Reusch v. Seaboard System R.R.

• Decision Date: 20 July 1990
• Citation: 566 So.2d 489
• Parties: John C. REUSCH v. SEABOARD SYSTEM RAILROAD. 88-1494.
• Court: Alabama Supreme Court

Page 489

566 So.2d 489

John C. REUSCH v. SEABOARD SYSTEM RAILROAD.

88-1494.

Supreme Court of Alabama.

July 20, 1990.

Lee Pittman and William W. Schooley of Pittman, Hooks, Marsh, Dutton & Hollis, Birmingham, for appellant.

L. Vastine Stabler, Jr. and Terri A. Dobell of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellee.

ADAMS, Justice.

John Reusch filed an action pursuant to the Federal Employers Liability Act ("FELA"), 45 U.S.C. § 51 et seq., against Seaboard System Railroad ("Seaboard"), alleging both negligence and failure to provide a reasonably safe place to work. The jury returned a $50,000 verdict for Reusch, and the trial court entered judgment on the verdict. Reusch filed a motion for new trial, which the trial court did not rule upon and which was deemed denied by operation of law after 90 days, pursuant to Rule 59.1, A.R.Civ.P. Reusch appeals, arguing that the verdict is inadequate and that the trial court committed reversible error on various grounds. We affirm.

Reusch was employed by Seaboard. He primarily worked as a carman, repairing railroad cars. At the time of the accident, however, Reusch had been "furloughed" from his job as a carman and was working as a trackman, repairing railroad track, moving track ties, and spreading ballast.

On December 26, 1984, Reusch reported to work in Loyall, Kentucky, and his foreman instructed him to board a bus owned by Seaboard for transportation to Glidden, Kentucky. The bus was a modified school bus with seats on either side of an aisle. When he arrived at Glidden, Reusch left his lunch and rain gear on the bus. At lunchtime, Reusch boarded the bus to retrieve his lunch and rain gear. He tripped over some tools that were in the aisle and fell to the floor, landing on his right side. After the fall, Reusch had a pain in his back.

Seaboard immediately sent Reusch to Dr. Smith Howard in Harlan, Kentucky; Dr. Howard treated Reusch and then released him. He returned to work that day and for the next two days, but Seaboard did not require him to work. After the New Year's holiday, Reusch was informed that he no longer had the trackman's job; Reusch had been aware, however, that that particular job was temporary.

Reusch was later examined by Dr. George Schoedinger III. Dr. Schoedinger treated Reusch for pain in his back and in his right leg. Reusch continued to complain of pain, and Dr. Schoedinger performed a chemonucleolysis on Reusch. Reusch, nevertheless, complained of back pain and of pain in both of his legs. Dr. Schoedinger performed surgery on Reusch, which according to Reusch, did not alleviate the pain. Dr. Walter Whitehurst, testifying for Seaboard, criticized Dr. Schoedinger's use of chemonucleolysis on Reusch.

Medical evidence presented at trial showed that all of Reusch's objective medical tests were negative with regard to his alleged injury. No nerve root impingement was found. Dr. Schoedinger's surgical notes do indicate that the fragments left over from the disc he treated by a chemeopapain injection were indicative of a back problem.

Reusch makes two arguments that were not preserved for appellate review. Reusch filed a motion in limine, requesting that evidence of his receipt of public aid, his personal life, and his medical history prior to the accident not be presented to the jury. The record does not reflect the trial court's ruling on that motion. Seaboard read Reusch's deposition into the trial record in front of the jury. The deposition contained Reusch's testimony concerning his receipt of food stamps, his living arrangements with his girlfriend, who was helping pay his bills, and his prior medical history. Reusch argues that the trial court erred in admitting that testimony. He never objected to the introduction of that testimony, however, and accordingly, because there had been no ruling on the motion in limine either, the record contains no ruling by the trial court concerning the admissibility of the testimony that Reusch now challenges. Reusch's argument fails, because no adverse rulings are presented for review. Beautilite Co. v. Anthony, 554 So.2d 946, 949 (Ala.1989).

Reusch also argues that Seaboard's counsel improperly mentioned venue in closing arguments. Although Reusch objected to the comment, he did not obtain a ruling from the trial judge. Again, no adverse ruling is presented for review. Beautilite Co., at 949.

Reusch contends that the trial court erred in giving two particular jury charges. In the first challenged jury charge, the trial court stated:

"Now you cannot award damages to the plaintiff in this case for any future lost earnings or loss of earning capacity."

Even when an FELA action is brought in a state court, "questions concerning the measure of damages in an FELA action are federal in character." Norfolk & Western Ry. v. Liepelt, 444 U.S. 490, 493, 100 S.Ct. 755, 757, 62 L.Ed.2d 689 (1980). Accordingly, we look to federal cases for guidance in FELA actions. The United States Supreme Court has set out guidelines for the calculation of damages for impaired earning capacity in FELA cases. The damages award must be based on the plaintiff's after-tax earnings. Norfolk & Western Ry., at 493-94, 100 S.Ct. at 757-58.

In Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983), the Supreme Court addressed the method to be used to calculate a damages award for lost future earnings. Pfeifer was injured in the course of his employment as a loading helper on a coal barge, and he brought an action pursuant to § 5(b) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. 905. The Court declined to adopt any specific mathematical formula as a method for calculating lost future earnings. The Court, however, did set forth general considerations for calculating and proving lost earnings:

"[T]he first stage in calculating an appropriate award for lost earnings involves an estimate of what the lost stream of income would have been. The stream may be approximated as a series of after-tax payments, one in each year of the worker's expected remaining career."

462 U.S. at 536, 103 S.Ct. at 2550.

The next step in calculating the damages award is to discount the lost stream of income calculated above to present value:

"The discount rate should be based on the rate of interest that would be earned on 'the best and safest investments.' ... [S]ince under Norfolk & Western R. Co. v. Liepelt [citation omitted] the lost stream of income should be estimated in after-tax terms, the discount rate should also represent the after-tax rate of return to the injured worker. Thus, although the notion of a damages award representing the value of a lost stream of earnings ... rests on some fairly sophisticated economic concepts, the two elements that determine its calculation can be stated fairly easily. They are (1) the amount that the employee would have earned during each year that he could have been expected to work after the injury; and (2) the appropriate discount rate, reflecting the safest available investment.

"... The trier of fact should apply the discount rate to each of the estimated...