*1
MOORE,
Bеfore
ANDER-
HAYS and
SON,
Judges.
Circuit
Judge:
MOORE, Circuit
while
March
On
by
car, being
plaintiff, was at
driven
light,
red traffic
of a
standstill becаuse
by
violently in
rear
de-
struck
no
car. There is
fendant’s
liability. After a
defendant’s
$15,000
returned and
entered
this amount
appeals,
Defendant
favor.
arguing
and erroneous ad-
self-serving
mission of
declaratiоns.
plain-
light of
believe that
We
testimony,
was ex-
own
tiff’s
and, therefore,
new trial
direct a
cessive
оf the amount
there
a remission
$7,500.
employed
accident, plaintiff,
After the
Jersey,
by
of New
Railroаd
the Central
regu-
five weeks
for some
continued
telegrapher.
as a tower man
lar work
until
this
cоnsult a doctor
did not
weeks
suggestion
some three
made
attorney
by
whom
the accident
Hays,
Judge, dissеnted.
Circuit
recommended
and who
he consulted
attorney
not to
to the
doctor known
then
two-
plaintiff.
took
employer
vacation scheduled
week
long
unrelated
full-time
continued
it.
Thereаfter
except
work, performing
duties
his same
Sunday.
Saturday and
for an occasional
exaggеrated
un-
addition
lost, plain-
supported claim
to time
concerning his accident
statements
frаnk. When
less than
were
*2
gave an account of his medical
appear
1966 he
amount of which dоes not
in the
record).
employer,
he denied that
any
reinjure
time
he “at
ever
[did]
days
Time lost from work:
to
injuries
oc-
of
which
condition
[his]
week,
at
a
to
$130
In
$1560
$1820.
curred on March
1965.” He subse-
jury
properly
additiоn the
could
have
injured
that he had
his
admitted
probable
taken into consideration the
lim-
installing
baсk while
a bathroom
Au-
earnings resulting
itation on future
from
gust
previous
and that
the
an-
permanent
disability
a
оf
20%
a
swer
mistake.
neck and
in the left shoulder.
25-35%
reviewing
record,
the
After
In addition to time lost from work and
jus-
that
the interests of
court believes
earnings,
of
limitation
future
the
by following
preserved
the
tice are best
properly
damages
could
have
for
awarded
Henken,
procedure adoptеd in Wicks v.
plaintiff’s
ability
loss of
to continue his
where, pur-
(2
David for the plaintiff stated that his examination of Judge (dissenting): HAYS, Circuit about 16 months the that from the determination I dissent showed: required. remittitur Impairment ability to bend the head Long R.R. Island to the left. 21 L.Ed. 393 U.S. Numbness in the left arm. judg (1968), reversed a 2d 309 which remittitur, Restriction movement of the left requiring a ment of this reviewing shoulder. indicated that the Court court, passing on the issue of dam hip. Tenderness in the left ages, make “a detailed should Thickening of the Achilles tendon of In the оf the evidence” on issue. right ankle. only majority present case not does right in Tenderness of the tеndon opinion appraisal, an fail to make such ankle. displays inexplicable bias diagnоsed plaintiff’s Dr. Smith condi- favoring against testimony plain sprain neck, tion as a of the radiculitis recоvery. opin example, For upper extremity, of the left traumatic taking a “two- ion refers myositis trapezius muscle, of the left if he were off on week vacation” as sprain and tendonitis of the left shoul- pleasure trip when der, hip sprain contusion of the left plaintiff spent two weeks right of the аnkle. Dr. Smith testified injuries he bed result sus permanent disability there was tained the accident. shoulder, neck left estimated at as to dam- percent about 20 for the neck and ages included: percent for the shoulder. expenses (plus being the cost Medical testified to treated for $115 chiropractor, pain by two visits a doctor on sixteen occasions twice period five months over stated that chiropractor. by a sore, and was he months several put on swelled, could he his ankles PAUL REVERE lеgs, trousers, couldn’t bend *3 hurt, his neck his back CLARK, Myrtle Appellant, N. him. shoulders bothered v. the advan- which had The trial CO., REVERE PAUL hearing ob- tage Appellee. serving the ver- ruled the witnesses Myrtle N. v. In Russell excessive. dict not v. 349, Monongаhela Ry. 352 F.2d 262 CO., CONTINENTAL CASUALTY (3d the court said: succinctly fre- has “This court CLARK, Appellant, stated v. primarily aof CONTINENTAL CASUALTY to the sound matter to be addressed Appellee. court. Its de- discretion 19544, 19543, 19598, Nos. 19610. not termination upon disturbed will be excessive Court dis- abuse of appeal manifest unless a Eighth Circuit. v. William Lebeck cretion is indicatеd. 27, Oct. 1969. 1957, Inc., Cir., Jarvis, F.2d 250 3 A. Trowbridge 285; Abrasive Co. v. Cir., F.2d Philadelphia, 825; Motor Interstate Dubrock Cir., Freight F.2d System, 3 denied, 1944, U.S.
certiorari Only 613. where 89 L.Ed. grossly as excessive is so the verdict judicial conscience shock the reverse the determination this court grant judge newa of the trial Conemaugh Black
trial. Thomas Co., Cir., F.2d Lick R.R. province not within It what would
of this court to determine recompense a fair
be rather, plaintiff; by the
sustained duty whether to determine
is our weighing judge, evidence
trial damages, exer- has question
on the considered
cised judicial manner.” in a
rational verdict en- Supreme Court upon
joined us to establish me seems with no interference
there should judge’s rul- trial and the
jury’s verdict
ing.