Locke v. Atchison, Topeka and Santa Fe Railway Company, 7030.

• Citation: 309 F.2d 811
• Decision Date: 26 September 1962
• Docket Number: No. 7030.,7030.
• Parties: Joyce Darrold LOCKE, Appellant, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

309 F.2d 811 (1962)

Joyce Darrold LOCKE, Appellant, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a corporation, Appellee.

No. 7030.

United States Court of Appeals Tenth Circuit.

September 26, 1962.

Herbert M. Boyle, Denver, Colo. (Barry & Boyle, Denver, Colo., on brief), for appellant.

Douglas McHendrie, Denver, Colo. (Grant, Shafroth, Toll & McHendrie, Denver, Colo., on brief), for appellee.

Before PHILLIPS, PICKETT and HILL, Circuit Judges.

PHILLIPS, Circuit Judge.

Locke brought this action against the Atchison, Topeka and Santa Fe Railway Company¹ to recover damages for personal injuries under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60.

On April 18, 1958, Locke orally agreed with the Railway Company, acting through its claim adjuster, J. H. Wellman, to settle his claim for $5,000. Payment of that amount was made to Locke and he executed and delivered to the Railway Company a written release in full of his claim.

The Railway Company pleaded the release as a defense to the action and Locke sought to have the release set aside on the ground that it was entered into between the claim adjuster and him by reason of a mutual mistake of fact with respect to the nature and extent of his injuries. The jury found for the Railway Company on the issue of mutual mistake. The trial court denied a motion for a new trial, predicated on the asserted ground, among others, that the verdict was not supported by and was contrary to the weight of the evidence. Judgment was entered dismissing the action and Locke has appealed.

On December 17, 1957, Locke was employed by the Railway Company as a conductor, on a run between his home terminal, Clovis, New Mexico, and his away from home terminal, Vaughn, New Mexico. On such date, Locke arrived at the Railway Company's yards at Vaughn, having served as a conductor on a run from Clovis to Vaughn of a through freight train, which had originated at Chicago, Illinois, and was destined for Arizona and California points. Upon his arrival at Vaughn, Locke went to the yard office and gave the waybills on such train to the outbound conductor, registered the train in, and then signed off on the Federal Registry sheets. He then went to a caboose, which had been placed on a caboose track for the use of the train crew while at their away from home terminal at Vaughn. While Locke was asleep on a bunk in the caboose, it was struck by another caboose, resulting in injuries to his neck and back. On his return to Clovis, the afternoon of December 18, 1957, Locke consulted Dr. Moss, who was his family doctor, and also the Railway Company Hospital Association's doctor. Dr. Moss caused X-ray pictures to be taken of Locke at the Clovis Memorial Hospital and injected a pain killer to relieve Locke's pain. Locke made another round trip from Clovis to Vaughn and return to Clovis, arriving at the latter point on December 21, 1957. He again consulted Dr. Moss and was placed in the Clovis Memorial Hospital under traction. He remained under traction at the hospital until December 24, 1957, when he was permitted to return to his home, where he remained under traction until January 6, 1958.

On January 6, 1958, on Dr. Moss's recommendation, Locke was moved to the Railway Company Hospital Association's hospital² at Albuquerque, New Mexico. Upon his admission to the Albuquerque hospital, he was examined by a neurosurgeon, Dr. Miller, who in turn placed him under the supervision of an orthopedic group of doctors, consisting of Doctors Forbis, Boyd, Jordan and Conklin. X-ray pictures were taken, traction was applied, and physical therapy administered until January 17, 1958. On that date a fasciotomy was performed on Locke by Dr. Boyd to relieve the tension from muscles and ligaments in the lower part of his cervical spine. On January 21, 1958, Locke was released from the Albuquerque hospital to return to Clovis and to continue under the care of Dr. Moss.

Locke returned to the Albuquerque hospital for a checkup on February 3, 1958, and remained there for about 10 days. During that period he was under the care of Dr. Jordan. Traction was applied and physical therapy was administered. On February 13, 1958, Dr. Jordan released him from the Albuquerque hospital.

Locke testified that on the night of February 12, 1958, Dr. Jordan told him his injuries were strained muscles and ligaments and that they would heal in a short time.

Upon his release from the Albuquerque hospital, Locke returned to Clovis, continued some physical therapy, and called Dr. Jordan on the telephone intermittently.

