Neff v. Pennsylvania R. Co., 9688.

• Decision Date: 02 March 1949
• Docket Number: No. 9688.,9688.
• Citation: 173 F.2d 931
• Parties: NEFF v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Third Circuit

173 F.2d 931 (1949)

NEFF v. PENNSYLVANIA R. CO.

No. 9688.

United States Court of Appeals Third Circuit.

Argued January 17, 1949.

Decided March 2, 1949.

Joseph S. Clark, Jr., of Philadelphia, Pa. (Robert M. Landis, and Barnes, Dechert, Price, Smith & Clark, all of Philadelphia, Pa., on the brief), for appellant.

Elias Magil, of Philadelphia, Pa. (Richter, Lord & Farage, of Philadelphia, Pa., on the brief), for appellee.

Before GOODRICH, McLAUGHLIN and O'CONNELL, Circuit Judges.

McLAUGHLIN, Circuit Judge.

This is an appeal from an order denying a new trial to the defendant in a Federal Employer's Liability Act, 45 U.S.C.A. § 51 et seq., case which had resulted in a judgment in favor of the plaintiff.

The accident which is the basis of the action happened about three A.M. June 22, 1945 at the Lewistown, Pennsylvania engine house of the appellant. Neff, about fifty-seven years old at the time, was employed as a laborer by the railroad. He was using a wrench to loosen a greasecup cap on the parallel rod of a locomotive. The wrench weighed three pounds and was two and one-half feet long. Neff placed the socket of the wrench over the greasecup cap, held it there with his left hand and pushed up its shank with his right hand. The cap did not move and he pushed up with his full force. The wrench socket slipped and pulled his body up with it. He said, "My weight seemed to pull me in two * * * Felt my back pulling apart and felt kind of a tear across my back." He indicated his lower left back. He remained quiet for about ten minutes and then went back to work. He worked Saturday morning on a different time shift. He had a pain in the back, and that morning the pain started to shoot down his left leg. That night he had pain in his back and leg. On Sunday, his wife reported him sick. On Sunday afternoon his foreman came to see him. The latter in turn sent a railroad doctor who had Neff taken to the Lewistown Hospital in an ambulance the same day. He was at the hospital for eleven days and returned there as an outpatient six times after his discharge. On November 21, 1945 he went to the Harrisburg Hospital for an examination. On April 11, 1946 Dr. Jepson, an orthopedist, examined him at the request of his attorneys. About the same time, also at the attorneys' request, Dr. Farrell took X-rays of Neff's back and left knee. Dr. Jepson saw Neff again on September 4, 1946, August 1, 1947 and the day before the trial, November 11, 1947. Dr. Farrell took more X-rays on November 11th. Dr. Jepson prescribed a back brace which Neff was still wearing at trial time. Neff said that he had been well prior to the accident and that since the accident he had grown progressively worse. He now needs and uses a cane to get around. He has not done any work since the day following the accident.

Appellant's main point is that the defense motion to strike out the medical testimony offered on behalf of the plaintiff should have been granted. The ground for that motion was that the medical testimony failed to establish any causal connection between the accident and the disability complained of by plaintiff. Though the question of negligence has been resolved by the jury verdict, appellant urges that the facts of the accident are important in connection with the type of injuries alleged by the plaintiff.

Our independent study of the record satisfies us that there was sufficient medical evidence on behalf of the plaintiff to show such causal relationship. This, coupled with the plaintiff's own testimony, the medical evidence for the defense, the charge of the court, the interrogatories given by the court to the jury and the answers to those interrogatories by the jury, justifies the verdict below as far as this branch of the appeal is concerned.

Dr. Farrell was one of the two medical witnesses for the plaintiff. He said he found a narrowing of the second and fourth lumbar vertebrae as the result of crushed fractures and a destruction of the internal semi-lunar cartilage of the left knee. On direct examination he was asked: "Now given the history that Mr. Neff had been apparently, outwardly, in, good health so far as you know, so far as his back was concerned, up to June 22, 1945, when he met with an accident, when he pushed the two-and-a-half foot long wrench suddenly and violently upward, as was demonstrated before to Doctor Jepson in your presence, and that thereafter the fractures,...