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Circuit Court of Appeals, Sixth Circuit
Nov 7, 1928
28 F.2d 872 (6th Cir. 1928)


No. 5020.

November 7, 1928.

In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; Paul Jones, Judge.

Action by Michael Kos, a minor, by Peter Kos, his next friend, against the Baltimore Ohio Railroad Company. Judgment for plaintiff in an unsatisfactory amount, and he brings error. Affirmed.

Lewis D. Houck, of Cleveland, Ohio (Payer, Minshall, Karch Kerr, of Cleveland, Ohio, on the brief), for plaintiff in error.

J.P. Wood, of Cleveland, Ohio (W.T. Kinder and Tolles, Hogsett Ginn, all of Cleveland, Ohio, on the brief), for defendant in error.

Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges.

Michael Kos was injured by a train of the Baltimore Ohio Railroad Company while employed in its yards at Lorain, Ohio. He sued the railroad company, and recovered a judgment for $500, which he seeks to reverse upon the ground that the damages awarded were grossly inadequate, and that the trial court abused its discretion in not granting a new trial on that ground.

The question of inadequacy of damages was one to be determined by the trial court on the motion for a new trial, whose action we cannot overrule, unless we find that there was an abuse of discretion. Robinson v. Van Hooser (6 C.C.A.) 196 F. 620. It was held in Pugh v. Bluff City Excursion Co. (6 C.C.A.) 177 F. 399, that, if a verdict is absurd on its face, or shows an abuse of the powers of a jury, it is an abuse of discretion not to grant a new trial; but in that case the verdict was for $1, and there was no permissible diminution of damages on account of the negligence of the plaintiff.

In this case the injuries to plaintiff were serious; but it was the duty of the jury, under the statute (Employers' Liability Act of April 22, 1908, 35 Stat. p. 66, c. 149, § 3; 45 USCA § 53), to diminish the damages in proportion to the amount that the causal negligence of the plaintiff bore to the negligence attributable to both plaintiff and defendant. It was the right of the jury to find that the negligence of the plaintiff, as compared to the total negligence, was so great as to permit of the allowance of "no substantial recovery of any amount of damages." Pennsylvania Co. v. Cole (6 C.C.A.) 214 F. 948. This is evidently what the jury did. From our consideration of the evidence, we do not find that the trial court, which might well have been of the same opinion, abused its discretion in refusing a new trial.

Judgment affirmed.

Summaries of


Circuit Court of Appeals, Sixth Circuit
Nov 7, 1928
28 F.2d 872 (6th Cir. 1928)
Case details for


Case Details

Full title:KOS v. BALTIMORE O.R. CO

Court:Circuit Court of Appeals, Sixth Circuit

Date published: Nov 7, 1928


28 F.2d 872 (6th Cir. 1928)

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