This case is before the Court from the grant of a writ of certiorari to the Court of Appeals in
Head v. CSX
Transp.,
This matter has been reviewed by our appellate courts on several occasions. John Head brought this FELA action against his employer CSX Transportation, Inc. (“CSX”) after he suffered a work related injury. The case was tried to a jury which returned a verdict for Head in the amount of $8,000. Head filed a motion for new trial as to all issues, or, alternatively, on the issue of damages only. The trial judge determined that the verdict was inconsistent with the preponderance of the evidence and shockingly inadequate so as to raise an inference that an improper cause or mistake invaded the trial, and granted a new trial on the issue of damages only. CSX unsuccessfully moved for reconsideration.
At some point during these proceedings, the trial judge was removed from office and a successor judge was appointed to the case; CSX again moved for reconsideration. The successor judge granted the motion and reinstated the jury verdict and judgment, ruling that a new trial cannot be granted where comparative negligence is a defense. The Court of Appeals affirmed.
Head v. CSX Transp.,
On remand, the Court of Appeals determined that
Robinson
and
Bridges
do not require reversal.
Head v. CSX Transp.,
1. In reviewing a motion for new trial in a FELA action based either on excessiveness or inadequacy of the verdict, the trial judge is bound by the standard set forth in
Seaboard System R. v. Taylor,
“Before the verdict will be set aside on the ground that it is excessive [or inadequate], where there is no direct proof of prejudice or bias, the amount thereof, when considered in connection with all the facts, must shock the moral sense, [and] appear . . . ‘flagrantly outrageous.’ ... ‘It must be monstrous indeed and such as all mankind must be ready to exclaim against at first blush.’ It must carry its death warrant upon its face.” [Cits.]
Accord
Norfolk Southern R. Co. v. Jones,
*672
The decision to grant a new trial is addressed to the sound discretion of the judge who saw the witnesses and heard the testimony.
Seaboard Coast Line R. v. Towns,
Before a verdict becomes final it should . . . receive the approval of the mind and conscience of the trial judge. He is sometimes spoken of as the thirteenth juror. Until his approval is given, the verdict does not become binding, in a case where a motion for a new trial contains the general grounds.
Seaboard Air-Line R. Co. v. Benton,
2. As for the scope of discretion on the part of the successor judge to overturn the first grant of a new trial by the presiding judge, we approve the analysis in
Throgmorton v. Trammell,
[T]he scope within which the discretion may be exercised, in the consideration of the evidence, by a judge who did not preside at the trial is not as extensive as in the case of the judge who heard and observed the witnesses and who, in a sense, is to be considered as the thirteenth member of the jury.
3. A different standard applies on review by our appellate courts. The first grant of a new trial will not be disturbed by our appellate courts unless it can be shown that the trial court abused its discretion in granting it and that the law and the facts require the verdict. OCGA § 5-5-50. Accordingly, the jurisdiction of the appellate court is restricted to a determination of whether the grant of a new trial constituted an abuse of discretion. Seaboard Coast Line R. v. Towns, supra. It follows that the Court of Appeals erred in applying the identical standard of review on motion for new trial as on appeal. 2 Head II, supra at 470.
4. In applying the foregoing rules to the present case, we conclude that the successor judge erred in granting reconsideration and reinstating the jury verdict. That court’s order was predicated on the erroneous legal theory that an award in a case involving comparative negligence is categorically precluded from review. Since this theory was expressly disapproved in
Robinson v. Star Gas,
supra, the Court of Appeals erred in holding that
Robinson
does not require reversal.
Head II
at 469. In addition, in assessing whether the trial court abused its discretion in passing on a motion for new trial on the issue of damages in a FELA action, we must apply federal law which mandates that the appellate court make its own appraisal of the evidence bearing on damages.
Grunenthal v. Long Island R. Co.,
Although we hold that the grant of a new trial was within the broad discretion of the presiding judge, we find error in the limited grant of a new trial on the issue of damages only. In Bridges Farms v. Blue, supra at 505, we held that where comparative negligence is an issue at trial, liability and damages are so “inextricably joined” that a new trial on damages only is impermissible. Because the grant of a new trial in a comparative negligence case must encompass issues of liability as well as damages, id., Head is entitled to a new trial as to all issues.
Judgment reversed.
Notes
As recognized in Carter, supra, the measure of damages in a FELA action is governed by general principles of federal law, and the lesser standard embodied in OCGA § 51-12-12 (a) is not applicable to actions under the FELA.
In so ruling, the Court of Appeals misinterpreted its decision in Carter, supra. We read the language in Carter, “this standard is the same regardless of whether it is being applied by a trial court on motion for new trial or by the appellate court on appeal,” to refer to the principle that PELA cases are governed by federal law on motion for new tried as well as on appeal. Id. at 530.