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November 7, 1980

William R. MORGAN, Plaintiff,

The opinion of the court was delivered by: SWEET

Plaintiff William Morgan ("Morgan") commenced this action against defendant Consolidated Rail Corporation ("Conrail") seeking damages under the Boiler Inspection Act, 45 U.S.C. § 23 *fn1" and the Federal Employers' Liability Act (the "F.E.L.A."), 45 U.S.C. § 51 *fn2" for the loss of an eye sustained while under Conrail's employ. Morgan, a freight trainman, was struck in the face by a bottle thrown by an unidentified youth through the open side window of the locomotive cab in which Morgan was riding. The damaged left eye had to be removed, and he now wears a prosthesis. Morgan claims the injury occurred due to Conrail's breach of its duties under the above statutes. The case was tried to a jury with the question of liability turning on evidence of both parties' awareness of the danger, steps taken to alleviate the problem, and the feasibility of alternative approaches or additional measures. After a three day trial, the jury returned the following special verdict:


Morgan now moves pursuant to Fed.R.Civ.P. 50(b) for the entry of judgment in the full amount of damages as found by the jury in answer to question 3, notwithstanding the jury's finding in response to question 4 that Morgan was himself 25% negligent. Morgan also moves for the entry of judgment nunc pro tunc June 17, 1980. Conrail cross-moves under Rule 50(b) and 59 for judgment notwithstanding the verdict or for a new trial. Alternatively, Conrail seeks a reduction of the allegedly excessive verdict returned by the jury. For the reasons set forth herein Conrail's motion for a new trial will be granted subject to Morgan's filing a remittitur of damages; all other motions are denied.

 Conrail seeks to set aside the verdict as inconsistent, contending specifically that the jury's failure to find that the locomotive on which Morgan was riding violated the duty imposed by the Boiler Inspection Act eliminates any basis for a finding of negligence under the F.E.L.A. on Conrail's part. This is so, Conrail avers, since the claim of negligence was based on an alleged unsafe condition in the locomotive i. e., the absence of screens or similar protective covering on the side windows, rendering the "said locomotive ... and all parts and appurtenances thereof" not "in proper condition and safe to operate in the service to which the same are put ... without unnecessary peril to life or limb." 45 U.S.C. § 23.

 No cases highlighting such a special verdict involving these two statutes have been discovered. In the interest of preserving the Seventh Amendment right to trial by jury, there inheres the general rule that a court should reconcile the jury's verdict if at all possible. See Gallick v. Baltimore & Ohio R. R., 372 U.S. 108, 119, 83 S. Ct. 659, 666, 9 L. Ed. 2d 618 (1963); Henry v. A/S Ocean, 512 F.2d 401, 406 (2d Cir. 1975).

 There are decisions from this circuit construing the analogous problem of apparently inconsistent special verdicts in maritime personal injury cases involving claims of common law unseaworthiness and statutory negligence, and some of them would lend support to Conrail's argument that in this case there could be no breach of a duty to keep the workplace reasonably safe where it was not found to be in improper condition or unsafe in the first place. See Bernardini v. Rederi Aì Saturnus, 512 F.2d 660, 664 (2d Cir. 1975). It is, however, possible to rationalize the result reached. The jury could well have concluded that the locomotive, with its special strength glass windows and without alternative means of ventilation, was "in proper condition and safe to operate ... without unnecessary peril to life or limb" but that Conrail simply was negligent, under the circumstances, in not adding screens, or installing the windows so as to provide maximum ventilation with less exposure, or in the final analysis, just doing something more than it did to minimize the likelihood of such an occurrence by providing alternative ventilation. Cf. Mileski v. Long Island Railroad Co., 499 F.2d 1169, 1171 (2d Cir. 1974) (failure to enforce the wearing of company-issued goggles held to be negligence under F.E.L.A.).

 In any event the law "at times recognizes a jury's right to an idiosyncratic position, provided the challenged verdict is based upon the evidence and the law." Malm v. United States Lines, 269 F. Supp. 731 (S.D.N.Y.) (Weinfeld, J.), aff'd mem. 378 F.2d 941 (2d Cir. 1967). See Henry v. A/S Ocean, supra; Ianuzzi v. South African Marine Corp., Ltd., 510 F.2d 950, 955 (2d Cir. 1975); Bolan v. Lehigh Valley R. Co., 167 F.2d 934, 936-37 (2d Cir. 1948).

 Finally, Conrail effectively waived any claim of error on this ground of inconsistency, by failing to object to the court's instructions which invited the jury to so find, or to the form of verdict proposed. Lopez v. Oldendorf, 545 F.2d 836, 839 (2d Cir. 1976), cert. denied, 431 U.S. 938, 97 S. Ct. 2650, 53 L. Ed. 2d 256 (1977); Rubin v. United States, 380 F. Supp. 1176, 1179-80 (W.D.Pa. 1974), aff'd mem. 515 F.2d 507 (3d Cir. 1975); Bernstein v. Olian, 77 F. Supp. 672, 674-75 (S.D.N.Y. 1948), rev'd on other grounds, 174 F.2d 880 (2d Cir.), cert. denied, 338 U.S. 873, 70 S. Ct. 144, 94 L. Ed. 535 (1949); Fed.R.Civ.P. 51.

 Conrail and Morgan both move for judgment. n. o. v. on the basis that there was no support in the evidence for the jury findings of negligence, and of contributory negligence, respectively. In ruling on such motions the court must determine "whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached." Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir. 1970). See Bevevino v. Saydjari, 574 F.2d 676, 683 (2d Cir. 1978); Klein v. Tabatchnick, 459 F. Supp. 707, 711 (S.D.N.Y. 1978). In other words, where there is conflicting evidence or insufficient evidence to make a one-way verdict proper, j. n. o. v. should not be granted. Berner v. British Commonwealth Pacific Airlines, Ltd., 346 F.2d 532, 536 (2d Cir. 1965), cert. denied, 382 U.S. 983, 86 S. Ct. 559, 15 L. Ed. 2d 472 (1966). See 5A Moore's Federal Practice para. 50.07(2) (1979).

 Evidence was presented upon which the jury could have found, simply, that negligence lay in Conrail's failure to add screens over the windows, or to install the windows more inventively with safety in mind bearing in mind that trainmen riding in the cab in the weather conditions prevailing at the time of the accident need ventilation and yet must be protected from the dangers of exposure through fully-opened windows.

 Morgan's contention that no evidence supports the jury's finding of 25% contributory negligence is also deficient. The jury had before it uncontradicted evidence that the window in question opened and closed freely, that when closed it was "almost bulletproof," that Morgan was aware of the danger of such vandalism, and that he even saw the youths involved in this incident some moments in advance up along the track, as the train moved toward them. There was therefore evidence to support the jury's apportionment of fault.

 Conrail also seeks a new trial on the ground that the jury's verdict is against the weight of the evidence. On such motion the trial judge is free to weigh the evidence himself and need not view it in the light most favorable to the verdict winner. Bevevino v. Saydjari, supra, at 683-84. The court is not, however, to function merely as a second fact finder wielding a veto power if it disagrees with the first. The standard has been stated as follows:

The trial judge, exercising a mature judicial discretion, should view the verdict in the overall setting of the trial; consider the character of the evidence and the complexity or simplicity of the legal principles which the jury was bound to apply to the facts; and abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously ...

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