Locke further testified that on March 11, 1958, in a telephone conversation, Dr. Jordan advised him he was mailing a release for him to go back to work. A writing was introduced in evidence, dated March 11, 1958, which stated that Locke came under Dr. Jordan's care on February 5, 1958, and had been discharged on March 11, 1958, for regular duties. Locke returned to work on March 17, 1958, as a conductor on a local run between Clovis and Roswell, which operated three days a week.

Wellman, the claim adjuster, and Locke discussed the latter's claim against the Railway Company in March, 1958, and Wellman requested Locke to make up a statement of the basis for his claim. Locke did so, arriving at a claim of $7,906.45.

On April 18, 1958, Wellman went to Locke's home and stated that the most he was authorized to pay Locke was $5,000. Locke called Dr. Jordan on the telephone and asked him for his advice with respect to the offer. Locke testified that Dr. Jordan stated he couldn't advise him in the matter, "but it sounded like to him that it was pretty fair." Locke further testified that he then believed his injuries "were very minor and that everything was working out as it should." He further testified that Wellman showed him a report from the Santa Fe Hospital Association "showing that there was no permanent disability or damage." He further testified that Wellman believed, on the basis of the medical reports, "that there wasn't any permanent injury or damage." The settlement was then consummated and the release executed.

Locke continued working on the Clovis-Roswell run until June, 1958. He then returned to the Albuquerque hospital for a reexamination as an out patient. At that time, he consulted Dr. Forbis and stated that he had been doing all right until about two weeks previous, when he did some lifting, which started a burning pain in the area of the seventh cervical vertebra. He was admitted to such hospital on July 28, 1958, and remained for 17 days, during which time he received physical therapy and medication. On September 2, 1958, he returned to work for the Railway Company and worked as a conductor and brakeman until November, 1958, when he was again admitted to the Albuquerque hospital. In December, 1958, another fasciotomy was performed on the left side in the cervical vertebral area. He remained at the hospital about eight days and was then released. On release, Dr. Boyd recommended that he take an extended leave of absence. After he left the hospital, Locke applied to the Railroad Retirement Board for a disability pension and was retired, retroactive to December 2, 1958, for permanent and total disability.

Locke was again admitted to the Albuquerque hospital in May, 1959, where he remained approximately 15 days and received X-ray treatments in the area where the fasciotomy operations were performed.

Locke was examined by Dr. Ralph M. Stuck of Denver in October, 1959, and was directed to return for hospitalization and for discograms in January, 1960. He was admitted to the Presbyterian Hospital in Denver in January, 1960, where discograms were performed by Dr. Stuck. The discograms were performed at C 4-5 and C 5-6 intervertebral disc spaces. Thereafter, Dr. Stuck performed surgery on Locke, which involved the removal of the discs and further procedures to fuse the bones at such disc spaces.

Dr. Stuck was called as a witness for the plaintiff and testified that Locke consulted him on October 26, 1959, and related to him the history of his injuries and the symptoms he had suffered from such injuries; that he made a physical examination of the cervical portion of Locke's spine and arrived at the opinion that he had ruptured intervertebral discs at C 3-4, C 4-5, and C 5-6; that he directed Locke to return in January for discography to confirm the diagnosis; that he carried out the discography procedure on January 12, 1960, at C 4-5 and C5-6 and confirmed his diagnosis that Locke had ruptured discs at those spaces. He further testified that in his opinion the ruptured discs occurred as a result of the injuries that Locke received on December 17, 1957.

On cross-examination, Dr. Stuck further testified that "cervical" refers to the neck area from the base of the skull to the beginning of the neck; that when he examined Locke in October, 1959, and January, 1960, he was diagnosing Locke's condition at those times and that he was not making any attempt to diagnose his condition as it was in February or March, 1958; that ruptured discs could have developed in Locke's cervical vertebra between February, 1958, and the time of Stuck's examinations; that degeneration of the spinal discs is rather common in middle-aged men and can result from natural causes, as well as from trauma, and that ruptured discs are a rather common condition; that once degeneration of a disc occurs a slight injury or a sudden movement or wrenching, which might seem very minor to an individual, can cause the occurrence of a ruptured disc and that a ruptured disc sometimes occurs as the result of a sneeze.

Dr. Jordan was called as a witness for Locke and testified that it was his opinion at the time Locke was released from the hospital at Albuquerque to go back to work, that while Locke was not relieved completely of his symptoms, he had improved and could return to work without danger of further harm to him; that his...