Budd v. Erie Lackawanna R. Co.

• Decision Date: 24 November 1967
• Docket Number: No. A--545,A--545
• Citation: 98 N.J.Super. 47,236 A.2d 143
• Parties: Philomena BUDD, General Administratrix and Administratrix ad Prosequendum of the Estate of William J. Budd, deceased, Plaintiff-Respondent, v. ERIE LACKAWANNA RAILROAD COMPANY, a New York corporation authorized to do business in New Jersey, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 47

98 N.J.Super. 47

236 A.2d 143

Philomena BUDD, General Administratrix and Administratrix ad Prosequendum of the Estate of William J. Budd deceased, Plaintiff-Respondent, v. ERIE LACKAWANNA RAILROAD COMPANY, a New York corporation authorized to do business in New Jersey Defendant-Appellant.

No. A--545.

Superior Court of New Jersey

Appellate Division.

Argued Oct. 23, 1967.

Decided Nov. 24, 1967.

Arthur J. Blake, Jersey City, for appellant (Lamb, Blake, Hutchinson & Dunne, Jersey City, attorneys).

Robert H. Wall, Jersey City, for respondent (Thomas J. Kilcoyne, Jersey City, on the brief).

Before Judges CONFORD, COLLESTER and LABRECQUE.

The opinion of the court was delivered by

LABRECQUE, J.A.D.

Defendant Erie Lackawanna Railroad Company appeals from a judgment in favor of plaintiff based upon a jury verdict.

Plaintiff sued under the Federal Employers' Liability Act (hereinafter FELA), 45 U.S.C.A. § 51 et seq., and was awarded $58,500 on her claim for her husband's death and $6,000 for his pain and suffering prior to death. Defendant appeals from the judgment thus rendered and from denial of its motion for a new trial.

Decedent, a resident of Hackensack, was employed as a clerk in defendant's 28th Street Station in New York City. On the afternoon of October 26, 1962, at about 1:30 P.M. and shortly after lunch, while attempting to assist another clerk with his work, he was seen by a fellow employee to nod his head forward, break into an extremely heavy sweat and lapse into unconsciousness. The employee came to his assistance and upon observing his condition requested one Muller, the chief clerk in charge, to call a physician or an ambulance. This was not done although the request was repeated 'six or eight' times during the next 45 minutes. At the end of about 25 minutes decedent appeared to partially recover consciousness, but shortly thereafter lapsed into a coma. It was 45 minutes after the onset of his illness before he started to regain full consciousness. Muller continued to be present thereafter, but no medical assistance was ever summoned although defendant employed a company physician and there was a public hospital some four blocks away. It was not until later, after decedent had vomited several times, that another executive directed a fellow employee to drive decedent home. This was some two hours after the onset of his illness. At decedent's request he was first driven to the Hackensack office of a Dr. Kristal, his personal physician, arriving there at about 4 P.M. He died approximately 15 minutes later. The cause of death was given as coronary occlusion.

Dr. Kristal's office was about 40 minutes from decedent's place of employment. He testified that decedent had called him before coming to his office, and when decedent related his symptoms he advised him that if he felt 'that bad' he should see a doctor in that area immediately.

Plaintiff's cause of action was buttressed upon the 'humane instincts doctrine' set forth in Szabo v. Pennsylvania Railroad Co., 132 N.J.L. 331, 332--333, 40 A.2d 562 (E. & A. 1945), it being alleged that defendant failed in its duty to furnish medical care and attention when decedent became acutely ill while on the job. See also Dudley v. Victor Lynn Lines, Inc., 32 N.J. 479, 493--495, 161 A.2d 479 (1960); compare Burns v. Bakelite Corp., 17 N.J.Super. 441, 86 A.2d 289 (App.Div.1952), certification denied 9 N.J. 335, 88 A.2d 366 (1952). Defendant denied violation of any duty owing to decedent and set up his own contributory negligence as a bar. In arriving at its verdict the jury applied the doctrine of comparative negligence prescribed by FELA, 45 U.S.C.A. § 53, and found decedent to have been contributorily negligent to the extent of 25%. Thus the verdict rendered amounted to 75% Of the sums which the jury found to represent the actual damages sustained by plaintiff.

Defendant first urges that the trial judge committed reversible error in admitting and submitting to the jury the life expectancy tables contained in the rules of court. It argues that such tables show average life expectancy only and were inapplicable in view of decedent's allegedly reduced life expectancy due to the heart attack he sustained before the occurrence of defendant's alleged negligence.

