Appeal by defendant from a judgment of the District Court for the Southern District of New York, Constance Baker Motley, Chief Judge, awarding damages of $1,750,000 in accordance with a jury verdict, in a wrongful death action under the Federal Employers' Liability Act. At a previous trial a jury had rendered a verdict for $425,000 and found that the decedent had been guilty of 50% contributory negligence, but the court had directed a new trial with respect to both contributory negligence and damages.
Friendly, Mansfield and Kearse, Circuit Judges.
This is an appeal by defendant Consolidated Rail Corporation (Conrail) from a judgment of the District Court for the Southern District of New York, after a jury verdict in a second trial in an action under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51 et seq., awarding damages of $1,750,000 for the wrongful death of Peter Crane, an employee of Conrail. This judgment compared with an award of $425,000, reduced by 50% for contributory negligence, awarded by a jury at the first trial. Conrail urges that the district court erred in directing a new trial at all and particularly so in directing a new trial on the issue of damages. Conrail also attacks the damages award at the second trial as excessive. Although the issues are close, we hold that directing a new trial on the issue of contributory negligence was within the court's discretion but that, on the facts here, directing that the trial encompass the issue of damages was not. We therefore do not reach the issue of excessiveness of the damages awarded at the second trial.
Crane's death came about as a result of impact from a Conrail train early in the afternoon of December 5, 1980. Crane was part of the carpentry work crew of Conrail's Harmon, New York station yard. Thomas Conway was foreman of the crew; the other members were Henry LeClerc, Cecil Walker and John Fatone.
During the morning of December 5 Conway learned that the cross-walks at the Scarborough Station needed repair. There are four sets of tracks at that station, tracks 1 and 3 being the northbound track with track 3 nearest to the northbound platform. That morning track 1 had been closed for repairs and all northbound trains operated over track 3. The walkway requiring repair was a wooden cross-over; the job involved cutting planks to replace the rotten planks in the walkway adjacent to track 3 near the northbound platform. To the right of the northbound platform was a chainlink fence which separated the platform from the parking area.
Rule 3204 of Conrail's Safety Rules provides that "foremen are responsible for a safe operation and must exercise every reasonable precaution to protect men in their charge", and Rule 101 of its Rules for Conducting Transportation provides that "any work on or adjacent to a track which may create a condition interfering with the safe movement of trains at normal speed or the use of equipment which may foul adjacent tracks, must not be attempted without the permission of the train dispatcher."*fn1 Foreman Conway made no request for such permission; although it was within the foreman's discretion to seek permission, the train dispatcher testified that if permission had been sought, he would not have granted it in view of the concentration of northbound traffic on track 3.
Rule 3204 of Conrail's Safety Rules also provides that the foreman "will assign gang watchmen when and where necessary as well as advance watchmen when needed." Conway assigned LeClerc as the watchman. Rule 3203 of the Rules requires that only qualified employees may be assigned as watchmen, and that gang watchmen must have an approved qualification card. LeClerc did not have the card, having neither attended classes nor received instructions about being a watchman, but had acted as a flagman or watchman on numerous other occasions. Although Rule 3206 of the Safety Rules provides that an advance gang watchman must have a warning whistle, a standard white disc and a red flag, LeClerc carried only an airhorn. He placed himself about 300 feet south of where the men were working. Shortly thereafter, a train came along on track 3. LeClerc sounded his airhorn and the men cleared the area.
When the work crew arrived at the station, it was decided that any necessary cutting of planks would be done by a hand-operated chain saw on the tailgate of a Conrail truck in the parking lot. LeClerc testified that he so understood the plan. A few pieces of lumber were cut in this manner; Crane volunteered to do the cutting since he was more experienced than Fatone with the chain saw.
Fatone testified that later "for some reason we felt that it would be better to go inside the gate off the edge of this concrete to cut this 4 by 6 because we could stand on it and one guy can cut on it; and that's what happened." App. at 314a. Crane, Conway and Fatone were all standing on the plank, with Crane closest to the track, looking away from it and operating the chain saw, which made a very loud noise.*fn2 According to Conway, "it appeared as though he [Crane] was just inside of the yellow line", id. at 224a -- apparently the line beyond which passengers were not to go toward the track. Walker had been nailing some planks in the track area and was about to sit down.
Just at this time a second northbound train approached. LeClerc sounded his airhorn*fn3 but the noise of the saw drowned it out. The train hit Walker's legs and either the train or Walker's body hit Crane; both were killed immediately.
Conrail's Safety Rule 3207 provides that a watchman will not place himself farther from the gang than his warning whistle will be distinctly heard, and Rule 3208 requires a watchman to warn the crew of an approaching train at least fifteen seconds before the train reaches the point of the work. A reenactment of the accident performed as part of an investigation made by Conrail's Superintendent of Safety showed that from LeClerc's position as watchman his airhorn was not audible while the men were using the chain saw. The investigators concluded that there were violations of Conrail Safety Rules 3204 and 3207(b) "in that [the] foreman did not take every precaution to protect men in his charge by providing [an] additional watchman." Conrail Memorandum of Investigation at 2 (Dec. 6, 1980). No fault was found with respect to Crane.
With respect to damages, plaintiff's counsel did not call an economic expert at the first trial. Counsel did show that at the time of his death Crane was in excellent health and was survived by a thirty-three year old wife and four year old son to whom he was deeply devoted. He had been employed by Conrail for six years and was highly regarded by all who knew him. He had served as president of his local union. He performed carpentry and other work at his home, took care of the household books, checks and finances, and was careful about expenses. He had dreamed of opening his own contracting business. Counsel did not, however, reduce any of this evidence to statistical form, other than presenting copies of Crane's income tax returns filed jointly with his wife for 1978, 1979 and 1980. He contented himself with cross-examining Conrail's economic expert, Dr. Jerome Staller, with respect to the latter's figure of $284,000 present value for lost future earnings and fringe benefits, as described below, and suggesting a total award of $2,500,000 when making his summation to the jury.
Dr. Staller had estimated Crane's future earnings on the basis that Crane would remain with the railroad until age fifty-eight, and would receive the wage increases provided by contract through 1982 and other increases based on the Railroad Retirement Board's projected earnings growth "that run from [a] 7.1 percent increase [for 1983], 6.1 percent a few years after that, and then 5.735 percent [for 2000 to retirement]." App. at 492a. He testified that inflation was built into these figures. Id. at 540a-41a. Dr. Staller did not consider the possibilities that Crane would be promoted or might leave the railroad's employ for a higher paying job. He deducted 31.9% for taxes until 1995 and 33.1% thereafter until retirement, and assumed personal maintenance ranging from 14.9% to 25%. He selected an interest rate of 12% for the gross recovery, which was based on the average rate of return over the past year for municipal bonds, and a reinvestment rate of 6.7% for the interest earned at the 12% rate. Using these rates as the rate of discount in a "two-step process", Staller determined that ...