
    No. 248
    BALT. & OHIO RY. v. PAUL TUSTISON PAUL TUSTISON
    Error to Cuyahoga Appeals
    No. 18461.
    Motion to Certify Record
    Filed in Supreme Court Feb. 21, 1924
    2 Abs. 163
    NEGLIGENCE — Excessive verdict — Effect of a remittiur.
    Attorneys — Tolies, Hogsett, Ginn and Morley, for Railroad; Payer, Winch, Minshall & Kareh, for Tustison, all of Cleveland.
   This action was brought in the Cuyahoga Common Pleas to recover damages for personal injury alleged to have been sustained Tustison while in the employment of the B. & O. Ry. Co. as brakeman and switchman. On the day of the accident, July 14, 1920, he was engaged in the switching and movement of cars in the vicinity of the defendant’s freight house in the city of Chicago. The tracks where the cars were being moved at the time were covered by an overhead viaduct, supported by steel pillars.

The viaduct was not built or maintained by the railroad company. Tustison was injured by a car, the signal for the movement of which he had given. It was agreed that the parties were engaged in interstate commerce, and that their rights are governed by the Federal Employers’ Liability Act of 1908.

The trial resulted in a verdict in favor of Tustison for $30,000, which, on motion for new trial, was reduced to $20,000 and judgment entered therefor. In addition to a general denial of the negligence charged, the defendant interposed the defense of assumption of risk. It was claimed by the company that as the only evidence of the liability and the fact of the accident, was given by Tustison himself, which disclosed the knowledge on his part of every element essential to this defense it became a question of law, for the trial court, which should have directed a verdict as was asked for by the company, and the request refused.

The company claimed that the verdict was excessive, and due to passion and prejudice.

The question was also raised by the company whether a trial court can cure a verdict of $30,000, due to passion and prejudice, by ordering a remití tur (later accepted by the plaintiff) in the sum of $10,000, and prevent a review of the question whether or not the verdict as rendered was due to passion and prejudice, by certifying in the journal entry that the verdict was not due to such causes, but merely excessive in the sum of $10,000.  