Full opinion text
FOX, District Judge. OMNIBUS OPINION This action was brought by Anne P. Kozar, as administratrix of the Estate of John P. Kozar, against The Chesapeake and Ohio Railway Company, for damages resulting from the February 12, 1968 accident that took John Kozar’s life, pursuant to the Federal Employers’ Liability Act. 45 U.S.C. § 51 et seq. The complaint charged that the defendant’s wrongful conduct caused John Kozar’s death. Accordingly, the plaintiff sought damages for the financial loss suffered by his beneficiaries. Damages were also sought for the injuries that John Kozar endured before his death as the result of the defendant’s conduct. Finally, the plaintiff claimed that the railroad’s conduct was so wrongful that it was liable for punitive damages. The answer denied that the railroad’s conduct was wrongful or that it had caused John Kozar’s death. Instead, it asserted that John Kozar’s negligence was the sole cause of his death. The court, pursuant to Rules 1, 42(b) and 83 of the Federal Rules of Civil Procedure, ordered separate trials on the issues of liability and damages. This was done to facilitate the jury’s performance of its function and to promote the “expedition and economy” contemplated by Rule 1 and Rule 42(b). Such a separation of issues in a Federal Employers’ Liability Act case also avoids any potential prejudice arising from the issue of contributory negligence. This latter, under the statute, is material only to damages, and its consideration, to any extent, when determining liability can substantially endanger the rights of an injured plaintiff. Thus a separation of issues here not only reduces confusion but enhances the likelihood of the just determination, based solely on the merits of the case, demanded by Rule 1. The issue of liability was presented first and submitted to the jury on written interrogatories from the court, pursuant to Rule 49(b): UNITED STATES OF AMERICA IN THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ANNE P. KOZAR, Administratrix of the Estate of John P. Kozar, Deceased, Plaintiff, v. THE CHESAPEAKE & OHIO RAILWAY CO., Defendant. CIVIL ACTION NO. 5925 The jury will from the evidence answer the following in writing: (1) Was the Chesapeake & Ohio Railroad guilty of negligence, in whole or in part, by reason of acts or omissions of any of its officers, agents or employees, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, works, or other equipment? Yes X No_ If the answer to question number (1) is “yes,” then answer question number (2). (2) Was such negligence a proximate cause of the injuries and death of John Kozar, and the resulting injuries to his wife, Anne P. Kozar, and their children ? Yes X No_ /s/ Howard Bruce Connell Foreman of the Jury Following the jury’s response above, the issue of damages was tried and submitted on two separate sets of interrogatories. The jury was instructed to first consider compensatory damages, striking from their minds any factors relevant only to the punitive damage issue. This done, they were then to proceed to the punitive damage question. The jury followed the court’s instructions, and decided as follows: UNITED STATES OF AMERICA IN THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ANNE P. KOZAR, Administratrix of the Estate of John P. Kozar, Deceased, Plaintiff, v. THE CHESAPEAKE & OHIO RAILWAY CO., Defendant. CIVIL COURT NO. 5925 COMPENSATORY DAMAGES COUNTS I and II. (1) Was John Kozar guilty of negligence ? Yes / No_ If you answer question number (1) “yes,” then answer question number (2). (2) If John Kozar was guilty of negligence, was this negligence a proximate cause of his injuries ? Yes / No_ If you answer both question number (1) and question number (2) “yes,” then answer question number (3). (3) What percentage did John Kozar’s negligence contribute to the total negligence involved in this case ? 5% (4) What is your verdict of compensatory damages for the loss of contribution for support which John Kozar would have provided for his wife, Anne Kozar, and his son, John Scott Kozar ? $76,545.40 (5) What is your verdict for compensatory damages for the loss of the value of any services which John Kozar would have performed for his wife, Anne Kozar? $8,000.00 (6) What is your verdict for compensatory damages for the loss to his son, John Scott Kozar, of the care, attention, training and guidance which John Kozar, his father, would have given to his son had he lived ? $30,000.00 (7) What is your verdict for compensatory damages for the loss of services, advice and aid which John Kozar would have performed for his daughters, Sandra Beurkens and Pamela Murray ? $5,000.00 (8) Was John Kozar aware of the fact that the refrigerator car was falling on him, so as to sustain damages from fright and mental anguish in anticipation of death ? Yes X No_ If you answer question number (8) “yes,” what is your verdict on this element of damages ? $500.00 (9) Did John Kozar sustain conscious pain and suffering between the time he was struck by the refrigerator car and his death ? Yes_ No X If you answer question number (9) “yes,” what is your verdict on this element of damages ? /s/ Howard Bruce Connell Foreman of the Jury UNITED STATES OF AMERICA IN THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ANNE P. KOZAR, Administratrix of the Estate of John P. Kozar, Deceased, Plaintiff, v. THE CHESAPEAKE & OHIO RAILWAY CO., Defendant. CIVIL ACTION NO. 5925 PUNITIVE OR EXEMPLARY DAMAGES COUNT III. (1) Were the officers, agents and employees of the Chesapeake and Ohio Railway Company guilty of willful, wanton, or reckless disregard for the safety of John Kozar ? Yes X No_ If you answer question number (1) “yes,” then answer question number (2). (2) Did the Chesapeake and Ohio Railway participate in, authorize or confirm this conduct on the part of its officers, agents or employees so as to make the Chesapeake and Ohio Railway liable for punitive damages? Yes X No_ If you answer questions number (1) and (2) “yes,” then answer the following question: (3) What amount do you assess for punitive damages ? $70,000.00 /s/ Howard Bruce Connell Foreman of the Jury Defendant filed a motion for new trial, claiming more than seventy instances of prejudicial error. Many of the objections are repetitious and some are frivolous. This opinion will not cover all of the objections raised by the defendant, but only some of the essential rulings of the court. The remainder of the objections will be dealt with in an Appendix. FACTS To the extent that this motion challenges the verdict as being contrary to the evidence, this court must consider the evidence in the light most favorable to the verdict. Fritts v. Toledo Terminal Ry. Co., 293 F.2d 361 (6th Cir. 1961); Padgett v. Southern Ry. Co., 396 F.2d 303 (6th Cir. 1968); Jenkins v. Associated Transport, Inc., 330 F.2d 706 (6th Cir. 1964); Weekes v. Michigan Chrome & Chemical Co., 352 F.2d 603 (6th Cir. 1965); Stevens v. Continental Can Co., 308 F.2d 100 (6th Cir. 1962), cert. denied 374 U.S. 810, 83 S.Ct. 1702, 10 L.Ed.2d 1034. John Kozar had been an employee of the defendant for over thirty-five years at the time of his death, and was then foreman of a wrecking crew. This wrecking crew of eight or nine men