*2 LUMBARD, Before MANSFIELD and TIMBERS, Circuit Judges. MANSFIELD, Circuit Judge: Plaintiff, Mike Batchkowsky, formerly as a employed brakeman by Penn Cen- (“Penn Company Central”), tral brought this action it under the Federal Act, Employers’ Liability 51§ U.S.C. personal injuries et seq., for sustained as an a result of accident in the course of employment, which occurred on a siding railroad premises third party defendant Anheuser-Busch, Inc. (“Busch”), allegedly because of the rail- negligence. road’s The action was tried Conner, William C. before Judge, and a jury, which awarded the plaintiff $200,- $50,000 for less contributory negli- gence, $150,000. or a net of Penn Cen- tral filed a claim over against Busch for pursuant indemnification to an agree- them, ment between which was tried simultaneously Judge Conner without resulted in an award of the full amount favor of Penn Central against Busch. The latter appeals, claiming that the trial judge erred in holding that entitled to indemnity against Busch that in event the award plaintiff should have been set aside as grossly excessive. We affirm. The accident occurred on November railroad at a sidetrack at the Busch Newark, New plant Jersey, as a Penn freight train backing into plant. brakeman, As the train’s duty plaintiff of guiding the en- gineer process of backing the building. train into Under condi- normal tions of clearance would be to ride practice sideladder cars, of the railroad sig- of one relaying Tormey, William K. City New York nals between conductor engi- and the (Bigham, practice Englar, Houston, neer. This could not be fol- Jones & New employes, leading occurred, track into the have lowed on the side occur, however, building, may for the reason said Industry structure, the said space platform including between loss of thereof, cars, inches, four service railroad some was too or growing operation therefore him- out close. Plaintiff stationed of the engines, *3 equipment area inside and self in a recessed the door- cars of the Railroad building upon at way Company of the Busch the start of side-track adjoining by said structure loading platform, whence reason of he could the 6' 1" pass signals see and between the conduc- side clearances as shown upon the building engineer print plan hereto; of tor inside the attached and the freight Industry locomotive outside. As further covenants and agrees slowly being indemnify cars were backed into and save harmless the building plaintiff, facing conductor, Company Railroad and its employes successively by loss, from and cost, was struck two all handles damage expense protruding refrigerator door, from car claims and demands thrown spun ground; by around and to the therefor caused or attributable to sprain by the operation he suffered a severe of the cervi- the Railroad Compa- spine, sprain ny engines, cal area of the of the shoul- of equipment and ears der, forehead, proba- upon laceration of said side-track under and ad- rib, joining and a sprain. structure, ble fractured low said or back injury to or damage caused thereto or thereby, and February 1969 commenced whether to the property of the Rail- against Penn this action Central under Company road or to property in its FELA, claiming that his were possession, control or custody, to its by Penn Central negligence employes, patrons licensees, or failing nondelegable in its to fur- duty employes, patrons or licensees of the reasonably nish him with a safe place in Industry, or to persons or property of Central, Penn which to work. defending who may others seek to hold the Rail- ground principally on the that the acci- Company road therefor, liable plaintiff’s dent was due to negligence, whether attributable in whole or in party a third complaint against also filed part said 6' 1" clearances.” Busch for indemnification under agreement terms of an between Busch Following verdict, the jury’s Judge Penn for con- latter’s Conner, construing struction on Busch’sproperty of the side- Jersey (where of New the law the prop- became track that later of scene the erty located and the was accident oc- accident. The sidetrack agreement, as curred), held that the agreement obligat- originally 24, 1950, executed on February to indemnify ed Busch Penn Central for contained mutual indemnification claus- injuries. However, es. when Penn Central found Busch, in order to build an addition- loading platform, proposed al to reduce DISCUSSION the lateral clearance from eight feet agree We parties with the (measured from the center of the rails to the district court that the construction of obstruction) feet, the nearest to six one the Penn Central-Busch indemnity inch, it first from obtained a sup- agreement, as supplemented by their plemental agreement, dated November agreement 16, 1970, November is gov 16, 1950, containing the following indem- erned New Jersey law. See Haag nification clause: Barnes, 9 554, N.Y.2d 216 N.Y.S.2d Industry “3. The 175 hereby (1961). releases N.E.2d 441 New Jersey right courts, alleged right paralleling and waives all or at course taken law, any time to ask or dam- New York look parties’ demand intent and, ages Company, the Railroad where is debatable or ambigú- 1124
ous,
indemnity
governed
view such
the reduced clearance but
clauses “realis
tically
“whether attributable in
part
efforts
businessmen
whole or in
to allo
6' 1"
to the said
clearance.”
