Breland v. Gulf, M. & O. R. Co.

• Decision Date: 08 June 1959
• Docket Number: No. 1,No. 46978,46978,1
• Citation: 325 S.W.2d 9
• Parties: Bernice BRELAND (Plaintiff), Respondent, v. GULF, MOBILE AND OHIO RAILROAD COMPANY, a Corporation (Defendant), Appellant
• Court: Missouri Supreme Court

Page 9

325 S.W.2d 9

Bernice BRELAND (Plaintiff), Respondent, v. GULF, MOBILE AND OHIO RAILROAD COMPANY, a Corporation (Defendant), Appellant.

No. 46978.

Supreme Court of Missouri, Division No. 1

June 8, 1959.

Ely & Voorhees, Alphonso H. Voorhees, St. Louis, for appellant. J. N. Ogden, Mobile, Ala., of counsel.

Claude W. McElwee, St. Louis, Michael H. Lyons, Alphonsus A. Seibutis, Chicago, Ill., for respondent.

HOUSER, Commissioner.

This is an action for damages for personal injuries, brought by Bernice Breland, a railroad fireman, against Gulf, Mobile and Ohio Railroad Company, under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. A jury trial in the Circuit Court of the City of St. Louis resulted in a verdict and judgment for plaintiff for $75,000. The trial judge overruled the railroad company's motion for a new trial, in which the question of excessiveness was raised. The railroad company perfected this appeal.

The sole question on this review is whether the $75,000 verdict is excessive. The railroad company contends that plaintiff's evidence as to injuries, permanence of injuries, and the connection between the accident and plaintiff's condition is vague, speculative, confusing and inadequate to show inability to work in the future. The railroad company asserted in argument that the maximum damages to which plaintiff is entitled is $20,000 to $25,000 and calls for a remittitur of $50,000 to $55,000. Plaintiff, claiming the benefit of the rule that the evidence must be viewed in the light most favorable to him, Williamson v. Wabash R. Co., 355 Mo. 248, 196 S.W.2d 129; Meade v. Kansas City Public Service Co., Mo.Sup., 250 S.W.2d 513, contends that plaintiff sustained permanent disability, great pain and suffering, considerable loss of past and future earnings, and maintains that the verdict is not excessive but is low, considering the deflated purchasing power of the dollar, other approved verdicts and the rule of reasonable uniformity, the superior position of the trial judge and jury in estimating damages, and the fact that the trial judge approved the verdict of the jury without requiring a remittitur.

Plaintiff's evidence as to his injuries was given by himself, his wife, and four doctors, one of whom testified in person and three of whom gave their testimony by way of deposition. The railroad company's medical evidence consisted of the testimony of three doctors.

A compendium of the pertinent evidence follows. Plaintiff, who had a 9th grade education, commenced his employment with appellant as a section laborer in 1927. He was promoted to section foreman, and went in the engine service in 1943 as a locomotive fireman in which classification he was steadily employed until the date of his injuries on April 13, 1955. At the time he was 48 years old, weighed 227 pounds and was in good health. He had no previous back injuries and no illness for any length of time, other than influenza. His sleeping habits were normal, his posture was straight and he did not stoop, stand with a list or walk with a limp. He had not been troubled to any degree with backaches or leg aches and while he had headaches, they did not 'amount to anything.' At the time of trial in January, 1958, plaintiff weighed 150 to 154 pounds. Since the accident he sleeps no longer than two hours at a time. He wears a back brace and although he can walk without a cane he uses one to take the strain and pain off his left leg and back. He stands with a list or tilt with his left knee bent, walks with a limp of his left leg. He is of the opinion that his walking difficulty is getting worse. He has difficulty climbing steps and after walking the distance of a block he gets severe pain in the leg and lower back. The pain will subside and he will get some relief if he lies down, but in two or three hours the pain starts again. Headaches are frequent and severe. He has terrific pain through his legs during normal bathroom movements. On doctor's advice he went hunting three or four times and fishing five or six times after the accident but had to give it up because walking hurts so badly. He cannot sit in a boat. He cannot drive his automobile because it hurts his left leg and back. He has given up the sport of pitching and throwing the baseball with the children in the back yard.