was charged with the responsibility of clearing the company’s railroad beds of all the wreckage or derailments from freight or passenger trains in order to maintain the free flow of interstate commerce. This crew’s task was not only essential to the railroad’s operation, but because the crew had to take each wreckage situation as they found it, the job was extremely hazardous. The crew’s main equipment was a crane that rode on a set of train wheels. This crane was built by the Industrial Brownhoist Corporation, and is known as the DK-8 wrecker crane. This crane had two hoist lines, either one of which could have been used to lift a railroad car off the ground, thereby permitting John Kozar’s crew to put the derailed car back on the tracks. The auxiliary hoist was in use at the time of John Kozar’s death. This hoist, often called the “small line” or “little line,” had two brakes which could control it; a hand brake and a foot brake. These brakes and the other controls of the crane were operated from the crane’s cab by the wrecking crew’s engineer, Joe Kierepka. It was essential that this equipment be in excellent condition so that it would be in a state of readiness to meet all eventualities. At the time of the accident, John Kozar and the wrecking crew were attempting to rerail a refrigerator car which had gone off the defendant’s tracks near Holland, Michigan. This refrigerator car was approximately 50 feet long and weighed approximately 40 tons. This particular derailment presented the wrecking crew with a difficult task because the car was in a deep ravine and lay perpendicular to the tracks, requiring that it first be raised out of the ravine and then turned so that it would be parallel to the tracks before it could be rerailed. To complicate the situation further, the refrigerator car was upside down. As this refrigerator car was raised out of the ravine by the DK-8’s small line, the roof near one end of the refrigerator car seemed to catch near the tracks. Because of this precarious and delicate situation, John Kozar decided that it was necessary to pivot the car right where it was. He sent his men to get the railroad ties which would be used as the pivot. At that moment the refrigerator car was partially suspended over and perpendicular to the tracks. One end was ten to twelve feet off the ground. The roof near the other end of the car was caught near the tracks. The roof of the ear was not strong enough to support the car’s entire weight, and so a decision as to the proper placement of the railroad ties was extremely critical, depending upon the condition and strength of the roof, the sides of the car, and the slope of the ground. This crucial decision was solely John Kozar’s responsibility. Members of the wrecking crew testified that there were many times in the performance of their duties when it was necessary for them to go near, or even underneath, raised railroad cars. Furthermore, it was the testified consensus of the wrecking crew members that John Kozar was one of the safest men whom they knew on the railroad. Richard Vander Molen, John Kozar’s immediate superior, even testified, “ * * * that John Kozar was one of the very safest men that the railroad had employed.” (Tr. P. 814.) He also acknowledged that in John Kozar’s thirty-five years with the defendant he was never cited for violation of the defendant’s safety rules. Furthermore, he testified that John Kozar, “ * * * was very careful in his duty so that any damage [to defendant’s equipment] would be held to a minimum.” (Tr. P. 819.) However, this witness also testified that it was never necessary to go underneath a railroad car and that, in any event, by the time John Kozar had sent his men to get the railroad ties the decision on where to place the ties had already been reached. This last statement, however, is placed in question by Ernest Ten Elshof, the defendant’s claim agent, who stated under oath that Richard Vander Molen was not at the scene of the accident when John Kozar was killed. Notwithstanding this conflicting evidence, it is clear that as the wrecking crew members were getting the railroad ties, John Kozar began walking parallel to the railroad car. None of his coworkers was close enough or in a position to know if he was actually underneath the car or just along side of it. When Kozar neared the end of the car that was off the ground, the refrigerator car began slowly to fall. One of his coworkers, James Kozal, yelled to him to look out. Apparently believing he was in peril, Kozar began to run in a crouched position, managed a few steps, but was crushed to death under the refrigerator ear’s edge. The DK-8 had been purchased by the defendant twenty-three years before this accident. For at least five years, though, the small line and its brake system had not operated properly for the wrecking crew. During this same time the hand brake, a very powerful mechanical device, would stick and not release without great effort. Therefore, this brake could not be released fast enough in an emergency situation, and because of its defective condition was rarely used even though this was the brake that the manufacturer, Industrial Brownhoist, had recommended that its customers use whenever lifting loads in excess of 15 tons. As noted above, the refrigerator car weighed approximately 40 tons. Furthermore, the small line’s foot brake, which was regularly used by the wrecking crew, would slip or creep intermittently in a random, unpredictable pattern. “Slipping” or “creeping” occurs whenever the brake does not hold, causing the raised object to begin to fall. Normally, this process can be stopped by the engineer if he is aware of the slipping and immediately applies more pressure to the foot brake. There were also instances when the foot brake would “kick back.” This particular malfunction was described by William Ritzenheim, John Kozar’s eventual successor: “When you would go to release [the small line foot brake], it would kick up real hard.” (Tr. P. 195.) In that same instant that the foot brake would kick back, the brake would release. If, however, the engineer managed to reapply the brake, he could prevent the raised object from falling. For at least four years, John Kozar’s superiors were aware that the small line brake system, which included both the hand and foot brakes, was malfunctioning. On May 25,1965, C. A. Thomas, the car superintendent of the Northern Region of the Chesapeake and Ohio Railway Company, sent a letter to John Kozar acknowledging their discussions of the brake problem. A copy of this letter was also sent to Richard Vander Molen. C. A. Thomas was also present in 1964 at the Mulliken derailment and in 1967 at the Stevensville derailment, when this crane dropped the object it was holding. Furthermore, the machinist department, the department which Richard Vander Molen insisted had responsibility for taking care of all repairs on the DK-8, was also aware of the intermittent failures in the small line brake system. Leon Klocko, the fireman for the DK-8 wrecking crew for the four or five years before November 1967, testified that after the brake was noticed creeping “that when [the wrecking crew would] come off the job, [they’d] have to go in and