Kridler v. Bituminous Casualty Corporation, 24364.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtJONES and GODBOLD, Circuit , and SCOTT
Citation409 F.2d 88
PartiesRoy Otis KRIDLER, Appellant, v. BITUMINOUS CASUALTY CORPORATION et al., Appellees.
Docket NumberNo. 24364.,24364.
Decision Date13 March 1969

409 F.2d 88 (1969)

Roy Otis KRIDLER, Appellant,

No. 24364.

United States Court of Appeals Fifth Circuit.

March 13, 1969.

409 F.2d 89

John P. Keegan, New Orleans, La., for appellant.

Henry B. Alsobrook, Jr., of Adams & Reese, New Orleans, La., for Bituminous Casualty Corporation and Aetna Casualty and Surety Co.

John J. Weigel, of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for Travelers Ins. Co.

Before JONES and GODBOLD, Circuit Judges, and SCOTT, District Judge.

GODBOLD, Circuit Judge:

The appellant, employed by B & T Construction Co., Inc. as a practical surveyor, was injured while at work on a construction site. A bulldozer was engaged in pushing debris, trees, stumps and limbs. A tree or tree limb in the debris, moving with a whipping or lashing motion, struck appellant from behind in the area behind the left knee.

The accident occurred May 21, 1961. Appellant was hospitalized that day and remained in the hospital for approximately three to four weeks. The treating physician last saw him, as an outpatient, on June 13, 1961.

Appellant, who was subject to the Louisiana Workmen's Compensation Law, was paid workmen's compensation benefits by Bituminous Casualty Company, the insurer of B & T, for twelve weeks at $35.00 per week, total $420.00, plus $91.20 medical expense. Benefits were discontinued around August 20. In mid-October, 1961 appellant sought and obtained employment as a survey instrument man with a different employer, Brown & Root, Inc. The first day on the new job, October 18, 1961, he suffered a second injury, a fractured pelvis, when he was accidentally crushed against a tractor.

Appellant filed two suits in the Eastern District of Louisiana, one relating to each accident. The suit relating to the second accident, against Highlands Insurance Company, the compensation carrier for Brown & Root, was tried first. The district judge found appellant had recovered from the pelvic fracture and denied benefits. This Court affirmed. Kridler v. Highlands Insurance Company, 372 F.2d 945 (5th Cir. 1967).

In the instant case claims were asserted for tort damages and for workmen's compensation benefits arising from the first accident. Pursuant to the Louisiana Direct Action Statute the tort claim was asserted against Travelers Insurance Company, the liability insurer of Cortez Construction, which owned the bulldozer. The claim for workmen's compensation benefits was asserted against Bituminous Casualty (the insurer of B & T) and Aetna Casualty (the insurer of Union Texas Natural Gas Corporation, the prime contractor under which B & T was a subcontractor). The case was tried before a different judge than tried the Highlands case.1 At the conclusion of plaintiff's case the judge granted a directed verdict in favor of Travelers. He then proceeded, without a jury, to complete the hearing of the claims against Bituminous and Aetna and denied recovery.


The directed verdict in favor of Travelers.

The judge directed the verdict in favor of Travelers on the theory that appellant had failed to show any negligence by the bulldozer operator and was himself guilty of gross contributory negligence.2

409 F.2d 90

The evidence shows that Cortez was operating two bulldozers in the clearing work. Appellant was performing survey work and staking out the right of way for the railroad spur that was to be constructed.

The testimony concerning the accident itself came entirely from appellant. One of the machines ran over and crushed the drinking water jug. Appellant left the site, secured a jar, and filled it with water for the workers. On his return he walked about 300 feet from his pickup truck to where the Cortez machine which struck him was operating.

He came to a stop facing the bulldozer, which was then 20 to 30 feet away. It was operating at low speed and pushing debris three feet or more high. He held the water jar out at shoulder height to display it to the operator. At that time there was nothing between them to

409 F.2d 91
block the operator's view. The operator saw him immediately and could see the jar, and smiled and nodded his head

Appellant turned or veered to his right to walk away. The bulldozer was then heading off to his left and not toward him. He was 20 to 30 feet off to its right side. Three or four seconds after he turned and began to move away he was struck from behind by the tree or limb and knocked down. He was rolled 30 to 40 feet. The driver came down to assist him and said, "I seen you standing there and when I looked around you were gone."

