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July 2, 1970

Theodore BENAZET, Plaintiff,

Cooper, District Judge.

The opinion of the court was delivered by: COOPER

COOPER, District Judge.

Plaintiff Benazet brought suit against defendant Atlantic Coast Line Railroad Company (Atlantic) for damages suffered as a result of his fall from a railroad boxcar owned by Atlantic claiming Atlantic negligently released the car into commerce in a defective condition and failed to inspect, repair and warn of the defective condition. This action was removed to this Court from the Supreme Court, New York County, by Atlantic, federal jurisdiction resting upon diversity of citizenship. Thereafter, Atlantic impleaded plaintiff's employer Erie Lackawanna Railroad Company (Erie) asserting that Erie was in possession of the car at the time of the accident and was negligent in failing to properly inspect the car so as to discover any defective condition and, thus, liable either in contribution or indemnity for either one-half or the full amount, respectively, of any judgment plaintiff might recover against Atlantic.

 Following a four day trial, the jury on April 16, 1970 returned a verdict in favor of plaintiff in the amount of $200,000. Judgment was entered as to the main claim on April 30, 1970 pursuant to Rule 54(b), F.R. Civ. P.

 We are here faced with certain legal contentions the resolution of which will determine the third party action. In connection with these questions of law including jurisdiction, motions have been filed by all parties herein to amend the pleadings to conform with the proof. Finally, both defendant and third party defendant have moved on several grounds for an order setting aside the verdict or in the alternative granting a new trial.

 * * *

 On July 30, 1964 Benazet was injured when, in the course of his duties as a brakeman employed by Erie, he attempted to tighten a handbrake on a railroad boxcar owned by Atlantic. Plaintiff claimed, and the jury evidently so found, that the accident and consequent injuries occurred generally as follows: as he was applying the handbrake a rotted foot board gave way under his foot causing his weight to go upon the handbrake assembly which in turn broke away from the car as a result of the defective condition of the brackets affixing the handbrake assembly to the freight car resulting in plaintiff's fall. Proof at trial which the jury was entitled to credit, established that the brackets were defective in that they had fissures over an inch long, a condition requiring years to develop. Some time prior to the accident an attempt had been made to repair the breaks in each bracket by spot welding, a highly improper procedure at best and performed so poorly herein that one witness described it as a "butcher job."

 This car owned by Atlantic left its possession on June 4, 1964, less than two months prior to the accident. Between that date and July 27, 1964 when it was delivered to Erie, it is acknowledged that it had been in the possession of and operated over approximately seven different railroads in different parts of the country. Erie had this car in its possession for three days prior to July 30, 1964, the date of plaintiff's injury. Nevertheless, based on the testimony with respect to the age of the defects, we believe there was adequate evidence to support the jury's requisite finding on the element of proximate causation that Atlantic was either the cause or knew or should have known of the existence of the defects in the brackets of the car it placed in commerce and that there was no superceding cause of the accident.

 At the time of the accident the boxcar from which plaintiff fell was on a carfloat owned by Erie. The carfloat was a barge (having no motor power) with tracks to accommodate railroad cars. This carfloat was moored on the Hudson River near the New Jersey shore next to an Erie float bridge -- a floating pier used for the loading or unloading of carfloats. The carfloat was fully loaded and ready for its scheduled towing across New York Harbor to connect with the Long Island Railroad. At the time of his fall to the deck of the carfloat, plaintiff was tightening the handbrake involved here in order to make the last boxcar more secure for that voyage.

 Excessiveness of the Verdict; Other Post Trial Motions

 At the outset we dispose of defendant's and third party defendant's various motions to set aside the verdict and grant a new trial, which we denied after the jury's verdict but with leave to renew in writing.

 As to the motions addressed to the claimed excessiveness of the jury's verdict: we can well understand how the jury came to regard plaintiff's testimony as forthright, clean and without exaggeration. That portion of the entire trial record which concerns itself with the pain and suffering endured, and clearly to be anticipated, demonstrates experiences of deep-seated unremitting and excruciating pain, both physical and mental, over an extensive period of time.

 Wages lost before trial, loss of future wages and increments thereon (the reasonable expectancy of working years was 22 as agreed upon), the medical expense actually incurred and reasonably to be anticipated, were closely calculated and met with no disturbing opposition. See Grunenthal v. Long Island R. Co., 393 U.S. 156, 89 S. Ct. 331, 21 L. Ed. 2d 309 (1968).

 We were very strict in holding the jury to those items of damage only which the law countenances: [From the trial judge's draft of the charge to the jury (court reporter's minutes not presently available).]

"Now, what I have been laying down to you as to the law of damages is the law's formula for the assessment of damages. You have no power to alter that formula. Yes, you have the power under the law to determine the proper amount, if you should so find, of each item of damage, but you do not have the legal power to substitute another formula for the only one that the law recognizes. On all the items of damage you are to be guided by your common sense. As with everything else in this case, you are to be guided by what life has taught you, the experiences you have had, and such an award as you make must bear a ...

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