Foltz v. Burlington Northern R. Co.
| Decision Date | 19 February 1985 |
| Docket Number | No. WD,WD |
| Citation | 689 S.W.2d 710 |
| Parties | Ed W. FOLTZ, Plaintiff-Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellant. 35095. |
| Court | Missouri Court of Appeals |
Spencer J. Brown, Deacy & Deacy, Kansas City, for defendant-appellant.
Jo B. Gardner, Jo B. Gardner, Inc., Monett, for plaintiff-respondent.
Before KENNEDY, P.J., and NUGENT and BERREY, JJ.
Defendant, Burlington Northern Railroad Company, appeals from a verdict and judgment under the Federal Employers' Liability Act in favor of plaintiff Ed Foltz for damages suffered as a result of defendant's negligence. Burlington Northern claims the trial court erred in instructing the jury, that the evidence was insufficient to support submission of the case to the jury, and that the verdict is excessive. We affirm.
Mr. Foltz is a railroad employee of the defendant working as a switchman in a railyard in Kansas City. Mr. Foltz along with four other crew members was responsible for switching tracks in the yard. At the time of trial, he was fifty-four years old and had been railroading since he was eighteen years old. The plaintiff has an eighth grade education and has no other skills beside his railroad training. His approximate yearly wages are $47,000.
Between May of 1978 and June of 1981 Mr. Foltz suffered a series of four injuries in the course of his employment for which he filed suit under the Federal Employers' Liability Act (FELA), 45 U.S.C. 51, et seq.
In April of 1983, the case was tried to a jury which returned a verdict in favor of defendant on plaintiff's first, second, and fourth causes of action, and a verdict in favor of plaintiff on his third cause of action awarding him $190,000, and judgment was entered accordingly. The trial court denied defendant's motion for judgment notwithstanding the verdict and in the alternative a new trial.
Although plaintiff has not appealed from the three verdicts in favor of defendant, we set out the facts concerning all four of the injuries because they form part of the factual basis for the legal issues presented by this appeal.
The three occurrences about which the jury found in favor of defendant took place on May 24, 1978, September 25, 1978, and June 1, 1981, and all involved similar facts. In each of those incidents, plaintiff stepped from the cab of a train or a train car onto uneven ground or into a hole, injuring his foot, leg, hips and back.
The jury found in favor of plaintiff on his third cause of action which stemmed from an injury that occurred on August 19, 1979. On that date, plaintiff manually threw a switch to realign tracks in the yard. To throw the switch he first had to push it to a vertical position and then compress it all the way down to complete the operation. At trial, plaintiff testified that the switch was difficult to throw and that as he was pulling it down he experienced sharp pains in his lower back and hips.
Plaintiff also testified that he had reported this difficulty with the switch to his crew foreman five days before the August 19 injury. That testimony was not contradicted. Plaintiff's witness, Reyburn Jones, testified that he had operated the switch before plaintiff's injury and that it had been difficult to throw. He further testified that he had reported the condition to the foreman, but he could not say for how long the switch had been in that condition or when he had made the report. After the incident, the difficulty was again reported, and a witness for defendant, a section foreman, testified that he inspected the switch in response to the report in August of 1979 and found it difficult to throw, but he found no mechanical defect.
Both parties presented medical evidence concerning the plaintiff's injuries allegedly caused by defendant's negligence. The plaintiff had suffered injuries to his back in 1951, 1955, and 1966, but the evidence conflicted as to whether those injuries had completely healed by May of 1978.
Plaintiff presented the testimony of two physicians who had examined him, the first being Dr. Arnold Schoolman, a neurosurgeon. He testified that plaintiff was suffering osteophytes, also known as degenerative arthritis, basically a condition of bone spurs in the spine which narrow the spinal passage opening causing back pains. Counsel asked the doctor the hypothetical question whether the plaintiff's throwing of the switch could have caused plaintiff's back condition. He answered, "Well, certainly anything that is trauma to this patient could have been a contributory cause, and if what you say he did, he did, it could have contributed to his back pain." Also in response to hypothetical questions positing the facts of the other three injuries, the doctor testified that they too could have contributed to plaintiff's back condition. He was troubled by the other injuries and could not say whether one of the injuries alone caused the condition.
