April 7, 1993

                      [NOT FOR PUBLICATION]

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                           

No. 92-2255

                      GLADYS ALVIRA, ET AL.,

                      Plaintiffs, Appellees,

                                v.

                     F. W. WOOLWORTH COMPANY,

                      Defendant, Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

       [Hon. Roberto Schmidt-Monge, U.S. Magistrate Judge]
                                                         

                                           

                              Before

                       Stahl, Circuit Judge,
                                           
            Aldrich and Coffin, Senior Circuit Judges.
                                                     

                                           

  Amancio Arias Guardiola for appellant.
                         
  Victoria A. Ferrer for appellees.
                    

                                           

                                           

     COFFIN, Senior Circuit Judge.  This is a diversity trip-and-
                                 

fall case  in which a youth  was injured in a  Woolworth store in

San  Juan, Puerto Rico.   The youth, Wally  Cora, and his mother,

Gladys  Alvira, are  co-plaintiffs.   F.W.  Woolworth Company  is

defendant.   A jury trial  before a Magistrate  Judge resulted in

verdicts awarding  Wally $40,000 (minus 25%  for his contributory

negligence) and Gladys Alvira $20,000 for her mental anguish.

     Woolworth  appeals the  court's  denial of  its motions  for

directed  verdict  and   judgment  notwithstanding  the  verdict,

alleging insufficient evidence of liability;  in the alternative,

it seeks a  new trial  on mental anguish  damages, alleging  that

they  are grossly  excessive.   It  also  challenges the  court's

taxing of certain costs.

     We affirm the judgments as  to liability and costs.  On  the

issue  of damages  awarded to  Gladys Alvira, we  have determined

that,  on  this  record, any  award  in  excess  of $5,000  would

constitute  an abuse  of discretion  and therefore  condition the

grant of a new trial on rejection of a remittitur.

                         I.  Sufficiency

     Our  standard of review for  sufficiency is clear.   We view

the evidence in the light most favorable to the non-moving party,

as well as giving  it the benefit of every  legitimate inference.

We reverse  a denial  of a motion  for directed  verdict only  if

there  appears but  one  reasonable conclusion,  in  this case  a

conclusion  of  nonliability.    We  reject reliance  on  a  mere

scintilla or speculation.  Tokio Marine &amp; Fire Ins. Co. v.  Grove
                                                                 

Mfg. Co., 958 F.2d 1169, 1171 (1st Cir. 1992).
        

     These are  the  facts,  so  viewed, which  are  relevant  to

liability.   On  the  Saturday after  Thanksgiving, November  26,

1988,  Wally Cora,  age 14,  visited a  Woolworth store  with two

young friends, to  purchase a  cassette.  There  were many  other

shoppers  crowding  the aisle  where Wally  and his  friends were

walking.   Wally followed  one of his  friends.  At  one point he

bumped  into one  person,  then in  trying  to extricate  himself

bumped into another, then moved to his left toward a  counter.  A

customer at the  counter had  just then moved  away, revealing  a

broom leaning  against it.   Wally saw it  too late and  his feet

became entangled with it, causing him to fall.

     His left arm  was bent  and indeed had  suffered a  compound

fracture, a  bone having punctured  the skin.   Blood was on  the

floor.  At this point a store employee took the broom  and put it

in a  closet.  Another  customer who happened  to be  a paramedic

attended Wally, who  was taken  to the office  where a  cardboard

splint immobilized his arm.  The store manager appeared,  yelling

at Wally that he had been running and that he had a  videotape to

prove it.  No such video  was ever shown and the manager  did not

testify at trial.

     Appellant Woolworth  first argues  that plaintiff  failed to

prove a dangerous condition as cause of his fall, citing Cotto v.
                                                              

Consolidated Mutual Ins. Co.,  116 D.P.R. 644 (1985).   This case
                            

involved a  shopper falling on  a slippery floor.   We have  read

                               -3-

Cotto as  requiring a plaintiff, in a  case involving preexisting
     

conditions  of  the  premises,  to show  actual  or  constructive

knowledge on  the  part of  the  defendant in  order to  make  an

affirmative showing of negligence.  Mas v. United States, No. 92-
                                                        

1392, slip op. at 7-8 (1st Cir. Jan. 28, 1993).

     Appellant misconceives the nature  of this case.  The  cause

of the  fall was  not a  condition that might  have been  brought

about  innocently  or  by  a  third  party,  where  a  landlord's

negligence  consists in  knowing  about the  condition and  doing

nothing to remedy it.  Rather, the cause was the negligent act of

an employee, in  the course  of her  work, in  placing the  broom

where, in a crowded store, a passerby might not see it in time to

avoid tripping over  it.  Moreover, appellant posits its position

on  two facts that  we cannot accept: that  the broom was "easily

perceptible" (brief, p. 11) and that plaintiff was running at the

time  (brief, p. 12).   Taking facts favorable  to plaintiffs, we

must assume that the broom  was not visible to Wally and  that he

was walking, not running.

