Miller v. Erie Lackawanna Ry. Co., 741

• Citation: 645 F.2d 140
• Decision Date: 26 March 1981
• Docket Number: No. 741,D,741
• Parties: Dale MILLER, Plaintiff-Appellant, v. ERIE LACKAWANNA RAILWAY CO., Defendant-Appellee. ocket 80-7527.
• Court: U.S. Court of Appeals — Second Circuit

Page 140

645 F.2d 140

Dale MILLER, Plaintiff-Appellant, v. ERIE LACKAWANNA RAILWAY CO., Defendant-Appellee.

No. 741, Docket 80-7527.

United States Court of Appeals, Second Circuit.

Argued Feb. 6, 1981.

Decided March 26, 1981.

George M. Gibson, Buffalo, N.Y. (Damon, Morey, Sawyer & Moot, Buffalo, N.Y., of counsel), for plaintiff-appellant.

Ruth R. O'Keefe, Buffalo, N.Y. (Moot, Sprague, Marcy, Landy, Fernbach & Smythe, Buffalo, N.Y., of counsel), for defendant-appellee.

Before LUMBARD, MANSFIELD and KEARSE, Circuit Judges.

MANSFIELD, Circuit Judge:

In this relatively simple personal injury action by a railroad employee, Dale Miller, against the Erie Lackawanna Railway Company (Erie) under the Federal Employers' Liability Act, 45 U.S.C. §§ 51, et seq. (FELA), which was tried to the court without a jury in the Western District of New York, we are faced with the question of how much reliance can be placed on findings of a trial judge who, after hearing the defendant's motion to dismiss the action at the close of the plaintiff's case, waited four years before making findings based on his own incomplete notes. Upon this appeal from the judgment dismissing the action, the issue is whether the court erred in finding after its long, unexplained delay that Miller had not suffered any aggravation of a previous injury as a result of Erie's negligence. After a careful review of the trial transcript (prepared after trial judge's rulings) we are satisfied that the court's finding on the issue of causation of plaintiff's injuries is clearly erroneous and that the judgment must be reversed and the case remanded to the district court.

On September 7, 1973, Miller, an Erie employee, suffered a lumbar strain in his back while pulling railroad ties from under tracks, an injury that was not attributable to any negligence on Erie's part. However, on October 23, 1973, Erie sent Miller back to work after a period of convalescence, acting on the instructions of its physician, Dr. Samuel Militello, who had found Miller's condition to be improved and had issued a work slip which read "May resume work." The slip was premature since Miller was not yet capable of doing anything strenuous without danger to his health. The railroad's substitute foreman immediately put Miller to work "spiking," the act of driving spikes with a sledge hammer. When Miller told the foreman that this hurt his back, the foreman switched him to "nipping," which required him to thrust a 4-5 foot long rod weighing about 25 pounds down and under a railroad tie and then hang his weight on the rod to lift the tie. In the process of performing these strenuous tasks Miller injured his back in the same area as on September 7th, and was eventually switched to the job of throwing spikes to spots where they would be needed by the spiking gang. He suffered severe pain that night and, although he reported for work the following day, his pain prevented him from working. After seeing his family physician and an orthopedic surgeon, he was hospitalized, and underwent traction and a series of physiotherapy treatments.

On September 17, 1974, Miller brought suit against the railroad under the FELA The case was tried without a jury before Judge John T. Elfvin on April 13, 14 and 15, 1976. Miller's evidence consisted of his own testimony, that of several doctors and various medical records. The doctors were (1) Dr. Samuel Militello, the company-retained physician who had examined Miller after his original injury and on later occasions and had certified him as capable of resuming work; (2) Dr. Alberto Gonzalez, Miller's family physician who examined him on October 29, 1973, shortly after he had returned to work and then discontinued work because of the bad pain caused by his "spiking" and "nipping" duties, and who attended him thereafter; (3) Dr. Joseph C. Tedesco, an orthopedic specialist, who first examined Miller on November 8, 1973, hospitalized him, put him in traction and arranged for physiotherapeutic treatments; and (4) Dr. Joseph A. Syracuse, a physiotherapist, who administered daily physical therapy treatments in November and December 1973. Dr. Tedesco had examined and attended to Miller as a patient during his hospital stay and until December 23, 1973. Thereafter Miller continued to visit Drs. Syracuse, Militello and Gonzalez. In addition he apparently was examined by Drs. Martin Angelo and John Repicci.

seeking damages for aggravation of his injuries as a result of the railroad's having prematurely returned him on October 24, 1973, to full duty when it knew or had reason to know that because of his earlier injuries suffered on September 7, 1973, the work to which he was assigned on his return was beyond his physical capacity and would endanger his health.

On April 15, 1980, plaintiff rested his case, reserving the right to call Drs. Angelo and Repicci as rebuttal witnesses, and the defendant called one witness, Leo Zakowski, foreman of the track gang on which Miller had worked on September 7, 1973, through whom excerpts from a daily work record regarding Miller's accident on that date were introduced. Shortly thereafter Erie moved to dismiss the action.

The trial judge held Erie's motion under advisement for approximately four years. On March 27, 1980, the judge filed a "MEMORANDUM and ORDER" granting the motion. The opinion, based upon the judge's notes of the trial (no transcript of the testimony yet having been prepared or made available), found that although Miller had failed to show that his September 7, 1973, accident was caused by any negligence on Erie's part, he had established that the railroad, through its agent Dr. Militello, was negligent in prematurely returning Miller to full duties on October 23, 1973, when he was not capable of performing such work. However, he denied liability on the ground that Miller had failed to establish that he had been injured or that his condition had been worsened or aggravated as a result of his having negligently been returned by Erie to full duty. Specifically the court found that, although plaintiff's physicians were of the view "that the spiking and nipping duties to which Miller had been assigned upon his premature return would be a medically competent producing cause of any resultant aggravation of his back injury ... no one, including plaintiff, said that there had been any such aggravation. Plaintiff said that the subsequent pain was the same as before his return to work."

Although Miller had testified in 1976, almost three years after the two accidents, that following the second accident he still had the same aching back as he had had for the previous weeks since the first accident, he described the pain immediately after the second accident as "bad," (Tr. 59) and stated that immediately after performing the task of "nipping" to which he had been assigned, "I started getting shaky, started sweating, and my back was starting to ... really aching." (Tr. 57). Moreover, the entire medical testimony, including that of the railroad's own examining doctor,...