Seaboard System R.R., Inc. v. Taylor

• Decision Date: 23 October 1985
• Docket Number: No. 70375,70375
• Citation: 176 Ga.App. 847,338 S.E.2d 23
• Parties: SEABOARD SYSTEM RAILROAD, INC. v. TAYLOR.
• Court: Georgia Court of Appeals

Page 23

338 S.E.2d 23

176 Ga.App. 847

SEABOARD SYSTEM RAILROAD, INC. v. TAYLOR.

No. 70375.

Court of Appeals of Georgia.

Oct. 23, 1985.

Rehearing Denied Nov. 15, 1985.

Certiorari Denied Jan. 17, 1986.

Jack H. Senterfitt, Richard T. Fulton, Atlanta, for appellant.

Kerry R. McDonald, Atlanta, Jack T. Brinkley, Jr., J. Anderson Harp, J. Sherrod Taylor, Columbus, for appellee.

BANKE, Chief Judge.

Betty S. Taylor sued Seaboard System Railroad, Inc., to recover damages for an on-the-job injury to her back allegedly caused by the negligence of a fellow Seaboard employee. The cause of action was predicated on the Federal Employers' Liability Act, 45 USC §§ 51 et seq. (FELA). A jury returned a verdict in her favor in the amount of $250,000, and Seaboard filed this appeal.

The accident occurred on December 17, 1979, while the plaintiff was working as a "hostler helper" at Seaboard's diesel shop facility in Hamlet, North Carolina. (A hostler is responsible for driving locomotive engines around the rail yard, while his helper assists by riding on the engine and dismounting from time to time to perform such tasks as lining up switches.) Believing that the engine on which she was riding was on a collision course with another engine, the plaintiff jumped a distance estimated by her to be about three feet to the ground, as the engine was traveling 10 to 12 miles per hour. The two engines did not in fact collide but stopped within a few feet of each other.

Although the plaintiff testified that she felt "shook up and nervous" after the incident, she completed her shift and experienced no immediate physical problems. She was later bothered by sore feet, followed about three weeks after the incident, by what felt like a "catch" in her lower back. She continued to work, however, and did not seek treatment for these symptoms until May of 1980, when she began receiving chiropractic care from a fellow railroad employee. She first consulted a physician with regard to her symptoms in August of 1981, at the request of her attorney. This physician, an orthopedic surgeon, diagnosed her as suffering from "dysfunctional low back pattern and os calcis bursitis." Asked to elaborate, he testified that "[t]he term dysfunctional simply means there is something wrong producing symptoms about the lower back," and that os calcis bursitis referred to "some inflammatory process about the heel." His prognosis was as follows: "I feel, as our initial impression outlined, there is something wrong in the lower back. The patient has evidence of degenerative wear and tear change about the lower region of her lower back. As she advances in age, this is likely to continue to be troublesome, both in terms of working activity and a normal lifestyle. At the time that I last saw the patient she is still being able to relatively function in terms of her work and lifestyle, so I would expect intermittency of symptoms to be present in the future. How severe I don't really have a way to judge." The doctor acknowledged that the plaintiff's condition had improved over the period of time he had been treating her, and he further acknowledged that his most recent medical report to the railroad, dated February 1983, had described her prognosis as "excellent." He at no time assigned the plaintiff a disability rating or advised her to cease working because of her condition.

The evidence of special damages consisted in its entirety of the plaintiff's testimony to the effect that she had missed a total of 180 days from work because of her back condition and had, as a result, experienced lost wages totaling $14,000. It is undisputed, however, that the plaintiff has continued to be employed by Seaboard at all times since the accident, and she testified that she had no plans to cease working for the company. In fact, it was shown that during the period between the accident and the trial her pay had increased from about $6 per hour to $11 per hour.

In describing her current condition, the plaintiff testified that her back felt "very uncomfortable; it's very hard to sit still ... It pulls and draws down my right leg." She further testified that she was no longer able to bowl, swim, play ball, or perform such household chores as cutting grass or washing the car.

