Rucker v. Illinois Terminal R. Co.
| Decision Date | 12 April 1954 |
| Docket Number | No. 43598,No. 2,43598,2 |
| Citation | 364 Mo. 804,268 S.W.2d 849 |
| Parties | RUCKER v. ILLINOIS TERMINAL R. CO. . Division |
| Court | Missouri Supreme Court |
Wayne Ely, Robert C. Ely, Joseph L. Badaracco, St. Louis, for appellant; Ely & Ely, St. Louis, of counsel.
Hullverson & Richardson, St. Louis, for respondent.
The plaintiff-respondent Rucker, 36 years old at the time of the casualty on October 18, 1950, sustained injuries to his back in the sacral region [the lowest part of the spine joining the pelvis]. At the time he was working as a lineman with another employee Langendorf for the appellant Illinois Terminal Company at or near the McKinley Bridge in north St. Louis. They were attempting to place an 8 foot crossarm weighing 55 or 60 pounds in a position on a pole. He was on the pole helping to support the weight of the crossarm when his fellow employee Langendorf released his hold on it while it was hanging on a center bolt, and it dropped down onto respondent's safety belt and, as he stated, 'that instant it snapped me.' He did not bring this suit until two years later on October 26, 1952. The case was tried on an amended petition. The jury's verdict for plaintiff-respondent Rucker was for $75,000, the amount sued for. The court ordered a remittitur of $30,000, and judgment was entered for plaintiff for $45,000.
Defendant-appellant's first assignment under its points and authorities is that the jury verdict of $75,000 was so grossly excessive that it indicates misconduct on their part; that the verdict was based on improper, incompetent and prejudicial testimony of plaintiff's actuarial witness and his medical witnesses; the admission of a self-serving letter written by plaintiff to appellant's supervisor complaining of his physical condition; and also on improper, unfair and prejudicial argument of plaintiff's counsel during the trial and throughout his final argument; and that the judgment of $45,000 entered by the trial court on remittitur was excessive, there being no evidence to show plaintiff suffered permanent injuries in view of the fact that he continued his employment in the same occupation, finally receiving a better paying job, until the trial of this suit.
With respect to his physical injuries, respondent testified that when the other lineman, Langendorf, dropped his end of the crossarm it fell across respondent's belt supporting his body near the top of the pole. He said that snapped his body like a whip and he immediately experienced 'a sharp, knife-like, terrific pain in his back.' After a few moments of rest he remonstrated with Langendorf but completed his work. At the noon hour he reported the matter to his foreman. He was unable to eat lunch, and that afternoon assisted the ground crew, going home at 3:30. Because of his pain he could not eat dinner that evening. A hot bath that night made him feel a little better the next morning.
He continued to work for about three weeks. During that period his back eased up considerably though the pain never completely disappeared. About then he began to experience pains in the buttocks and legs--worse on the right side. The pain increased until he could work no longer. In about six weeks on December 6, 1950, he consulted his foreman and on the latter's advice consulted Dr. Bower, the company doctor at Granite City, Illinois, who referred him to the Missouri Pacific Hospital in St. Louis, Missouri for X-ray and treatment. Dr. Lembeck, chief surgeon, and Dr. Hawkins a neuro-surgeon, took X-ray pictures of his back on December 27, 1950, after a radio opaque dye had been injected into the spinal canal, which would disclose space occupying lesions, such as tumors or ruptured intervertebral discs, and thereby establish their location. The hospital record showed anesthesia was administered for 2 1/2 hours on December 29 and that a herniated lumbar disc was removed, with portions of adjacent tissue or parts, including the lamina and sacrum. This was done by Dr. Hawkins, but neither he nor Dr. Lembeck testified at the trial.
The evidence shows that after his operation on December 29, 1950, respondent was discharged from the hospital late in January and returned to work on March 13, 1951. He was advised to refrain from climbing poles or doing heavy work. He so notified company officials on April 9, 1951, not for the purpose of making a claim but to put them on notice of his inability to do a lineman's work. The claim department answered advising him he had not made an accident report. He then made out a report on May 15, 1951. Either in that report or the foregoing letter of April 9, 1951 respondent stated the railroad physician Dr. Bower had told him he could not do climbing work before July, 1951.