Plaintiff's attorney next asked Dr. Schoolman whether, based on the fact that Mr. Foltz had complained of the back pain since the first occurrence in 1978, he had an opinion as to the permanency of the condition. He responded, "Certainly the longer the duration of the pain, the more likely it is that he is going to be troubled with it in the future." He said that this was not equivalent to permanence but that the longer the pain had existed in the past, the longer it would continue in the future. On cross-examination, the doctor testified that he was unaware of plaintiff's pre-1978 injuries and that they could have contributed to the back condition if they were not healed by the time of the first injury.
Plaintiff next called a second examining physician, Dr. Meyers, a family practitioner who had some training in orthopedics. His examination also revealed evidence of osteophyte formation in Mr. Foltz' spinal column. In response to a hypothetical question about plaintiff's August 19 throwing of the switch, he stated that as a result plaintiff would have sustained substantial trauma to his lower back. Similarly, he testified that the other three injuries sued upon could have contributed to the back condition. He could not pinpoint any one of the injuries as the sole cause, but stated that any trauma to the back could force the spurs to move, causing pain. He also testified that without surgery plaintiff would suffer continuous and increasing pain of an undeterminable degree and that the condition would cause considerable pain when plaintiff performed manual labor and could eventually prevent him from doing all manual labor.
On cross-examination, Dr. Meyers testified that he was unaware of the plaintiff's pre-1978 injuries, but that if they had not healed by the time of the first occurrence the condition would already have become chronic. On redirect, the doctor read from a 1966 hospital report concerning plaintiff's 1966 injury which stated that the earlier injuries were completely healed.
Mr. Foltz also testified as to his injuries and the pain that he was suffering. He stated that he was in constant pain and that he was unable to get a full, uninterrupted night's sleep. Because of the pain he could not ride in an automobile for long distances, he had trouble sitting, and at times he was unable to disrobe. The pain persisted in varying degrees while he worked, and it interfered with his leisure time activities of hunting, fishing and gardening. His condition aggravated him and made him irritable with his friends and family. He did not testify that his pain was the result of only the August 19 injury. Finally, he testified that he had lost $1,900 in wages because of the August 19 occurrence.
The defendant called an orthopedic surgeon, Dr. John Barnard, who had examined the plaintiff after this action began. He said that plaintiff had an osteophyte condition and that the condition could result from ordinary wear and tear, strenuous manual labor, or could be caused by trauma. As far as he could tell, the condition was brought on by more than one trauma to plaintiff's back. On cross-examination, he testified that any of the traumas involved in this case could have contributed to the condition.
All of the medical witnesses agreed that plaintiff has an osteophyte condition in his spinal column and that any of the four injuries sued upon here could have caused or contributed to Mr. Foltz' back problem. None of them was able to say that the August 19 injury was the sole cause of the problem. They all agreed that the bone spurs would cause pain. The doctors who testified for plaintiff stated that the pain would continue in the future but would not say that it was permanent.
At both the close of plaintiff's evidence and the close of all the evidence, defendant moved for a directed verdict. Both motions were denied. The jury returned its verdicts, awarding plaintiff $190,000 on his third cause of action, and judgment was entered. Defendant filed a motion for judgment notwithstanding the verdict or in the alternative a new trial, which was denied.
Defendant raises four points on appeal: First, that jury instruction No. 17, based on M.A.I. Third 24.01, was erroneous because it did not include an additional instruction on foreseeability as recommended by the notes on use, M.A.I. Third 24.01. Second, that jury instruction No. 19, based on M.A.I. Third 4.01, included an instruction for future pain and suffering which was not supported by sufficient evidence. Third, that the verdict was grossly excessive, requiring a new trial or remittitur, and, fourth, that the trial court erred in not granting defendant's motions for a directed verdict and judgment notwithstanding the verdict because plaintiff had not presented a submissible case.
Two of defendant's points require a review of the jury instructions given in the case. Rule 70.02(c)...
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