have it readjusted” by the machinist. Also, Clifford Reed, a member of the machinist department at the time of John Kozar’s death, recalled that his department was constantly being asked to repair the small line brake system. He stated that normally these repairs consisted of giving the adjusting screw “from one turn to a half a turn, tightening, or whatever it required.” The majority of the time, these adjustments in the small line foot brake were made in the yard “ * * * because they didn’t want to bring [the DK-8] into the shop. * * * [T]he shop was being used by the car department for repair of cars, and this would mean holding up that work. So it meant that we had to go outside in the yard to work on this wrecker. However, for just a small adjustment, it didn’t bother us that much.” (Tr. P. 297.) Finally, Clifford Reed stated that he not only felt that he was not properly prepared to make more extensive repairs, but that “to this day * * * there [isn’t] anyone on that railroad qualified to come out and say this is wrong and that is wrong. * * *” because none of the mechanics was ever provided with a book, diagram or other directions on how to repair this small line brake system. (Tr. P. 297). The exact number of slippages or brake failures before John Kozar’s death is, however, unclear. Richard Vander Molen testified that he had never been told of any trouble with the DK-8 brake system, other than through C. A. Thomas’ 1965 letter. The defendant also introduced seven monthly inspection reports of the DK-8 for the months just before John Kozar’s death. Normally the inspection reports made up by the wrecking crew foreman and engineer were based only upon visual inspections. These particular reports were signed by John Kozar and Joe Kierepka and indicated that the crane was functioning properly. These reports, however, do not specifically refer to the small line brake system. Furthermore, they are refuted by Clifford Reed’s testimony that Joe Kierepka never was “satisfied with the brake. He always had problems with it.” Finally, Leon Klocko and Eugene Sczepanek also testified the brake system had malfunctioned a number of times before John Kozar’s death. Apart from this somewhat contradictory testimony it is clear that on at least five separate occasions before John Kozar’s death the small line dropped the load it was holding. The first of these occurred in December 1963; the last occurred on January 9, 1968, just five .weeks before John Kozar died. In spite of these several instances of brake failure, the defendant offered no evidence to show that it made any attempt to discover why the crane would fail in this random way. On the Friday before John Kozar was killed, the small line foot brake again malfunctioned. As Joe Kierepka attempted to adjust or release the foot brake, the brake suddenly “kicked,” injuring him. Again, there was no evidence to indicate that the defendant attempted to discover why this brake had randomly malfunctioned. On the second work day following this incident, Monday, February 12, 1968, John Kozar was killed. Within hours after the accident, the defendant had assembled its mechanic experts. These men were informed by Joe Kierepka, “that the little line brake was on and that the car had come down with the brake on.” They then examined and tested the small line foot brake right at the accident scene and reported finding nothing wrong with it. Simultaneously with this inspection of the DK-8, defendant’s claim agents, under the supervision of Ernest Ten Elshof, interviewed and took statements from its employees, approximately twenty, who were present at the time of the accident. All of them were detained for approximately six hours for this purpose. No evidence was presented, however, to show that the internal parts of the brake system were inspected, repaired or replaced. Notwithstanding these tests, on the following Friday, the first time the DK-8 was used after the accident, Leon Klocko, Joe Kierepka’s temporary replacement, found the small line foot brake “dead.” He testified: “When I applied the brake, it was just dead. There was no life to the brake at all. There are eccentrics on the linkage to your brake band. When it gets so far, they just lock the rod and there is nothing there. I mean, you could have, well, a hundred pounds on the end of that hook, and it would-n’t hold it up. There was nothing there.” ' (Tr. P. 161.) He then requested that it be repaired, and the machinist department adjusted the brake. Later, however, he discovered that the hand brake, when tightened, was extremely difficult to release, making it almost impossible to use. Virgil Bosch, machine foreman for the Grand Rapids Division, sent a letter dated February 16, 1968, which embodied his findings concerning John Kozar’s death, to J. F. Finnegan, his superior, the defendant’s general master mechanic. J. F. Finnegan was responsible for supervising all locomotive parts, including the DK-8, in the Northern Region of the Chesapeake and Ohio Railway Company. Virgil Bosch’s letter related the way John Kozar died, the inspection and testing of the DK-8 which then took place, the results of those tests, and the nature of the adjustments which were made on the small line foot brake on February 15, 1968, pursuant to the request of the wrecker engineer. The record evidences that substantially all of these facts were known by R. Davis, assistant supervisor of safety and fire prevention, John Rickson, general locomotive foreman in Grand Rapids, C. M. Krieve, assistant superintendent, Grand Rapids Division, who was acting for the division superintendent at the time of the accident, K. F. Bomar, superintendent of the Grand Rapids Division, D. C. Deleeuw, master mechanic for all points in the Grand Rapids and Saginaw Divisions, and C. A. Thomas. Over the next few months, however, the members of this wrecking crew continued to experience troubles with this small line foot brake. A March 29, 1968 inspection report stated that the brake lining was glazed or worn out. Later, Joe Kierepka would not sign the April 5, 1968 monthly inspection report because he did not feel that the small line brake system was functioning properly. In" March, William Ritzenheim discovered that the hand brake would not release without great effort. Also in March, at the Benton Harbor derailment, the brake “kicked * * * the minute it went to let down, the brake kicked Joe Kierepka right up.” (Tr. P. 223.) Only the fact that Joe Kierepka was able to reapply pressure on the brake prevented the DK-8’s load from dropping. Later that month at the Vermontville derailment, creeping occurred. William Ritzenheim, however, noticed the creeping and was able to get Joe Kierepka’s attention in time to prevent the raised car from dropping. Also, in the Wyoming yards in April, the small line dropped the load it was carrying. After each of the first two incidents, “adjustments” were made, but no evidence was offered to show that the defendant made any repairs to the internal mechanism of this brake system. William Ritzenheim testified that finally about May 8, 1968, upon his request and insistence that the brake system was “sticking,” the machine department tore the brake system down in order