28 F.2d 872 | 6th Cir. | 1928
Michael Kos was injured by a train of the Baltimore & Ohio Railroad Company while employed in its. yards a.t Lorain, Ohio. He sued the railroad company, and recovered a judgment for $500, which he seeks to reverse upon the ground that the damages awarded were grossly inadequate, and that the trial court abused its discretion in not granting a new trial on that ground.
The question of inadequacy of damages was one to be determined by the trial court on the motion for a new trial, whose action
In this case the injuries to plaintiff were serious; but it was the duty of the jury, under the statute (Employers’ Liability Act of April 22, 1908, 35 Stat. p. 66, c. 149, § 3; 45 USCA § 53), to diminish the damages in proportion to the amount that the causal negligence of the plaintiff bore to the negligence attributable to both plaintiff and defendant. It was the right of the jury to find that the negligence of the plaintiff, as compared to the total negligence, was so great as to permit of the allowance of “no substantial recovery of .any amount of damages.” Pennsylvania Co. v. Cole (6 C. C. A.) 214 F. 948. This is evidently what the jury did. From our consideration of the evidence, we do not find that the trial court, which might well have been of the same opinion, abused its discretion in refusing a new trial.
Judgment affirmed.