injustice will result if it were allowed to stand. A court may not substitute its own judgment for that of the jury merely because the court would have reached a different conclusion. Having these principles in mind, I now direct my discussion to plaintiff's assertions.
SUFFICIENCY OF THE EVIDENCE
Plaintiff's ground no. (1) challenges the sufficiency of the evidence supporting the jury's determination of gross damages. Plaintiff's ground no. (2) challenges the sufficiency of the evidence supporting the jury's determination of the degree to which plaintiff was contributorily negligent. Since both of these challenges are to the sufficiency of the evidence, I shall consider them together.
In deciding a motion for a new trial based on the ground that the verdict is against the weight of the evidence, the Court may not substitute its judgment for that of the jury. 6A Moore's Federal Practice, P 59.08(6) at 59-168-69 (2d ed. 1974). "(I)t is the duty of the Court to be certain that the verdict was not influenced by partiality or prejudice and that there is no miscarriage of justice." University Marketing & Consulting, Inc. v. Hartford Life & Accident Ins. Co., 413 F. Supp. 1250, 1262 (E.D.Pa.1976).
Where a party is questioning the decision of a jury as to the amount of damages awarded, the Court must exercise its sound discretion so as not to interfere with the fact finding functions of the jury. Determination of the degree of contributory negligence of a party is a matter for the jury. It is the duty of "the jury to measure the risks involved, and to determine the extent, if any, to which the (party) was contributorily negligent." McGlothan v. Pennsylvania Railroad Co., 170 F.2d 121 (3d Cir. 1948).
This Court may only interfere with a jury verdict when, "considering the elements involved, (it) is so inadequate as To shock the conscience of the court." Silhol v. Levengood, 55 F.R.D. 304, 305 (E.D.Pa.1972) (emphasis in original); Peterson v. Calmar Steamship Corp., 296 F. Supp. 8 (E.D.Pa.1969). In applying these principles to the facts of the case Sub judice, it is apparent to this Court, in accordance with legal standards and sound discretion, that the findings of the jury should not be disturbed. Hard v. Stevens, 65 F.R.D. 637 (E.D.Pa.1975).
Plaintiff offered evidence that some of his injuries persisted up to the time of the trial and that he was unable to return to his former work. (N.T. 1-55; 1-57). However, there was conflicting expert medical testimony as to the actual extent of plaintiff's injuries. Plaintiff's doctor testified that he diagnosed muscle spasms of the back and prescribed a back brace and therapy. (N.T. 2-137; 2-93, 97; 1-45, 48). However, defendant's medical witnesses testified that they found low back pain and administered a myelogram, a diagnostic test, which was negative. (N.T. 4-46, 47). In addition, one of defendant's witnesses also testified that plaintiff could have returned to work at any time. (N.T. 3-41, 42, 49).
Defendant also introduced testimony as to the contributory negligence of Mr. Legette. Testimony elicited at trial indicated other routes that plaintiff could have taken back to his work after getting his drink of water. (N.T. 4-23). Defendant offered testimony to the effect that plaintiff, as a trackman, had the duty himself to avoid the tie handler machine, as opposed to the machine operator having a duty to look out for the workers. (N.T. 4-67). Furthermore, the defendant maintained that the accident could not possibly have occurred in the manner alleged by plaintiff. (N.T. 4-66). The issues raised by this conflicting testimony presented questions of fact for the jury and I will not circumvent their findings.
On the issue of damages, plaintiff sets forth in his brief in support of his motion for a new trial, that he incurred, at the time of trial, $ 33,000 in lost wages and benefits. Plaintiff's Brief at 15. The existence and extent of damages are peculiarly questions of fact and hence great deference is due the determination of the factfinder. Mainelli v. Haberstroh, 237 F. Supp. 190, 192 (M.D.Pa.1964), aff'd, 344 F.2d 965 (3d Cir. 1965).
The jury returned a damage award of $ 40,000, which, when reduced by 55%, the degree to which the jury found the plaintiff contributorily negligent, was neither "shocking to the conscience" of the Court, nor so excessively low as to be inconsistent with the evidence presented at trial.
The evidence here was clearly conflicting. Therefore, it is the duty of the jury, after listening to all the testimony, to determine which facts it believes to be correct. "The credibility of witnesses is peculiarly for the jury and the Court cannot grant a new trial merely because the evidence was sharply in conflict." University Marketing & Consulting, Inc. v. Hartford Life & Accident Ins. Co., supra, 413 F. Supp. at 1262. Even plaintiff has acknowledged that the "jury had the right to accept the opinions of the various physicians which were expressed to them." Plaintiff's Brief at 11. I conclude that the jury did just that.
This Court will not interfere with the decision of the jury which, as is its particular function, made a determination of the damages due plaintiff and the degree to which plaintiff was contributorily negligent, for to do so would be a "denigration of the jury system." Mainelli v. Haberstroh, 237 F. Supp. 190, 192 (M.D.Pa.1964), aff'd, 344 F.2d 965 (3d Cir. 1965). For the foregoing reason, I find that plaintiff's grounds number (1) and (2) do not warrant ordering a new trial.
Plaintiff asserts in ground number (3) that the issue of contributory negligence was not raised at trial and therefore, the Court erred in charging the jury on that issue. I find this contention to be without merit.
Whether or not the issue of contributory negligence is properly submitted to the jury depends on whether, and to what degree, evidence of plaintiff's contributory negligence was produced at trial. The Court in Dixon v. Penn Central Company, 481 F.2d 833 (6th Cir. 1973), articulated the standard:
(T)he same causation standard whether the act contributed in any way to the injury applies both to defendant's negligence and plaintiff's contributory negligence. Accordingly, the FELA cases that allow plaintiffs to reach the jury on a very slim showing of negligence permit defendants to go to the jury on the issue of plaintiff's negligence with equally slim showings. However, just as an FELA plaintiff has no case if he cannot produce some showing of negligence, neither has a defendant who fails to produce any evidence at all on the issue. Id. at 835.