cate as between them
Even under
the cost or ex
pense
interpretation
of risk
accidents
Busch’s narrow
apt to
Penn Cen-
arise
projects
since
protected,
out of construction
on a
tral
the accident
fairly
basis,”
due,
predictable
Buscaglia
part,
at least
the fact that
Owens
Corning Fiberglas,
plain-
N.J.Super. 508,
68
because
reduced clearance
172
(App.Div.1961),
A.2d
707
tiff was unable to follow his
affd.,
customary
(1962).
practice
relaying signals
.2d 208
N.J.,
178 A
from the
See Polit
side
cars,
Wright Corp.,
v. Curtiss
of one of the
ladder
N.J.Super.
387 (App.Div.1960);
166 A.2d
have avoided contact with door
Cozzi
handles.
Corning
v. Owens
Fiber Glass
Indeed one
Penn Central’s
Corp.,
purposes in
N.J.Super.
obtaining
such
A.2d 69
broad
(App.Div.
indemnification
*4
1960);
Larocca,
protect
may
Stern
49
have been to
itself
N.J.Super.
personal
accompanying operation under the cramped conditions created Applying Busch’s these principles, the platform construction of the with less supplemental indemnity agreement any event, than the usual clearance. clearly obligated to indemnify Busch prudent judgment business such does not for the to public policy. Cozzi v. offend Owens as a result of Penn plaintiff Central’s Corning Fiber Corp., supra, Glass 164 equipment of its on operation the side A.2d at 75. adjoining loading the platform track on argues premises. Busch’s Busch that the Turning to Busch’s was to agreement indemnify intended contention judgment that the in favor of only plaintiff for the railroad accidents that be reversed should because of the exces might adjoining” occur “under and the $200,000 siveness of verdict, the (loading platform) the structure and be at grounds upon which we are permitted . to the 6' 1" clearance. We dis- to tributable such take Where, action are rather agree. interpretation This stilted narrow. would here, judge, trial denying rewrite and defeat a motion excessiveness, new trial grounds on agreed parties’ plainly intent. Busch permitted- has a verdict unqualifiedly to to indemnify Penn stand, may we order a new trial only damage “caused Central from or at when the verdict is irrational or high so operation by tributable [Penn judicial as to shock conscience, ren engines, equipment of its Central] dering it an abuse of discretion not to upon the side-track under cars and ad set it aside. That we personally said joining [loading structure plat or, have awarded a lesser sum if we phrase clearly The latter had refers form].” to judge, been the trial have set the verdict where the equipment location aside, is insufficient. Grunenthal v. operated, would be not that where the Co., Long Island Railroad 393 might U.S. damage injury occur. But even 89 S.Ct. (1969); L.Ed.2d 309 interpretation Busch’s narrow Dagnello v. Long Island Co., “adjoining” Railroad word would include the loca (1961). 289 F.2d struck, plaintiff where tion was which immediately next to the end was
loading platform. Relying principally upon our
recent decision in DeMauro v. Furthermore, Corp. Gulf although S.S. reduc International Terminal Co., Operating Inc., tion of the clearance 6' to 1" was the 514 F.2d (2d Cir. 1975) argues occasion for Penn Central’s obtaining in $200,000 verdict, demnification, even indemnity reduced by was not 25% account limited to accidents attributable solely contributory negligence, neck. He continued to wear his DeMauro, neck excessive. while grossly was and to receive collar medication for pain. extent it involved a similar Thereafter his condition deteriorated, ac- $200,000 personal injuries, award for companied by increased numbness clearly distinguishable. In- otherwise pain, diminished sensation and deed, illustrates the error reflexes. frequently it working In 1972 he ceased altogether. attempting equate one encountered January By 1975 his neck was injury award with almost another. personal rigid, completely ability with to rotate it the rather strict standard Aside turning his only by entire bound, body. He see we are Grunenthal v. required to continue wearing Co., supra; Dag- Railroad cervical Long Island collar. He suffered diminished Co., grip, Long supra, Island Railroad loss nello v. of sensation weakness of the differentiating facts in each shoul- case opinion ders. In the of the doctor suffering, who respect antic- with had treated him from 1968 to 1975 expectancy, permanency work life ipated totally disabled, factors, other relevant disability only possibility of doing some type precedential value of a court’s limit the very light work for which he in other had apparently of awards not treatment trained. Before becoming been a brake- cases. similar man he been a truckdriver. Because we conditionally In DeMauro reversed disability, of his his driver’s license was $200,000 award for the reason that, not renewed. *5 notwithstanding undisputed evidence was able to return plaintiff the to that jury The