     In  sum,  this  was, as  tried,  a  case  that was  properly

submitted to the jury.

                           II.  Damages

      Our review of the  amount awarded to Gladys Alvira  for her

mental  damages is stringently  restrained.   We may  not intrude

unless  we  find  the  verdict grossly  disproportionate  to  the

injury.   Moreover, as  we said in  Wagenmann v.  Adams, 829 F.2d
                                                       

196,  215 (1st Cir. 1987), "[t]ranslating legal damage into money

                               -4-

damages  -- especially  in  cases which  involve few  significant

items  of measurable  economic  loss --  is  a matter  peculiarly

within a jury's ken."  We elaborated in  Milone v. Moceri Family,
                                                                 

Inc., 847 F.2d 35, 37 (1st Cir. 1988): 
    

     The jury,  as we see it, is free to run the whole gamut
     of euphonious notes -- to harmonize the verdict at  the
     highest  or lowest  points for  which there is  a sound
     evidentiary  predicate,  or anywhere  in between  -- so
     long as the end result does  not violate the conscience
     of  the court  or  strike such  a dissonant  chord that
     justice would be denied  were the judgment permitted to

     stand.

     Our  analysis  begins by  noting  the  unusual circumstances

under which the  issue of mental anguish  damages was tried.   No

experts testified  for plaintiffs; reliance was  placed wholly on

the medical reports.   Plaintiff Gladys  Alvira did not  testify.

Instead, the parties agreed to the following stipulation:

     We stipulate  that plaintiff has not put to testify co-
     plaintiff, Gladys  Alvira.   And we stipulate  that her
     testimony was about her suffering of  the mother.  What
     she saw and felt  and looked at her boy  suffering from
     the injury.

     Accordingly, the evidence relating to the possible suffering

of mental anguish by Wally's mother must rest on the testimony of

Wally, of defendant's medical expert, and on the medical records.

First  of all,  we  summarize the  history of  medical attention,

picking up the story where we left off.

     From the manager's office at the store, Wally was taken to a

municipal  diagnostic  center  or  dispensary where  X-rays  were

taken.   From there he was admitted  to the emergency room of the

Puerto  Rico Medical Center at 9:45 p.m., almost five hours after

                               -5-

his fall.    He was  accompanied  by a  friend  and the  friend's

mother.   Wally's own  mother at this  point did not  know of the

accident.    Two  days later,  on  November  28,  Wally had  been

admitted  to the San Juan City Hospital.   A record noted that he

had no relatives,  that a neighbor referred to him  as an orphan,

and that he had been living  with a "tutor" who had disappeared a

few days previously.   In the absence of  parental authorization,

it  was determined, because the fracture (described as "left open

distal third forearm fracture")  was compound, to perform surgery

on an emergency basis.

     Surgery  under  general anaesthesia  proceeded successfully,

aligning the bones and preventing infection.  His  discharge from

the  hospital  was delayed,  pending  efforts  by the  hospital's

social  service department to arrange for placement of Wally.  He

was  discharged on  December  5.   Shortly  thereafter, in  early

January of 1989,  Wally went to New York to  his brother Rafael's

home.   On January 17, accompanied  by Rafael, Wally had his cast

removed at  Lincoln Hospital.   We have no  information regarding

the  whereabouts or condition of  Gladys Alvira until  a year and

three  or four  months  later when,  in  April of  1990,  Rafael,

Gladys, and Wally returned to live in Puerto Rico.

     Wally's  testimony as to his  present condition was that his

arm still hurt when he  did any heavy lifting, that he  felt pain

in his wrist and elbow during  a change in weather, that he could

not play baseball, and that  he did not play on basketball  teams

out  of apprehension  of  having his  arm  struck.   Doctors  who

                               -6-

examined  him,  one at  his  request, the  other  at defendant's,

agreed that there was  no neurological damage, that the  left arm

from hand  to shoulder was  "essentially normal," that  there was

complete  range  of  motion,  good  alignment,  and  no  residual

impairment.  A small scar on the forearm remained.

     This  is   the  record   on  which   we   must  assess   the

reasonableness of an award of $20,000 to Wally's mother.  Up to a

point  we think that Woolworth  cannot complain.   Perhaps it had

reasons to avoid  the risk  of stimulating a  jury's sympathy  by

having Gladys Alvira testify.  It may have thought that a minimal

and  bland  stipulation  was  less likely  to  eventuate  into  a

sizeable verdict than more detailed testimony.