to examine its internal operation. The records of what was discovered during this repair were not available at the trial, or for discovery purposes, for it was the defendant’s claim that these records, along with all of the other records relating to the repairs made on the DK-8 wrecker crane following John Kozar’s death, were stolen. Clifford Reed and William Ritzenheim were, however, able to testify that during this repair it was discovered that the main adjustment rod for the small line foot brake needed to be straightened out; the shaft to which the main adjustment rod was attached was rough, rusty and scored, and needed to be smoothed out; the central brake lining was “loose” and needed to be replaced; and that this whole piece of machinery was filthy and covered with grease and dirt. They also testified that the main adjustment rod, the shaft which attached to it and the central brake lining were repaired or replaced. There was no evidence presented, however, to show that the small line hand brake was repaired so that it would function properly. Later, the plaintiff’s mechanical engineering aexpert, Professor Hinkle, testified that after taking into consideration all of the facts relating to the condition of the brake and its random failure, in his opinion the condition of the brake system, as found during the May 1968 repair, existed at the time of John Kozar’s death, and that that condition was the cause of the DK-8’s dropping the refrigerator car. More specifically, he concluded that the small line hand brake and foot brake were designed to operate either independently or simultaneously, depending on the type of job being performed, that the hand brake was designed to be used for lifting heavier loads or for holding loads off the ground, that if either brake was not functioning properly, the brake system was defective, that the hand brake was defective because it would not release easily, and that if the hand brake had been in use at the time of the accident, the box car would not have fallen. He also concluded that the brake lining removed at the May 8, 1968 repair was defective, that it had been that way for a number of years, and that its defective nature — the fact it could “float” an inch or two — would cause the brake system to act in a random, unpredictable fashion. He also concluded that if the foot brake was partially defective, failure to use the hand brake would increase the likelihood the small line brake system would randomly fail. Furthermore, he stated while he could not be sure of the exact physical cause for the foot brake “kicking,” though it sounded to him as if something was “sticking very sharply” like “the shaft [being] a little rusty,” he was certain such a physical explanation existed and would not have been that complicated a process to try and find. Finally, he concluded that in light of the random failure of this small line brake system during the past couple of years, this system, with the powerful reserve capacity that was built into it, must not have been properly inspected during that period. PUNITIVE DAMAGES Since the defendant’s challenge to the plaintiff’s right to recover punitive damages under the Federal Employers’ Liability Act presents the most significant legal issue in this case, it is discussed first. Throughout the trial the defendant maintained that punitive damages were not recoverable in a suit brought pursuant to the Federal Employers’ Liability Act. This court disagrees. After considering the pretrial briefs of the parties, this court concluded that punitive damages were recoverable in proper cases under the Federal Employers’ Liability Act, and permitted the jury to consider this issue. This court has reviewed a substantial portion of the Congressional history of the Federal Employers’ Liability Act. It is replete with statements of the Act’s purpose and scope. Because of the clear and unambiguous expression of Congressional intent found in the Congressional Record, selected quotations are included in this opinion. The Senate Judiciary Committee’s Report on the 1910 amendments to the Federal Employers’ Liability Act contains the following relevant statements : “This subject is referred to here only for the purpose of calling upon Congress to make entirely manifest the good faith of the legislature in the enactment of the employers’ liability law, which places such stringent liability upon the railroads for injuries to their employees as to compel the highest safeguarding of the lives and limbs of the men in this dangerous employment. The tremendous loss of life and limb on the railroads of this country is appalling. The total casualties to train men on the interstate railroads of the United States for the year 1908 was 281,645. “It was the intention of Congress in the enactment of this law originally and it may be presumed to be the intention of the present Congress to shift the burden of the loss resulting from these casualties from ‘those least able to bear it’ and place it upon those who can, as the Supreme Court said in the Taylor case [St. Louis, Iron Mountain & Southern Ry. Co. v. Taylor] (211 [210] U.S., 281 [28 S.Ct. 616, 52 L.Ed. 1061]), ‘measurably control their causes.’ “The passage of the original act and the perfection thereof by the amendments herein proposed stand forth as a declaration of public policy to radically change, as far as congressional power can extend, those rules of the common law which the President in a recent speech at Chicago characterized as ‘unjust.’ President Taft in his address at Chicago September 16,1909, referred ‘to the continuance of unjust rules of law exempting employers from liability for accidents to laborers.’ “This public policy which we now declare is based upon the failure of the common-law rules as to liability for accident to meet the modern industrial conditions, and is based not alone upon the failure of these rules in the United States, but ‘their failure in other countries as well. Mr. Asquith, present prime minister of England, said: “ ‘ It was revolting to sentiment and judgment that men who met with accidents through the necessary exigencies of daily occupation should be a charge upon their own families.’ “The passage of the law was urged upon the strongest and highest considerations of justice and promotion of the public welfare. It was largely influenced by the strong message of President Roosevelt- to the Sixtieth Congress in December, 1907, in which the basis of the legislation was clearly and strongly placed upon the ground of justice to the railroad workmen of this country and in which legislation was urged to the limit of congressional power upon this subject. In the message President Roosevelt said: “ ‘ The practice of putting the entire burden of loss to life or limb upon the victim or the victim’s family is a form of social injustice in which the United States stands in unenviable prominence. In both our federal and our state legislation we have, with few exceptions, scarcely gone further than the repeal of the fellow-servant principle of the old law of liability, and in some of our States even this slight modification of a completely outgrown principle has not yet been secured. The legislation of the rest of the industrial world stands out in striking contrast to our backwardness in this respect. Since 1895 practically every country in Europe, together with Great Britain, New Zealand, Australia, British Columbia, and the Cape of Good Hope has enacted legislation embodying in one form or another the complete recognition of the principle which places upon the employer the entire trade risk in the various lines of industry.’ 