Missouri-Pacific R. Co. v. Willingham
| Decision Date | 29 June 1961 |
| Docket Number | No. 3876,MISSOURI-PACIFIC,3876 |
| Citation | 348 S.W.2d 764 |
| Parties | RAILROAD COMPANY, Appellant, v. James S. WILLINGHAM, Appellee. |
| Court | Texas Court of Appeals |
McGregor, Sewell & Junell, Harman Parrott, Houston, Joe N. Davis, Palestine, for appellant. August 5, 1957, to August 20, 1957.' Because Helm, Jones, McDermott & Pletcher, Houston, Johnston & Johnston, Palestine, for appellee.
This is an FELA case. Plaintiff Willingham, a railroad engineer, sued his employer, Missouri-Pacific Railroad, for damages for personal injuries. Plaintiff alleged that on 29 September, 1959 he had stopped his freight train at Valley Junction, awaiting another train; that he was temporarily standing beside his seat when a freight car being switched by another engine and crew, was suddenly run against the engine in which he was standing, causing him to be thrown against the cab; and that as result he received injuries to his head, including a brain injury; injury to his neck and spine; traumatic nervous shock, and nervous disorders. Trial was to a jury which found the defendant guilty of negligence proximately causing plaintiff's injuries; acquitted plaintiff of contributory negligence; and and fixed plaintiff's damages at $43,750.
Defendant appeals, contending that the Trial Court erred:
1) In permitting plaintiff's medical witness to testify over defendant's objection to opinions and conclusions concerning plaintiff's physical condition based in part upon the hearsay and unproven reports of 2 other doctors.
2) In permitting plaintiff's medical witness to testify over defendant's objections concerning his findings and opinions based on X-ray reports obtained from another doctor.
3, 4, 5) In permitting plaintiff's medical witness to express an opinion concerning plaintiff's brain injury, over defendant's objection, based in part upon an electroencephalogram report and findings of another doctor, and that said electroencephalogram was not in evidence, and was hearsay.
6) In failing to permit defendant to prove on cross examination of plaintiff that plaintiff, by reason of his age and length of service, would be entitled to a pension or retirement benefit if he chose to retire.
7) In not granting a new trial because of excessiveness of the damages.
We revert to defendant's contentions 1 through 5.
The record shows that plaintiff was thrown against the cab of his engine when other railroad cars bumped his engine on 29 September 1959. Plaintiff contends brain, neck and back injuries. Defendant denied that plaintiff received any injuries as a result of the occurrence. Plaintiff sought no medical aid following the occurrence, but continued in the regular performance of his duties as an engineer until 9 January, 1960. Plaintiff went to the railroad doctor on 9 January, 1960. Such doctor testified that plaintiff was not suffering from the effects of any accident, but from a cerebral vascular accident, known to laymen as a 'stroke', which could have no relationship whatsoever to the occurrence of 29 September 1959.
There is no question but that plaintiff is disabled; the principal question being as to whether or not the occurrence of 29 September 1959 caused his disablement. Dr. Brown testified (by deposition) that he specialized in neurosurgery; that he first saw plaintiff on 9 February 1960; that he sent him to Dr. Tyner for X-rays, and to Dr. Kelloway for an electroencephalogram; that he obtained an X-ray report from Dr. Tyner, and an electroencephalogram report from Dr. Kelloway. Neither Dr. Tyner nor Dr. Kelloway testified in the case and neither their reports nor the X-rays and electroencephalogram are in evidence.
Dr. Brown testified that in his opinion plaintiff suffered brain damage in the occurrence of 29 September 1959, and that his disabilities were due to such occurrence.
Defendant objected to Dr. Brown's testimony on the ground that his diagnosis was made in part upon a consideration of the X-ray and electroencephalogram reports made by others, and that same is hearsay, and that Dr. Brown's opinions and conclusions are based in part upon hearsay and was not admissible.
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