Moore v. Denver & R. G. W. R. Co., 8284

• Decision Date: 30 January 1956
• Docket Number: No. 8284,8284
• Citation: 292 P.2d 849,4 Utah 2d 255
• Parties: d 255 Alfred Roger MOORE, Plaintiff and Respondent, v. The DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY, a corporation, Defendant and Appellant.
• Court: Utah Supreme Court

Page 849

292 P.2d 849

4 Utah 2d 255

Alfred Roger MOORE, Plaintiff and Respondent, v. The DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY, a corporation, Defendant and Appellant.

No. 8284.

Supreme Court of Utah.

Jan. 30, 1956.

Van Cott, Bagley, Cornwall & McCarthy, Clifford L. Ashton, and Grant Macfarlane, Jr., Salt Lake City, for appellant.

Rawlings, Wallace, Roberts & Black, Salt Lake City, for respondent.

McDONOUGH, Chief Justice.

Respondent was awarded judgment upon a verdict in the net amount of $17,500 in a suit brought under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq.

In his complaint, respondent prayed damages for injuries to his back and nervous system, including a 'ruptured intervertebral disc in the lower lumbar region of his spine.' To prove this injury, he introduced the testimony of a doctor who examined him for the purpose of trial and not for the purpose of treatment. The doctor testified that his first examination revealed a slight muscle spasm in the small of the back, a slight sensory loss on the lateral side of the right foot, and some limitation of muscle flection. His second examination disclosed some improvement--there was less muscle spasm and the respondent's movements were more free. X-rays showed a slight narrowing of the lumbar sacra joint, which, the doctor admitted, might appear in an entirely normal back. On the basis of this evidence, plus the history of pain as given him by respondent, he concluded that there was a nerve irritation, and that it was possible that the accident initiated the condition and, when queried about his opinion as to what was causing the nerve irritation, he testified:

'Again it is a possibility. It is my opinion that this is possibly due to pressure on the nerve in the lower spine, due to irritation from a disc.'

Counsel for appellant objected that such 'possibilities' are not probative, but the trial court denied his motion to strike the testimony. The doctor's estimate of 5% permanent disability was based in part on the predictability of exacerbation and remission of pain over a long period of time, which is characteristic of disc injuries. This was the only evidence offered concerning the existence of a disc injury and counsel for appellant requested an instruction taking the consideration of a ruptured intervertebral disc from the jury on the basis that no competent evidence on this matter had been given. This instruction was refused, although the court avoided any mention of a disc injury in all other instructions.

It is not here suggested that the doctor's testimony was incompetent, although the phraseology of the requested instruction might indicate that to be the position of appellant. Appellant argues that the testimony of the doctor, guarded in expression as it is, and based in large part upon subjective symptoms related by respondent, is insufficient to provide a question of the existence of an injured disc for the consideration of the jury, and hence, the trial court erred in failing to instruct to that effect. It is, of course, possible that the jury in assessing the award considered merely the doctor's positive assertion of the existence of a 'nerve irritation,' but his testimony as to the permanency of disability was linked to the possibility of a disc injury and a discussion of disc injuries, including diagrams, occupied a considerable portion of evidence offered through him, thus impressing the jury with the seriousness of such a condition. Under these circumstances, if the proof of such an injury falls short of that required under our law, then an instruction to that effect should have been given the jury.

This court has long recognized that the mere use of words such as 'belief,' 'impression,' 'probability,' or 'possibility' will not exclude a witness' testimony where his expression does not indicate a lack of personal observation, but merely the degree of positiveness of his original observation of the facts or the degree of positiveness of his recollection; Jackson v. Harries, 65 Utah 282, 236 P. 234; Picino v. Utah-Apex Mining Co., 52 Utah 338, 173 P. 900; Utah Fuel Co. v. Industrial Commission, 102 Utah 26, 126 P.2d 1070; and further that the words must be taken within the context of the testimony in determining the meaning and value of the evidence; Jones v. California Packing Corp., Utah, 244 P.2d 640. Likewise, this court has approved the giving of an instruction allowing the jury to assess damages for such results of the defendant's wrong as plaintiff will probably suffer in the future. Picino v. Utah-Apex Mining Co., supra; Kirchgestner v. Denver & R. G. W. R. Co., 118 Utah 20, 218 P.2d 685. Respondent argues that the liberal policy thus adopted by this court is an express repudiation of the doctrine of torts that recovery may be had for such injurious consequences only as are reasonably certain. It is, however, clear from a reading of all the cases cited supra that the plaintiff retains his burden of proving his damages by competent evidence to an extent where the trier of the fact might discover that which is probably true, having regard for the certainty or uncertainty which is more or less inherent in every issue of fact.