45 Cong.Rec. 4041 (1910). * * * “In considering the advisability of amending the act entitled “An act relating to the liability of common carriers by railroads to their employees in certain cases,” approved April 22, 1908, it is important at the outset to understand that the purpose of Congress in the passage of this act was to extend further protection to employees. This was its manifest purpose, as is apparent from a consideration of the circumstances of its enactment. It is manifest from a consideration of the reports, both of the Senate and House committees, when the measure was pending before those bodies prior to its enactment, that the purpose of the statute was to extend and enlarge the remedy provided by law to employees engaged in interstate commerce in cases of death or injury to such employees while engaged in such service. No purpose or intent on the part of Congress can be found to limit or to take away from such an employee any right theretofore existing by which such employees were entitled to a more extended remedy than that conferred upon them by the act.” Id. at 4044. (Emphasis supplied.) This clear statement is eompellingly conclusive that punitive damages remained available in suits by railroad employees and their beneficiaries against the railroads. President Theodore Roosevelt and President Howard Taft distinctly recognized the “unjust” nature of those court-made defenses which the Federal Employers’ Liability Act sought to abolish. Encouraged by this Presidential support and by an aroused national concern to erase unjust defenses which courts had built into the common law, Congress passed an act which ended these common law defenses. Legislative history indicates that the Act expressly changed the common law in the following respects only: (1) The Act authorizes recovery of damages for death resulting from negligence. The common law, as then interpreted, did not allow such recovery. See in this regard Moragne v. States Marine Lines, Inc., 398 U.S. 375 [90 S.Ct. 1772, 26 L.Ed.2d 339] (1970). (2) The Act abrogates the fellow-servant rule and permits recovery for the negligence of officers, agents or fellow-employees. (3) The Act eliminates contributory negligence as a bar to liability; an employee’s own negligence contributing to his injury is material only to reduction of damages. (4) The Act prohibits a contract by the employee renouncing his right to sue for damages in the event of injury. (5) The Act eliminates the doctrine of assumption of risk as “obsolete” as applied “to the complex industrial concerns of our time.” Unquestionably, then, Congress intended the Federal Employers’ Liability Act to be basically an act of exclusion, designed to cut off certain common law defenses available to railroads and to narrow the area of objection by railroads, to claims of their employees for loss of life and limb, which are in the words of a Supreme Court opinion "consumed in [the railroad’s] operations.” Wilkerson v. McCarthy, 336 U.S. 53, at 68, 69 S.Ct. 413, 93 L.Ed. 497 (1949). Furthermore, the Senate Report to the 1910 Amendments makes it crystal clear that “[n\o purpose or intent on the part of Congress can be found to limit or to take away from such an employee any right theretofore existing by which such employees were entitled to a more extended remedy than that conferred upon them by the act,” and punitive damages are available as a right of action to the plaintiff in this suit. A review of court decisions further demonstrates that punitive damage remedy is intact, a vital and relevant rule of law available in proper cases involving injury or death to railroad employees. This court found only six cases which discussed punitive damages under this act: Cain v. Southern Ry. Co., 199 F. 211 (C.C.E.D.Tenn.1911); Ennis v. Yazoo & M. V. Ry. Co., 118 Miss. 509, 79 So. 73 (1918); Helsel v. Pennsylvania R. Co., 84 F.Supp. 296 (E.D.N.Y.1949); Missouri-K-T R. Co. of Texas v. Ridgway, 191 F.2d 363 (8th Cir.1951); Gunnip v. Warner Co., 43 F.R.D. 365 (E.D. Pa.1968); Petition of Den Norske Amerikalinje A/S, 276 F.Supp. 163 (N.D. Ohio 1967), reversed United States Steel Corp. v. Fuhrman, 407 F.2d 1143 (6th Cir.1969), cert. den. 398 U.S. 958, 90 S.Ct. 2162, 26 L.Ed.2d 542. Of these, only Fuhrman seems to stand as authority. Cain was decided under the 1908 Act, before the 1910 addition of § 9, the survival section. Essentially, Cain held, that if an employee died as a result of his employer’s conduct, the 1908 Act would not allow his beneficiaries to recover anything but the pecuniary loss of the employee’s life. Significantly, that case did not hold that an injured but surviving employee could not recover punitive damages from his employer in an action brought under the 1908 Act. Nor did that case hold that the 1910 amendments would not permit survival of punitive damages in the proper case. Furthermore, this court’s analysis of the Federal Employers’ Liability Act’s congressional history compels the conclusion that Congress intended to preserve to “ * * * such employees any rights theretofore existing by which such employees were entitled to a more extended remedy than that conferred upon them by the act.” 45 Cong.Rec. 4044. In Ennis, the Mississippi Supreme Court ruled that punitive damages could be recovered by the beneficiaries of a deceased railroad employee. The opinion cites no authority for its holding and it is unclear whether that court relied upon the Federal Employers’ Liability Act, or the state common law. A brief reading of Helsel and Ridgway establishes that they only stand for the proposition that, if an employee is injured by his employer’s negligence, that employee may recover only “on a compensatory, not a punitive basis.” 84 F.Supp. at 299. These courts were simply restating the well accepted rule that a jury, when awarding damages for negligent conduct, may not attempt to punish the tortfeasor. In Gunnip, the court did not actually reach the question of whether punitive damages were able to be awarded under the Jones Act, 46 U.S.C. § 688, an Act which secured for seamen those rights already provided railroad workers under the Federal Employers’ Liability Act. DeZon v. American President Lines, 318 U.S. 660, 63 S.Ct. 814, 87 L.Ed. 1065 (1943). The court, however, did point out that DeZon, which ruled that “damages may be recovered under the Jones Act only for negligence,” 318 U.S. at 671, 63 S.Ct. at 820, does not necessarily preclude a recovery for punitive damages. “But these statements were made in response to an argument that recovery could be under the Jones Act for liability without fault. The proposed •amendment in the case at bar makes a claim for damages for fault greater than negligence. Thus it is arguable that an action for punitive damages is not inconsistent with the intention Congress expressed in the Jones Act.” 43 F.R.D. at 368. In Den Norske, District Judge Connell ruled that punitive damages were recoverable under the Jones Act. The Sixth Circuit, in Fuhrman, reversed the District Judge’s award of sixteen million dollars in punitive damages against the defendant corporation, but did so because the actions of the captain “were neither authorized nor ratified by United States Steel.” 