CSX Transp., Inc. v. Darling

• Decision Date: 05 December 1988
• Docket Number: No. 77059,77059
• Citation: 189 Ga.App. 719,377 S.E.2d 217
• Parties: CSX TRANSPORTATION, INC. v. DARLING.
• Court: Georgia Court of Appeals

Page 217

377 S.E.2d 217

189 Ga.App. 719

CSX TRANSPORTATION, INC. v. DARLING.

No. 77059.

Court of Appeals of Georgia.

Dec. 5, 1988.

Rehearing Denied Dec. 20, 1988.

Certiorari Denied January 19, 1989.

Alston & Bird, James H. Senterfitt, Elizabeth A. Price, Atlanta, for appellant.

Billy E. Moore, Columbus, for appellee.

BANKE, Presiding Judge.

Darling was awarded a verdict of $800,000 in a personal injury action against Seaboard System Railroad, Inc., brought pursuant to the Federal Employers' Liability Act (FELA), 42 U.S.C. § 51 et seq. While the suit was pending, Seaboard became known as CSX Transportation, Inc. In this appeal from the denial of its motion for new trial, CSX contends that the verdict and judgment should be reversed as excessive.

Darling had worked for the railroad since 1961 as a switchman at a rail yard, where large freight trains were broken down and their cars reassembled into smaller trains headed towards the same destination. In this process, the cars were individually set in motion by a switch engine and then guided to their proper destinations in the yard by opening and closing switches, until they ultimately struck and coupled with the other cars making up the same train. Darling's job was to operate the switches, and in order to get to them he would sometimes ride the unattended cars as they proceeded through the yard. On the occasion in question, a car on which Darling was riding was sideswiped by another car, which had failed to couple with the other cars to which it had been routed and had thus been propelled back in the direction from which it had come. Darling's left arm was caught between the two cars, severely injuring it. According to the treating physician, who was the railroad's company doctor, Darling sustained a "severely comminuted [i.e., crushing type] fracture of essentially the whole shaft of his ... upper arm bone." The bone was "broken into a minimum of four different pieces."

There was evidence that before being transported to the hospital, Darling was kept waiting for over an hour so that his supervisor could see for himself whether the injury was serious enough to warrant calling an ambulance. Although Darling was hospitalized for only three days, he was out of work for the next six months. Upon his return, he was assigned to work as a switchman on through freights, a job which requires less switching than does being a switchman at a rail yard. He has remained at that work since then, although he has periodically missed time due to the residual pain caused by his injury. Darling's co-workers testified that while on the job he would rub his arm from time to time and, when the weather was cold, would try to get his arm "easy" by warming it near the stove. In the opinion of the company physician, Darling had suffered a 10-percent permanent disability to his arm, which translated into a 4-percent disability to the whole person.

At the trial, which took place over four years after the injury, Darling testified that he still suffered constant, severe pain in his shoulder and elbow and that he also experienced numbness through his arm and into the fourth and fifth fingers of his hand. The treating physician testified that the numbness could be attributable to pressure on the nerves caused by scar tissue. In his unsuccessful efforts to obtain relief from his pain, Darling has consulted several other physicians, has tried various types of pain medication, and has received cortisone shots in his arm and shoulder. His residual pain prevents him from sleeping for more than two or three hours at a stretch, restricts his recreational and household activities, and has caused him to become irritable with his family.

There was evidence that the appellee has incurred $1,757 in medical expenses, that he lost $10,500 in wages during the six months following the accident when he was completely disabled, and that he subsequently lost $36,840 in wages due to periodic disability attributable to the injury. There was also evidence that he can be expected to lose up to about $145,000 in wages in the future due to the residual pain from his injury. After application of a discount factor to reduce future damages to present value, the jury was thus authorized by the evidence to award him up to about $185,000 as special damages. The only other element of compensable damages was pain and suffering, which therefore amounted to at least $615,000 of the $800,000 verdict. Held:

1. "Questions concerning the proper measure of damages in FELA cases, like questions of liability, are to be settled according to general principles of law as administered in the federal courts. Chesapeake & Ohio R. Co. v. Kelly, 241 U.S. 485, 491 (36 SC 630 , 60 LE 1117) (1916); Norfolk & Western R. Co. v. Liepelt, 444 U.S. 490, 493 (100 SC 755 , 62 LE2d 689) (1980). It has been held that the damages recoverable under the FELA on account of a railroad employee suffering injury or death on the job are compensatory only and that punitive damages are not recoverable. (Cit.) However, the jury's determination of the amount of damages to be awarded is otherwise inviolate, 'absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial.... (Cits.)' Lane v. Gorman, [347 F.2d 332], 335 [ (10th Cir.1965) ]. This standard of review is consistent with that which obtains under Georgia law, which has been stated as follows: 'Before the verdict will be set aside on the ground that it is excessive, where there is no direct proof of prejudice or bias, the amount thereof, when considered in connection with all the facts, must shock the moral sense, appear "exhorbitant," "flagrantly outrageous," and "extravagant." "It must be monstrous indeed and such as all mankind must be ready to exclaim against at first blush." It must carry its death warrant upon its face.' (Cits.)" Seaboard System R. v. Taylor, 176 Ga.App. 847, 849(2), 338 S.E.2d 23 (1985).

There is no "direct proof" in this case that the jury's verdict resulted from prejudice or bias against the appellant. In opposition to the motion for new trial, Darling in fact submitted affidavits from several jurors to the contrary. Thus, we have no basis to assume that in assessing damages for pain and suffering, the jury was responding to anything other than the evidence presented on that issue. In the context of this evidence--which established that Darling sustained a bone-crushing trauma to the entire upper half of his left arm which has left him in such constant and severe residual pain that, years later, he is still unable to sleep at night for more than two or three hours at a stretch--we must conclude that the verdict is not so exhorbitant, flagrantly outrageous or extravagant on its face as to shock the judicial conscience or to demonstrate that the jury intended for a portion of its award to constitute punitive rather than compensatory damages. It follows that the verdict is not subject to reversal for excessiveness on appeal. Accord Simpson v. Reed, 186 Ga.App. 297, 300(11), 367 S.E.2d 563 (1988).

The appellant's reliance on such cases as Seaboard System R. v. Taylor, supra, and Nairn v. Nat. R.R. Passenger Corp., 837 F.2d 565, 568 (2d Cir.1988), as authority for a contrary conclusion is misplaced. The plaintiff in Seaboard System R. v. Taylor sought to recover for back pain which she had begun to experience after jumping a distance of about three feet to the ground from a switch engine traveling at 10 to 12 miles per hour. She was not aware of any back pain at the time of the incident, did not begin to feel any until three weeks later, and did not seek medical attention until 20 months later, when she consulted an orthopedist at the request of her attorney. The orthopedist identified her condition as "dysfunctional low back pattern," meaning "there is something wrong producing symptoms about the lower back." He testified that the plaintiff's condition had improved since he had been treating her, that her prognosis was "excellent," and that he had never assigned her a disabling rating or advised her to quit working. Moreover, he acknowledged that her condition was consistent with such other possible causes as heavy sneezing or coughing, stepping off a curb, or being manipulated by a chiropractor, none of which, it is fair to say, are indicative of severe trauma. The injury involved in that case was, in short, very minor in comparison to the injury involved in the present case.

The severity of the injury involved in Nairn v. Nat. R.R. Passenger Corp., supra, similarly cannot be equated with that of the injury in the present case. The plaintiff there hurt his back while attempting to lift a piece of heavy equipment which was embedded in ice. He completed his shift but continued to experience pain. Following a series of diagnostic tests which included X-rays, a CAT scan, and a myelogram, he was diagnosed several months later as having "musculoligamentous strain." He later re-injured his back while shoveling wet sand at a construction site. The ultimate diagnosis was "lumbosacral strain which produced a certain degree of disc degeneration." Id. at 567. Clearly, the severity of the trauma and resulting injury in the present case is categorically greater than was the case in either Nairn or Taylor. Indeed, this case is perhaps closer to Vanskike v. Union Pac. R., 725 F.2d 1146 (8th Cir.1984), where an award of approximately $1,100,000 for pain and suffering was upheld in a FELA case as compensation for a bone-crushing injury to the upper arm, albeit one which had resulted in the amputation of the arm between the shoulder and elbow.

2. The appellant contends that the trial court erred in failing to exclude certain "prejudicial" and "unwarranted" statements made by Darling's counsel, as well as remarks made by certain witnesses, all of which...