Louisville & N.R. Co. v. Mattingly

• Decision Date: 27 May 1960
• Citation: 339 S.W.2d 155
• Parties: LOUISVILLE v. NASHVILLE RAILROAD COMPANY, Inc., Appellant, v. Spencer MATTINGLY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 155

339 S.W.2d 155

LOUISVILLE v. NASHVILLE RAILROAD COMPANY, Inc., Appellant, v. Spencer MATTINGLY, Appellee.

Court of Appeals of Kentucky.

May 27, 1960.

As Modified on Denial of Rehearing Nov. 4, 1960.

John A. Fulton, Woodward, Hobson & Fulton, Louisville, for appellant.

Vincent J. Hargadon, Hargadon, Hargadon & Bennett, Louisville, for appellee.

PALMORE, Judge.

This is the second appeal in a personal injury action brought by the appellee. Spencer Mattingly, against the appellant, Louisville and Nashville Railroad Company. The first trial, in March of 1956, resulted in a jury verdict and judgment for plaintiff in the amount of $20,000, which this court reversed as being excessive under the evidence presented. The second trial, in May of 1959, was on the sole question of damages and resulted in a jury verdict and judgment for plaintiff in the amount of $62,331. This appeal followed.

The errors assigned are that (1) the damages are excessive, appearing to have been given, under the influence of apssion or prejudice, (2) plaintiff's counsel was permitted to make an improper argument to the jury in suggesting a mathematical per diem value to pain and suffering, multiplied by plaintiff's life expectancy, and (3) plaintiff's counsel made prejudicial remarks with reference to the railroad company in his summation to the jury.

The facts giving rise to the action are fully stated in Louisville & N. R. Co. v. Mattingly, Ky.1958, 318 S.W.2d 844. Mattingly was 40 years of age at the time of the accident on September 14, 1953. At the time of the second trial, in May of 1959, he was just under 46 years of age and had a life expectancy of 24.53 years. He is a farmer. His principal income prior to the accident was from raising and selling livestock and tobacco and from hauling coal and gravel. Until injured in 1953 he was able and it was his custom to do hard labor for long hours every day. Since that time he has been able to do only light work, is substantially limited in bending his body from the waist, and suffers a great deal of pain in his back. This condition is permanent.

Of most concern to this court in setting aside the original $20,000 award was the inadequacy of proof showing the extend to which Mattingly's disability resulted from the injury of September 14, 1953, as distinct from impairment attributable to a pre-existent pathology. The evidence adduced in this respect on the second trial was clearly more positive and would have been sufficient to sustain the original verdict. Therefore, United Fuel Gas Co. v. Mauk, Ky.1959, 325 S.W.2d 339, does not apply. Preliminary, however, to the consideration of whether $62,331 is excessive we must again review the medical testimony in order to determine what conclusions the jury was authorized to draw from it.

At the outset, it should be recognized that 'a complete diagnosis must include and consider the evidence revealed by a physical examination, X-ray examination and a reliable complete history.' (Emphasis added.) These are the words of Dr. Luther Fuller, a general surgeon and orthopedic specialist, in testifying for the railroad in this case, and the point is that X-rays alone do not necessarily tell the whole story; the medical profession recognizes the case history as a vital factor in diagnosis.

The first X-rays taken after the accident showed a fresh compression fracture of the third lumbar vertebra (L-3). More extensive X-rays taken later disclosed a compression or 'wedging' of the 11th and 12th dorsal or thoracic vertebrae (T-11 and T-12). (Roughly speaking, the five lumbar vertebrae are in the small of the back next in line below the 12 thoracic vertebrae, which run behind the chest downward from the neck, T-12 and L-1 adjoining at a point near the bottom of the rib cage.) There was evidence also of osteoarthritis in the areas of T-11 and T-12 and some of the lumbar vertebrae. The consensus of medical opinion was that the compressions in T-11 and T-12 pre-dated the injury of September 14, 1953, as did the arthritis, though one of the doctors believed it possible that T-11 and T-12 were fractured at the same time as L-3. Whatever may have been Mattingly's condition prior to the accident, however, it had never manifested itself and was in no degree disabling. He had spent five days in the hospital in 1949 for the sole purpose of a complete physical examination, wherein Dr. W. C. Gettelfinger, of Louisville, a diagnostician, found nothing organically wrong. The case history taken at that time showed no complaint of back trouble, and no evidence of arthritis or back injury was found. This tends to substantiate that if there was anything wrong with Mattingly's back at the time he did not know it. Dr. Gettelfinger testified only at the second trial.