On appeal, Seaboard's primary contentions are that there was no evidence of any causal connection between the accident and the injury and that, even assuming the existence of such a causal connection, the award of damages was excessive. Held:

1. "[T]he test of liability under the F.E.L.A. is whether the employer's negligence 'played any part, even the slightest, in producing the injury or death for which damages are sought.' Rogers v. Missouri Pacific R., 352 U.S. 500, 506 (77 SC 443, 448, 1 LE2d 493) (1957)." Lane v. Gorman, 347 F.2d 332, 335 (10th Cir.1965). The jury's verdict in such cases will be reversed "[o]nly when there is a complete absence of probative facts to support the conclusion reached ..." Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed.2d 916 (1946).

The plaintiff testified that she had not experienced any back problems prior to the incident on which this suit is based; and while her medical expert conceded that there were any number of possible causes for the type of condition from which she suffered (such as, for example, heavy sneezing or coughing, stepping off a curb, or being manipulated by a chiropractor), he further testified that in his opinion "the trauma that she describes [as] having occurred at the time of the incident ... was a causal traumatic event precipitating ..." the condition. Under the aforestated legal principles, this evidence, though weak, was sufficient to support the jury's conclusion that the plaintiff's condition was attributable to the accident.

2. Questions concerning the proper measure of damages in FELA cases, like questions of liability, are to be settled according to general principles of law as administered in the federal courts. Chesapeake & Ohio R. Co. v. Kelly, 241 U.S. 485, 491, 36 S.Ct. 630, 632, 60 L.Ed. 1117 (1916); Norfolk & Western R. Co. v. Liepelt, 444 U.S. 490, 493, 100 S.Ct. 755, 757, 62 L.Ed.2d 689 (1980). It has been held that the damages recoverable under the FELA on account of a railroad employee suffering injury or death on the job are compensatory only and that punitive damages are not recoverable. See Kozar v. Chesapeake & Ohio R. Co., 449 F.2d 1238(2) (6th Cir.1971). However, the jury's determination of the amount of damages to be awarded is otherwise inviolate, "absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial ... (Cits.)" Lane v. Gorman, supra, 347 F.2d at 335. This standard of review is consistent with that which obtains under Georgia law, which has been stated as follows: "Before the verdict will be set aside on the ground that it is excessive, where there is no direct proof of prejudice or bias, the amount thereof, when considered in connection with all the facts, must shock the moral sense, appear 'exhorbitant,' 'flagrantly outrageous,' and 'extravagant.' 'It must be monstrous indeed and such as all mankind must be ready to exclaim against at first blush.' It must carry its death warrant upon its face." Realty Bond etc. Co. v. Harley, 19 Ga.App. 186, 187, 91 S.E. 254 (1917). Jones v. Spindel, 128 Ga.App. 88, 92, 196 S.E.2d 22 (1973); Redwing Carriers v. Knight, 143 Ga.App. 668, 677, 239 S.E.2d 686 (1977). See generally OCGA § 51-12-12.

After careful consideration, we are convinced the award of damages in the present case is so excessive as to fall into this category. The plaintiff did not assert that she suffered from constant or severe pain as a result of her injury but testified merely that her back felt "very uncomfortable" at times. Her own physician, while testifying that he expected her condition to be intermittently "troublesome" for her, did not indicate that he expected her symptoms to worsen but instead testified that he had no way of knowing how severe her symptoms would be in the future. He further testified that her condition had improved during the period of time she had been in his care; and in the most recent medical report submitted to the railroad by his office, a report which he affirmed as his own on the witness stand, her prognosis had been described as excellent. The strongest evidence supporting the award was the plaintiff's testimony that she could no longer perform such activities as bowling or cutting grass. However, it is quite clear that she continues to be able to travel, to drive an automobile, and to perform her job satisfactorily; and it is noteworthy under these circumstances that her physician has never assigned her a disability rating, nor has he ever ordered her to restrict her activities in any way. On the basis of all the circumstances, we are unable to discern any reasonable basis for an award of compensatory damages in the amount of $250,000, and we accordingly conclude that at least a portion of the verdict was punitive in nature. The judgment is therefore reversed, and the case is remanded for a new trial. Accord Grunenthal v. Long Island R. Co., 388 F.2d 480, 483-484 (2nd Cir.1968); Bullard v. Central Vt....