Head v. CSX Transportation, Inc. , 227 Ga. App. 818 ( 1997 )

Smith, Judge.

This appeal presents the issue of whether a trial judge, who did not preside at trial, was authorized to overturn the predecessor judge’s grant of a new trial on the issue of damages only. Because the parties have never disputed that the issue of comparative negligence was involved in this case, we conclude that the first trial court abused its discretion and that the successor court was authorized to reinstate the jury’s award.

John Head sought damages under the Federal Employers’ Liability Act (FELA), 45 USC § 51 et seq., from CSX Transportation, Inc. for damages he sustained when an air hose struck his head. CSX denied liability and affirmatively alleged contributory and comparative negligence. The case proceeded to trial, and a jury awarded Head $8,000 in damages. Head filed a motion for new trial on the issue of damages only pursuant to OCGA § 51-12-12 or, in the alternative, for new trial. The basis of his motion for new trial on damages only was that the jury’s award was inconsistent with the preponderance of the evidence. The trial court granted Head’s motion on the issue of damages only.¹ CSX moved for reconsideration, which was denied. After a new trial judge was assigned to the case, CSX again filed a motion for reconsideration, which the successor court granted. Concluding that the issue of comparative negligence was contested at trial and the grant of Head’s motion for new trial was therefore improper, the court reinstated the jury verdict. This appeal by Head ensued.

1. It is true that OCGA § 5-5-50, cited by Head and also by the dissent, provides that “[t]he first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge.” In addition, as argued by Head, a trial court’s grant or denial of a motion for new trial generally is discretionary and will not be disturbed if any evidence supports that decision. Professional Consulting Svcs. v. Ibrahim, 206 Ga. App. 663, 665 (1) (426 SE2d 376) (1992). But Head ignores the well-settled case law that a trial court’s discretion is not unfettered and that this general discretion reserved to the trial court is limited in damages cases involving comparative negligence. As stated in Beringause v. Fogleman Truck Lines, 209 Ga. App. 470, 472-473 (3) (433 SE2d 398) (1993), “where comparative negligence is involved under the pleadings and the evidence, a verdict for damages for personal injuries cannot properly be set aside on the ground that the verdict is inadequate.” (Citations and punctuation omitted.) See also Mansfield v. Pizza Hut &c., 202 Ga. App. 601, 602 (415 SE2d 51) (1992); Palo v. Meisenheimer, 199 Ga. App. 24, 25 (3) (403 SE2d 881) (1991); Stroud v. Woodruff, 183 Ga. App. 628, 630 (5) (359 SE2d 680) (1987).

CSX raised comparative negligence as an affirmative defense, evidence was presented in support of this defense,² the jury was charged on the principle, and the parties have not disputed the presence of comparative negligence as an issue in the case. Under the rule that a damages verdict may not be set aside where comparative negligence is involved, the trial court was not authorized to grant a new trial on the issue of damages. The fact that cases such as Beringause and other cases cited above approve the presiding judge’s denial of a new trial (as opposed to disapproving the presiding judge’s grant of the motion here) does not render those cases inapt, contrary to Head’s argument. The rule is not so narrowly drawn. In fact, it appears that the principle that a new trial on damages alone is not authorized in cases involving comparative negligence was stated as long ago as Flanders v. Meath, 27 Ga. 358 (1859). In that case, the Supreme Court reversed the trial court’s grant of a motion for new trial where it was clear that the plaintiff contributed to her own injury.

We note Head’s argument that the successor trial court failed to exercise its discretion or to inquire into the first trial court’s discretion because the successor court did not have available the trial transcript for its review. Head further argues that the successor court should not have reinstated the jury’s verdict because the first court heard the testimony and observed the witnesses. The fact that the successor court did not preside over the trial is not relevant here; the issues raised by the parties’ post-trial motions did not involve assessment of the credibility and demeanor of witnesses. And unlike Seaboard Coast Line R. v. Towns, 156 Ga. App. 24 (274 SE2d 74) (1980), cited by Head, which does not address comparative negligence or otherwise indicate that the plaintiff was contributorily negligent, the issue of comparative negligence is involved in this case. In addition, lack of a transcript for the successor court’s review does not change the result here, because the fact that this case involves comparative negligence issues has not been disputed below or on appeal.

With regard to the issue of whether the successor trial judge was authorized to revisit the first judge’s grant of a new trial, Throgmorton v. Trammell, 90 Ga. App. 433 (83 SE2d 256) (1954) shows that a judge who did not preside over a trial may entertain a motion for new trial. Id. at 434-435. It is true, as argued by Head, that the scope of the successor judge’s discretion is less extensive than that of the judge who presided at trial, because the presiding judge “heard and observed the witnesses and . . . in a sense, is to be considered as the thirteenth member of the jury.” Id. at 435. But as observed above, witness credibility and demeanor are not at issue here with regard to Head’s motion. The issue here was the grant of a new trial on the issue of damages, and it involved comparative negligence, a question of law. Under the rule of Beringause, supra, the original trial court simply was not authorized to grant a new trial on this issue.

2. Head also argues that CSX is estopped by laches from challenging the original trial court’s order granting a new trial. This argument has no merit because “laches is not a remedy for delay during litigation, but is an affirmative defense asserting an inequitable delay in instituting a proceeding. OCGA §§ 9-9-3; 9-11-8 (c).” (Emphasis supplied.) Stuckey v. Storms, 265 Ga. 491 (1), 492 (458 SE2d 344) (1995). Moreover, even if this were not the rule, the record belies any contention that CSX unfairly delayed action in response to the grant of a new trial; it filed its motion for reconsideration within a month of the trial court’s grant of Head’s motion. After a new trial judge was assigned to the case, CSX filed another motion for reconsideration.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J, and Ruffin, J., concur. McMurray, P. J., Beasley and Eldridge, JJ, dissent.

1 We note that after the trial judge granted Head’s motion, CSX moved for reconsideration on the ground that OCGA § 5Í-12-12 is not applicable in a FELA case under the authority of Central of Ga. R. Co. v. Carter, 212 Ga. App. 528 (442 SE2d 269) (1994). That case recites the general rule concerning the jury’s damages award in a FELA case: “[T]he jury’s determination of the amount of damages to be awarded is inviolate, absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial.” (Citation and punctuation omitted.) Id. at 530 (3). Apparently in response to this motion, the original trial court entered another order reciting that the jury’s verdict “is inconsistent with the preponderance of the evidence, that it would be a denial of justice to permit it to stand, and that the verdict is shockingly inadequate so as to raise an irresistible inference that an improper cause or mistake invaded the trial.”

2 Evidence was presented that Head, the train’s conductor, set the train in motion and then leaned in toward the moving engine to place a “chock” at the wheel of the car. He was injured when an airbrake hose between the engine and car automatically disconnected and the hose struck his head. The jury was charged that should it find that Head contributed to his own injury, it must reduce its award of damages by an amount equal to the percentage of fault or contributory negligence chargeable to Head.