Central of Georgia Ry. Co. v. Ramsey

• Citation: 275 Ala. 7,151 So.2d 725
• Decision Date: 20 December 1962
• Docket Number: 6 Div. 751
• Parties: , 16 A.L.R.3d 623 CENTRAL OF GEORGIA RAILWAY COMPANY v. Greer L. RAMSEY.
• Court: Supreme Court of Alabama

Page 725

151 So.2d 725

275 Ala. 7, 16 A.L.R.3d 623

CENTRAL OF GEORGIA RAILWAY COMPANY v. Greer L. RAMSEY.

6 Div. 751.

Supreme Court of Alabama.

Dec. 20, 1962.

Rehearing Denied April 11, 1963.

Sadler, Sadler, Sullivan & Herring, Birmingham, for appellant.

Rives, Peterson, Pettus & Conway, Birmingham, for appellee.

HARWOOD, Justice.

The appellee, who was the plaintiff below, was employed by the appellant, defendant below, as a trainman. For convenience the parties will hereinafter be referred to as the plaintiff and defendant, the positions they occupied below.

The plaintiff sought damages because of alleged injuries to his left ankle caused by the sudden stopping of a train on which he was a crew member.

His complaint contained two counts. Count number 1 alleged a violation by the defendant of Title 45, Section 2 of U.S.C.A., commonly known as 'the Automatic Coupler Act,' and Count number 2 alleged a violation of Title 45, Section 1, U.S.C.A., commonly known as the 'Federal Safety Appliance Act.'

The jury returned a general verdict in favor of the plaintiff and assessed his damages at $20,000.00. The court entered a judgment pursuant to the verdict.

No motion for a new trial was filed in the court below.

In briefs counsel for the appellant-defendant have argued two assignments of error, Nos. 14 and 15, which assignments relate to the refusal of affirmative charges with hypothesis going respectively to Count 1 and Count 2 of the complaint.

The evidence presented by the plaintiff in the trial below tends to show that on 1 October 1953, the plaintiff was riding as a crew member in the caboose of defendant's train when the same came to a sudden stop at a point in Alabama. The plaintiff was thrown about by the stop, and his right ankle was painful. However, he left the caboose and walked along the train several cars and found that the cars had become uncoupled. The air hose which controls the brakes had become disconnected. The plaintiff reconnected the air hose and the train continued its run.

Upon arrival at Columbus, Georgia, the plaintiff consulted the defendant's doctor, Dr. Sykes, who, after taking x-rays, informed the plaintiff that he had a sprained ankle and would be all right in a few days. On 12 October 1953, the plaintiff was paid $69.00 by the defendant, and signed a release.

The plaintiff was unable to return to work because of the condition of his ankle and on 20 October 1953, he was admitted to the hospital operated by the defendant in Savannah, Georgia.

After x-ray examination he was informed by Dr. C. F. Holton, chief surgeon in defendant's hospital, that his ankle was fractured. He was assigned to Dr. Edwards, an orthopedic specialist, who placed a cast on defendant's left leg.

On 28 October 1953, the plaintiff left the hospital and returned to his home to convalesce.

While at the hospital the plaintiff told the Assistant General Manager of the defendant's hospital that he had signed a release based on information that he had a sprain, and since his injury had turned out to be a fracture, he felt something further should be done for him.

The plaintiff was again in defendant's hospital from 4 December 1953 to 10 December 1953, and again on 5 January 1954, when the cast was removed from his leg.

At this time Dr. Holton issued a certificate discharging the plaintiff from further treatment, and stated he would be ready for full duty on 12 January 1954.

On 15 January 1954, the plaintiff made one passenger run, and upon his return found his ankle badly swollen. He thereupon took a two weeks' vacation.

On 30 January 1954, the plaintiff's ankle gave way as he was walking in his kitchen, he fell, and a bone in his right ankle was broken. He went to Drs. Flinchum and Houghston in Columbus, Georgia, private practitioners, and a plaster cast was put on his right ankle.

The plaintiff testified that on 8 February 1954, he was called by Mr. Stewart, a claim agent for defendant, and was told that authority had been given to pay the plaintiff from the date of the last settlement to 8 February 1954, and that he, Stewart, had talked to Dr. Holton who had stated that plaintiff had 'been turned loose for full duty to go back to work, and that I was going to be all right.' Plaintiff told Mr. Stewart he would sign the release but if he had more trouble he would come back. The plaintiff thereupon executed a release for $1217.00, and also signed a separate paper referred to as certificate to accompany employee release, which paper recited that the money paid in settlement was to factors other than loss of time.

The plaintiff was again in defendant's hospital from 5 May 1954 to 12 June 1954, during which time Dr. Brown of the hospital staff operated on plaintiff's ankle, wiring parts of the bone together.