407 F.2d at 1148. The court, however, did provide guidelines for awarding punitive damages: “We think the better rule is that punitive damages are not recoverable against the owner of a vessel for the act of the master unless it can be shown that the owner authorized or ratified the acts of the master either before or after the accident. Punitive damages also may be recoverable if the acts complained of were those of an unfit master and the owner was reckless in employing him.” 407 F.2d at 1148. Since this case was brought under the Jones Act, 276 F.Supp. at 174, and thus the Federal Employers’ Liability Act, this court is persuaded that in this cir-suit, punitive damages are recoverable under the Federal Employers’ Liability Act. The defendant contends, however, that the language in Fuhrman applies only to admiralty cases, because only that area of the law has had a long tradition of awarding punitive damages. The defendant misconceives the law. While it is true that other admiralty cases have favorably considered this issue, Den Norske was the first case to actually award punitive damages against a maritime tortfeasor. In fact, the state of the federal common law before the passage of this Act, the underlying policies for punitive damages and the constitutional basis for this Act convincingly support the legislative history of this Act and compel the opposite result. Punitive damages are recoverable by a railroad employee under the Federal Employers’ Liability Act, just as they were before the Act’s passage. Day v. Woodworth, 13 How. 363, 54 U.S. 363, 14 L.Ed. 181 (1851), was the first Supreme Court case to permit a plaintiff to recover punitive damages in an action at law. Even in this early case, the court considerd the doctrine so well established that it would “not admit of argument.” “It is a well-established principle of the common law, that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive, or vindictive damages upon a defendant, having in view the enormity of his offence rather than the measure of compensation to the plaintiff. We are aware that the propriety of this doctrine has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument. By the common as well as by statute law, men are often punished for aggravated misconduct or lawless acts, by means of a civil action, and the damages, inflicted by way of penalty or punishment, given to the party injured. In many civil actions, such as libel, slander, seduction, &c., the wrong done to the plaintiff is incapable of being measured by a money standard; and the damages assessed depend on the circumstances, showing the degree of moral turpitude or atrocity of the defendant’s conduct, and may properly be termed exemplary or vindictive rather than compensatory. “In actions of trespass, where the injury has been wanton and malicious, or gross and outrageous, courts permit juries to add to the measured compensation of the plaintiff which he would have been entitled to recover, had the injury been inflicted without design or intention, something farther by way of punishment or example, which has sometimes been called ‘smart money.’ This has been always left to the discretion of the jury, as the degree of punishment to be thus inflicted must depend on the peculiar circumstances of each case. It must be evident, also, that as it depends upon the degree of malice, wantonness, oppression, or outrage of the defendant’s conduct, the punishment of his delinquency cannot be measured by the expenses of the plaintiff in prosecuting his suit.” 13 How. at 371, 54 U.S. at 371 This rule was later applied to railroads whose employees acted wilfully, wantonly, or with reckless disregard for the rights of others. Philadelphia, W. & B. Ry. Co. v. Quigley, 21 How. 202, 62 U.S. 202, 16 L.Ed. 73 (1858). Milwaukee & St. Paul Ry. Co. v. Arms, 91 U.S. 489, 23 L.Ed. 374 (1876), summarized the law: “It is undoubtedly true that the allowance of any thing more than an adequate pecuniary indemnity for a wrong suffered is a great departure from the principle on which damages in civil suits are awarded. But although, as a general rule, the plaintiff recovers merely such indemnity, yet the doctrine is too well settled now to be shaken, that exemplary damages may in certain cases be assesed. As the question of intention is always material in an action of tort, and as the circumstances which characterize the transaction are, therefore, proper to be weighed by the jury in fixing the compensation of the injured party, it may well be considered whether the doctrine of exemplary damages cannot be reconciled with the idea, that compensation alone is the true measure of redress. “But jurists have chosen to place this doctrine on the ground, not that the sufferer is to be recompensed, but that the offender is to be punished; and, although some text-writers and courts have questioned its soundness, it has been accepted as the general rule in England and in most of the States of this country. 1 Redf. on Railw. 576; Sedg. on Measure of Dam., 4th ed., ch. 18 and note, where the cases are collected and reviewed. It has also received the sanction of this court. Discussed and recognized in Day v. Woodworth, 13 How. [363] 371, [14 L.Ed. 181], it was more accurately stated in The Philadelphia, Wilmington, & Baltimore R.R. Company v. Quigley, 21 How. [202] 213 [16 L.Ed. 73]. One of the errors assigned was that the Circuit Court did not place any limit on the power of the jury to give exemplary damages, if in their opinion they were called for. Mr. Justice Campell, who delivered the opinion of the court, said,— “ ‘In Day v. Woodworth this court recognized the power of the jury in certain actions of tort to assess against the toi't-feasor punitive or exemplary damages. Whenever the injury complained of has been inflicted maliciously or wantonly, and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious act: the word implies that the wrong complained of was conceived in the spirit of mischief, or criminal indifference to civil obligations.’ “Although this rule was announced in an action for libel, it is equally applicable to suits for personal injuries received through the negligence of others. Redress commensurate to such injuries should be afforded. In ascertaining its extent, the jury may consider all the facts which relate to the wrongful act of 'the defendant, and its consequences to the plaintiff; but they are not at liberty to go farther, unless it was done wilfully, or was the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of them. In that case, the jury are authorized, for the sake of public example, to give such additional damages as the circumstances require. The tort is aggravated by the evil motive, and on this rests the rule of exemplary damages.” 