Missouri Pac. R. Co. v. Handley

• Decision Date: 07 December 1960
• Docket Number: No. 13660,13660
• Citation: 341 S.W.2d 203
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. P. W. HANDLEY, Jr., Appellee.
• Court: Texas Court of Appeals

Page 203

341 S.W.2d 203

MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. P. W. HANDLEY, Jr., Appellee.

No. 13660.

Court of Civil Appeals of Texas, San Antonio.

Dec. 7, 1960.

Rehearing Denied Dec. 21, 1960.

Boyle, Wheeler, Gresham, Davis & Gregory, San Antonio, for appellant.

Stahl & Sohn, Robert O'Connor, San Antonio, for appellee.

MURRAY, Chief Justice.

P. W. Handley, Jr., an employee of the Missouri Pacific Railroad, brought this suit under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., for injuries he received when the freight switching movement on which he was working made an emergency stop at a street crossing. Plaintiff, a rear switchman, was riding in the rear box car of sixty cars being transferred from San Fernando Yard to South San Antonio Yard. No caboose was furnished and there was no better place for plaintiff to ride than in the rear box car. When the emergency stop was made the open door of the box car slammed shut on plaintiff's left hand, crushing it and making it necessary to amputate the index and middle fingers and part of the third finger. The jury found defendant liable and awarded plaintiff damages in the sum of $76,860. The trial court entered judgment against defendant for this sum, and Missouri Pacific Railroad Company has prosecuted this appeal.

The only point of error presented by appellant is the alleged excessiveness of the amount of the verdict. The amount of the damages was based upon lost earnings, both past and future, and pain and suffering. The jury having found in appellee's favor, the trial court having based its judgment upon those findings, and having overruled appellant's motion for a new trial, we must view the evidence in a light most favorably to appellee. Appellee had not worked from the time of the injury, November 21, 1958, until the time of the trial, November 25, 1959. Appellee was thirty-seven years of age and married at the time he sustained his injury. The extent of his education was one year in high school. He had worked part time as an usher and electrician's helper in Interstate Theatres, and after leaving scholl he worked there for two years at full time. In 1938, he enlisted in the U. S. Marine Corps as an infantryman, and after about one year of service he was given a medical discharge on account of flat feet. In June, 1941, he went back to work at the Interstate Theatres, and shortly thereafter obtained employment at Duncan Field (now Kelly Field) as a junior aircraft electrician, civil service employee. Two weeks later he was transferred to Brooks Field, doing the same work and earning $1,500 a year.

In September, 1942, he was drafted into the Army as a private and was wounded in his right leg, for which he has been receiving compensation for 30% disability. He returned to his civil service job at Brooks Field as an aircraft electrician, earning $1,800 per year.

In 1946, he went to work for appellant as a fireman, intending to make railroading his life work. In 1949, he was employed by appellant as a switchman and worked at that job until the time of his injury. Prior to the date of his injury, he had been promoted to a qualfied foreman. He was an efficient and faithful railroad employee. He had been free from pain and able to do a full day's work. Except for his leg wound, received in the military service, and a back and wrist injury, he received while working for the railroad in 1951, he was in excellent health on the date he sustained his injury. By reason of his leg wound during the war, he was hospitalized for about two and one-half months but was not classed as disabled, and returned to active duty after being released from the hospital. He is drawing a thirty per cent compensation benefit from the United States Government because he still has metal particles, or pieces of iron shrapnel in his leg. These metal particles did not restrict him in any way in the performance of his work.

On April 9, 1951, while working for the railroad, he was knocked off the top of a box car and sustained a back and wrist injury. Appellee was paid for his lost time and then went back to work. That injury in no way interfered with his ability to perform his railroad duties, and he was continuously employed by appellant from that time until November 21, 1958, the date of his present accident.

By this accident appellee's hand was badly smashed and gave him great pain. He had a gash over his eye and his head was also giving him great pain. His hand has pained him since the injury up to the time of the trial. Since his fingers were amputated he has had additional operations on his hand and the doctors tried a 'skin graft' on the back of his hand. The 'skin graft' has not proven satisfactory and he still suffers great pain. He still has his thumb and little finger on...