Before KALODNER, HASTIE and FORMAN, Circuit Judges.
This case arises under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Following a trial in which he recovered a judgment for $15,000, Gurvan B. Brown, appellant, moved for relief from judgment*fn1 by way of a new trial limited to the issue of damages pursuant to Rule 60(b), Federal Rules of Civil Procedure, 28 U.S.C.A.*fn2 The motion was denied, Brown v. Pennsylvania R.Co., D.C.W.D.Pa.1960, 179 F.Supp. 858 and Brown appeals.
Two cases were involved, which were consolidated for purposes of pre-trial and trial. The first case concerned an accident which occurred on December 27, 1953, while Brown was employed as a conductor. Liability was denied by the appellee, Pennsylvania Railroad Company. It also alleged plaintiff was contributorily negligent. The second case concerned an accident which occurred on January 7, 1956. There Brown was employed as a brakeman. Liability was admitted and there was no evidence that Brown was contributorily negligent. As a result of the first accident, Brown lost approximately one week's work but he had no medical expenses and received no medical treatment. As a result of the second accident, Brown sustained a wage loss of approximately $2100. His actual and prospective medical expenses were less than $1,000. During the period of almost three years intervening between his return to work following his second accident and the trial date, Brown lost no time from work.
At the trial, there was conflicting testimony as to the effects of the accidents suffered by Brown. Brown's principal medical witness contended that his patient had sustained, inter alia, a ruptured disc for which he recommended surgery. Brown, however, refused to follow this recommendation because of the hazards involved. The doctor testified that Brown was unemployable in the labor market. He further stated that the disc condition would become acute and that Brown would eventually submit to surgery, from which a residual disability was probable. The doctor stated that hernias might develop which would be referable to the accident. He testified that Brown was under constant sedation. Brown contended that he had sustained a considerable loss of earning power; that his disability might increase in the future and that he faced the possibility of being laid off; and that although he had been working without interruption up to the trial, he did so on sheer nerve and expected to continue so doing. On the other hand, the Railroad argued that as of the time Brown returned to work following his second accident, he had recovered from his injuries, was able to work and did so as before, and that his earning power had not been diminished as a result of any injury he had suffered in the two accidents.
Brown continued to work at his regular job for several weeks after the case ended. At that time he was called for a conference with the Railroad's doctor, who informed him that he was not medically qualified to continue his duties as a trainman. This opinion was based on the testimony given by Brown's medical witnesses at the trial. Subsequently, Brown received a letter from the Railroad stating that he was being held out of service at the recommendation of its doctor. This action of the Railroad prompted Brown to make a post-trial motion.
In his attempt to gain a new trial, Brown has pursued a somewhat confused course. In his motion to the district court for a new trial under Rule 60(b) (3),*fn3 he asserted:
"* * * that the position taken by the defendant at the time of the trial of this case is in complete contradicti6n with the position it has taken since the trial of his case and amounts to a fraud and misrepresentation, the purpose of which was to substantially reduce the verdict to which plaintiff was entitled and the action taken by it since the trial caused plaintiff financial harm as a result of his having exercised his rights under the Federal Employer's Liability Acts and as a result, thereof, plaintiff has been deprived of a fair trial on the issue of damages * * *."
The district court noted that in support of that motion Brown in his brief contended that he was entitled to a new trial on the ground of newly-discovered evidence pursuant to Rule 60(b) (2).*fn4 This newly-discovered evidence apparently was his being held out of service after the trial, of which he had no knowledge before or during the trial. In his brief to this court, Brown repeats the two grounds for a new trial and in addition argues that the district court committed reversible error in withdrawing from the jury the issue of whether he might be held out of service by the Railroad after the trial. We shall discuss these contentions in inverse order.
During the closing argument of Brown's attorney, defendant's counsel objected, and the following exchange took place:
"Mr. Feeney: - Questions have come into this case about whether or not Mr. Brown is able to continue working. He says he is. That is on his present condition. Of course, as Dr. Boone said, if he is not found qualified, he can be taken out of service. Now, will Mr. Brown continue to be qualified? Will he continue to be passed by the railroad doctors after this case is over? You must remember that when he first went back to work - you have to consider something together here. One of the bigger claims by Mr. Pringle in this case which he has harped on repeatedly, is the fact, 'Look at this man, he has worked and worked and worked. He has lost no time, he went back to work in April, 1956 and has worked ever since.'
"Now, does that impress you? Well, sure. Sure, it's difficult to go to work if you have a bad back. Some people can do it. But it's intended to say to you indirectly that this man couldn't have a bad back if he went back to work and has worked.
"Now, in April of 1956, when this man said, 'I want to go back to work,' he had a medical examination by the doctor down at Conway, Dr. Boone, and then Dr. Boone discussed the case with his superior and with the claim department, the same old claim department that runs lawsuits, who knew that someday they would be faced with talking about this case to you twelve jurors, or some twelve people, and after a discussion with the claim department, which was not elaborated upon, Mr. Brown was sent back to work, said he could go back to work.
"Now, can he continue? He has a periodical coming up. Can they pull him out of service if they find ...