Before MEDINA, FRIENDLY and SMITH, Circuit Judges.
On March 26, 1959 Savino Dagnello, a yard brakeman in the employ of appellant Long Island Rail Road Company had his left leg amputated when it was run over by two freight cars in the railroad's Pitkin Avenue Yard in Brooklyn, New York. Negligence on the part of the railroad was conceded, and the case went to the jury on the issues of contributory negligence and the amount of the damages to be assessed. The jury rendered a verdict against the railroad for $130,500. Although not requested to do so, the jury of its own volition, but closely following the various elements of damage discussed in Judge Weinfeld's charge, set forth the items of damage as follows, deducting 10% for contributory negligence:
1. Loss of salary to date $10,000
2. Compensation for amount of
cause of injury - $38,000 at
4 1/2%, $1710 per year 38,000
3. Compensation for pain and
suffering and loss of limb 97,000
Total Settlement $145,000
The only point argued before us is that the trial judge abused his discretion in refusing to order a new trial, or direct a remittitur, on the sole ground that the $97,000 awarded for "pain and suffering and loss of limb" was too high.
In limine appellee challenges our power to consider this question. Moreover, the facts of this case are such as to present the problem in its simplest form. The atmosphere of the trial was precisely what it should have been. There were no incidents, or appeals to prejudice or passion to play upon the sympathy of the jury. The evidence was amply sufficient to warrant a finding of liability. If there was any abuse of discretion in the refusal of the trial judge to set aside the verdict, it was solely because the amount of the verdict was too high. But appellee argues that, in the absence of some erroneous ruling on matters of evidence or in the instructions to the jury, or some indication that the trial judge thought he lacked power to set aside the verdict for excessiveness, or something to show that the verdict was the result of passion or prejudice or bias on the part of the jury, we lack power to review the alleged abuse of discretion by the trial judge in refusing to set aside the verdict for mere excessiveness. Appellee insists that our power of review is limited to questions of law and that, if we were to hold it was an abuse of discretion to refuse to set aside the verdict, we would be deciding a question of fact, or "personal discretion," and not a question of law, in violation of the Seventh Amendment.
While the intermediate appellate courts of the States and in most instances the State courts of last resort have for many years exercised the power we are said to lack,*fn1 in the federal system the subject has been one of seemingly endless controversy. Our own decisions on the point have not been consistent. Compare, e.g., Powers v. Wilson, 2 Cir., 1940, 110 F.2d 960, with Comiskey v. Pennsylvania R.R., 2 Cir., 1956, 228 F.2d 687, 688. Indeed, Professor Moore classifies us with the Eighth Circuit as "the most adamant expounders" of the "old doctrine of non-reviewability of decisions on motions for a new trial based on the inadequacy or excessiveness of the damages." Moore's Federal Practice, Vol. 6, p. 3834. Curiously enough, most of the cases make no reference whatever to the Seventh Amendment.
We hold that the question at issue is within our competency to decide and we shall state in some detail the reasons we ...