A comparison of these cases with Chief Consolidated Mining Co. v. Salisbury, 61 Utah 66, 210 P. 929 demonstrates the point at which the total evidence introduced tends to show a probability upon which damages may be awarded as opposed to mere conjecture. The Salisbury case is very similar to the present case in that the doctor's testimony was that the accident 'might have' or 'could have' accelerated heart disease; there being no other evidence than this, the court held that an award based upon such speculative evidence must be annulled. The other Utah cases cited supra, as well as the cases from other jurisdictions cited by respondent in his brief, contain additional credible evidence of either medical or non-medical character.

We agree with counsel for respondent that the evidence of some injury was sufficient to go to the jury, and we agree that the distinction between probability and possibility should not follow too slavishly the witness' choice of words. However, in the instant case, the jury was allowed to speculate upon the existence of a disc injury, which may be determinative of the important element of permanency of the injury when no affirmative evidence was offered on this issue. Although the medical testimony indicated that the symptoms showed a nerve irritation, and that such symptoms were consistent with the existence of a disc injury, we cannot discover in the witness' words anything more than their corollary that, under the circumstances, a disc injury was not impossible. See Commonwealth v. Polian, 288 Mass. 494, 193 N.E. 68, 96 A.L.R. 615.

Where, in another case, it might appear patent to the jury that certain evidence is not probative, an instruction to that effect might be unnecessary since its obviousness renders it harmless. In the case at bar, the plaintiff prayed for damages for a ruptured disc; the medical expert offered a learned and convincing discourse on ruptured discs; and some injury to the back was shown. The likelihood that the jury considered permanent injury as though it were proven by the expert testimony is strongly indicated and, therefore, an instruction should have been given to cure a possible prejudice. The case is reversed and remanded for a new trial.

Two instructions, requested by respondent, were given the jury, although they are outside the issues of the trial. There is no question but that the statements of law contained in each were correct, but this court has held that where the instruction is extraneous to the issues and evidence of the case, it is error for the trial court to give it. Parker v. Bamberger, 100 Utah 361, 116 P.2d 425. Instruction No. 12 charged the jury:

'That at the time of the occurrence involved in this case, plaintiff, Alfred Roger Moore, and defendant were mutually engaged in interstate commerce.

'Under such circumstances the statutes of the States of Utah and Colorado covering employers' liability and workmen's compensation are not applicable to this case and plaintiff's right to recover, if any he has, is based solely on the Statutes of the United States covering the liability of common carriers by railroad to their employees for injuries caused while in the course of their employment.'

Respondent's counsel informs us that in many cases where he has represented plaintiffs in F.E.L.A. cases, members of the jury have asked him why his client has not pursued his remedy under the Workmen's Compensation Law, U.C.A.1953, 35-1-1 et seq., and that it was to prevent prejudice in the jury's estimation of his client that he requested this instruction. It is obvious that an attempt to exclude all possible considerations from the individual thinking of the jurors which may influence the verdict would be an impossible task and result in instructions so numerous that the only result could be complete confusion. A similar instruction to this was discussed in the case of Bruner v. McCarthy, 105 Utah 399, 142 P.2d 649, the court stating that the source of the law was not necessarily a concern of the jury. The Bruner case also discussed an instruction of the same import as Instruction No. 13 given in the present case:

'The Federal Employers' Liability Act provides as follows:

'That in any action brought against any common carrier under or by virtue of any of the provisions of this chapter to recover damages for injuries to * * * any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where such injury * * * resulted in whole or in part from the negligence of any of the officers, agents or employees of such carrier * * *.'

In the present case, as in the Bruner case, no issue of assumption of risk was raised by the pleadings or the...