Bohme v. Southern Pac. Co.

• Decision Date: 28 May 1970
• Citation: 87 Cal.Rptr. 286,8 Cal.App.3d 291
• Court: California Court of Appeals Court of Appeals
• Parties: George C. BOHME, Sr., Plaintiff and Respondent, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Appellant. Civ. 35048.

Page 286

87 Cal.Rptr. 286

8 Cal.App.3d 291

George C. BOHME, Sr., Plaintiff and Respondent, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Appellant.

Civ. 35048.

Court of Appeal, Second District, Division 5, California.

May 28, 1970.

Randolph Karr, William E. Still and Norman T. Ollestad, Los Angeles, for defendant and appellant.

G. Morgan Fitzwater, Los Angeles, for plaintiff and respondent.

FRAMPTON, Associate Justice pro tem. ^*

Preliminary Statement

Defendant, Southern Pacific Company, appeals from a judgment in favor of plaintiff awarding damages in the sum of $86,418. The judgment is entered upon a jury verdict finding total damages in the sum of $96,020, but reducing this amount by ten percent based upon a finding of that percentage of negligence attributable to plaintiff. Plaintiff's action was brought under the provisions of the Federal Employers' Liability Act to recover damages for injuries sustained as a result of a fall from a ramp or walkway suspended between two locomotive engines in defendant's repair yard. Defendant's motion for a new trial was denied and this appeal followed.

Statement of Facts

On January 14, 1967, at approximately 8:30 a.m., in the 'Taylor Diesel Ramp' at Los Angeles, California, owned and operated by defendant, plaintiff, then 67 years of age, was employed by defendant as an electrician working on steam generators. He had been employed in this line of work by defendant for approximately 17 years next preceding the date of the accident.

Plaintiff started work at 7 a.m., inspected several locomotive units, then began work on Unit 3, near which he was later injured by a fall at approximately 8:30 a.m.

Shortly before his fall, plaintiff was working on a diesel locomotive designated as a 'B' unit, the rear end of which was connected to another diesel locomotive designated as an 'A' unit. These units were being repaired and were coupled together. Between the units, starting from the ground up were the couplers, on top of the couplers were buffer plates or buffer bars, and then on top of the buffer plates or buffer bars was an apron of steel, which constituted the walkway plate between the two units. Along each side of the walkway there is a chain which, when hooked up, comes to about halfway between the thigh and waist. The coupled units were stationary at all times both before and after the accident.

Just before the accident, plaintiff had been talking with a Mr. Noble who was also an employee of defendant. This conversation took place in back of the steam generator on the 'B' unit upon which plaintiff was working at the time. Because the steam generator coils had recently been cleaned, there was water and oil on the floor all around the steam generator upon which plaintiff was working. Plaintiff decided to talk to Harold Betts, a machinist employed by defendant, who at that time was working in unit 'A'. Plaintiff left unit 'B', walked across the walkway of steel plate which connected the two units and over to unit 'A'. The walkway between the coupled units is approximately 30 inches wide and between 20 and 36 inches in length.

Plaintiff did not notice whether or not the safety chains were up or down along the walkway between the two units when he first walked from unit 'B' to unit 'A' because they are generally up. Upon arrival at unit 'A' he had a short conversation with Mr. Betts, and then turned back to see Mr. Noble again.

The testimony as to how the accident occurred is, as usual, in conflict. Plaintiff's version of what happened after he turned back to see Mr. Noble is 'I stepped out and gave a glance to see if anybody was passing or looking, thinking Mr. Noble would pass, and when I stepped out I slipped and lost my balance which threw me over to my right and before I knew what happened, I was down in the bottom of the pit.' The safety chain was down, according to plaintiff, otherwise it would have stopped him from falling. It appears to have been the custom and practice to leave the chain down until the units are finally made up for road service, at which time they would be connected up along with air hoses and electrical lines. Plaintiff fell a distance of 7 feet, 9 inches from the walkway to the lower level of the concrete ramp.

The evidence disclosed that the deck plates of the units are generally very oily, dirty and covered with road scum as they were at the time of plaintiff's accident. The oil comes from the top deck of the diesel engine and is tracked through the units 'from the traffic of the workers going back and forth.' It is customary for the workers to go back and forth between the units using the walkway hereinabove referred to. A crew of laborers was available at the time of the accident to clean up this condition.