R.R. 4:45A provides that the tables of mortality and life expectancy as set forth in the appendix to the rules shall be admissible in evidence as Prima facie proof of the facts contained therein. The table of life expectancy referred to indicates average life expectancy and is based upon the so-called United States Life Tables, 1959--61, as published by the United States Department of Health, Education and Welfare in December 1964. The tables of mortality which precede it in the rules furnish the present value of an annuity of $1 at 3 1/2% Interest based upon the same table of life expectancy. Prior to adoption of the present rules a somewhat similar table of mortality was contained in former Chancery Rule 184. In general, such tables, or testimony based thereon, have been held to be admissible in actions by personal representatives for wrongful death, Camden and Atlantic R.R. Co. v. Williams, 61 N.J.L. 646, 40 A. 634 (E. & A. 1898), and in suits for personal injuries where the evidence supports the contention that the claimed injuries are of a permanent nature. Dalton v. Gesser, 72 N.J.Super. 100, 116--117, 178 A.2d 64 (App.Div.1962); Kappovich v. LeWinter, 43 N.J.Super. 528, 532--533, 129 A.2d 299 (App.Div.1957), certification denied 24 N.J. 112, 130 A.2d 914 (1957).

Specifically, defendant urges that since the original heart attack suffered by decedent was not work-connected and his life expectancy was materially reduced thereby, it was error to permit the jury to use a table of average life expectancy in arriving at the amount of its verdict. It cites several cases from other jurisdictions which appear to so hold.

We are satisfied that the table was properly received in evidence regardless of what decedent's condition of health would have been had medical care been furnished so that he had survived the heart attack which overcame him on the day in question. Under our cases the use of such tables is not limited to instances where the deceased enjoys average or better health. In Camden and Atlantic R.R. Co. v. Williams, supra, 61 N.J.L., at p. 649, 40 A., at p. 635, referring to the Carlisle Table of Mortality (from which was derived the table of mortality contained in former Chancery Rule 184) it was held:

'It (the table of mortality) was legal evidence irrespective of the condition of health of the deceased, for it is not a table compiled from statistics of selected lives only, but of course such condition had to be taken into account, and testimony on that subject was in fact taken by both parties. The table was not admitted as controlling. The judge said, 'We are not bound by it,' and in his charge to the jury he very clearly and correctly stated the rules governing the estimate of probable duration of life to be made by a jury in awarding damages in cases of injury resulting in death.'

And in Auer v. Sinclair Refining Co., 103 N.J.L. 372, 137 A. 555, 54 A.L.R. 623 (E. & A. 1927) it was held 'The general rule is that, while the Carlisle table of mortality is evidential, irrespective of the condition of health of the person whose expectancy of life is the subject of the inquiry, yet that condition of health must be taken into account in determining the probable duration of such person's life. * * *' (at p. 375, 137 A. at p. 557)

It thus appears that when accompanied by cautionary instructions, the table may be used regardless of decedent's state of health. Our examination of the charge here convinces us that the jury was properly and adequately instructed as to the inconclusive import of the table and the limited use which the jury might make of it. Kapprovich v. LeWinter, supra, 43 N.J.Super., at p. 533, 129 A.2d 299; Dickerson v. Mutual Grocery Co., 100 N.J.L. 118, 121--123, 124 A. 785 (E. & A. 1924); Hampton v. Pennsylvania R.R. Co., 115 N.J.L. 168, 170--171, 179 A. 101 (E. & A. 1935).

While we have not considered it in determining the issue, we note that plaintiff's cardiologist testified that in heart attacks of the type here involved, 25% Die instantly regardless of whether they receive medical care; of the remainer, 25% Die within the next three to five days; the mortality rate for myocardial infarction Per se would be virtually zero for the survivors.

By its second point defendant challenges the admission into evidence of a portion of section 5 of rule 51 of the provisions of the contract between decedent's union and defendant. In substance, it urges that the ruling introduced a new issue into the case and imposed a greater duty upon it than the law required. As to this we determine that the issue was not thereby changed from one of negligence to one of breach of contract; the provision in question was relevant as within the framework of the issues presented, and, in any event, defendant suffered no prejudice thereby.

The provision in question recited that employees who became ill on the job should be 'given medical attention at the earliest possible moment.' It would ordinarily be considered as one of the work rules governing decedent's employment. Such work rules are generally held to be relevant on an issue of negligence. A duty thus undertaken must be performed with due care. In general, it was admissible here as some evidence that defendant had undertaken to furnish medical care to clerical employees upon their being taken ill, and as a practical indication as to what the parties jointly deemed to be the appropriate care due. In Bascho v. Pennsylvania Railroad Co., 3 N.J.Super. 86, 92, 65 A.2d 613 (App.Div.1949), a negligence case where one of the issues was whether the company had undertaken to furnish medical care to a locomotive fireman, we held that the...