Friedman v. N. B. C. Motorcycle Imports, Inc. ( 1971 )

J. JOSEPH SMITH, Circuit Judge:

Plaintiff Friedman is a young, free lance photographer, who was employed by the defendant Ziff Davis Publishing Co. (hereinafter referred to as “Davis”), publisher of Cycle Magazine, to photograph in motion a new motorcycle to be operated by defendant Neilson, an experienced motorcyclist and associate editor of Davis. Davis borrowed the motorcycle from defendant Berliner Motor Corporation (“Berliner”), a New Jersey firm, which in turn borrowed license plates from defendant N.B.C. Motorcycle Imports, Inc. (“N.B.C.”), also a New Jersey firm. The motorcycle was taken from New Jersey to a parking lot in New York, where on a clear, dry day on dry pavement, the shots were taken. Friedman remained stationary on one knee while the motorcycle approached him at speeds of from 15-25 m. p. h. veering at distances variously estimated at 10-15 feet to 20-30 feet, to pass either iy2 to 2 feet, or 3 to 5 feet from Friedman. On the fifth such approach, Neilson veered either too late or not far enough, the left brake lever striking Friedman on the left thigh resulting in a compound fracture of the left ilium.

The basic issue urged on the court by all defendants is that Friedman was guilty either of contributory negligence or assumption of risk or both as a mat^ ter of law, and they therefore are entitled to a reversal coupled with a directed verdict; or, if not that, the defense of assumption of risk was erroneously foreclosed from the jury, entitling them to a new trial. All defendants also urge that the verdict is clearly excessive.

Looking first to the claim of ex-cessiveness, we find no justification for reducing the amount. We may not reduce a damage award on appeal unless “the amount is so high that it would be a denial of justice to permit it to stand.”. Dagnello v. Long Island R.R., 289 F.2d 797 (2d Cir. 1961). See also, Grunenthal v. Long Island R.R., 393 U.S. 156, 89 S.Ct. 331, 21 L.Ed.2d 309 (1968). Here there was a showing of some $11,400 special damage, a hip fracture exposing the bone and requiring removal of chips, five operations and skin grafting resulting in pronounced scarring of both legs. There was evidence of substantial pain and an osteomyelitis with uncertain prognosis for the future. A verdict of $80,000 under these circumstances, while large, cannot be said to be grossly excessive, scandalous or “so high that it would be a denial of justice to permit it to stand.”

The court declined to charge in te'fms on assumption of risk but did charge fully on contributory negligence. It is true that the courts, including those of New York, make a distinction between the two defenses, and it may be that it would have been better practice to charge separately on both. Under the facts presented before the jury, however, the charge as given appears to us sufficient. Here the question under either label was whether Friedman acted unreasonably in the light of the situation facing him. The charge put to the jury not only the question of whether Friedman moved into the path of the motorcycle, but also whether plaintiff failed to exercise that degree of care for his own safety that a reasonably prudent person would have exercised under the same circumstances. The jury was instructed that negligence, however slight, of the plaintiff will be sufficient to bar recovery by him provided his negligence is a substantial factor in causing the injury.

The charge, particularly as it followed the argument by counsel as to Friedman’s placing himself in a position of danger and failing to use a shield, sufficiently placed before the jury the only issues which could have constituted assumption of risk.

Plaintiff had testified that he saw no danger in the procedure used inasmuch as he knew from personal observation that Neilson was an expert driver, and that there no problems inherent in taking the shot.

In the light of this testimony, there is no support for the claim of contributory negligence or assumption of risk as a matter of law.

We have considered the other claims of error in arriving at the plaintiff’s verdict and find no basis for reversal.

The court dismissed N.B.C.’s cross-complaint for full indemnification from Neilson and Davis, without prejudice to an action pending in the Supreme Court of New York for Nassau County. There was an indication that the court felt that there was in any case no evidence that N.B.C. was only a passive tort-feasor (there was a claim that N.B.C. violated a New York statute in loaning its plates, and so was arguably actively negligent) but the effect of the order was to decline to pass on the issue. In this the court was in error. The existence of the state court action was not sufficient ground for failure to dispose of an issue on trial in the federal action. Both actions could go forward at the same time, with application of the principles of res judicata if raised in the later pending action. See Kline v. Burke Construction Co., 260 U.S. 226, 43 S.Ct. 79, 67 L.Ed. 226 (1922), Atlantic Coast Line R.R. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 295-296, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970).

Judgment for plaintiff affirmed. Judgment dismissing cross-claim reversed and case remanded for further proceedings thereon.