There is testimony in the record to the effect that shortly after the accident, two employees of defendant observed wet footprint marks and slide marks outside the walkway area out on the grabiron and buffer plate area of the locomotive. The work rules of defendant prohibit an employee from stepping out between locomotive units in such manner as to place the employee in an area outside the walkway, unless such employee is actually engaged in the repair of apparatus situated between the units. The footprint observed bore markings similar to those which could be made by the type of shoe worn by plaintiff but other employees also wore a similar type of shoe.

Plaintiff suffered a fracture of the distal part of the tibia, multiple fractures of the lower part of the fibula, and a fracture of the medial malleolus. The major tibia fragment was sticking through the skin three inches, was completely bare, and was covered by dirt and grime. There was tremendous comminution of this fracture, described by the treating doctor as 'a bag of bones.' Numerous fragments were broken off from the medial malleolus and large amounts of bone were missing from the cancellous portion. An operation lasting two hours was necessary to attempt to align the bone fragments.

There were three operations in all, the first on January 14, 1967, a second on May 23, 1967, which lasted three and one-half hours, and a third operation on August 29, 1967, when various steel pins placed into the fracture site during the second operation were removed.

A steel band to keep some of the many fragments in place was left in the leg and was still there at the time of trial (September 23, 1968). The removal of this band may require a fourth operation at the cost of from $3,000 to $4,000.

There was a fracture into the ankle joint. This creates a type of defect which produces continuous pain and which can be alleviated only by a fusion of the ankle joint. In a man the age of plaintiff there is a strong probability that a fourth operation will be necessary to fuse the ankle joint in order to relieve the area from constant pain. Post traumatic arthritis was observed at the second operation.

The testimony of the treating doctor disclosed that plaintiff's condition is permanent, it is painful, and he will no longer be able to work as an electrician for defendant. Prior to the accident plaintiff was in good health.

Contentions on Appeal

Defendant urges that (1) it was prejudicial error for plaintiff's counsel to interject, on voir dire examination of prospective jurors, over objection, the fact that plaintiff did not qualify for Workmen's Compensation benefits under California law; (2) the trial court erroneously instructed the jury that plaintiff was not subject to nor covered by the rights, liabilities or rules of the Workmen's Compensation Act of the State of California, nor was he entitled to any benefits thereunder, and (3) the damages awarded are excessive and indicate that the jury acted through passion and prejudice.

Voir Dire Examination of Jurors

Over the objection of defendant's counsel, plaintiff's counsel was permitted to ask of prospective members of the jury, in substance, whether or not such juror understood that plaintiff's case is brought under federal law, the Federal Employers' Liability Act, which affords railroad employees their only remedy for damages for personal injuries which occur in the course of their employment, that such employees are not protected under the Workmen's Compensation Act of California and receive no benefits under such law.

In Eichel v. New York Central R. Co., 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307, an action brought under the Federal Employers' Liability Act, it was held that the likelihood of misuse by the jury of evidence that plaintiff was receiving disability pension payments under the Railroad Retirement Act of 1937, clearly outweighs the value of this evidence, where the evidence was offered for the sole purpose of establishing malingering on the part of plaintiff.

In Tipton v. Socony Mobil Oil Co., 375 U.S. 34, 11 L.Ed.2d 4, 84 S.Ct. 1, reh. den. 375 U.S. 936, 84 S.Ct. 328, 11 L.Ed.2d 268, an action brought under the Jones Act, it was held to be error to admit evidence that plaintiff had accepted benefits under the Longshoremen's and Harbor Workers' Compensation Act as applied through the Outer Continental Shelf Lands Act where such evidence was not limited by a cautionary instruction to the jury, to the sole question as to what plaintiff thought to be his legal status, that is, a seaman or a longshoreman, plaintiff being an offshore drilling employee.

In an action for personal injuries sustained as a result of a collision between a truck being driven by plaintiff, an employee of the Iroquois Gas Corporation, and a railroad train, owned by defendant and being operated by its employees, it was held reversible error to admit testimony that plaintiff had been awarded compensation under the New York Workmen's Compensation law, and that the amount awarded to him had been paid by his employer. (Plough v. Baltimore & O. R. Co., 2 Cir., 164 F.2d 254.) To the same effect, see also Altenbaumer v. Lion Oil Co., ...