Roderick v. St. Louis Southwestern Ry. Co.

• Decision Date: 11 March 1957
• Docket Number: No. 1,No. 45368,45368,1
• Parties: A. T. RODERICK, Respondent, v. ST. LOUIS SOUTHWESTERN RAILWAY CO., a Corporation, Appellant
• Court: Missouri Supreme Court

Page 422

299 S.W.2d 422

A. T. RODERICK, Respondent, v. ST. LOUIS SOUTHWESTERN RAILWAY CO., a Corporation, Appellant.

No. 45368.

Supreme Court of Missouri, Division No. 1.

March 11, 1957.

Finley, Lucas & Arnold, Wilder Lucas, Joseph A. Murphy, St. Louis, for appellant.

Jo B. Gardner, Sam R. Gardner, Monett, for respondent.

HOLLINGSWORTH, Presiding Judge.

This is an action under the Federal Employers' Liability Act, Title 45 U.S.C.A. Sec. 51, to recover damages in the sum of $91,024 for personal injuries resulting from dermatitis allegedly sustained by plaintiff through contract with sodium bichromate in a rust inhibitor used in the cooling system of diesel engines. The jury returned a verdict in favor of plaintiff for the sum of $45,000 and judgment was accordingly entered. Defendant's motion for new trial was overruled on condition plaintiff remit the sum of $30,000, which he did. The original judgment was set aside and a new judgment was entered for $15,000. Defendant appealed, alleging error: (1) in instructing the jury that in assessing plaintiff's damages it could consider any permanent injuries sustained by him; (2) in permitting plaintiff's counsel, in argument, to advise the jury of plaintiff's life expectancy and to urge that expectancy as a basis of assessing damages for permanent injuries; (3) in attempting to correct by remittitur an excessive award predicated upon said erroneous instruction instead of granting a new trial; and (4) that the judgment was excessive after remittitur.

Plaintiff began his employment with defendant in May of 1941. Prior to that time and beginning in 1923, he had worked several years at each of the following jobs in the order stated: as a boilermaker apprentice, in a printing office, in construction work, and as a painter of road signs for the Arkansas Highway Commission. When he began his employment with defendant in 1941, he worked about a month in the bridge and building department and then transferred to the boiler shop, where he remained until November, 1951. At that time he voluntarily surrendered his seniority as a boilermaker and changed over to the electrical department as an electrician's helper in the diesel shops an Pine Bluff, Arkansas, where he has remained and at trial time continued to be employed.

Upon becoming an electrician's helper working on diesel engines and in the cleaning, repair and servicing thereof, plaintiff came into contact with greases, oils, solvents and, especially, a rust inhibitor referred to in the evidence as Nalco No. 38. It contained a solution of sodium bichromate in water. Chrome, of which sodium bichromate is a form, is an irritant of the skin and produces dermatitis in some persons after varying lengths of time of exposure, dependent upon the individual, the extent of contact and the use of preventive measures. Defendant had knowledge of the effects of chrome upon human skin from the time plaintiff entered its employ. The use of Nalco No. 38 was discontinued in October, 1953. Since that time no chrome-bearing rust inhibitor has been used.

Defendant does not on this appeal deny that plaintiff contracted dermatitis during the time he was at work upon and around the diesels nor does defendant deny that plaintiff made a submissible case of defendant's negligent failure to provide plaintiff with means to prevent Nalco from coming into harmful contact with his skin or to remove it from his skin in time to prevent any harmful result or to warn plaintiff of the danger of coming into contact with it or to furnish plaintiff with a reasonably safe place in which to work. It is only fair to state, however, that defendant did adduce substantial evidence tending to show its freedom from such negligence and that plaintiff's dermatitis, if the result of contact with Nalco 38, was caused in whole or in part by an individual allergy or hypersensitiveness to it or by reason of his negligent failure to seek other employment or to avoid letting Nalco come into contact with his skin after being fully advised of its harmful possibilities or to use the methods and agencies provided by defendant to remove it from his skin before it could have any harmful effect.

Further details of the evidence will be set forth as they become pertinent.

Instruction No. 12, given at the request of plaintiff, fixed the measure of any damages awarded plaintiff at such sum as would reasonably compensate him for all damages sustained to date and such as he was reasonably certain to sustain in the future. It then told the jury that in arriving at that sum it could consider (1) loss of earnings to date; (2) plaintiff's physical condition, past and present; and (3) 'You may also take into consideration such distinct permanent injuries, if any, as you find from the evidence that plaintiff has suffered as a direct result of such injury, if any.'

