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July 23, 1971

Lewis E.H. MILLS, Plaintiff,

Youngdahl, Senior District Judge.

The opinion of the court was delivered by: YOUNGDAHL

YOUNGDAHL, Senior District Judge.

 After a verdict of $273,020.00 for plaintiff in a personal injury suit, defendant, Penn Central Company, moves the court to grant a new trial or in the alternative to order a substantial remittitur.

 Defendant alleges four grounds in support of this motion: (1) the jury flagrantly disregarded the court's instructions; (2) The verdict is against the weight of the evidence; (3) The court erred in failing to give a portion of defendant's proposed instruction; and (4) The court erred in refusing to allow defendant to inquire into plaintiff's failure to submit to a more recent psychiatric examination.

 Plaintiff, Lewis E. H. Mills, brought this personal injury suit, alleging permanent physical injuries to his back, permanent mental injury, and other injuries as a result of an accident on September 1, 1966. Because defendant conceded the issue of liability, the jury by agreement was instructed that it should not consider the issue of liability but should consider only the issue of what injuries and damages were sustained by plaintiff proximately as a result of defendant's conceded negligence.

 As defendant frankly concedes in its brief in support of these motions, much of the evidence presented on the issue of plaintiff's injuries and damages was in direct conflict. Where there is conflicting evidence, as in this case, the court, in considering these motions, proceeds on the basis that the jury had the right to accept plaintiff's evidence as to the injuries and damages he sustained. See Grunenthal v. Long Island R. Co., 393 U.S. 156, 158, 89 S. Ct. 331, 21 L. Ed. 2d 309 (1968); see also Williams v. Kinney, 220 A. 2d 234 (Me. 1966); Sanborn v. Stone, 149 Me. 429, 103 A. 2d 101 (1954); Daughraty v. Tebbets, 122 Me. 397, 120 A. 354, 355 (1923).

 Considering the evidence in the light most favorable to plaintiff *fn1" and without attempting to review in detail the testimony in this week long trial, the court finds implicit in the jury's verdict the following summary of facts.

 Plaintiff, born on September 27, 1938, was a railway postal employee, assigned to sort mail on a railroad car owned by defendant. On September 1, 1966, while working within one of the stationary railway postal cars, plaintiff was thrown to the floor, as a direct result of an unusually strong bump. This strong bump was caused by the negligence of Penn-Central employees, when coupling two of defendant's railroad cars, a fact which defendant conceded.

 Because plaintiff experienced excruciating pain, he secured an authorization form from the Post Office to go to the Public Health Clinic. The first diagnosis at the Clinic was that plaintiff had sustained a back sprain. He was ordered by the doctors to exercise and undergo therapy.

 Prior to this accident, plaintiff had led a life consistent with normal health and physical condition. In July of 1966 he had sprained his back at work, but he had fully recovered from this injury prior to the September 1 accident. He played sports, including semi-professional football; he was a musician of some skill, playing the piano and various woodwind instruments; he played with his four children, taking them to concerts, art galleries, and picnics; and he had a normal work record with the normal occurrences of illness.

 Dr. Horner, one of plaintiff's physicians at the Public Health Clinic, diagnosed ailments as chronic back sprain and conversion reaction and further stated with reasonable medical certainty that these conditions resulted from the September 1, 1966, accident. Dr. Ammerman, one of plaintiff's physicians from Group Health Association at George Washington University Hospital, testified that he recommended to the Civil Service Commission that plaintiff was functionally unable to work and acting pursuant to said recommendation the Commission retired plaintiff at his then age of 32 years.

 Dr. Smith, one of plaintiff's private physicians, diagnosed plaintiff's difficulties as a compression fracture of the Thoracic-12 vertebra. He prescribed treatment for a spinal fracture. It was his opinion that plaintiff was unable to continue his job because he had a 35% disability. Dr. Borochow, a psychiatrist who examined plaintiff, diagnosed plaintiff's mental condition and attempted to treat it. It was her diagnosis that plaintiff was disabled and not employable for the type of work he had been doing.

 Plaintiff tried to perform other jobs within the Post Office, but was unable to withstand the pain while working. He tried to secure employment outside of the Post Office but was unable to get a job due to his physical condition and his status with the Post Office.

 Mr. Arkell, a former staff economist at the Post Office and an expert in salary scales for postal employees, computed the future and past loss of ...

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