict in the amount of $4,116.50, upon which verdict a judgment for the plaintiff was entered on December 6, 1967.
Plaintiff has moved for a new trial limited to the issue of damages. In his motion the plaintiff contends generally that the verdict was against the evidence and the law, and "* * * shockingly inadequate and low * * *", Motion for a New Trial, (filed December 15, 1967), p. 2. In his briefs in support of his motion, however, the plaintiff contends further that the Court erred in its rulings upon four separate evidentiary problems, and that these errors prejudiced the plaintiff and entitle him to a new trial on the issue of damages. For reasons discussed below the plaintiff's motion for a new trial is denied.
The plaintiff advances his motion for a new trial pursuant to Rule 59(a) of the Federal Rules of Civil Procedure, which provides, in pertinent part:
"A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States * * *".
Rule 59 thus indicates that the plaintiff properly can move for a new trial on the limited issue of damages. A court properly may limit a new trial to this issue when liability has been "* * * competently determined by the jury, and when the damage issue is not interwoven with the liability issue." Moore, Federal Practice, Vol. 6A, para 59.06, p. 3761. See generally, Paluch v. Erie Lackawanna Railroad Co., 387 F.2d 996, 1000 (C.A.3, 1968).
The damage issue in this case essentially depended upon the jury's determination of the relationship which existed between the initial accident of June 10, 1963, and a later accident, in which the plaintiff was involved, which occurred in October, 1964. The plaintiff's position in general was that the second accident was precipitated by a residual disability of his which had been caused by the first accident. This position was grounded, in part, upon the testimony of the plaintiff and the testimony of several of his fellow workers. The defendant maintained, on the other hand, that the October, 1964, accident was related in no way to the earlier accident. In addition to medical testimony in support of this position, the defendant offered a history allegedly given by the plaintiff on the day of the October, 1964, accident to a nurse stationed near the scene of the accident. This report contradicted the plaintiff's factual testimony in one significant aspect and it was clear that the jury's ultimate determination would depend significantly upon its assessment of the credibility of the various witnesses.
Initially it is clear that motion for a new trial should be denied to the extent that the plaintiff has challenged in a general way the inadequacy and/or impropriety of the verdict. The evidence relevant to the alleged relationship between the two accidents admittedly was conflicting, and could support a reasonable determination that there was no relationship between the accidents, or that, in the alternative, the first accident was a proximate cause of the second. In such circumstances, particularly when the matter for decision is the extent of damages suffered by a plaintiff, it is improper for a court to interfere with a jury's verdict, unless the verdict was so low as to shock the conscience of the court and/or unless the court committed prejudicial error in the course of the trial. See, e.g. Curtis Machine Co. v. MacInnes Steel Sales Co., 160 F. Supp. 438, 441 (W.D.Pa., 1958), and Mainelli v. Haberstroh, 237 F. Supp. 190, 192 (M.D.Pa., 1964), aff'd 344 F.2d 965. A review of the trial transcript indicates that the verdict rendered by the jury in this case was not so low as to shock the conscience of the Court and that it will fairly compensate the plaintiff for the injuries which the jury found that he had sustained as a result of the accident of June 10, 1963. The plaintiff has charged further that the Court committed prejudicial error requiring a new trial in ruling on four questions of evidence.
A motion for a new trial, of course, may be grounded on an allegation that evidence was admitted or excluded improperly during the course of a trial and that such error prejudiced the moving party's rights to a fair trial. See generally, Moore, supra, para 59.08, pp. 3777-3778, and cases cited therein. There is, however, no precise formula to guide a court in deciding such a motion. At best a court may employ the standard set forth in Rule 61 of the Federal Rules of Civil Procedure:
"No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict * * * unless refusal to take such action appears to the court inconsistent with substantial justice. * * *".
There are a few additional principles which can assist the court in deciding whether refusal to order a new trial would be "* * * inconsistent with substantial justice * * *", See generally, Barron and Holtzoff, Federal Practice, Vol. 3, § 1353, p. 444, and, e.g. Horibe v. Continental Baking Co., 298 F.2d 43, 45-46 (C.A.7, 1962) (possible error may be treated as harmless where counsel did not seasonably object to the allegedly improper ruling), and Aetna Casualty and Surety Co. v. Tryniecki, 293 F.2d 289, 290-291 (C.A.5, 1961) (possible error may be treated as harmless where the moving party's counsel himself elicited the objected-to evidence). For the most part, however, the harm which has resulted from any particular error can be assessed properly only by an examination of the facts of the individual case. A review of the facts of this case compels the conclusion that the evidentiary rulings were not error, and that, even if considered as error, they constituted harmless error.
Initially, plaintiff urges that the court erred in permitting (1) cross-examination of two of the plaintiff's co-workers who testified in his behalf, i.e. Joseph Harvey and Andrew Tomaszewski, as to their membership in the same Union as the plaintiff; and (2) in permitting defense counsel to advert in closing argument to these facts and the additional fact that plaintiff's counsel represented this Union. See, respectively, (N.T. pp. 356-358, 369-372, and 597-598). Plaintiff argues that both the testimony and the references to the testimony in defense counsel's argument had no probative force and had the effect of "unnecessarily tarring" the plaintiff's witnesses. See, Bratt et al. v. Western Air Lines, Inc., 169 F.2d 214, 217 (C.A.10, 1948), and Lee Way Motor Freight v. True, 165 F.2d 38, 41 (C.A.10, 1947).
There is an infinite range of circumstances to which counsel legitimately can refer for the purpose of demonstrating a witness's bias in favor of one party. See generally, Wigmore, Evidence, § 949, pp. 499-501, and Henry, Pennsylvania Evidence, § 815, pp. 278-279. Among the more common circumstances are a witness's common membership with a party in an organization such as a union, See generally, Lee Way, supra, 165 F.2d at 41, and/or the existence of a biased relationship between the witness and counsel for one or the other party. Ibid., p. 41. Plaintiff's counsel himself attempted to illustrate the bias of one of the defendant's medical witnesses, Dr. Bernard ...