Culver v. Union Pacific Railroad Company
| Decision Date | 18 July 1924 |
| Docket Number | 22820 |
| Parties | CORWIN M. CULVER, SPECIAL ADMINISTRATOR, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Gage county: LEONARD W. COLBY JUDGE. Reversed.
REVERSED.
N. H Loomis, Edson Rich, C. A. Magaw, Thomas W. Bockes and Rinaker, Kidd & Delehant, for appellant.
Bartos & Bartos and Hall, Cline & Williams, contra.
Heard before LETTON, ROSE, DEAN, DAY and THOMPSON, JJ., BLACKLEDGE and REDICK, District Judges.
This is an action under the federal employers' liability act for personal injuries alleged to have been suffered by the plaintiff on account of the negligence of defendant. The facts are somewhat peculiar. Plaintiff was a brakeman, earning about $ 150 a month. He was employed upon a freight train running from Lincoln to Valley, Nebraska. He testified that, on December 14, 1920, the conductor directed the plaintiff and another employee to load a handcar weighing between 500 and 600 pounds, into a boxcar. The handcar was upon a gravel platform about the level of the rails. Upon direct examination he stated that he told the conductor that the handcar was pretty heavy for three men to lift, and asked him where the section crew was. The section crew was at work elsewhere. The conductor directed him to get into the boxcar. The other two men lifted one end of the car, so that he could reach it and lift on the front end while they lifted on the back end. After failing to lift the car in this manner on account of its weight, "the conductor said, 'Twist one front wheel in and then the other, while we lift,' and I put all my strength on the one wheel and twisted it and at the same time I felt a snap in my back." The handle of the handcar was about on the same level as his feet. After the evidence in behalf of plaintiff had been taken and he had rested his case, and a motion by defendant to direct a verdict had been argued, plaintiff was recalled and testified that the handcar slipped owing to one of the men on the ground letting it go; that he was attempting to twist it and save it from going out of the car when he felt the snap in his back; that, if he had not let go, the car might have taken him out with it and probably have lit upon the other two men, and, in his judgment, the slipping of the car was due to a sudden jerk when one of the men on the ground tried to get a better grip on the handles.
The allegations of negligence in the petition are that defendant failed in its duty to see that the help furnished was sufficient to handle and load the handcar so as to avoid injury to the plaintiff; failed to furnish and provide skids and appliances or ways and means of loading heavy and bulky articles; that, by its conductor, defendant carelessly and negligently ordered and directed the plaintiff to engage in a dangerous and hazardous undertaking, and carelessly and negligently gave him specific directions as to the manner in which he was to lift the handcar, which caused the body of plaintiff to become twisted in an unusual way and caused his spinal column and its tendons, muscles and ligaments to be bruised, torn and stretched; that plaintiff did not apprehend or understand the dangerous nature of the situation, and defendant negligently failed to caution him of the danger. It is alleged that he has become paralyzed as a result. He asks judgment for $ 65,000. The answer denied negligence of defendant, and alleged negligence of plaintiff and assumption of risk. The reply denied that the risk was open, obvious, apparent or known to the plaintiff. The jury returned a verdict for the plaintiff in the sum of $ 50,000.
The errors relied upon for reversal are: Improper activity of the trial court in the examination of witnesses and in remarks from the bench; error in excluding evidence offered by the defendant, and in the admission of improper evidence on behalf of plaintiff over objections; the giving of erroneous instructions to the jury; error in overruling defendant's motion to instruct a verdict in its favor; and that the verdict is excessive and contrary to law.
