Robison v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 21 December 1962
• Citation: 27 Cal.Rptr. 260,211 Cal.App.2d 280
• Court: California Court of Appeals Court of Appeals
• Parties: R. E. ROBISON, Plaintiff and Respondent, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Defendant and Appellant. Civ. 25938.

Page 260

27 Cal.Rptr. 260

211 Cal.App.2d 280

R. E. ROBISON, Plaintiff and Respondent, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Defendant and Appellant.

Civ. 25938.

District Court of Appeal, Second District, Division 3, California.

Dec. 21, 1962.

Robert W. Walker, J. H. Cummins and Matthew H. Witteman, Los Angeles, for appellant.

Magana, Olney, Levy, Cathcart & Gelfand and Victor E. Kaplan, Los Angeles, for respondent.

FORD, Justice.

This is an appeal from a judgment in favor of the plaintiff in an action to recover for personal injuries brought pursuant to the provisions of the Federal Employers Liability Act. (45 U.S.C.A. § 51 et seq.) The principal contention is that the evidence was insufficient to justify the jury's determination that the plaintiff had suffered damages in the amount of $21,600. An adverse ruling with respect to that contention was made by the trial court in its denial of the defendant's motion for a new trial.

In determining the sufficiency of the evidence, this court must view it in the light most favorable to the plaintiff. (Rudolph v. Tubbs, 46 Cal.2d 55, 56, 291 P.2d 913.) The pertinent evidence which lends support to the determination made upon the issue of damages will be stated. The plaintiff, a switchman employed by the defendant, was injured on May 18, 1957, while he was working with a switching crew in San Bernardino. At that time he was 50 years old. The plaintiff fell from the top of a moving boxcar into a gondola car. The witness Graham testified that he 'more or less dove off of the car head first.' When the engineer, Mr. Bussey, came to the place where the plaintiff had fallen, the plaintiff said that his back, left arm, and head ached. He was taken away in an ambulance.

Late on the day of the accident the plaintiff was removed to a hospital in Los Angeles. He was there 11 or 12 days. He suffered no broken bones, but he felt pain in his left hand, arm, the left side of his head his left thigh, and in the small of his back and between his shoulders. After he left the hospital he returned once a week for the first three weeks and every two weeks thereafter until he resumed work on July 25, 1957, but he was given no treatment. As to his areas of complaint at the time he returned to his duties with the defendant, he testified as follows: 'Left shoulder and arm and back between my shoulders, small of my back and my neck and the side of my head was very sore.' He went to see Dr. Wilson in San Bernardino several times after he started to work again, but received no treatment. In the course of working with the switching crew, he tried to obtain an assignment of work which 'was a little easier in order to be able to hang on.' He tried to avoid climbing cars or 'catching' cars going at high speeds. He received some relief from treatments given him by a chiropractor. He testified: ¹ 'If I am forced to work a job where I have to climb the cars and set the hand brakes where you have to do a lot of lifting and straining, why, sometimes at the close of the day I have to go to the chiropractor.' But he managed to carry on his regular duties in his employment and to work steadily. At the time of the trial he was working eight hours or more a day, but there were days when work was not available. As to the effect on him of one phase of the work, that of setting hand brakes on cars, he testified as follows: 'Q. With regard to your mentioning the way you turned these brakes, what effect does that have on you, if any? A. Well, it hurts the back terrible. It is lifting, strictly lifting just like you are picking up a heavy weight with one hand and sometimes the brakes are hard to work. It takes quite a bit of effort to get them wound up. Then if you are cut off with several cars and you are going any distance, you control the speed of the car, got to keep setting them and letting them off, let it off a little and set it back up. It is very strenuous.'