Respondent's total pay in 1950, the year he was injured, was $4,192.08, a monthly average of $369.20, exclusive of December, during which he spent some time in the hospital. In 1951 it was $3623.24, a monthly average of $377.60 for the nine full months he worked. For 1952 until his employment with the appellant ended his total earnings were $2476.99, an average of $321.49 per month excluding August, since he worked only until August 22. From August 29, 1952 until September 23, 1952, he worked for another company where he could sit down, and earned $411.80, but had to quit because 'he couldn't go any longer.' That was six days before his trial in this case began. Respondent's total earnings in 1950, including the time before his injury, were $4192.08. In 1951 his earnings were $3623.24. The evidence shows that from the time of his injury to the date of trial he was hospitalized a total of only 28 days. His most recent occupation, in which he was engaged at the time of the trial, paid him $411.80 for a period of five days less than a month.
Respondent testified as to previous injuries he had received while working for the defendant-appellant Terminal Railroad. He stated that some six years earlier in 1944 while pulling slack on a trolley wire the wire broke and he fractured his arm in four places, a double fracture at the elbow and also at the wrist. He was laid up for 6 or 7 months. A year later in 1945 after he had returned to work his arm 'stuck' on him and wouldn't come back down. The Company sent him to Peoria where he was subjected to surgery and all the affected bones were scraped. He was off duty about 11 months altogether, but was paid for his time.
Referring to the instant injury respondent said his back pained him off and on for two or three weeks depending on what he was doing. If the work was heavy the pain increased; if it was light it wouldn't pain so much and after two weeks it disappeared. He went along and continued to work. He had a recurrence of the pain in his buttocks and right leg. It was dull and hard. He thought it might be rheumatism or arthritis. On that occasion he went to the Missouri Pacific Hospital for the first time. The doctor told him he had a complete ruptured disc in his back--a fresh break.
The appellant railroad asserts respondent's claim of total or permanent disability from the injuries in suit is not consonant with his work and earnings record as shown by the facts already stated, which show he lost only three months time, over 80% of which was associated with his recuperation from his operation, disproving his claim for total or permanent disability. The case was tried almost two years after the alleged injury caused by the negligence of his fellow employee Langendorf in letting the crossarm with which they were working slip out of the former's grip.
The plaintiff-respondent Rucker's medical evidence consisted of the testimony of Doctors Woolsey, Ford and Scherman. Dr. Woolsey was a neurosurgeon and graduate of Harvard Medical School in 1937, and had served in various hospitals including a general hospital for the Army. He found respondent complained of pain in the lower back and the back of both legs, especially the right. There was a limitation of about 45 degrees in bending forward on the right side and ten degrees on the left side, and some atrophy.
There was a ruptured disc in the interspace between the fourth and fifth lumbar vertebrae, and/or between the fifth lumbar and the first sacral vertebrae. The gelatinous material between them was or may have been extruded diminishing or affecting the functioning of the nerves. Respondent's expert witness Dr. Woolsey testified the pain of which respondent complained could be attributed to these conditions, as affecting his back and the back of both legs, more on the right than the left, and his limited ability to bend forward. The witness said respondent had a small amount of atrophy in the right leg and some enervation of the muscle there, indicating something causing diminished functioning of the fifth lumbar and first sacral and the fourth and fifth lumbar nerves. He thought two nerve roots were involved, and that the sudden dropping of the crossarm weighing 65 pounds by the fellow workman Langendorf jerking respondent forward and causing sudden pain may have been the cause of respondent's ruptured disc. He thought there should be another operation.
Respondent Rucker's second expert witness Dr. Lee T. Ford was an orthopedic surgeon practicing in St. Louis since 1941. He examined respondent's back on May 2, 1952, a few months before the trial, after ascertaining his complaints. He found he could stand and walk erectly. But he was unable to bend forward and touch his toes with his knees straight, and the same was true as to bending backward, though he could walk tiptoe without pain. He could do the same on his heels.
However, when his neck was squeezed and he took a deep breath it caused pain in his hips and buttocks, which is a recognized test, since it causes venous pressure inside the spinal canal and if pressure is already present on the nerves pain is produced....
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