91 U.S. at 492, 493. Subsequent federal cases continued to consider punitive damages to be a well settled aspect of the federal common law. Juries were permitted to consider this element of damages whenever “the act complained of was conceived in the spirit of mischief, or of criminal indifference to civil obligations.” Philadelphia, W. & B. Ry. Co. v. Quigley, 21 How. at 214, 62 U.S. at 214; Missouri, Pac. Ry. Co. v. Humes, 115 U.S. 512, 6 S.Ct. 110, 29 L.Ed. 463 (1885); Barry v. Edmunds, 116 U.S. 550, 6 S.Ct. 501, 29 L.Ed. 729 (1886); Denver & R. G. Ry. Co. v. Harris, 122 U.S. 597, 7 S.Ct. 1286, 30 L.Ed. 1146 (1887); Brown v. Memphis & C. Ry. Co., 7 F. 51 (C.C.W.D.Tenn. 1881); Gallena v. Hot Springs Ry., 13 F. 116 (C.C.E.D.Ark.1882); Brown v. Evans, 17 F. 912 (C.C.D.Nev.1883); Fell v. Northern Pac. Ry. Co., 44 F. 248 (C.C.D.N.D.1890); Winters v. Cowen, 90 F. 99 (C.C.N.D.Ohio 1899), aff’d. 96 F. 929 (6th Cir. 1899). Unquestionably, then, before the passage of the Federal Employers’ Liability Act, a railroad which wilfully, wantonly, or recklessly disregarded the rights or safety of others, or recklessly disregarded an imposed civil obligation, could be liable for punitive damages. These cases also establish the reason why punitive damages are permitted. The common law courts were concerned about stopping such wilfull, wanton or reckless conduct. Therefore, they developed the concept of punitive damages— damages not measured in terms of harm or loss to the plaintiff, but in proportion to the maliciousness or recklessness of the defendant — as a deterrent to such conduct. By imposing a financial penalty upon the defendant, one which was above and beyond the loss to the plaintiff, the courts hoped, for public weal, to eliminate that wrongful conduct which was quasi-criminal in nature. Patently, the doctrine of punitive damages was a well established part of the common law when, during the last decade and a half of the nineteenth century, Congress began to consider the need to alter the common law remedies available to railroad employees. The major impetus for the Federal Employers’ Liability Act's eventual passage was the ineffectiveness of the common law doctrine of negligence to equitably distribute the cost of the loss of life and limb of the employees in the highly hazardous railroad industry. In most circumstances, the common law defenses of contributory negligence, assumption of risk, and the fellow-servant rule became an insurmountable barrier to any attempt by a railroad employee to sue his employer for damages. Therefore, Congress passed an Act which modified or eliminated these defenses. In Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), Mr. Justice Brennan, speaking for the Court, cited Griffith, The Vindication of a National Policy Under the Federal Employers’ Liability Act, 18 Law and Contempt Prob. 160 (1953), as a “comprehensive survey of the history of the FELA.” 352 U.S. at 507, n. 15, 77 S.Ct. at 449. This court has found that article extremely valuable in putting the Federal Employers’ Liability Act into proper historical perspective. One of the guiding apostles of justice for railroad men in their effort to eliminate the judge-created defenses which defeated just recovery to injured, maimed and killed railroad employees was Edward A. Moseley. He was not a railroad man; in his early life he was a seaman. He became the first Secretary of the Interstate Commerce Commission in 1887 and he exerted a profound effect upon congressional legislation of the Federal Employers’ Liability Act. It is more than coincidence that the intent of Congress was to “[place] such stringent liability upon the railroads for injuries to their employees as to compel the highest safeguarding of the lives and limbs of men in this dangerous employment.” Moseley thus planted the Federal Employers’ Liability Act as nearly as he could within the theory of warranty of seaworthiness doctrine available to seamen. Just as the later doctrine shifted the burden of loss resulting from casualties at sea upon the shipowner, because the owner was measurably able to control their cause, so does the Federal Employers’ Liability Act. The constitutionality of the Federal Employers’ Liability Act was upheld in Mondou v. New York, N.H. & H. Ry. Co., 223 U.S. 1, 49-51, 32 S.Ct. 169, 174-175, 56 L.Ed. 327 (1912): “We come, then, to inquire whether Congress has exceeded its power in that regard by prescribing the regulations embodied in the present act. It is objected that it has, (1) because the abrogation of the fellow-servant rule, the extension of the carrier’s liability to cases of death, and the restriction of the defenses of contributory negligence and assumption of risk, have no tendency to promote the safety of the employees, or to advance the commerce in which they are engaged; “Briefly stated, the departures from the common law made by the portions of the act against which the first objection is leveled are these: (a) The rule that the negligence of one employee resulting in injury to another was not to be attributed to their common employer is displaced by a rule imposing upon the employer responsibility for such an injury, as was done at common law when the injured person was not an employee; (b) the rule exonerating an employer from liability for injury sustained by an employee through the concurring negligence of the employer and the employee is abrogated in all instances where the employer’s violation of a statute enacted for the safety of his employees contributes to the injury, and in other instances is displaced by the rule of comparative negligence, whereby the exoneration is only from a proportional part of the damages corresponding to the amount of negligence attributable to the employee; (c) the rule that an employee was deemed to assume the risk of injury, even if due to the employer’s negligence, where the employee voluntarily entered or remained in the service with an actual or presumed knowledge of the conditions out of which the risk arose, is abrogated in all instances where the employer’s violation of a statute enacted for the safety of his employees contributed to the injury; and (d) the rule denying a right of action for the death of one person, caused by the wrongful act or neglect of another, is displaced by a rule vesting such a right of action in the personal representatives of the deceased, for the benefit of designated relatives. “Of the objection to these changes it is enough to observe: “First. ‘A person has no property, no vested interest, in any rule of the common law. That is only one of the forms of municipal law, and is no more sacred than any other. Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will * * * of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances.’ “Second. The natural tendency of the changes described is to impel the carriers to avoid or prevent the negligent acts and omissions which are made the bases of the rights of recovery which the statute creates and defines ; and as whatever makes for that end tends to promote the safety of the employees and to advance the commerce in which they are engaged, we entertain no doubt that in making those changes Congress acted within the limits of the discretion confided to it by the Constitution.” This review of federal common law, the policy underlying punitive damages and the constitutional basis for this Act, further evidences the vitality, relevancy and availability of punitive damages to injured railroad employees and their beneficiaries. First, defendant has failed to offer any persuasive reason or theory — nor can one be imagined — why Congress would pass an Act “which places such stringent liability upon the railroads for injuries to their employees as to compel the highest safeguarding of the lives and limbs of men in this dangerous employment,” and at the same time have intended to have this same Act repeal, sub silentio, a common law remedy which also fostered the safety and humanitarian welfare of these very same employees and their dependents. Furthermore, the Federal Employers’ Liability Act’s constitutional underpinning is, unquestionably, that by economically pressuring the railroad into eliminating negligent conduct, it has a substantial effect on the promotion of interstate commerce. It would be anomalous for this court, then, to rule that Congress also intended that this Act eliminate the doctrine of punitive damages which, to the extent it helps prevent accidents caused by a railroad’s willful, wanton or reckless misconduct, also promotes interstate commerce, without some congressional indication of such exclusion. Certainly something more needs to. be shown than the fact that punitive damages have not been awarded to a railroad employee since the Act’s passage. In Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 1784, 26 L.Ed.2d 339 (1970), the Supreme Court concluded that the Congress must give an “affirmative indication of an intent to preclude” a particular class of cases from the previously established common law or legislative framework before a court should construe a statute as making such an exclusion, especially in the area of man’s “unalienable right to life.” Chief Justice Chase, sitting on Circuit in The Sea Gull, 21 Fed.Cas.No.12,578, p. 909 (C.C.M.D.1865), remarked: “there are cases indeed, in which it has been held that in a suit at law no redress can be had by the surviving representative for injuries occasioned by the death of one through the wrong of another; but these are all common-law cases, and the common law has its peculiar rules in relation to this subject, traceable to the feudal system and its forfeitures, *' * * and certainly it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules." Id., at 910. Moragne v. State Marine Lines, Inc., 398 U.S. at 387, 90 S.Ct. at 1781. It is apropos, as Chief Justice Chase observed — certainly it better becomes the humane character of proceedings in FELA to give rather than withhold the remedy of punitive damages, when not required to withhold it by established and inflexible rules. Because while FELA is available to single instances of negligence, punitive damages are available, as here, to accumulated instances of negligence, which by their character of accumulation, authorization and ratification mature into an intention of reckless disregard for the safety of others. Defendant in urging unavailability of punitive damages to plaintiff, seeks to make a striking departure from the results dictated by elementary principles of the law of remedies. It infers that FELA abrogates the common law remedy action of punitive damages. The message of FELA is that it does not by its own force abrogate the availability of the logical punitive damage remedy in this case. There is no intention that the Act have the effect of foreclosing punitive damages, which are also appropriate to effectuate the policy declared by Congress in the Federal Employers’ Liability Act. Finally, the history of the judicial enforcement of the Federal Employers’ Liability Act has clearly demonstrated that the court-added restrictions, frustrating congressional purpose, are jurisprudentially unsound and wholly unjustified. Therefore, this court will not judicially legislate the unwarranted restriction sought by the defendant, a restriction which runs counter to the humanitarian purposes of this Act, without an unequivocal manifestation of congressional intent. Defendant, however, has failed to offer any evidence or law that the Federal Employers’ Liability Act was intended to give railroads preferential treatment with respect to punitive damages. Therefore, I find that the congressional intent, developed — as was the admiralty doctrine of seaworthiness — out of “a special solicitude for the welfare of those men who undertook to venture upon this hazardous and unpredictable” occupation, was to leave intact the existing common law regarding punitive damages. Three separate threads of analysis — statutory content, legislative history, and unambiguous congressional purpose and policy — converge to compel this conclusion. Defendant’s argument to the contrary must fail. Accordingly, plaintiff had the right to recover punitive damages in this suit, providing she could establish that the Chesapeake and Ohio Railway Company acted wilfully, wantonly, or with reckless disregard for the safety of John Kozar. It can be assumed that the jury’s verdict, following a charge to this effect, was calculated to fulfill the basic purpose of both a punitive damage award and the Federal Employers’ Liability Act: to place a burden upon a wrongdoer sufficient to deter severe violations of common law and statutory duties. (a) Facts. The defendant claims, however, that there is no evidence to support this finding by the jury. The focal point of judicial review of the jury’s conclusions is a determination of “the reasonableness of the particular inference or conclusion drawn by the jury. * * * The very essence of [the jury’s] function is to select from among conflicting inferences and conclusions that which it considers most reasonable. * * * Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.” Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520. This very cautious and prudent approach when reviewing jury findings is axiomatic; its wisdom, at least in theory, is virtually unchallenged. Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962); 5 Moore’s Federal Practice § 50.02 [1] (1969), and cases cited therein. A substitution of the court’s judgment for that of the jury would be a violation of this well-founded rule as well as of the command of the Seventh Amendment that “[i]n suits at common law * * * the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of common law.” Trial judges, when ruling on motions to set aside verdicts, must use care not to go out of the way to upset the jury’s verdict, while simultaneously purporting to apply the strict standard of review set forth above. Such an aberration has the effect of usurping the function of the jury, thus diluting the protection guaranteed by the Bill of Rights. The Restatement of Torts 2d, § 500, provided an explanation of punitive damages for the jury. “The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” First, the testimony of Clifford Reed, Eugene Sczepanek and Leon Klocko evidences that the small line brake system had randomly malfunctioned for a number of years before the accident. This evidence was supported by the C. A. Thomas letter of May 25, 1965,