Reeves v. Louisiana & A. Ry. Co.

• Decision Date: 22 April 1974
• Docket Number: No. 8777,8777
• Citation: 304 So.2d 370
• Parties: Albun A. REEVES v. LOUISIANA AND ARKANSAS RAILWAY CO. et al.
• Court: Court of Appeal of Louisiana — District of US

Page 370

304 So.2d 370

Albun A. REEVES v. LOUISIANA AND ARKANSAS RAILWAY CO. et al.

No. 8777.

Court of Appeal of Louisiana, First Circuit.

April 22, 1974.

Rehearing Denied May 28, 1974.

Writ Refused July 1, 1974.

John S. White, Jr., and Robert F. Kennon, Jr., Baton Rouge, for plaintiff-appellant.

Joseph E. LeBlanc, Jr., New Orleans, and Calvin E. Hardin, Jr., Baton Rouge, for Humble, and others.

Guy C. Lyman, Jr., New Orleans, for defendant L. & A. Railway.

Maurice J. Wilson, Baton Rouge, for defendant Fireman's Fund.

Before LANDRY, ELLIS and PICKETT, JJ.,

LANDRY, Judge.

This tort action by plaintiff (Appellant) is presently before us on remand from the Supreme Court of Louisiana, for the sole purpose of assessing quantum for serious personal injuries sustained by Appellant in an accident which occurred on the premises of Humble Oil and Refining Company (Humble), Baton Rouge, Louisiana. The incident happened on July 16, 1968, when a flatbed truck in which plaintiff was seated was struck by a string of rail cars being backed on the tracks of Louisiana and Arkansas Railway Company (Railway) within Humble's plant. The trial court rejected plaintiff's claims upon finding plaintiff guilty of contributory negligence in remaining seated in a vehicle parked on Railway's tracks. This Court affirmed, see Reeves v. Louisiana and Arkansas Railway Company, et al., La.App., 263 So.2d 447. The Supreme Court granted certiorari reversed on the question of liability, and held Humble and Railway liable in solido. Reeves v. Louisiana and Arkansas Railway et al., La., 282 So.2d 503.

At the time of the accident, plaintiff was 57 years of age. Since October, 1967, plaintiff had been employed by a firm known as Plant Service Construction Company, in the capacity of truck driver, and was so employed when injured. Prior to employment by Plant Service Construction Company, plaintiff had been a welder continuously since 1952.

Plaintiff was attempting to get out of his truck when the vehicle was struck by defendant's train. At the moment of impact, plaintiff had managed to get only his feet and legs out of the vehicle. With plaintiff in this position, the vehicle overturned on plaintiff and both plaintiff and the truck were dragged approximately 150 feet before the vehicle came to rest. Plaintiff sustained multiple contusions and abrasions about the entire body, an extensive deep laceration of the left foot, contusion of the left shoulder, contusion of the left leg, severe sprain of both knees, injury to the left hadn and a herniated intervertebral disc at the L--4--5 interspace.

On the day of the accident, plaintiff was seen in the hospital by Dr. Daniel J. Fourrier, who examined plaintiff and diagnosed all of the above mentioned injuries save the herniated disc. The day following the accident, plaintiff developed symptoms of thrombophlebitis or blood clotting which Dr. Fourrier considered serious. Dr. Fourrier applied an ace bandage to plaintiff's injured left leg to relieve the danger of a blood clot. On July 19, plaintiff complained of back pain radiating down into the left thigh and left foot which caused Dr. Fourrier to suspect a ruptured disc. X-rays of plaintiff's shoulder, knees, left leg and left foot disclosed no fractures. When plaintiff's back pain persisted, Dr. Fourrier called in consultation Dr. Joseph M. Edelman, Neurosurgeon, who ultimately determined plaintiff had sustained herniation of the L--4--5 vertebrae. On July 26, plaintiff was discharged from the hospital still suffering with back and leg pains, swelling in the legs and some thrombophlebitis in the left leg. Following discharge, plaintiff was seen by Dr. Fourrier on several occasions, on each of which plaintiff complained of swelling of the legs and pain in the back, left shoulder and legs. Because of these persistent symptoms, plaintiff was again hospitalized on August 5, and placed in traction for a few days When traction failed to ease plaintiff's back and leg pain, a myelogram was taken by Dr. Edelman. The myelogram revealed a possible ruptured disc at the L--5 interspace on the left side. Surgery performed by Dr. Edelman on August 13, confirmed the doctor's suspicion of a herniated disc at the L--4--5 interspace, which condition was corrected surgically. On August 16, Dr. Fourrier performed a vena cava ligation to prevent the possibility of a pulmonary embolism, or the lodging of a blood clot in plaintiff's lungs from the thrombophlebitis. This surgical procedure necessitated an abdominal incision. It is conceded that during this entire period, plaintiff suffered from continuous pain in the low back, left shoulder, legs, and occasional chest pains. In addition, plaintiff's legs remained swollen, particularly the left limb. Plaintiff also experienced swelling of the foreskin of the gentalia which condition was not painful, but which remained for several months. In addition, plaintiff suffered from night sweats which the medical evidence shows is to be expected in cases involving such injuries.