     On  the  other hand,  we have  evidence  in the  record that

arouses our skepticism that a jury reasonably  could have awarded

the  mother one  half  of the  amount  awarded (subject  to  a 25

percent discount) to the son.   The mother was not present during

the period of agony  and operation; indeed, she was  in ignorance

of the accident.  As  far as the record reveals, she was not with

her  son during  his convalescence.   Indeed, the  medical record

notes suggest that there was no close relationship between mother

and son  prior to the accident.   The jury had  no opportunity to

view the mother and  hear her describe such suffering as  she may

have  endured.   Nor do  we  have any  reason proffered,  such as

illness,  to  explain why  the jury  was  to be  deprived  of the

opportunity to assess her credibility.

                               -7-

     Appellee reminds us of De Leon Lopez v. Corporacion  Insular
                                                                 

de Seguros, 931 F.2d 116, 125-26 (1st Cir. 1991), where we upheld
          

the  action of the district court in reducing an $800,000 verdict

for emotional damages by  ordering a remittitur to $110,000.   In

that case  plaintiff's daughter-in-law had given  birth to twins.

One of them inadvertently  was switched with a twin  from another

pair and brought up as a natural child of the plaintiff's son and

daughter-in-law,  and as his  own granddaughter.   The mix-up was

discovered  nearly two  years later.   Plaintiff's  distress over

losing the grandchild he  thought his own and over  the wrenching

experience  of  his  son  and daughter-in-law  was  described  in

testimony by all three. 

     The  district  court   carefully  evaluated  the   evidence,

observing  that the plaintiff had not lived in Puerto Rico during

the period of nondiscovery and had visited the twins no more than

twice a month, still had the opportunity to maintain contact with

his  quondam  granddaughter,  and  had produced  no  evidence  of

economic  loss or  expert testimony  as to  psychological damage.

The court, in settling upon the figure of $110,000, left no doubt

that  it was  sounding the  highest "euphonious  note" consistent

with  the  evidence.   de Leon  Lopez  v. Corporacion  Insular de
                                                                 

Seguros, 742 F. Supp. 44, 47 n.7 (D.P.R. 1990).
       

     Appellee argues that our affirmance of the $110,00 figure in

a  case with such minimal evidence of psychic harm amply supports

affirming the $20,000 figure in this case.  We disagree.   In the

first place, Lopez involved "appellate review of  post-remittitur
                  

                               -8-

damages for non-economic losses[, which] is extremely narrow. . .

."  931 F.2d at 125.  We indeed are loath "to grade the teacher's

grading of the essay."  Wagenmann, 829 F.2d at 215.  In this case
                                 

the  Magistrate Judge  did  not reveal  to  us any  such  grading

process; indeed, there was precious little essay to grade.

     In the second place, in this case, unlike in Lopez, 931 F.2d
                                                       

at  126, we  cannot  say that  "the  jury system,  which  depends

heavily  on the common  sense and collective  human experience of

jurors  for a  fair resolution  of such  quandaries [involved  in

translating distress into dollars], has rendered yeoman service."

Through no fault of  its own, the jury lacked the  ordinary basis

for applying its common sense; it had no testimony from or  about

the  sufferer.   The slate  was not  quite blank.    What factual

indications  there were indicated  that in  the short  run Gladys

Alvira did not know of Wally's accident and suffering and that in

the  long run  the  residual effects  of  the accident  were  not

severe. 

     In  sum, even  crediting Gladys  Alvira, as  the stipulation

commands, with  the normal  concern  and suffering  over a  son's

accident  and resulting aches and  pains, we feel  that $5,000 is

the limit of an adequate award for mental anguish in this case.

                           III.  Costs

     Appellant  challenges   the  allowance   of  the   costs  of

transcribing  depositions  of  appellant's  expert  witness  (who

testified) and of appellant's  store manager (who did not).   The

basis of  the challenge  was simply that  neither deposition  was

                               -9-

introduced  at trial.   But  it is  obvious that  plaintiffs were

prudent  in  deposing  appellant's  expert and  in  reducing  his

comments to writing, whether or not any specific part was used in

cross examination.   And  it was  essential that plaintiffs  know

what the store  manager was  prepared to say;  it was  apparently

this deposition that informed the plaintiffs that no videotape of

Wally's running existed.  

     As we said in Templeman v.  Chris Craft Corp., 770 F.2d 245,
                                                  

249  (1st Cir.  1985),  "[i]t is  within  the discretion  of  the

district court  to tax deposition costs  if special circumstances

warrant  it, even though the depositions were not put in evidence

or  used  at  trial."    As  for  appellant's   contentions  that

plaintiffs'  expert witness's  fee  for attendance  at the  trial

should be denied because he was not a treating physician and that

the cost of copying papers should be excluded, we see no merit in

them.

     The judgments  of  liability and  the  taxing of  costs  are

affirmed.  The  denial of the motion for new  trial as to damages

for  the mental anguish of  Gladys Alvira is  reversed unless the

plaintiffs agree to accept a remittitur of $5,000.  No costs.

                               -10-
