Chicago, R. I. & P. Ry. Co. v. Lockwood

• Decision Date: 19 February 1968
• Docket Number: No. 5--4465,5--4465
• Citation: 244 Ark. 122,424 S.W.2d 158
• Parties: CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY, Appellant, v. Asa Julius LOCKWOOD, Appellee.
• Court: Arkansas Supreme Court

Page 158

424 S.W.2d 158

244 Ark. 122

CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY, Appellant, v. Asa Julius LOCKWOOD, Appellee.

No. 5--4465.

Supreme Court of Arkansas.

Feb. 19, 1968.

Arnold, Hamilton & Streetman, Crossett, and Wright, Lindsey & Jennings, Little Rock, for appellant.

Switzer & Griffin, Crossett, and Martin, Dodds & Kidd, Little Rock, for appellee.

FOGLEMAN, Justice.

Chicago, Rock Island and Pacific Railway Company appeals from a judgment awarding Asa Julius Lockwood $75,000 as damages for personal injuries suffered while performing his duties on May 12, 1964, as a brakeman employed by the company. Only two points are relied on for reversal. They are:

I.

The trial judge erred when he permitted appellee to interject and substitute a new issue in the litigation by amending the complaint at the close of plaintiff's (appellee's) testimony.

II.

The $75,000.00 verdict is excessive.

We will discuss these in the order listed.

I.

Appellee made the following allegations relating to appellant's liability:

'That at the time aforesaid the handle of one of the handbrakes and the brake machinery on said train which Plaintiff, as such brakeman, was required to operate was imperfectly constructed, defective and unsafe; that said imperfection, defectiveness, inadequacy and unsafeness could have been by said Defendant discovered and known by the use and exercise by it of ordinary care and diligence, and were at the time aforesaid known to the Defendant; but the same were unknown to the Plaintiff.

* * *

* * *

That the negligent acts complained of herein by the Defendant have damaged the Plaintiff, ASA JULIUS LOCKWOOD, in the sum of $150,000.00.'

There was no evidence of negligence on the part of appellant. At the conclusion of appellee's evidence, his attorney, before resting, made a motion that the complaint be amended to conform to the proof--specifically to state that appellee's injuries proximately resulted from violation by appellant of 45 U.S.C.A. § 11, ¹ which required appellant to equip its cars with a hand brake that would perform properly when used in the usual and customary manner.

The amendment was allowed by the trial court, over appellant's objection that pleading the Safety Appliance Act, which had not previously been referred to, injected a new and different theory and basis of liability into the case. Appellee had testified that on the occasion of his injury he was going to get up on a pole car and set a hand brake. In order to do so, he mounted a little platform on the end of the car and took hold of the brake handle preparatory to swinging around on the platform. He took hold of the brake handle with his right hand and turned loose of a grab iron on the side of the car which he held with his left hand. Thereupon his entire weight was thrown on his right hand and the brake handle snapped, causing him to fall to the ground. After the fall, he still had the broken brake handle in his hand. Appellee stated that he had never performed this duty in any other way, had never seen it done in any other way, and that as far as he knew, this was the normal, customary manner in which it was done.

There was no motion for a continuance by appellant, nor is there any contention by appellant that the evidence was not sufficient to support a verdict under the Federal Safety Appliance Act. No evidence was offered by appellant.

Title 45, U.S.C.A. § 11 requires that all railroad cars be equipped with efficient hand brakes. This act does not impose an absolute liability, but it does impose an absolute duty, and a carrier is not excused from liability by any showing of care, however assiduous. Myers v. Reading Co., 331 U.S. 477, 67 S.Ct. 1334, 91 L.Ed. 1615 (1947); Brady v. Terminal R. Ass'n, 303 U.S. 10, 58 S.Ct. 426, 82 L.Ed. 614 (1938). Even though a complaint alleges negligence consisting of failure to warn an injured employee, failure to inspect and failure to furnish the employee with a safe place to work, without mentioning this section of the statute, the railroad's absolute duty is brought into the case if there is evidence which shows a brake to be inefficient. Long v. Union R. Co., 175 F.2d 198 (3d Cir. 1949). In such a case, allegations of negligence are considered surplusage. Colwell v. St. Louis-S.F. Ry. Co., 335 Mo. 494, 73 S.W.2d 222 (1934). The only burden on a plaintiff is that he prove by direct or circumstantial evidence either a specific defect or the failure of the brake to function efficiently on normal, ordinary operation. Selby v. Chesapeake & Ohio Ry. Co., 11 Ill.App.2d 395, 137 N.E.2d 657 (1956).