work, jury’s appeared the verdict to could rationally be have that, in addition large upon in measure a found to finding “based approximately $12,000 disability earnings in lost during from permanent employ- period of the justified the accident to by May, 1972, which was not the tes- ment the $8,000 (514 405). The who earned timony.” plaintiff, per year F.2d record in be case, accident, viewed most fore the present favorably suffer a loss of $64,000 quite approximately reveals a plaintiff, different because of com accident, disability Following plete during picture. Batch- balance of his old, expectancy. years with a work work life A total kowsky, life award of $76,000 years, earnings for lost is complained support of 12 thus expectancy forehead, neck, chest, record. Taking able on the in his lower into account pain severity and upper extremity, pain left duration of his back and on condi tion, degenerative grow and headaches. He had at and will coughing worse, progressively $124,- defect in rotation and an least a 50% bend- award of crepitating crunching pain suffering, or 000 for ing, although sounds on cannot generous, his neck and an abrasion be labelled moving his scar shockingly Although A course of excessive. he experienced his chest. treatment was had on including in prior a neck brace or cer- some osteo-arthritis his neck prescribed, to accident, collar, attending which he his continuously. physician wore vical that, Although lighter opined injury he returned to absent work on to his 1969, 28, neck, almost six this condition May pre months would not have after accident, continuing he continued to vented him from to complain perform as a brakeman. pains, frequently Similarly, visited the his duties severe doc- tor, rationally could have pain-killing received medication inferred that was not only intermittently. his condition attributable to By could work or substantially aggravated 1970, working he was May, only three subse week, quent accident which he days per suffering progres- sustained as a May 24, on passenger 1970, in sively worse restriction his neck bus since an mo- of him examination his mobility, attending and- shoulder tion muscle only days before, six physician pain, May loss of sensation spasms 1970, that his numbness, revealed condition pinching and nerve beyond repair.1 already degenerated say record we cannot such a
Upon America, UNITED STATES of by which we standard strict Appellee, was so governed verdict exces- are remittitur, as much less require sive a reversal. al., Stuart STEINBERG et Defendants-Appellants. judgments are affirmed.
The 1148, 1150, Nos. Dockets LUMBARD, (dissent- Circuit Judge 75-1150, 75-1163, 75-1164 and ing): 75-1166. majority as so much of the I dissent United States Court of Appeals, $200,000 the award of upholds opinion Second Circuit. for the suffered Argued July 1975. his at the result of accident Anheu- as a Newark, plant Jersey, New ser-Busch Nov. Decided 1975. agree 1968. I on November analysis approxi-
Judge Mansfield’s $125,000
mately recovery compensation for his
represents differ, however,
suffering. I from the figure of that as merely
characterization it
“generous” grossly and consider to be what is warranted
in excess of circumstances, all Under in-
record.
cluding impact plain- the uncertain subsequent aggravating
tiff’s accident $25,- injury, I feel that no more than fairly can be considered be an *6 award for
appropriate Batchkowsky’s suffering.
pain
Consequently, I would remand to the court directions to set
district aside unless, and order a new
the verdict trial time, plaintiff a reasonable
within
willing accept reduction of the judg- $100,000, less 25%
ment subtracted contributory negligence. Burton, Murray physician 1. Dr. spasm pain, mobility who at- of the shoulders November, 1968, restricted, activity tended indicating Janu- reflex ary, diminished, testified: integrity of the nerves was now right and there was loss of sensation in the May “Then him I saw 1970. He patchy in a hand distribution. At this time I losing regu- told he me that had been time thought there evidence of a so-called larly, working only days he was three pinching in the nerve neck with week, radiat- and that the minute he tried ac- upper ing into the extremities. This was tivity painful. his neck more became Exam- picked up any about the first time that I ination showed severe restriction of neck in sensation in his difficulties hands.” motion, been, than worse it had with muscle