Harp v. Illinois Cent. R. Co.

• Decision Date: 08 July 1963
• Docket Number: No. 2,No. 49743,49743,2
• Parties: Samuel W. HARP, Respondent, v. ILLINOIS CENTRAL RAILROAD COMPANY, a corporation, Appellant
• Court: Missouri Supreme Court

Page 387

370 S.W.2d 387

Samuel W. HARP, Respondent, v. ILLINOIS CENTRAL RAILROAD COMPANY, a corporation, Appellant.

No. 49743.

Supreme Court of Missouri, Division No. 2.

July 8, 1963.

Motion for Rehearing or to Transfer to Court En Banc Denied

Sept. 9, 1963.

Arnot L. Sheppard, Gentry, Bryant & Sheppard, St. Louis, for appellant.

Gray & Jeans, Charles E. Gray, St. Louis, for respondent.

STOCKARD, Commissioner.

The Illinois Central Railroad Company has appealed from a judgment in the amount of $86,000 in respondent's action for personal injuries under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq.

Respondent, a locomotive engineer for Terminal Railroad Association of St. Louis, delivered a train of railroad cars to the freight yard of appellant in East St. Louis, Illinois, and left the cars at the designated place. He then moved the diesel engine onto appellant's track number 6 and stopped. While standing still with the brakes set the engine was struck from the rear by three freight cars under the control of appellant with such force that it moved about 30 feet. Respondent's suit was based on injuries allegedly sustained in this collision.

Appellant admits the occurrence of the above incident, but it challenges the sufficiency of the evidence to support a finding of 'proximal causal connection' between the collision and respondent's alleged injuries.

Respondent was seated on the engineer's seat in the engine looking toward the front. With him in the cab were Charles Palmeri, the fireman, and Robert Cusak, a switchman. Respondent testified that as a result of the collision he 'was thrown and bounced around in the cab' and, in his language, when I came to myself I was lying backwards out the side window, that is the engineer's window.' In describing what happened, Mr. Palmeri stated that as he was 'being scooted off of this seat box,' apparently as the result of the collision, respondent 'was leaning up against the back rest there on the engine, more or less just like twisted him all around and then threw him forward and then backward.' On cross-examination Mr. Palmeri was asked if he said that respondent was knocked forward, and he replied: 'Well, the way the impact was he was knocked forward and more or less kind of twisting him around in the seat to where his back was up against the side where you rest your arm * * *.' Respondent immediately complained of pain and he said that he had no feeling in his left arm. He testified that when he struck the window he suffered pain 'through my neck down into my back,' in his left shoulder and arm, and into both legs 'but mostly in the left and across my lower back.' The fireman stated that immediately after the collision respondent had three 'marks' on his back, two of them on the left side and one 'just about on the spine.' Following the collision the fireman operated the engine and returned it to St. Louis, and respondent sat on the fireman's seat and 'kept more or less trying to get circulation through his hand and arm.' When respondent got off work he went directly to the Missouri Pacific hospital where he was given a 'capsule' to relieve his pain. He remained at the hospital for approximately two weeks, and while there he was given 'whirl bath treatments' and medication. After his discharge he had 'terrific headaches,' he had pain in his lower back, and his legs still bothered him. He returned to the hospital twice a week for several weeks for 'some heat treatments and vibrating treatments.' On April 23, the day following the collision, respondent was examined by Dr. Joseph A. Lembeck, who was 'in charge of orthopedic work of bone and joint surgery' at the Missouri Pacific Hospital. It was Dr. Lembeck's opinion that respondent had a 'low back strain, that is a lumber strain, and he had a neuritis of the left ulnar nerve of the left arm.' At the time of this examination respondent had red marks on his back and was suffering acute pain. In June 1961 respondent went to Dr. Jacques Paul Schaerer who examined him, and after various tests the doctor concluded that respondent's pain was 'produced by the disc, as demonstrated in the discogram [a test he had made], between 1-5 and S-1,' and also that in his neck area 'there was a disc injury at the level of C-5-6.' Dr. Schaerer testified that his examination revealed muscle spasm in the lumbo sacral region, that back movements resulted in pain, that there was some limitation of neck movement, and that there was numbness over the little fingers of the left hadn extending into the lower third of the forearm. He further testified that discograms and myelograms made by him showed a ruptured disc at the level of C5-C6 and at L5-S1. On July 3, 1961 a laminectomy was performed by Dr. Schaerer for the removal of the L5-S1 reptured disc, and a revision of this laminectomy was performed on July 20. In the course of his testimony Dr. Schaerer testified at length concerning his methods of examination and treatment of respondent, the cause of a rupture of a disc, its effect, and the technique of correction by the performance of a surgical operation. A hypothetical question was submitted to Dr. Schaerer in which he was asked to assume, among other things, that on April 22, 1961 respondent was involved in an accident as previously described herein; that respondent was 'thrown around' and when 'he ended up he was leaning with his back up against a metal window;' that immediately thereafter he started suffering pain in his low back with some pain down his left leg, pains into the neck and left shoulder and arm; and that immediately thereafter he was hospitalized and his condition was diagnosed as acute lumbar sprain and cervical sprain, and that he was given treatment in the form of 'whirlpool baths.' The doctor was then asked to take into consideration the findings he made when he examined and treated respondent, the myelographic and discographic studies he had made, the operation he had performed, and the findings made by him at the time of the operation. He was then asked if he was able 'to give us an opinion * * * based upon reasonable medical certainty * * * as to what injuries, if any, Mr. Harp sustained in the accident' referred to and assumed in the hypothesization of facts. In answer to this question the doctor stated 'It is my opinion that [respondent] has sustained (a) an injury to the cervical spine consisting of a ruptured disc at C-5-6 and (b) an injury to the lumbo sacro area consisting of a ruptured disc at L5-S1.' Following this the doctor was cross-examined at length concerning his findings and the basis for his opinion.