As to his physical condition, the plaintiff gave the following testimony: 'Q. At first how often would you have headaches? A. Well, sometimes it is continuous and then it would come and go. What I mean is continuous for two or three days at a time. Q. And what did you do for them, if anything? A. I used to take pills. Q. Now, you say this finally abated after a couple of years? A. Yes, it seems to have abated somewhat, cleared up. Q. You felt some improvement, did you not, in your injuries other than your head? A. Yes. Q. Let's talk about your neck. A. Well, since the accident I haven't been able to sleep on a pillow and I still can't sleep on a pillow on account of my neck. Q. Did it make some improvement? A. Yes, it has improved some. Q. How about your low back? A. I notice if I am the least bit fatigued or any excitement, my back trembles. Q. Do you have any pain in your low back? A. Not so much if I don't strain or lift heavy, something like that. Q. Is there any type of work that you do on the railroad that affects any of your injuries? A. Well, this wrist especially, pulling pins is where you cut the cars loose from one another and they have a lever you lift to lift the pin up. If those are a little hard to lift and you have to jerk on it, why, it is very painful. Q. You are indicating your left wrist? A. Yes. And carrying the lantern, giving signals with the lantern, I am left-handed and I am prone to carry it in my left hand. As long as I carry it straight, I don't notice it; but when I hold it up like that and move the lantern, it is painful across the wrist. Q. How about your left arm as such; has it improved? A. Well, yes, but it is very weak. I have to be awful careful. I don't trust myself hanging with it, one arm at a time. I have to watch getting on cars where if you are going so you catch hold with the left hand first, I am pretty careful I don't--Q. You are able to do it? A. I do it. I have fallen because of it, yes. Q. How about your neck; has that seemed to improve? A. Yes, it has improved to what it was but I would say the last year I don't see any improvement in it. Q. Has your arm condition become about stationary after its improvement? A. The shoulder, if I happen to roll over on my left shoulder in my sleep, is very painful. It will wake me up in a short time. It starts hurting. I can't lay on my left shoulder. Another thing. I can't stay in one position very long in bed. Last night I went to bed a little after 10:00 and was up a little after 4:00. My back was hurting and I was restless and I just got up. Q. Other than the press of a trial--let's take a year ago--did you have any trouble with sleeping at night? A. Oh, yes, since I have been injured I haven't had a night's rest. Q. What seems to pain or bother you? A. Well, if I lay in one position very long, I have got to move. I wake up and roll and toss so much and it bothers my back, the small of my back especially, lying in bed.'

Dr. Reuben Merliss examined the plaintiff on several occasions at the request of the plaintiff's attorneys. The first examination was on May 13, 1958. From the history given him by the plaintiff and from his examination, he arrived at a diagnosis which he expressed as follows: 'I have listed five conditions The first was an injury to the neck. The second was an injury to the soft tissue structures about the left shoulder. Third was an injury to the back, the low back. The fourth was an injury to the nerve trunks going into the left arm which I believed was responsible for his pain, his clumsiness, his disturbed sensation in the left hand; and cerebral concussion.' He found that the plaintiff had suffered a loss of gripping power in the left hand, that the reflexes in the left arm were not as active as in the right, and that there was 'some stretching injury to the neck resulting in spasm of the muscles.'

Dr. Merliss saw the plaintiff again on September 29, 1959. He found some tenderness in the thoracic region of the back. Although the plaintiff was left-handed, his right hand had a stronger grip. The circumference of the right arm around the biceps was greater than that of the left.

On January 24, 1960, Dr. Merliss made another examination of the plaintiff. The weakness in the grip of the left hand as compared with the right hand was evident. The complaints of the plaintiff when he was seen in June of 1961 were related by the witness as follows: 'He complained still of some back distress. He complained of soreness and stiffness in the neck. He complained of weakness and tremulousness of the left arm. In other words, it wasn't steady. He told me that he felt it was growing progressively worse. He said he couldn't even use a screwdriver with his left hand, and he is a left-handed man.' Dr. Merliss' opinion was that the condition of the left arm then existing would be permanent in nature. He further...