Plaintiff's injuries were sustained when the lead Diesel engine on which he was the fireman was derailed, causing him to be thrown from his seat up into the air. He struck his head on the steel wall and his back on a generator fastened to the floor of the engine. He was rendered unconscious. After regaining consciousness he experienced terrific pain in his lower spine and both legs for the next three or four hours during which time he was unable to walk. He had an 'awful' headache. A large knot developed on his head. Hours later, with the assistance of several men, he was brought to a doctor. The next day he was taken to Rush Memorial Hospital, where he was confined for twenty-one days. The lower part of his back and spine were X-rayed. He was given morphine, sometimes three or four shots a day, for pain. He had pain nearly all of the time in the lower part of his back and legs. It would fluctuate in intensity. A large hematoma or blood clot which formed under the soft tissue of plaintiff's lower back was opened and drained. The operation, a one-inch incision, was over in five minutes but it took probably three weeks for the wound to heal. On returning to his home plaintiff would get up with the help of his wife and try to stand and walk, but the pain would become so severe that he would have to lie down. He felt uneasy and unsteady, like he was 'walking on the side of a hill.' After four or five days at home the pain became so severe that he could not stand it and he returned to the hospital. The second hospital stay lasted twelve days. His left leg was put in traction. This gave him no relief. He was fitted with a Taylor brace for his back, which plaintiff wore constantly from that time until the time of trial. In order to walk or 'do any stirring around' the use of the brace is almost a necessity. He 'can't stand it' if he does not wear the brace, a steel contraption that goes around the buttocks, comes up behind the neck, and has two straps through which the arms go. Released by Dr. Rush in September, 1955, plaintiff was advised to go to Missouri Pacific Hospital in St. Louis. Confined there twelve days, plaintiff was attended by Dr. Lembeck. He was X-rayed and given whirlpool baths twice. Plaintiff went back to Dr. Rush. Between June 1955 and July 1956 Dr. Rush saw plaintiff twelve times. In 1955 plaintiff was examined by a Dr. Imrie. In 1956 he was examined by five doctors, three in Birmingham and two in Chicago. In 1957 plaintiff spent three days in another hospital where he was examined by Drs. Shannon and Haynes. The railroad company sent plaintiff to St. Louis where he was examined by company doctors Moore and McCarroll in St. Louis in August, 1957. Two more St. Louis doctors examined plaintiff in 1958.

During the 33 months from date of injury to trial time plaintiff was unable to work and earned no money. Prior to his injury plaintiff, on an average run, made $30 a day going and $30 a day coming back. In performance of duties around the railroad yard he would get approximately $15 for an 8-hour day. The latter work now pays approximately $20, there having been two increases since the date of injury. Plaintiff's gross income in even dollars was as follows: 1952, $4,961; 1953, $4,797; 1954, $4,720; from January 1, 1955 to April 13, 1955, $1,519.

All of the medical experts agreed that plaintiff has a considerable amount of arthritis of the spine of long standing, variously referred to as spurring, lipping, hypertrophic lipping, arthritic lipping, hypertrophic arthrosis, degenerative arthrosis, bony projections, degenerative process of the spine, spondylitis and osteoarthritis. There is a pelvic tilt downward to the left. The opinions of the seven doctors with reference to back motions varied from 'moderately limited' to 'limited in all directions.' One found back motions of only 35% of normal, another 60% of normal. There was a general agreement that in so far as posture is concerned plaintiff bends slightly forward and to the left with a tilt or list. Two of the seven doctors found that his knee jerks were diminished on the left side. The others found the knee jerks normal. Only one doctor found any abnormality in ankle jerk. He said the left ankle jerk was perceptibly less than the right. Three doctors found no sensory changes; four doctors found a hyperesthesia or loss of sensation to pinprick in the lower left extremity. Three doctors found a marked degree of muscle spasm in the lower back and one found 'some' muscle spasm. On straight leg raising the doctors varied in their estimates from 60 to 90 degrees, right leg, and from 30 to 80 degrees, left leg. (80? -90? is normal.) One doctor said that his right leg was 50% normal, his left leg 15% normal, on straight leg raising. There was some atrophy in the left thigh and calf; the muscles of the left leg calf seemed flabbier and the left leg was larger than the right by 1/4 to 1/2 inch. There was some atrophy of the left buttock.

Other findings reported by the various doctors included a definite and severe contusion of the lower back and injury into the muscles of his lumbar spine; a breaking of the transverse process of the fifth lumbar vertebra by direct violence; extreme tenderness to palpation in the left lumbo-sacral area; tenderness of the sciatic nerve in the left thigh; muscle spasm in the back; indications of sciatica; scoliosis (crookedness) of the spine, with a wedging of the vertebrae on the right side; obliteration of the usual lumbar curve; narrowing of the intervertebral spaces in the lower lumbar region; narrowing of the bodies of the third and fourth lumbar...