Appeal by plaintiff from judgment entered 1 June 2001 and
order entered 1 November 2001 by Judge Robert F. Floyd in Richmond
County Superior Court. Heard in the Court of Appeals 29 January
WARSHAUER, WOODRUFF & THOMAS, P.C., by Michael J. Warshauer,
and KITCHIN, NEAL, WEBB, WEBB, & FUTRELL, P.A., by Henry L.
Kitchin for plaintiff appellant.
MILLBERG, GORDON & STEWART, PLLC, by Frank J. Gordon, for
Douglas K. Warnock (plaintiff) appeals from judgment entered
by the trial court in favor of CSX Transportation, Inc.
(defendant). In a separate order dated 1 November 2001,
plaintiff's motions for a new trial and judgment not withstanding
the verdict were denied. For the reasons stated herein, we
conclude that the trial court committed no error.
The pertinent facts of the instant appeal are as follows:
Plaintiff was employed by defendant, a railroad company, for thirty
years as a locomotive engineer. In March of 1999, plaintiff was
engaged in a humping operation, which required him to moverailroad cars in the rail yard. During the operation, plaintiff's
locomotive derailed, causing him to suffer a back injury, which
necessitated surgical treatment and prevented him from returning to
On 7 October 1999, plaintiff filed a complaint against
defendant under the Federal Employers' Liability Act (FELA), 45
U.S.C. § 51, et seq., alleging that the derailment was caused by
defendant's negligence and that defendant was strictly liable for
the violation of safety regulations. The matter was heard in May
2001 before a jury and at the conclusion of trial, the jury
returned the following verdict:
Issue #1: Was the plaintiff injured by the
negligence of the defendant?
Issue #2: Was the plaintiff injured by the
defendant's violation of the provisions of a
Federal Safety Regulation?
. . . .
Issue #3: Did the plaintiff by his own
negligence contribute to his injury?
Issue #4: What proportion or percentage of
plaintiff's injury do you find to have been
caused by the negligence of the respective
. . . .
Issue #5: What amount is the plaintiff
entitled to recover for personal injury?
Answer: $80, 000.00
After reviewing the verdict, the trial court shared the
verdict with counsels for defendant and plaintiff in a bench
conference. Plaintiff's counsel objected to the verdict as
inconsistent and requested a mistrial. Following the bench
conference, the trial court struck the jury's answer to
interrogatory four and interrogatory five, and then entered
judgment for defendant. Plaintiff appeals.
The dispositive issue on appeal is whether plaintiff waived
any claim of error based on the inconsistency of the jury's verdict
where plaintiff insisted that the trial court declare a mistrial
and the jury not be permitted to further deliberate. For the
reasons stated herein, we conclude that plaintiff has waived his
claim of error.
We note that plaintiff brought suit in Richmond County
Superior Court under the Federal Employers' Liability Act (FELA).
FELA suits may be brought in state court or federal court. Lockard
v. Missouri P. R. Co.
, 894 F.2d 299, 303, cert. denied
, 498 U.S.
847, 112 L. Ed. 2d 102 (8th Cir. 1990). It is well established that
questions concerning the measure of damages in an FELA action are
federal in character. Norfolk & W. Ry. Co. v. Liepelt
, 444 U.S.
490, 493, 62 L. Ed. 2d 689, 693 (1980). This is true even if the
action is brought in state court. Id
According to Rule 49(b) of the Federal Rules of Civil
Procedure, when the answers to the special interrogatories are
inconsistent with each other and with the general verdict, the
court should not enter judgment but return the answers to the juryor order a new trial. Fed. R. Civ. P. 49(b) (2001). However, in
if trial counsel fails to object to any
asserted inconsistencies and does not move for
re-submission of the inconsistent verdict
before the jury is discharged, the party's
right to seek a new trial is waived. . . . The
purpose of the rule is to allow the original
jury to eliminate any inconsistencies without
the need to present the evidence to a new
jury. . . . This prevents a dissatisfied party
from misusing procedural rules and obtaining a
new trial for an asserted inconsistent
. at 304 (citations ommitted); see White v. Celotex Corp
F.2d 144, 146 (4th Cir.), cert. denied
, 493 U.S. 964, 107 L. Ed. 2d
372 (1989); see also Ludwig v. Marion Laboratories, Inc.
