Central of Georgia R. Co. v. Nash, 57005

• Decision Date: 03 July 1979
• Docket Number: No. 57005,57005
• Citation: 256 S.E.2d 619,150 Ga.App. 68
• Parties: CENTRAL OF GEORGIA RAILROAD COMPANY v. NASH.
• Court: Georgia Court of Appeals

Page 619

256 S.E.2d 619

150 Ga.App. 68

CENTRAL OF GEORGIA RAILROAD COMPANY v. NASH.

No. 57005.

Court of Appeals of Georgia.

Argued Jan. 15, 1979.

Decided April 30, 1979.

Rehearing Denied May 23, 1979.

Certiorari Granted July 3, 1979.

Hull, Towill, Norman, Barrett & Johnson, Robert C. Norman, Neal W. Dickert, Augusta, for appellant.

Cooper, Cooper, Maioriello & Stalnaker, L. E. Maioriello, Augusta, Billy E. Moore, Columbus, for appellee.

SMITH, Judge.

Central of Georgia Railroad appeals from the trial court's overruling its motion for new trial, filed after a jury returned a verdict against it in the amount of $300,000. The appeal raises essentially three issues: that the amount of the verdict was excessive and was a product of jury prejudice; that the trial court improperly limited appellant's examination of certain witnesses; and that there was misconduct on part of the jury. We find no error and affirm the judgment of the trial court.

Nash brought this suit to recover for personal injuries he suffered on February 2, 1976, while performing his duties as an employee of appellant. The injuries occurred when Nash, forty-one years old at the time, fell after grasping a defective grab iron on a railroad car. The grab iron was supposed to have supported Nash's weight, and, instead, it came off in his hand.

The evidence showed that prior to the fall Nash had been a very dependable worker and that since the fall he has been "much less active." Immediately after the fall, Nash's left knee began to swell. Fluid collected in the knee, and Nash had it drained. Nash has had continual medical treatment of the knee from the date of the accident until the date of trial, January 31, 1978. He entered the hospital on two occasions, and doctors performed surgery upon the knee both times, removing the prepatella bursa in the knee during one of the operations. The other operation was exploratory in nature, requiring the drilling of holes in the tibial plateau, and it resulted in a diagnosis of "chrondromalicia, lateral tibial plateau." During the course of his medical treatment Nash has been forced to wear knee pads and knee braces and to utilize crutches. Also, he has had to undergo substantial drug therapy. The fall also injured Nash's right knee; however, almost the entirety of the evidence on damages concerned the injury to the other knee.

Since the time of the fall Nash has endured continual, "excruciating" pain, and his condition is such that he can no longer perform the household chores and other work as he used to. A fellow employee testified that he had several times noticed tears form in Nash's eyes when he put his weight on the left knee. The muscles in the left knee atrophied because of the injury, and the evidence suggested that, at the time of trial Nash had regained only 80% Of his strength in the knee, which now makes a grinding noise when he walks. The evidence also indicated that the accident caused arthritis to develop in the knee and that because of the injury Nash has an increased susceptibility to severe arthritis. Because of the accident, Nash also has a greater chance than the normal person of having his knee wear out completely, in which event surgical removal of the entire knee joint could result. Nash was absent from work for a period of ten months, and his lost wages amounted to $12,726.58. Medical expenses prior to trial amounted to $2,779.10.

On appellant's motion for new trial, evidence was introduced which showed that just subsequent to the return of the verdict a tearful female juror embraced Nash's attorney and that other female jurors, as well as Nash and his wife, were weeping. Also on the motion for new trial, appellant introduced an affidavit of the jury foreman, which read in part as follows:

"The engineer on Mr. Nash's crew the night of the accident, who testified during the trial, was named Crozier. He was testifying in Mr. Nash's behalf and said he was retired on disability, based on having had a heart attack. Mr. Norman (appellant's attorney) in his closing argument had mentioned to the jury that if Mr. Crozier had retired on disability, surely Mr. Nash would not be left out completely in the cold on his retirement, and would be as happy and well off as Mr. Crozier, the engineer who had testified on the stand and who was obviously happy and appeared very well dressed and satisfied with his retirement pay. During the discussion in the jury room one of the jurors said he had overheard some statement from a third person whose name he did not reveal, who said in the presence of this juror that this engineer, Mr. Crozier, may have been retired on disability due to heart attack, but he did not receive any compensation from the railroad. What this juror was saying was that somehow he found out from some third person that the railroad did not pay the disability payments to Mr. Crozier. He then proceeded to tell all of us on the jury what this unknown or unidentified third person told him. We thought until then that it made sense that if the engineer who worked with Mr. Nash was being taken care of on retirement due to disability, that if anything ever happened to Mr. Nash he too would be retired on disability. But after this statement to the jury by the juror who heard it from someone else, the jury tried to look after Mr. Nash for the rest of his life as if he would not keep his job with the railroad, just like the juror said.

"Since the jury did not review the evidence, I suggested we go around the room for comments. I turned to the man on my left side, whose name I do not remember, but who was a retired businessman. He was the first person I called on. He stated he was familiar with this kind of thing, and that the railroad would fire Mr. Nash as soon as this case was over, and that when he lost his job with the railroad no one else would hire him. He said we would therefore have to figure the case on the basis that he would not work any more because he would lose his job and no one else would give him a job."

1. The evidence set out above...