427 F2d 545 Shannon v. Southern Pacific Transport Company

427 F.2d 545

Gerard SHANNON, Plaintiff-Appellee,

No. 28691.

United States Court of Appeals, Fifth Circuit.

June 10, 1970.

Rehearing Denied July 1, 1970.

Harry McCall, Jr., New Orleans, La., for appellant.

James T. Flanagan, New Orleans, La., for appellee.

Before JOHN R. BROWN, Chief Judge, and GEWIN and THORNBERRY, Circuit Judges.


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Southern Pacific Transport Company appeals from an adverse judgment in this diversity action brought by Gerard Shannon. Shannon was injured when the hydraulically operated lift gate on a Southern Pacific truck malfunctioned and fell on his leg. The jury returned a verdict for Shannon in the amount of $28,600. Southern Pacific contends: (1) The Court erroneously instructed the jury as to the amount of Shannon's special damages, (2) the jury's finding of negligence was without evidentiary support, (3) Shannon was guilty of contributory negligence as a matter of law, and (4) the verdict of the jury is excessive.


Southern Pacific argues that the court, in charging the jury on Shannon's special damages, erroneously included $860 in compensation benefits which Shannon had received from his employer. Shannon does not deny that the compensation benefits were improperly included in the charge but urges that the error was attributable to assertions by trial counsel for Southern Pacific and to counsel's failure to correct the consequent misapprehension of the trial court as to the amount of special damages. We find no merit in this position, inasmuch as a timely objection was taken on this very point.


However, we are convinced that the remaining allegations of error are without merit and that the error we have found need not occasion a new trial. If Shannon will file a remittitur in the amount of $860 in this court within 15 days from the date of this opinion, the judgment of the court below will be affirmed in the amount of $27,740.1 Otherwise the judgment will be reversed and the cause remanded for a new trial.



6A J. Moore, Federal Practice ¶ 59.05 [3], at 3749 (2d ed. 1966); J. F. Pritchard & Co. v. R. A. Stokes Co., 160 F.2d 739, 741 (5th Cir. 1947)