114, 118 (8th Cir. 1972)
(concluding that the trial court should
have been given the opportunity to correct error, if any existed,
by resubmitting the matter to the jury.); Chase Construction Co.
, 725 So.2d 1144, 1145 (Fla. App., 3rd District, 1998)
(party's failure to seek jury reconsideration below is properly
regarded as a conscious choice of strategy since a complaining
party would naturally risk having the award unfavorable adjusted);
Caterpillar Tractor Co. v. Donahue
, 674 P.2d 1276, 1284 (Wyo. 1983)
(a loser should not by design get two bites at the cherry. . . .
The proper time to challenge the verdict was when the jury was
still able to explain that which [the defendant] now considers to
be an inconsistency).
In the instant case, the record reveals that the jury returned
a verdict and the trial judge reviewed the verdict. Thereafter,
the trial judge briefly excused the jurors and engaged in a bench
conference, which does not appear to have been recorded. At theconclusion of the bench conference, the trial judge made the
following recorded comments:
In accordance with our bench discussions, upon
motion of the defendant, and the Court on its
own motion, the Court will accept as
consistent the answers of the jury to Issues
1, 2 and 3.
As to the answer of the jury to Issues 4 and 5
being inconsistent with the jury's response in
answers to the issues of negligence, the Court
will set aside the jury's verdict as to Issues
4 and 5, and render an amount of zero for the
recovery of the plaintiff as to personal
The jury was then dismissed and the following colloquy took place
between the Court and plaintiff's attorney:
THE COURT: Anything further from the parties
at this time for plaintiff?
[Plaintiff]: The plaintiff, having advised
the Court that we did not feel that any
curative instructions would be helpful . . .
It is clear, from the answers given by the
jury, that they were confused. They gave such
an inconsistent verdict that it defies logic
to see how they got there . . . we'd ask the
Court to declare a mistrial and let us retry
this thing, . . .
We note that the trial court's order regarding post-trial
motions reveals the following:
After reviewing th[e] verdict, the Court
shared the verdict with counsel for both
parties at the bench and sought their input as
to how to proceed. Plaintiff's counsel
suggested that the only alternative was for
the Court to order a mistrial. The Court
inquired as to whether plaintiff requested
that the issues be resubmitted to the jury
with further instructions. Plaintiff's
counsel declined that offer and instead
insisted that the jury not conduct further
deliberations or receive further instructions.
. . . Rather than objecting to the Court'sacceptance of the verdict and seeking a re-
submission of the issues to the jury,
plaintiff's counsel moved for a mistrial and
that motion was denied.
After a careful review of the record, it is clear that
plaintiff's counsel refused to seek re-submission of the
purportedly inconsistent issues to the jury. We note that the
trial court twice gave plaintiff's counsel the opportunity to seek
re-submission of the issues, and plaintiff's counsel refused.
Plaintiff's counsel further stated that we did not feel that any
curative instructions would be helpful. Therefore, plaintiff made
a conscious choice to allow the trial court to discharge the jury
before any alleged inconsistencies could be properly addressed.
Moreover, the only alternative submitted by plaintiff to the trial
court was a mistrial. Plaintiff insisted that the jury not conduct
further deliberations or receive further instructions.
We recognize that the requirement under Rule 49(b) is not
whether plaintiff feels that any curative instruction would be
helpful, but whether the original jury is allowed to eliminate any
inconsistencies without the need to present the evidence to a new
jury. Under these set of facts, a grant of a mistrial by the trial
court would eliminate the incentive of Rule 49(b) for efficient
trial procedure, and opens the door to the possible misuse of the
rule's procedures by parties anxious to circumvent an
unsatisfactory jury verdict by procuring a new trial. United
States Football League v. National Football League
, 644 F. Supp.
1040, 1049 n.8 (S.D.N.Y. 1986), affirmed
, 842 F.2d 1335 (2d Cir.
1988); Skillin v. Kimball
, 643 F.2d 19, 20 (1st Cir. 1981).
Accordingly, counsel for plaintiff waived any right to complainabout the alleged inconsistency in the jury verdict by failing to
permit the trial court to resubmit the interrogatories to the jury.
For the foregoing reasons, we conclude that the trial court
committed no error.
Judges TYSON and LEVINSON concur.
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