Plaintiff was discharged from the hospital on September 4, with instructions to bed rest and use support hose on his legs. On November 19, 1968, Dr. Fourrier found plaintiff still suffering from back pain, inability to bend or straighten his back, marked muscle spasm, pain in left calf, and swelling of the left ankle and foreskin. In December, 1968, plaintiff complained to Dr. Fourrier of pain and numbness in the left leg, and of having leg muscle cramps at night. During the first six months of 1969, plaintiff was seen by Dr. Fourrier on several occasions. Each time plaintiff complained of back pain, left shoulder pain, pain and weakness of the legs, and inability to bend his back. Also during this period, plaintiff walked in a bent over or semi-flexed position. Examinations by Dr. Fourrier during this period disclosed presence of muscle spasm while plaintiff was standing, but not when sitting or lying down. Plaintiff also developed a numbness of the left little finger and a diminution of reflex action of the left achilles tendon. Throughout 1969, Dr. Fourrier found that plaintiff's condition remained essentially the same despite exercises which Dr. Fourrier prescribed be taken four times daily for ten minute periods to relieve the condition of plaintiff's left shoulder and legs. During 1970, plaintiff was seen monthly by Dr. Fourrier, who noted little improvement in plaintiff's condition. Dr. Fourrier also saw plaintiff in January and July, 1971. In each instance, plaintiff exhibited spasm of the back muscles while standing, but not while sitting or lying down. Dr. Fourrier also found limitation of the left shoulder, and observed that plaintiff was still walking in a bent over or semi-flexed position. Dr. Fourrier opined that plaintiff's continued muscle spasm was intentional, and also that he, Dr. Fourrier, had never before seen muscle spasm last so long following disc surgery; neither had he seen anyone walk in such a bent over position following surgical correction of a herniated disc.

Dr. Fourrier considered plaintiff's failure to improve was due at least in part to plaintiff's failure to adhere to the schedule of rehabilitative exercises prescribed by Dr. Fourrier and a therapist to whom plaintiff was referred. Dr. Fourrier explained that he never seemed to get through to plaintiff how the exercises were to be performed. He further explained that when he requested plaintiff to demonstrate the exercises, plaintiff never executed the movements according to instructions despite Dr. Fourrier's repeated explanations. Dr. Fourrier conceded that plaintiff is presently disabled from performing the duties of a truck driver. He also testified that following plaintiff's disc surgery, plaintiff should have been able to resume employment after about six months.

Following the disc surgery, plaintiff was seen by Dr. Edelman on November 18, 1968, at which time plaintiff was found to be holding himself quite rigid with the knees partially flexed and back arched forward. Dr. Edelman found plaintiff had practically no motion in his back, and also noted plaintiff was quite apprehensive about his condition. Dr. Edelman further noted back muscle spasm while plaintiff was standing, which condition was relaxed when plaintiff was laid on an examination table; this condition was believed by Edelman to be voluntary. Dr. Edelman prescribed heat treatment and limbering up exercises and suggested that plaintiff return in a month. On December 18, 1968, Dr. Edelman found plaintiff about the same except that plaintiff then possessed considerably more strength in the lower extremities. Dr. Edelman explained to plaintiff that exercise was essential, and that plaintiff's progress would depend on plaintiff's personal efforts at rehabilitation. On this occasion, Dr. Edelman informed plaintiff that plaintiff was apparently not making a sincere effort at rehabilitation. When plaintiff returned on January 13, 1969, Dr. Edelman found real muscle spasm, and also observed that plaintiff's condition had worsened. Dr. Edelman attributed this in part to the fact that plaintiff related having experienced a hall on January 11, 1969. On January 20, 1969, Dr. Edelman found plaintiff had improved considerably in that plaintiff could flex his back about 40 to 45 degrees, although some evidence of muscle spasm was noted. At this time, Dr. Edelman believed plaintiff had recovered from the worst of plaintiff's acute back problem, and recommended that plaintiff rest for about a week, then resume exercising and return for a check up in about a month. On February 18, 1969, Dr. Edelman found that plaintiff had reverted to his former poor condition. Only 5 to 10 degrees of back flexion was observed. Muscle spasm was again noted when plaintiff was standing which condition passed when plaintiff was placed in a supine position. On this occasion, Dr. Edelman gave plaintiff a pep talk emphasizing the...