Appellant's contentions in its first point, in substance, are as follows: (a) respondent's injuries are such that a layman cannot draw any conclusion with respect to proximate cause and therefore in this case it must be established by expert medical testimony, and (b) the opinion expressed by Dr. Schaerer did not have sufficient factual basis to constitute substantial evidence of cause and effect and it established no more than a probability. In its second point appellant challenges the opinion of Dr. Schaerer as to the 'causal connection between the collision and plaintiff's sore back' because (a) the hypothetical question does not present 'substantial facts which are of such probative value as to give his opinions any worth,' and the opinion therefore is a non sequitur and no more than a mere theory and guess wholly unsupported by any probative facts, and (b) the opinion was 'based 'exclusively' upon history of the occurrence as given to him by plaintiff.' Contention (b) under point one and contention (a) under point two are substantially the same.

We agree that the cause of those injuries of respondent described in the evidence, under the circumstances of this case, are complicated matters not within the understanding of ordinary jurors, and that whether a submissible case was made as to proximate cause depends upon the sufficiency of the opinion evidence of Dr. Schaerer. This disposes of what we have designated as part (a) of appellant's first point. Before considering the contention that the opinion of Dr. Schaerer did not constitute substantial evidence of proximate cause we should first set forth certain basic rules concerning the use of opinion evidence.

As an exception to the general rule that a witness may not express an opinion, an expert witness may do so when qualified as such and when the subject matter is not of such common knowledge to invade the province of the jury. Schears v. Missouri Pacific Railroad Company, Mo., 355 S.W.2d 314, 321; Christian v. Jeter, Mo., 287 S.W.2d 768. There is no question but that proper opinion testimony as to causal connection is competent and can constitute substantial evidence. Dorsey v. Muilenburg, Mo., 345 S.W.2d 134, 138; Schaefer v. Rechter, Mo., 290 S.W.2d 118; Ketcham v. Thomas, Mo., 283 S.W.2d 642; Waterous v. Columbian Nat. Life Ins. Co., 353 Mo. 1093, 186 S.W.2d 456, 459; Glowczwski v. Foster, Mo.App., 359 S.W.2d 406. However, the expert's opinion must not be a mere guess or conjecture but must be based upon facts and adequate data, and the opinion must have in support of it reasons and facts supported by competent evidence which will give the opinion sufficient probative force to be substantial evidence. Gaddy v. Skelly Oil Co., 364 Mo. 143, 259 S.W.2d 844; Schaefer v. Rechter, supra; Kimmie v. Terminal R. R. Ass'n, 334 Mo. 596, 66 S.W.2d 561. If the expert witness does not have personal knowledge of those facts he must be asked by use of the hypothetical question to assume the truth of them. Schears v. Missouri Pacific Railroad Company, supra; De Donato v. Wells, 328 Mo. 448, 41 S.W.2d 184, 82 A.L.R. 1331.

In this case Dr. Schaerer testified at length concerning respondent's condition as determined by him from examinations, tests, and surgery. In the question to which he gave his answer in the form of an...