Missouri Pac. R. Co. v. Kimbrell

• Decision Date: 14 April 1959
• Docket Number: No. 7079,7079
• Citation: 326 S.W.2d 720
• Parties: MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. William KIMBRELL, Appellee.
• Court: Texas Court of Appeals

Page 720

326 S.W.2d 720

MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. William KIMBRELL, Appellee.

No. 7079.

Court of Civil Appeals of Texas, Texarkana.

April 14, 1959.

Rehearing Denied Aug. 4, 1959.

Howard S. Hoover, Carroll R. Graham, Hutcheson, Taliaferro & Hutcheson, Woodul, Arterbury & Wren, Houston, for appellant.

W. James Kronzer, John L. Hill, Ragan & Weaver, Hill, Brown, Krinzer & Abraham, Houston, for appellee.

CHADICK, Chief Justice.

This is a suit for damages under the Federal Employers' Liability Act (45 U.S.C.A Sec. 51 et seq.). A judgment for $90,000 is found to be supported by the evidence and the case is affirmed upon remittitur of $30,000; otherwise, it will be reversed and remanded for new trial.

Wm. Kimbrell, an employee of such railroad, as plaintiff in the trial court, sued Missouri Pacific Railroad Company as defendant to recover damages of $130,000 for injuries alleged to have been inflicted upon him by the negligence of the defendant. The case was submitted to a jury on special issues, all of which were answered favorably to Kimbrell. Judgment based upon the verdict of the jury was entered against the Railroad Company. Exception to the judgment was duly made and the Railroad Company's motion and amended motion for new trial were filed in due course and were overruled. The Railroad Company gave notice of appeal and the case is properly before this Court with the Railroad as appellant and Kimbrell as appellee.

The appellant has briefed six points of error. The first presents for review the action of the trial court in overruling appellant's amended motion for new trial for the reason that the $120,000 verdict by the jury is grossly excessive and shows the award was the result of passion and prejudice. The remaining five points are concerned with the appellant's proposition that there was error in submitting the damage issue because there is no evidence in the record from which a jury could determine the earning power of money in the vicinity of Harris County, Texas, hence, the jury could not discharge its responsibilities to find the present cash value of appellee's diminished capacity to work and earn money or physical pain, suffering and mental anguish proximately caused by appellee's injuries.

Though it produces a lengthy opinion, there is no alternative to stating the facts shown by the record if the opinion is to serve its purpose of informing the parties the reason for the action of the Court and as a precedent for whatever it may be worth in future cases. The most favorable aspects of the facts are set out in the appellee's brief, and for the purpose of passing upon appellant's Point 1, they are adopted with only slight emendation to remove reference to the record and conclusions appellee's counsel draws from the facts:

'At the time of the accident Appellee was a 33-year old car inspector for Appellant with a life expectancy of 35.15 years. He had a seventh grade education and was raised and worked on a farm until he was eighteen years of age. Until the time he left the farm and up to the time of his employment with Appellant, he engaged in various and sundry public jobs of a manual nature, including truck driving, mechanical work, service station work, running mowing machines, was a part owner in a sand and gravel business which went broke, and was in the United States Air Force as a mechanic for approximately six years. He was married and the father of four young children. He was first employed by Appellant on July 18, 1951, and except for a seniority lay-off in 1954 for approximately seven or eight months, he worked steadily for that company until the time of his accident, receiving the usual advances in position and salary. At the time of the accident he was averaging $370 to $375 per month.

'It was necessary for Appellee to pass a physical examination prior to going to work for Appellant, and other than a mild back strain in 1953 which did not require Appellee to miss any time from work, and an apparent kidney infection in 1954, Appellee had had no difficulty whatsoever in performing the tasks of his employment and was admittedly a good worker and employee.

