Davis v. St. Louis Southwestern Ry. Co.

• Decision Date: 02 August 1952
• Docket Number: Civ. A. 3116.
• Citation: 106 F. Supp. 547
• Parties: DAVIS et al. v. ST. LOUIS SOUTHWESTERN RY. CO.
• Court: U.S. District Court — Western District of Louisiana

106 F. Supp. 547

DAVIS et al. v. ST. LOUIS SOUTHWESTERN RY. CO.

Civ. A. 3116.

United States District Court W. D. Louisiana, Shreveport Division.

August 2, 1952.

Reuben W. Egan, Shreveport, La., Jackson, Mayer & Kennedy, Shreveport, La., Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, La., for plaintiff.

John M. Madison, Wilkinson, Lewis & Wilkinson, Shreveport, La., for defendant.

DAWKINS, Chief Judge.

Plaintiff, as the lawful tutrix of her minor son, Hoover Davis (called Hoover), sues for damages claimed to have been caused to him by the alleged negligence of the defendant. The case was tried to the court without a jury.

Big Rock Stone & Material Company (called Big Rock), of Little Rock, Arkansas, has its plant on or adjacent to the tracks of the Missouri Pacific Railroad Company (called Missouri Pacific), and on or about November 11, 1949, had the latter to spot a number of empty gondola cars there to be loaded with stone or rocks weighing from twenty-five to one hundred twenty-five pounds, to be shipped to various consignees. Among cars so spotted was one bearing No. PLE2071, belonging to the the Pennsylvania Railroad, for shipping to Markham-Brown and L. L. Sanders (called Markham-Brown), at Fordel, near Bossier City, Louisiana. The rocks were to be used as riff raff on a river bank. After the car was loaded, Missouri Pacific switched and delivered it to defendant, St. Louis Southwestern Railway Company (called Southwestern), on the latter's exchange track some five miles from the plant. Southwestern issued its own bill of lading on a through rate and paid to Missouri Pacific $11.22 as switching charges.

Southwestern inspected the car on delivery to it, and again at Bossier City before delivery to Markham-Brown at Fordel, where it was unloaded by a number of colored laborers, among them plaintiff's son, Hoover. When the unloading was about finished, the laborers began leaving the car. According to Hoover, he was among the last to leave and was climbing over the end-gate, at the corner where it joined the side, to go down a ladder on that side when the gate fell with him and crushed his right leg, the gate weighing several hundred pounds. This ladder was also the means by which he had climbed into the car to help unload it. However, the foreman in charge of the crew testified that he was looking at Hoover when the accident happened and the latter was standing on the floor when the gate fell and struck his leg. In any event, he was taken to a hospital in the City of Shreveport, where it was found that the lower third of the right tibia was crushed or fractured into several pieces and some of it was protruding through the skin on the inside of his leg. The necessary operation was done by an experienced orthopedic surgeon, who, after cleaning out the wound, put a plate against the bones with screws to hold them in place and supported the whole with a plaster cast. There were several fragments of the bone and the operation required approximately two hours, under a general anesthetic. Hoover remained in the hospital from ten days to two weeks and was then sent home where he remained in bed another ten days or two weeks. Thereafter, he was placed in a wheel chair, and the cast extending from the groin to the toes remained in place about four months. After it was removed, he was provided with a brace so constructed that only about 20% of his weight was upon the leg, and which permitted him to move about.

The accident happened and the first operation was performed on November 15, 1949. He continued to wear the brace from the time it was provided until September 21, 1950, when a second operation was performed. With respect to the latter, the surgeon who performed both it and the first operation, testified as follows:

"We opened his right leg, took the plate and the screws out, freshened up the fracture surface and cut it back to give it good solid surface to stand on and then went into his opposite leg — his left leg — his good leg — and with an electric motor saw, cut out a large bone graft which was then placed across the fracture in his right leg and held in position with screws. We also dug out the softer type of bone of the left leg and packed it about the fracture in an effort to encourage healing. And then both legs were placed in long leg plaster casts."

This operation took about three hours. The patient remained in the hospital a little longer "and he went through about the same routine of plaster for approximately four or five months followed by a brace again". This doctor saw the patient for the last time in connection with this second operation in December, 1950. However, he saw X-Ray pictures thereafter taken at the Charity Hospital.