On 16 August 1954, the plaintiff was again admitted to the hospital, and on 23 August 1954, Dr. Brown again operated on the ankle and removed a piece of bone. During this stay in the hospital plaintiff was paid another benefit check. A cast put on the ankle was removed on 8 October 1954.

On 27 October 1954, Dr. Holton again discharged the plaintiff telling him he was going to be all right and ready for full duty on 1 November 1954.

The plaintiff thereafter did light work, but said his ankle was painful, and had a check-up on 2 December 1954.

On 3 December 1954, the plaintiff consulted Dr. Flinchum, and this doctor testified that at this time a minimal degree traumatic arthritis was present in the ankle, and Dr. Flinchum wrote Dr. Holton a letter in which he stated: 'As for disability in this ankle (left ankle) I would be hesitant to estimate, but around 5 to 10 percent might be considered if that agrees with Dr. Brown's opinion.'

The plaintiff continued work but claimed he had pain. On 15 April 1955, Dr. Flinchum gave him an injection and on 21 April 1955, he returned to the hospital at which time a wedge was put in his shoe. On 19 October 1955, Drs. Holton and Brown fitted him with a brace for his left leg, and he was again 'turned loose for full duty.'

On 17 January 1956, Dr. Sharpley of the defendant's hospital performed an operation on plaintiff's left ankle. He was again in the hospital from 14 October 1956 to 16 October 1956, and from 13 March 1957 to 27 March 1957, and had another operation then, performed by Dr. Brown.

The plaintiff was again in the hospital from November 7, 1957 to December 20, 1957; from July 21, 1958 to August 2, 1958.

In November 1958, a private practitioner, Dr. Elkins, saw him. This doctor testified that plaintiff's pain was justified and advised him to have certain fragments in his ankle removed. Plaintiff was again in the hospital from 19 January 1959 to 27 January 1959, and on 10 June 1959, his left ankle was operated on again. Certain tissue, bone, and cartilage was removed.

Dr. Holton told plaintiff after each of his operations that he could return to full duty, and so reported to the defendant.

The plaintiff testified that while he was in the hospital on 9 October 1954, he was visited by Mr. Sease, defendant's Assistant General Manager, and Mr. Ozburn, Assistant Chief Claim Agent for the defendant. They told him that the defendant company would pay him every dime they owed him, and Dr. Holton had informed them both that the plaintiff was going to be all right to go back to full duty.

Again, on 8 February 1955, according to plaintiff's testimony, Mr. Stewart, defendant's claim agent called the plaintiff and told him to bring his wife to the Claim Office at Columbus, Georgia, as Mr. Ozburn had authorized a payment to plaintiff from the second settlement up to the time of Stewart's call; that Mr. Stewart told him he had talked to Dr. Dukes, Mr. Ozburn, and Dr. Holton, and Dr. Holton had said that the plaintiff had been turned loose for full duty and would be all right. The plaintiff replied he had not been working much but that Dr. Holton had told him his foot was going to be all right, and 'okeh to turn loose for full duty,' but if it wasn't he would come back to Stewart. On his visit to the Claims Office, the plaintiff was paid $3260.00, less $1170.00 refunded to the Railroad Retirement Board. The plaintiff again signed a release, and a 'Certificate to Accompany Employee's Release,' but testified that Dr. Holton's assurances to him were the reasons he signed the release.

In this connection the plaintiff testified that on each occasion that he signed releases he was informed that the defendant was simply paying him for lost time.

The plaintiff further testified that while he was in the hospital in March 1957, Mr. Ozburn came to his room and plaintiff asked him about helping him out, stating that Mr. Sease and Mr. Ozburn had promised to do so. The plaintiff further stated to Mr. Ozburn that since the settlement in 1955, he had had two operations, and wore a steel brace, but was yet unable to work. Then according to plaintiff:

'A Mr. Ozburn told me, says, Ramsey, we made three settlements with you, you signed three releases, and I am not going to give you any more money. Your three years, the statute of limitations--I didn't know there was a statute of limitations, I didn't know nothing about that. He said your statute of limitations has run out, and we are going to stand on the settlements, the three settlements that we had, that we gave you.

'I said, what am I going to do, what can I do? And he said you can't do nothing.

'Q Did he tell you you could not do anything?

'A He said that I had had three settlements, and they had paid me three times, and my statute of limitations was the three years, and that I had settled, and that was all.'

Following this conversation the plaintiff did nothing until 1 May 1957, when he discussed his situation with the General Chairman of his Railroad Brotherhood. This official stated he did not know what to tell the plaintiff, but suggested he consult a lawyer. Thereafter on 3 May 1958, the plaintiff came to...