'At the time of the accidental occurrence Appellee did not think his condition was particularly serious and stated that he felt like he 'just had a little sting in my back'. At another point he stated that it felt like 'hot water or something thrown on you.' His back was still bothering him when he arrived at his home, and he mentioned it to his wife. That evening, before going to work it was 'hurting quite a bit' and she gave him an alcohol rub. He went to work and as he was moving around it seemed to get some better and 'then it wouldn't'. He mentioned it that night to the relief foreman. * * * he continued working and 'every night it seemed like it kept getting worse and at times it seemed like I couldn't hardly bear it.' On the night of November 26th 'the pain hit me in my back sure enough and just lowered me on my hands and knees it hurt so bad like a baby I cried.' He stated that he 'managed to get up on my feet to where my partner was and he was about three cars ahead of me and I got to him and I hollered 'Rosher' and he came around to the end of the car and he wanted to know what was the matter and I said my back has got me down, and he crawled through the car to help me. I went down to my knees again and then he got hold of me and got me back on my feet and supported my back a little and said let's go to the office and we started out.'

'He was taken to St. Joseph's Infirmary where he was given a shot in his arm and he was then returned to his home. The following morning he went to the East End Clinic (where company employees were sent) and Dr. D. L. Moore caused some X-rays to be taken. Dr. Moore told him that he 'had a pretty bad back' and he was given some 'pain pills' and sent home with instructions to return the following Tuesday morning to see Dr. Lane.

'On the following Tuesday morning Dr. Lane examined him and told him that he had 'a muscle tore loose in my left hip' and he was given another shot and some pills. He was advised that if his condition got worse that he should report back to Dr. Lane. He did so on December 4th, 1955 and they sent him to the Appellant's hospital in Palestine, Texas where he remained for six days. He was there placed in traction, and after his discharge he was told to return in about six months. However, because of his condition, he had to return in January of 1956, and he was again confined four or five days at the Palestine Hospital. They again sent him back to Houston, but before leaving he told Dr. Haverlah, the chief surgeon, 'This is not doing no good coming up here, it is just tearing me up, I can't stand to ride that train this long a trip, I have trouble.' Thus, he was instructed to return to Dr. Lane and he did report back to him in April of 1956.

'He was hospitalized on April 3, 1956 in St. Joseph's Infirmary, where a myelogram was performed clearly indicating the rupture of the intervertebral disc at the level of the first sacral segment and the 5th lumbar vertebra. * * *

'Following the positive myelogram, which was confirmatory of a 'classical disc' syndrome, and while still confined to St. Joseph's a laminectomy was performed and the entire disc was removed. At the time of this first operation he was confined at St. Joseph's for a period of nine days and was thereafter confined in bed at his home for 'a couple of weeks'. He was then advised that he 'could get up and stir around a little and then I went to him (Lane) for several months, approximately seven months after the operation', after which Dr. Lane released him 'to go back to work at light duty work.'

'Upon first returning to work following the first operation Appellee was advised that 'they couldn't put me on' and he returned home. On his next visit to Dr. Lane he was given 'another slip' for 'light duty work.' The foreman then gave him light work for four or five days as a 'torch operator's helper' but after that time they sent him 'back into the yard to work on the journal boxes pulling on leads and carrying that weight and I told him I couldn't do it'. His foreman then told him he would put him 'back to work as a torch operator helper' at a lesser rate of pay (approximately $55.00 per month). He continued to do this type of work but complained that 'my back was getting worse and worse and I kept going to Dr. Lane and finally Dr. Lane said, 'Kimbrell, we are going to have to go back into your back and get it straightened out." Appellee stated that he 'hestitated awhile' about permitting a new operation 'because I knew I went through some awful pains on the first one.' He finally agreed to the second operation, and he was readmitted to St. Joseph's Infirmary where he was reoperated on May 4, 1957. At that time a spinal fusion was performed by obtaining a bone from his right hip and fusing from the 4th lumbar vertebra down to the first sacral segment. * * *

'He was hospitalized for fourteen days in connection with the spinal fusion. In describing the pain that accompanied the second operation, Appellee stated 'it was a awful pain I will tell you, I will tell anyone that, and which I hope no one will ever have to go through with it is an awful pain for anyone.' After he was discharged from the hospital he was told to 'stay in bed at least a month, not to get up or anything only just what I had to do.' From that date until the date of the trial (which commenced December 17, 1957) Appellee continued to see Dr. Lane, stating that 'the last time I saw him I seemed to be improving a little.'

'He stated that at the time of the trial his back still bothered him and his 'left leg still bothers me quite a bit.' * * * he was asked the following question and gave the following answer:

"Q. I notice you have a good bit of trouble moving around in doing that, are you doing that for the...