Jeffries v. Long Island Rail Road

Per Curiam. This is an appeal by the defendant from a judgment for plaintiff in an action for personal injuries. The plaintiff, a workman, engaged in unloading steel beams from a gondola-type railroad car on a railroad siding, was injured when it was severely bumped by another gondola-type car running downhill on the side track. A fellow workman had released the air brake on the uphill car and the workmen intended to let it coast down the track in such manner as to tap the downhill car just enough to move it ahead a half car length in order to complete the unloading. The uphill car, however, allegedly became out of control because of the failure of the hand brake to work, allegedly resulting in its bumping the car in which plaintiff was standing with great force and causing steel beams therein to fall against and injure the plaintiff. This action was brought against the defendant as the railroad company responsible for the brakes on the cars. The defendant concedes that the plaintiff made out a case on the issue of liability, but contends “ that on the record as a whole, the verdict of the jury in favor of the plaintiff was against the manifest weight of the credible evidence and that on that basis the judgment below should be reversed and a new trial ordered.” [358] If we concluded that the jury verdict here was against the weight of the credible evidence, we would agree that this court has the power and the duty to set it aside and order a new trial. Here, however, the verdict on the issue of liability has ample support in the testimony. It is well to bear in mind that the liability of the defendant railroad company did not depend upon proof of negligence. Under the Federal Safety Appliances Act (U. S. Code, tit. 45, § 1 et seq.— see § 11) an absolute duty was imposed upon the defendant to equip the railroad car with ‘ ‘ efficient hand brakes ’ ’, and it is authoritatively held that testimony establishing the failure of the hand brakes to operate efficiently when applied is such substantial evidence of inefficiency as to make a case for the jury. (See Myers v. Reading Co., 331 U. S. 477.) Here, there was such testimony. Deas, a fellow workman of plaintiff, testified that he tightened the wheel which would actuate the hand brakes ‘ ‘ as tight as I possibly could get it ”, but that when he released the air brake “ The car began to roll * * * I jumped on the car and still continued to pull, pull, but I couldn’t turn it no more. It was turned as far as it could go. * * * It began to move downgrade faster and faster and I’m yelling and pulling”. There was also the testimony of one Bodrick, who stood on a pile of steel and said he could see everything, and he testified that he saw Deas check the brakes “ By tightening it that thereafter, when Deas let the air go, the car started to roll and “ Then he jumped up on the car and tried to turn the brakes and yelled out, ‘ No brakes ’ ‘ No brakes ’ ‘ No brakes ’ ”. Finally, there was the testimony of the witness Hockmeyer that, just after the accident, he checked the hand brake and found it was pulled up “ As tight as I could make it ”, thus giving corroboration to the testimony that the car did move even though the hand brake was tight. The foregoing constitutes very substantial evidence that the brakes did not work, and, thus, were not “ efficient ”. (See Myers v. Reading Co., supra.) And we do not agree with the minority that Deas’ testimony on cross-examination discredits bim and the other witnesses as a matter of law. It could very well be that the mechanism of the air brake would force the brake shoes, though worn, tight against the wheels, whereas, because of fault in the mechanism of the hand brake, the latter would not so function. Furthermore, the testimony of Deas that the hand brake chain was not broken and that ‘ ‘ If there was a broken rod, I didn’t see it ”, is not at all conclusive that the hand braking mechanism was free from some defect which would render it inefficient. [359] Notwithstanding variances in the over-all testimony of the plaintiff’s witnesses, there was unanimity on the fact that the hand brake on the uphill freight car did not hold. The discrepancies in their testimony, and the variances between their testimony and statements as to incidental details bear only on their credibility, and, decidedly, this was a matter for the jury. ‘ ‘ Although the court may disagree with the jury and reach a different conclusion as to the truthfulness of the testimony given upon the trial, and be assured of the truth of the witness’s former affidavit or testimony which was contrary to his present testimony, he cannot invade the province of the jury and pass upon the credibility of the witness, nor set aside the verdict merely because he believes the jury erred in accepting the present testimony as true.” (Shea v. United States Trucking Corp., 200 App. Div. 821, 824, affd. 235 N. Y. 529.) Particularly in this action, based on an alleged violation of the Federal Safety Appliances Act, where there is such direct and positive testimony, as we have here, of the nonfunctioning of the hand brake, ‘ ‘ it would be an undue invasion of the jury’s historic function for an appellate court to weigh the conflicting evidence, judge the credibility of witnesses and arrive at a conclusion opposite from the one reached by the jury [citing cases]. ’ ’ (Lavender v. Kurn, 327 U. S. 645, 652-653.) In our opinion, however, the verdict for the plaintiff of $165,850 is grossly excessive in amount, and a verdict in excess of $125,000 is not warranted by the record. Therefore, the judgment in favor of the plaintiff, should be reversed on the law, on the facts and in the exercise of discretion, the verdict vacated and a new trial granted, with costs to defendant-appellant, unless plaintiff stipulates to accept $125,000 in lieu of the award by verdict, together with costs and interest, in which event, the judgment is modified to that extent and is affirmed as thus modified, with costs to defendant-appellant.