William Botsford v. Ideal Trucking Co.

Second Circuit

William Botsford v. Ideal Trucking Co.

417 F.2d 681, 1969 U.S. App. LEXIS 10266

CourtCourt of Appeals for the Second Circuit

DecidedOctober 28, 1969

Docket36, Docket 33471

StatusPublished

Cited by12 cases

This text of 417 F.2d 681 (William Botsford v. Ideal Trucking Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

William Botsford v. Ideal Trucking Co., 417 F.2d 681, 1969 U.S. App. LEXIS 10266 (2d Cir. 1969).

Pincite

Opinions

MOORE, Circuit Judge:

On March 17, 1965, while plaintiff’s car, being driven by plaintiff, was at a standstill because of a red traffic light, it was struck violently in the rear by defendant’s car. There is no question of defendant’s liability. After a jury trial, a verdict of $15,000 was returned and a judgment for this amount entered in plaintiff’s favor. Defendant appeals, arguing excessiveness and erroneous admission of self-serving declarations.

We believe that in the light of plaintiff’s own testimony, the verdict was excessive and, therefore, direct a new trial unless there be a remission of the amount to $7,500.

After the accident, plaintiff, employed by the Central Railroad of New Jersey, continued for some five weeks his regular work as a tower man and telegrapher. He did not consult a doctor until this suggestion was made some three weeks after the accident by an attorney whom he consulted and who recommended a doctor known to the attorney but not to plaintiff. Plaintiff then took a two-week vacation scheduled by his employer long before the accident and unrelated to it. Thereafter he continued full-time work, performing his same duties except for an occasional Saturday and Sunday. In addition to his exaggerated and unsupported claim as to time lost, plaintiff’s statements concerning his accident history were less than frank. When in [682]*6821966 he gave an account of his medical history to his employer, he denied that he “at any time ever [did] reinjure [his] condition of injuries which occurred on March 17, 1965.” He subsequently admitted that he had injured his back while installing a bathroom on August 5, 1966, and that the previous answer was a mistake.

After reviewing the trial record, the court believes that the interests of justice are best preserved by following the procedure adopted in Wicks v. Henken, 378 F.2d 395 (2 Cir. 1967) where, pursuant to 28 U.S.C. § 2106 we “remanded for a new trial, unless plaintiff is willing to remit all damages in excess of * * *” (p. 396).

Therefore, in the event that a remit-titur is made within 15 days of all damages in excess of $7,500, the judgment will be affirmed with interest and costs to appellee; otherwise, reversed and remanded for a new trial.

Free access — add to your briefcase to read the full text and ask questions with AI

MOORE, Circuit Judge:

On March 17, 1965, while plaintiff’s car, being driven by plaintiff, was at a standstill because of a red traffic light, it was struck violently in the rear by defendant’s car. There is no question of defendant’s liability. After a jury trial, a verdict of $15,000 was returned and a judgment for this amount entered in plaintiff’s favor. Defendant appeals, arguing excessiveness and erroneous admission of self-serving declarations.

We believe that in the light of plaintiff’s own testimony, the verdict was excessive and, therefore, direct a new trial unless there be a remission of the amount to $7,500.

After the accident, plaintiff, employed by the Central Railroad of New Jersey, continued for some five weeks his regular work as a tower man and telegrapher. He did not consult a doctor until this suggestion was made some three weeks after the accident by an attorney whom he consulted and who recommended a doctor known to the attorney but not to plaintiff. Plaintiff then took a two-week vacation scheduled by his employer long before the accident and unrelated to it. Thereafter he continued full-time work, performing his same duties except for an occasional Saturday and Sunday. In addition to his exaggerated and unsupported claim as to time lost, plaintiff’s statements concerning his accident history were less than frank. When in [682]*6821966 he gave an account of his medical history to his employer, he denied that he “at any time ever [did] reinjure [his] condition of injuries which occurred on March 17, 1965.” He subsequently admitted that he had injured his back while installing a bathroom on August 5, 1966, and that the previous answer was a mistake.

After reviewing the trial record, the court believes that the interests of justice are best preserved by following the procedure adopted in Wicks v. Henken, 378 F.2d 395 (2 Cir. 1967) where, pursuant to 28 U.S.C. § 2106 we “remanded for a new trial, unless plaintiff is willing to remit all damages in excess of * * *” (p. 396).

Therefore, in the event that a remit-titur is made within 15 days of all damages in excess of $7,500, the judgment will be affirmed with interest and costs to appellee; otherwise, reversed and remanded for a new trial.

Cite This Page — Counsel Stack

Bluebook (online)

417 F.2d 681, 1969 U.S. App. LEXIS 10266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/william-botsford-v-ideal-trucking-co-ca2-1969.

Opinions

Related

Cite This Page — Counsel Stack