Railway Exp. Agency, Inc. v. Mallory , 168 F.2d 426 ( 1948 )

LEE, Circuit Judge.

Appellee filed a complaint in the District Court of the United States for the Southern District of Mississippi, W. D., asking damages in the sum of $35,000 for personal injuries alleged to be the direct and proximate result of the negligence of appellant. The case was tried to a jury and the jury brought in a verdict for the appellee in the sum of $23,500. Appellant Express company having made timely motions for directed verdict and for a new trial, appeals on the ground that the verdict was not supported by the evidence and in the alternative that the verdict was excessive.

Mallory was employed as cashier by the Express company and had worked in that capacity in the Natchez office for three or four years. His duties required him to attend to the shipment and receipt of money and other valuables in a heavy burglar- and fire-proof safe. The safe was made to lie flat on its back with the dial on the upper side. Mallory alleged and testified at the trial that during the whole time that he was cashier and had to work with this safe the combination was in some way defective so that in order to open the safe he always had to lift it up and stand it on end in order to make the tumblers fall in place; and he further testified that he had often requested help for this lifting job but always in vain. Still further he testified that he complained obout the defect in the combination to the agent in charge of the Natchez office. On Febrauary 14, 1945, Mallory was at work, although he was suffering from stomach disorder, and as he lifted the safe he suddenly experienced a sharp pain in his back. It was afterwards proved that he had ruptured an intervertebral disc in the spine. He was operated upon, but he is still permanently disabled.

Mallory’s testimony, which appears to have been given in a straightforward manner, was contradicted upon almost every point by the appellant’s witnesses, but we cannot say that as a matter of law there was not sufficient evidence upon which to submit the case to the jury. The credibility of witnesses and the weight to be given to the evidence are matters for the jury. The question for the judge upon motion for directed verdict is “not whether there is literally no evidence, but whether there is any upon which the jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.” Redman v. Baltimore & Carolina Line, 2 Cir., 70 F.2d 635, at page 637. And on a motion for judgment non obstante veredicto “it is too well settled to warrant discussion that, on such motion, the evidence must be taken in the light most favorable to the party against whom the directed verdict is asked and that all conflicts must be resolved in his favor.” Aetna Casualty & Surety Co. v. Yeatts, 4 Cir., 122 F.2d 350, 352. There was testimony from which the jury would have been amply justified in finding for the defendant Express company; on the other hand, if the plaintiff’s testimony was believed, the jury could find the facts as the plaintiff related them.

While an examination of the record in this case has led us to the conclusion that the trial judge might very properly have granted appellant’s motion for a new trial, we do not find that he failed to exercise his discretion,¹ nor can we say that his denial of the motion was an abuse of discretion. In the alternative, the lower court might properly have required a remittitur, again a matter of discretion. But there are present none of the special circumstances which would subject the action of the court below to review by this court.

We think that the case would have justified application of Section 1454, Mississippi Code, 1942 Ann.Laws f910, c. 135, which adopts the rule of comparative negligence. This court has held that the statute is part of the substantive law of Mississippi and must be followed by the federal court sitting in that State. Mississippi Power & Light Co. v. Whitescarver, 5 Cir., 68 F.2d 928. Appellee knew on the day of his injury that the safe was very heavy and that he was not in his usual good health. His failure on that day to ask for help, which the evidence shows was available, nrght have been thought by the jury to have been negligent had they had the question precisely before them. But under the Mississippi cases a defendant may not have the advantage of Section 1454 unless he pleads contributory negligence² and requests an instruction on comparative negligence and diminution of damages. “In Mobile & O. R. Co. v. Campbell, 114 Miss. 803, 75 So. 554, it was held that the defense of contributory negligence is always an affirmative defense, and the burden of proof as to it is upon the defendant, and that it was the duty of the defendant, if it desired to have the damages diminished in accordance with the statute, to procure an instruction to this effect. It has also been held by the court that contributory negligence, being an affirmative defense, should be pleaded if relied upon. The same construction was given to the statute (chap. 135, Laws 1910) in Lindsey Wagon Co. v. Nix, 108 Miss. 814, 67 So. 459.” Gulf & S. I. R. Co. v. Saucier, 139 Miss. 497, 104 So. 180, 181; and see Moore v. Abdalla, 197 Miss. 125, 19 So.2d 502.

In the Gulf & S. I. R. Co. case it was further held that absent the proper pleading and request for an instruction the appellate court is powerless to remedy the defect. We are in the same position. We must take the record as we find it, and in respect of matters resting within the sound discretion of the trial judge, there is in this court no power of review “save in the most exceptional circumstances.” Aetna Casualty & Surety Co. v. Yeatts, supra; Fairmont Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 53 S.Ct. 252, 77 L.Ed. 439; Houston Coca-Cola Bottling Co. v. Kelley, 5 Cir., 131 F.2d 627.

The judgment appealed from must be affirmed.

1 See Felton v. Spiro, 6 Cir., 78 F. 576.

2 And see Rule 8, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.