Under the Arkansas Civil Code, a plaintiff is only required to state the facts constituting his claim or cause of action. Ark.Stat.Ann. §§ 27--1101, 27--1113. The statement of facts constitutes the cause of action. Albersen v. Klanke, 177 Ark. 288, 6 S.W.2d 292; Grytbak v. Grytbak (on rehearing), 216 Ark. 674, 227 S.W.2d 633, 635; Taylor v. Taylor, 224 Ark. 328, 273 S.W.2d 22. All that is necessary is that the complaint state a cause of action within the jurisdiction of the court. Crowder v. Fordyce Lumber Co., 93 Ark. 392, 125 S.W. 417. It is not necessary to plead a federal statute in order to have the benefit of it, so long as allegations constituting a cause of action thereunder are made. St. Louis, I.M. & S. Ry. Co. v. Hesterly, 98 Ark. 240, 135 S.W. 874 (reversed on other grounds in 228 U.S. 702, 33 S.Ct. 703, 57 L.Ed. 1031).

Under Ark.Stat.Ann. § 27--1160 [Repl.1962], a court may at any time, in furtherance of justice and on such terms as may be proper, amend any pleading by conforming it to the facts proved, when the amendment does not substantially change the claim or defense. Under the circumstances existing here, the trial judge did not abuse the discretion vested in him by this section of the civil code. The amendment permitted here effected a less substantial change than was involved in El Dorado Pipe & Supply Co. v. Penguin Oil Co., 174 Ark. 843, 296 S.W. 713, wherein reversible error was found in refusal to permit the amendment under this section. There the amendment would have changed the action from a suit to charge a surety on a note to one on open account with an allegation that the defendant received the benefit of certain property sold by plaintiff. The amendment was requested on the basis of plaintiff's offer of proof that the property was sold for the benefit of the defendant at whose request plaintiff accepted a note made by a third party to whom defendant traded the property. In that case the defense of ultra vires asserted in defendant's answer to the original complaint would have been eliminated by the amendment.

In the case at bar, the appellee alleged and offered evidence of facts which constituted a cause of action under the Safety Appliance Act. Appellant has not indicated any defense of which it was deprived by the amendment or any evidence which it might have offered in defense of the amended complaint which would not have been admissible under the issues raised by the original complaint. If appellant had asked for a continuance, the burden would have been upon it to show to the satisfaction of the court how it had been misled to its prejudice. Williams v. Bullington, 195 Ark. 253, 111 S.W.2d 507. Since prejudice to appellant has not been shown and is not apparent, we cannot say that the trial judge abused his discretion in granting the amendment incorporating into the pleading an allegation not essential to the recovery sought.

We consider cases cited by appellant to be distinguishable. In cases such as Patrick v. Whitely, 75 Ark. 465, 87 S.W. 1179, and Bridges v. Harold L. Schaefer, Inc., 207 Ark. 122, 179 S.W.2d 176, the amendments refused would have permitted recovery based on contracts or agreements different from those asserted in the original pleading, or would have included elements of damage not recoverable under the original pleading. The amendments in Butler v. Butler, 176 Ark. 126, 2 S.W.2d 63, and Price v. Price, 215 Ark. 425, 220 S.W.2d 1021, would have added allegations supporting new and different issues not raised by the facts alleged in the original complaint. Defendants in the two latter cases would necessarily have had to offer evidence of facts materially different from that which would have been admissible on the issues made by the original pleadings. Such is not the case here.

II.

Appellant's argument that the verdict is excessive is based largely upon these contentions:

1. Appellee's 1966 earnings were $2,124.00 greater than his earnings in 1962, the year prior to that in which his injury occurred.

2. No loss of future earnings is anticipated.

3. Appellee's work hours would cause fatigue independent of his injury.

4. Appellee had injured his back on two previous occasions.

5. The medical testimony giving appellee a 22 1/2% disability rating based on limitation of motion does not support the verdict in view of the doctor's statement that appellee had made excellent recovery after his surgery and appellee's demonstrated ability to perform his job.

In considering whether this verdict should be set aside as excessive, we note that there was testimony before the jury tending to show the following facts:

Appellee had a hard fall, from which he suffered 'unbearable' pain in his back. He was in discomfort while in traction for ten days. His left leg became drawn and would not straighten out. The effects of a myelogram were so painful that he couldn't raise his head for two days. He went through quite an ordeal after a second myelogram and disc removal surgery in May 1964. When he went to work for a few trips, after this surgery, his...