The court refused plaintiff's request that the jury be further directed to consider the loss of future earnings in assessing any damages awarded.

Defendant insists that there was no substantial evidence upon which to predicate an award of damages for any permanent injury suffered by plaintiff. And, if is in this connection that defendant also predicates error in permitting plaintiff's counsel to refer in his closing argument to plaintiff's life expectancy. In considering these assignments, we review the evidence from the viewpoint most favorable to plaintiff. Boyd v. Terminal Railroad Association of St. Louis, Mo., 289 S.W.2d 33, 35.

To authorize recovery of damages for permanent injury, there must be evidence tending to show such fact with reasonable certainty. Absolute certainty is not required but conjecture, likelihood or even probability of permanency is not sufficient. Plank v. R. J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328; Weiner v. St. Louis Public Service Co., Mo., 87 S.W.2d 191; State ex rel. Kansas City Public Service Co. v. Shain, 350 Mo. 316, 165 S.W.2d 428.

Plaintiff, as stated, began his work in the diesel shops on November 27, 1951. His work was on the night shift, tearing down and cleaning motors and generators. In the spring of 1953 he was transferred to the day shift. In July or August of 1953, he noticed pimples or blisters on his hands. They hurt and itched. The condition was treated for a week or two by local physicians without beneficial results and he went to the St. Louis Southwestern Railway Lines Trust Hospital in Texarkana. There, on September 28, 1953, at the direction of the chief surgeon, he was placed under the care of Dr. Raymond P. Hughes, a specialist in dermatology. Plaintiff remained at the hospital for several days. Dr. Hughes at that time told him, 'You will never get well as long as you work there.' Plaintiff thereafter returned for treatment some seventeen or eighteen times, never remaining at the hospital for more than five days on any visit and generally, it seems, not to exceed one or two days, until he returned in June, 1955, with a 'flare-up' that caused him to remain at the hospital for more than a month. His hands would improve following his visits to the hospital and Dr. Hughes told him, 'You can go back to work, providing you come back and forth to see me', which he did as directed. Plaintiff told Dr. Hughes that the soap furnished the workmen hurt his hands, and was told by the doctor not to use it. Plaintiff's hands 'got so bad' he was transferred from the pit and put 'on the engines that run in and out'. His hands got better. He was told not to wear rubber gloves and thereupon began to wear cotton gloves, which he changed every two days. After the use of Nalco 38 was discontinued, plaintiff's contacts were with greases and oils in the cleaning of engines. He suffered at night. Water would run out from his fingernails and the nails on both hands have come off several times. His hands have hurt ever since he developed dermatitis. He is never completely free from pain. He had two years' seniority as an electrician's helper when he contracted dermatitis. He has continued his work because of his age and his belief that dermatitis made him unable to hold a job elsewhere. It is embarrassing to appear in public with his hands exposed or to go into people's homes and eat at the table with them. (Plaintiff at this point in his testimony exhibited his hands to the jury.) The dermatitis has spread to his wrists and forearms and to his feet and ankles. It also has appeared at times at his waistline.

The first time plaintiff ever saw any bulletin in regard to the use of preventive measures was in March, 1954, after he had contracted dermatitis. A speech was made by Mr. Scott, his superior in authority, in May, 1955, about skin rash and keeping clean.

Plaintiff talked to Mr. Scott about a transfer after coming from the hospital. Mr. Scott told him that Mr. Carr, local union chairman, said that on account of plaintiff's seniority 'they' could not take him out of the pit for more than a month, which was done, but at the end of the month 'they' put him back in the pit, because the man who had seniority over him wanted his job back. Plaintiff never thereafter made inquiry as to other job openings with defendant; neither has defendant offered him any other job; nor has he ever refused to work wherever defendant directed him. The union arrangement requires any employee desiring to change to an available job to bid for it. In January, 1954, plaintiff took a 14-day vacation, dividing his time between the hospital and his home. His hands improved some. He has worked on the 'power house job' for defendant for the last eight or nine months and his hands have improved, but they still break out. When he came back from the hospital the last time after a stay of two months, Dr. Hughes, following consultation with Dr. Hibbitts, told him to go back to work, saying, 'You are as well as well could be.'

Plaintiff has worked at an unchanged pay rate of $1.69 1/2 per hour, $67.80 per...