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Staples v. Union Pacific Railroad Co.

April 2, 1973

STAPLES, RESPONDENT,
v.
UNION PACIFIC RAILROAD COMPANY, APPELLANT



Appeal from Circuit Court, Multnomah County. Clifford B. Olsen, Judge.

Walter J. Cosgrave, Portland, argued the cause for appellant. With him on the briefs were Randall B. Kester and Austin W. Crowe, Jr., Portland.

George M. Joseph, Portland, argued the cause for respondent. With him on the brief were Zig I. Zakovics, Reiter, Wall & Bricker, P.C., and Bemis, Breathouwer & Joseph, Portland.

Denecke, Justice. McAllister, Presiding Justice, and Holman, Tongue and Bryson, Justices.

Denecke

The plaintiff obtained a $66,000 verdict in a Federal Employers Liability Act case in which the defendant railroad admitted liability. The defendant's

principal contention on appeal is that the verdict was excessive and the trial court erred in refusing to grant a remittitur or, in the alternative, a new trial.

This is an action brought under a federal statute; therefore, federal substantive law applies and the trial court has the authority to make a remittitur. Hust v. Moore-McCormick Lines, Inc., 180 Or 409, 436, 177 P2d 429 (1947).

We have found that the federal law has changed since Hust and now empowers an appellate court to review the action of the trial court in ruling on the motion for remittitur. Sandow v. Weyerhaeuser Co., 252 Or 377, 379, 449 P2d 426 (1969); McMahan v. States Steamship, 256 Or 554, 556-557, 474 P2d 515 (1970). The trial judge, however, is granted a considerable amount of what appellate courts sometimes term "discretion" in ruling on motions for remittitur; that is, the trial court will not be reversed for denying remittitur unless the appellate court is of the opinion that the amount of the verdict is "outrageous," "shocking" or "monstrous." McMahan v. States Steamship, supra (256 Or 554).

The trial court in this case opined that the verdict "was substantially larger than I expected it would be. However, * * * I conclude that the result was neither shocking nor outrageous." We agree.

The jury could have found the following facts about plaintiff's injuries: Plaintiff was 28 years old; approximately a year before trial, while plaintiff was welding, he received two electric shocks, both of which knocked him down; he was hospitalized for a week; shortly thereafter he returned to work which he performed with difficulty; soon thereafter, at the suggestion of his physician, he quit work for several weeks but has been working since.

His principal complaints from the time of the injury until present are a soreness and stiffness in his back, left arm and shoulder, diagnosed by the physician-witnesses as "residual strains," and a bruised ankle. He suffers general fatigue. He has recurring severe headaches. He is unable to get an unbroken night's sleep. His disposition has changed for the worse. He formerly was very active in all kinds of recreation, including athletics. Now he can either not participate ...


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