"They revealed that for quite a while, for many, many months, he looked fairly good. At least, he was holding his own, but then the graft began to bow and it was established there was definite non-union again, that is, failure to unite.

* * * * * *

"A. * * * I saw him then in the office on October 31st, 1951 at which time definite non-union was established with failure of the bone graft.

"Q. * * * A. This is the most common site of non-unions in the body and it is generally attributed to the fact that here the bone is quite dense and hard and its blood supply is poor and it has about the highest incidence of failure to unite than of any other fracture that we see. In addition, this boy had a compound wound and soft tissue damage — damage to skin and muscles. That also impairs the ability to heal. Scientifically — truly, we don't know the exact cause of non-union. We do know it is very common in certain locations because of blood supply and non-union will occur if you fail to get a good reduction or if you fail to hold on to it. In his particular case we got a good reduction and we held on to it with all the steel and screws we could put in and he still did not unite.

"Q. Unless there is union, Doctor, there could be no use of that leg for working and walking purposes? A. He can walk with minor discomfort in a brace.

"Q. Do you say he could do hard manual labor? A. No, sir.

"Q. Could he do any sort of manual labor that would require him standing on his legs and exerting strength? A. No, sir.

"Q. On October 31st, 1951, when you made the examination in your office — A. Yes, sir.

"Q. You say again it was determined definitely there was no union? A. That is right, sir.

"Q. What did you do, or did you say then, could be done, if anything? A. You would have a choice of again trying massive bone grafting procedures, or allowing the patient to remain as a brace patient.

"Q. If he remained as a brace patient, would he remain so the rest of his life? A. Yes, sir.

"Q. If you tried these other kinds of operations, what assurance, if any, would you have that they would succeed? A. Statistically there are no adequately published results on this type of procedure. The complications are pretty high and the rate of success is certainly not better than fifty percent.

"Q. Would the fact that the union had not taken place in this boy despite two prior operations make the outlook pessimistic? A. Yes, sir.

"Q. Would or would not such additional treatment be expensive? A. It would be quite expensive.

"Q. Would you estimate how much his doctors bills alone would be? A. His total cost would be somewhere between $750 and a thousand.

"Q. Does that include hospitalization? A. Yes, sir.

"Q. Then if that did not succeed, what could be done? A. It would be very difficult to say. He would either remain as a brace patient and choose to remain as a brace patient or be amputated and wear and prosthesis.

"Q. What is that, sir? A. An artificial limb."

Both this surgeon and another, appearing as a witness for defendant, thought a third operation was worth trying, as to which the chances were about fifty percent, but if this was not done, the leg should be amputated below the knee and the patient provided with an artificial limb. This, however, would involve a serious handicap, according to the doctors, for one dependent upon his manual labor for a living. Hoover had no education or training for anything else and could barely write his name.

Findings of Fact Affecting Liability

The car was furnished by Missouri Pacific to Big Rock, who loaded it, and it was then switched to the exchange track by the same railroad, where it was delivered to Southwestern. The type of inspection, both there and at Bossier City, was to ascertain if there were any "penalty" defects such as are covered by the Safety Appliance Laws. No inspection of the fasteners or latches on the end-gates, including the one which fell, was made except to see that it was in upright position. Of course, as long as the rock remained against the gate, it could not fall whether the latches or bolts were engaged or not.

This was the first time Hoover had worked on this type of car and he knew nothing about its operation or any danger from the gate falling.

A great deal of controversy arose over whether the "A" or "B" end of the gondola, PLE2071, caused the injury, but the court is of the view that this made no difference because the fact remains that Hoover was seriously injured, and that it was caused by the particular door which fell. Defendant attempted to pin plaintiff down in the allegations of the complaint to a particular end according to those designations. Plaintiff insisted it was the "A" end while defendant contended it was "B" end, and at the same time tried to exclude any evidence as to the condition of the latter, counsel appearing at the taking of depositions of defendant's employees on discovery and instructing them not to answer any questions about the "B" end of the car. It is not believed that plaintiff was bound to select either end; there was no question about the accident, defendant took possession of the car shortly thereafter and there was no doubt the door which injured Hoover remained down. There could be...