According to all of the evidence L-3 is now completely healed and apparently has been restored more closely to its original structure and appearance than T-11 and T-12. Arthritis is present up and down the line, including the area of L-3, where it did not exist at the time of the accident. The pain Mattingly suffers could not come entirely from the L-3 area, but his contention and that of his doctors is that any trauma of sufficient force to fracture L-3 was strong enough to cause injuries to the muscles, ligaments and other tissues and thereby injured the entire back region, aggravating whatever dormant condition may have pre-existed and thus creating a disability that otherwise would not have occurred. Therefore, in the words of his physician, Dr. Armand K. Fischer, an orthopedic surgeon, 'his symptoms and his inability to engage in heavy work * * * are due to the accident.'

Dr. Fuller's opinion was that the predominating trouble was from the area of the pre-existing condition. Hence any conclusion to the contrary must find support in the other testimony.

Mattingly was first examined and treated shortly after the accident by Dr. B. J. Baute, a general surgeon at Lebanon, Ky., whose initial X-rays showed a compression fracture of the third lumbar vertebra (L-3). More extensive X-rays taken later disclosed 'questionable fractures' of the 11th and 12th dorsal or thoracic vertebrae (T-11 and T-12). At the time of the injury the patient had 'some osteoarthritis which involved chiefly the twelfth dorsal and the first, fourth and fifth lumbar vertebrae.' Dr. Baute stated that 'in fully 50% of men past the age of 40 they have a good amount of evidence of osteoarthritis of their spine,' and 'We see a lot of osteoarthritis in individuals who have never once complained of their back.' At the last examination by Dr. Baute, in September of 1955 (two years after the accident), Mattingly's motions were limited 50% from normal in forward bending, 20% backward, and 15% in rotation, a condition which the doctor felt would not improve but ought not to grow progressively worse, and which 'I presume * * * is all as a result of his injury.' He did not know whether there was any limitation prior to the accident. The patient had the same amount of osteoarthritis in 1955 as he had at the time of the injury. As to the effect of trauma on an osteoarthritic condition. Dr. Baute's opinion was: 'You would presume that the trauma would aggravate any known condition.'

Dr. Baute's testimony was given by one deposition read at both trials. He did not give an explanation of the possible T-11 and T-12 fractures or suggest any relationship between them and the disability.

Mattingly's only medical witness at the first trial other than Dr. Baute was Dr. Fischer, who first saw the patient in 1954 and continued to treat him up to the time of the second trial in 1959. It was his opinion that the T-11 and T-12 compressions resulted from epiphysitis, a growth disturbance occurring during adolescence; that in the majority of cases nature adjusts to such a condition 'and they can go along and have a very good back and do hard laboring work;' that trauma aggravates any arthritic condition; that 'there are many men who have hypertrophic arthritis who could do hard laboring work all day long, buty by reason of accident it becomes aggravated;' that the blow sustained by Mattingly 'affected his spine from the thoracic region down' and is the reason he can no longer do hard labor; that he had more than a fracture of L-3, 'he had a back sprain. His back was twisted * * * and as a result of it he had more--he had ligament and he had tendons and other materials around his spine were injured and as a result of this he has a stiff back and he is unable to do hard laboring work;' and that 'I have to be guided by the man's history, his physical examination and X-ray findings and this man certainly has disability in his back at the present time. He has loss of motion, he has pain. H is unable to engage in heavy work and it is my opinion that his symptoms and his inability to engage in heavy work * * * are due to the accident. * * * I am talking about the man and not a picture of vertebrae. The man is definitely injured. He has loss of motion in his back and he didn't have it beforehand, so that is the only thing I can go on.' (Italics indicate phraseology used in the second trial but not in the first.) Dr. Fischer further testified at the second trial that Mattingly's back has been paining him badly, requiring cortisone and sedation, and that he would need treatment three or four times per year in the future.

Dr. Fischer's associate, Dr. K. D. Leatherman, an orthopedic surgeon, testified at the second trial only. He would not rule out the possibility that the damage to L-3, T-11 and T-12 all occurred at the same time, from the accident. He conceded it to be 'theoretically possible' that some of the pain and some of the impairment were attributable to the mid-back situation, but pointed out that the thoracic vertebrae receive some support from the rib cage and was of the opinion that Mattingly's principal difficulty was in the lumbar area; that the...