Viewing this evidence in the light most favorable to appellant, and giving him the advantage of every fair and reasonable intendment, as the court was required to do, Isaacs v. American Petrofina, 368 F.2d 193 (5th Cir. 1966), it was for the jury to determine whether the operator was negligent in continuing the forward movement of the bulldozer after observing Kridler standing 20 to 30 feet away and holding the water jar, and, having seen Kridler, in taking his eyes off him. And it was for the jury to decide whether appellant was negligent in approaching 20 to 30 feet from the moving machine and in turning away from it after he saw that the operator had become aware of his presence. The evidence of negligence and contributory negligence is of such character that reasonable men in the exercise of impartial judgment may reach different conclusions. Ricketson v. Seaboard Airline R.R., 5th Cir. 1968, 403 F.2d 836 Nov. 15, 1968.

In granting the motion the trial judge applied an improper standard. He announced that he gave little credence to Kridler's testimony because it was in his own interest and because Kridler had made a misstatement in a document that was in evidence (a job application form, discussed below.) A motion for directed verdict must be acted on without weighing credibility of witnesses, which is for the jury. M. C. Carlisle & Co. v. Cross, 386 F.2d 672 (1st Cir. 1967); Monsanto Chemical Co. v. Payne, 354 F.2d 965 (5th Cir. 1966); United States v. Edwards, 333 F.2d 575 (5th Cir. 1964); Breland v. United States, 323 F.2d 492 (5th Cir. 1963); 5 Moore, Federal Practice, ¶ 50.02, at 2321 (1968); 2B Barron & Holtzoff, Federal Practice and Procedure, § 1075, at 385 (1961).3 This is equally true of assigning weight to testimony based on the interest of the witness.

Therefore, we hold that it was improper for the trial judge to direct a verdict in favor of Travelers.


The Workmen's Compensation Claim

The trial judge denied the workmen's compensation claim against Bituminous and Aetna on the ground appellant had failed to prove by a preponderance of the evidence that he was entitled to further compensation benefits under the Louisiana compensation law as a consequence of the first accident.4

The court applied an improper standard of law in putting upon appellant the burden of proof of causation. There were three relevant inquiries — whether there was an accident on May 21, 1961, whether the appellant was suffering a disability, and if there was disability whether it was a consequence of that (first) accident.

The occurrence of the accident was proved, as discussed above. The existence of disability was proved. We discuss this below. Once the occurrence of the accident and the existence of medically related disability were proved the burden was upon the employer to

409 F.2d 92
prove that the disability did not occur as a consequence of that accident but from some other cause. In Richard v. Barber Brothers Co., 112 So.2d 168, 170 (La.App.1959) the court said
Where a continued disability is proven which relates back to the initial accident during the employment, the burden is on the employer to prove that some other accident caused the disability and not upon the employee to prove that no other accident occurred.

In Turner v. Southern Industries Co., 88 So.2d 238 (La.App.1956) cert. denied, there was a factual dispute whether there had been an industrial accident. The Louisiana Court of Appeals held that an industrial accident had occurred and the trial court had erred in finding to the contrary, and that as a matter of law the burden was not upon the employee to prove that between the accident and the time of medical treatment he had suffered no strain or aggravation which produced his disability. See also Stroud v. Tremont Lumber Co., 193 So.2d 86 (La.App.1966).

To a large extent the evidence that appellant suffers a disability is undisputed, though the extent of his disability is a matter to be resolved by a trier of fact. There was a difference of diagnosis between two doctors, one of whom thought appellant had suffered a torn meniscus (cartilage of the knee), while the other had not diagnosed a torn meniscus. Dr. Newman, an orthopedist, treated appellant for the first injury. He saw him on his admission to the hospital on May 21 and treated him at the hospital until hospitalization ended. He last saw him as an out-patient on June 13. Exactly when hospitalization terminated is not clear. Dr. Newman's testimony is cursory, less than two pages of the record. We quote it in toto.5 His testimony tells us only two things about injuries — that appellant had "a closed comminuted fracture proximal metaphysis and lateral plateau of the left tibia," and, that he did not make a diagnosis of a torn meniscus. The trial judge found that Dr. Newman concluded that appellant needed no further treatment after June 13, and that "at the time of his discharge by Dr. Newman, he Dr....

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