Defendant has collected and set forth in its brief a number of rulings and remarks made by the trial judge during the progress of the trial, and assigns error committed by frequent unnecessary and improper examination of witnesses by the judge. The taking of evidence covered about six days. It is possible for a trial judge to influence the jury by his manner, by the emphasis, or lack of emphasis, placed upon his certain words, and by other intangible methods not easily described, and which cannot be reproduced upon the written page. In a case involving medical expert testimony such as this, sometimes a question or rejury of such testimony to the facts. It is entirely proper mark by the court aids in the proper application by the for the trial judge to aid in preventing misconception by properly directed questions or remarks. Of course, he should not go too far in this direction, especially in a criminal case. Bartley v. State, 55 Neb. 294, 75 N.W. 832. There is nothing wrong in a trial court asking questions when their tendency is only to develop the truth. Leo v. State, 63 Neb. 723, 89 N.W. 303. But juries are very apt, especially in doubtful cases, to be governed largely by the view the trial judge takes and to seize every indication of leaning by him to one side or the other as a guide to their action. Great care should be taken to avoid even the appearance of partiality. There were 4,511 questions asked at the trial. Complaint is made as to comparatively few remarks. When the whole record is considered, though more care might have been exercised in some instances, prejudicial error in this respect is not shown.
Aside from the very material question whether the handcar was loaded in the manner detailed by plaintiff, or whether it was loaded in the manner described by the conductor, by which method no twisting or displacement of the vertebrae could occur, the principal conflict in the evidence was over the question whether the injury to the spinal cord of plaintiff was caused by a dislocation of the vertebrae in the dorsal region due to a sudden strain placed upon him by attempting to lift a heavy weight in an improper position, thus causing a hemorrhage or apoplexy of the blood vessels of the spinal cord and subsequent degeneration of the cord at the fifth dorsal vertebra, as testified to by the medical witnesses in behalf of plaintiff, or whether it was caused by a complete transverse myelitis of the cord at the fifth dorsal vertebra as a result of syphilis, which was the opinion of the medical experts testifying on behalf of defendant. One who would read the testimony of the medical experts testifying in behalf of plaintiff would in all probability be fully satisfied and completely convinced that the degeneration of the spinal cord causing the paralysis resulted from a dislocation of the vertebrae, and would be also fully satisfied that, if the plaintiff's version of the manner in which the handcar was loaded was true, the violent effort and overstraining it took to raise the car in its twisted position, and the slipping of the car in the hands of the other men, were the proximate and prevailing cause of his deplorable condition. On the other hand, the evidence of medical experts testifying on behalf of defendant seems fully as convincing that the destruction of the tissues of the spinal cord and consequent paralysis of the lower extremities were the result of a syphilitic infection of the blood vessels of the cord, causing a defective blood supply and consequent degeneration of that organ in the region of the fifth dorsal vertebra. It is impossible within the limits of this opinion to set forth the facts and reasoning by which each of these diverse opinions was reached. The jury might well have arrived at either conclusion. The saying is: "Who shall decide when doctor's disagree?" Under our system of jurisprudence, the jury, and not the court, is the body which is authorized by law to decide such a question, and there is sufficient evidence to support the finding that the accident caused the injury.
Whether the evidence sustains the verdict also depends in large measure upon whether the jury believed the testimony of the plaintiff or the testimony of the conductor and station-agent as to the manner in which the handcar was loaded, and the testimony of a number of experienced railroad trainmen as to whether it was proper and customary to load such handcars into boxcars by the use of only three men, without skids, planks or appliances whereby the handcar might be rolled into the boxcar. There was sufficient conflict between the testimony of the two classes of witnesses upon this point to justify a verdict either way. As to the manner in which this particular handcar was loaded, the testimony of the plaintiff was in direct conflict with that of the conductor and station-agent at Raymond who assisted in loading it. But it was the province of the jury to determine which of these witnesses was stating the facts as they actually occurred. This court has not the witnesses before it and has not the same facilities for determining the truth or falsity of the respective narrations, even if this were within its proper function, which it is not. We are convinced that, if the jury believed the evidence on behalf of either plaintiff or defendant, there was sufficient evidence to sustain a verdict in favor of either party on this point.
The same reasoning applies to the assignment that the court erred in overruling defendant's motion to instruct a verdict in its favor.
Several questions are raised as to the privilege allowed confidential...
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