Shupe v. New York Central System
| Decision Date | 02 February 1965 |
| Docket Number | No. 14660.,14660. |
| Parties | Bob G. SHUPE, Plaintiff-Appellee, v. NEW YORK CENTRAL SYSTEM, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Richard O. Olson, Edward J. Wendrow, Chicago, Ill., for defendant-appellant, Winston, Strawn, Smith & Patterson, Chicago, Ill., of counsel.
Joseph Barbera, Chicago, Ill., for plaintiff-appellee.
Before HASTINGS, Chief Judge, and KNOCH and CASTLE, Circuit Judges.
Defendant New York Central System is appealing from a jury verdict and judgment for $125,000 in favor of plaintiff Bob G. Shupe resulting from injuries allegedly caused by defendant's negligence in an action brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51.
Plaintiff was employed by defendant as a janitor. His duties were to keep the locker rooms, offices and windows clean and to carry supplies from the first floor to the second floor of defendant's two-story office building. These supplies came in cardboard boxes weighing from 25 to 100 pounds.
Plaintiff's testimony at the trial concerning how the injuries for which he makes claim were sustained was as follows.
On December 19, 1961, he was engaged in carrying supplies for storage from the first floor to the second. He picked up a 100 pound cardboard box, put it on his left shoulder and carried it up the stairs to the second floor. At the top of the stairs was a landing and a door leading into a ladies' locker room where the boxes were to be stored. At the top of the door was a closing device which caused the door to close after it had been opened.
Plaintiff testified he opened the door with his right hand far enough so that he could get his left foot ahead of the door and kick the door back. He stated, He felt a sharp tearing-like pain in his left shoulder and put the box on the floor after taking two or three steps. He stood, rubbed his arm a few seconds, reached down and tried to lift the box. He lifted it two or three inches off the floor and then dropped it because of the pain.
He testified he reported the accident to Andrew Machtemes, his gang foreman. He said that for about fifteen to twenty weeks before the date of this injury the door had been slamming and he had reported its condition four or five times to Joseph Walsh, assistant general foreman, and Raymond Preski, general foreman.
The primary issues to be decided on this appeal are whether the district court abused its discretion in denying defendant's motion for new trial on the grounds that the $125,000 verdict was grossly excessive and that there was not substantial evidence to support the jury's finding, by its general verdict, that plaintiff's injury was caused by the slamming door.
As a result of plaintiff's injuries he did not work from January 31, 1962 to August 20, 1962. During this period plaintiff was hospitalized on four different occasions for a total of fifty-three days. He received various treatments and medications and on June 4, 1962 an operation was performed which removed 5/8;ths of an inch of the distal end of his collar bone.
Both parties agree that plaintiff's loss of earnings for this period was $2467.80 and his hospital and doctor expenses totaled $1088.15.
Plaintiff was given a back-to-work examination on August 16, 1962 and two doctors wrote letters stating he could return to work. He returned on August 21 and worked for ten months until June 21, 1963. On this date, he fell from a stepladder while washing windows in the course of his employment and injured his back. Plaintiff is not seeking to recover damages from defendant for this second injury.
On July 29, 1963, plaintiff presented himself to Dr. Hamilton for a back-to-work examination. Dr. Hamilton sent him to Dr. Davia who reported that plaintiff should be disqualified from working because of a limitation of motion and pain in his shoulder and the fact he was wearing a back brace. Dr. Hamilton concurred in the disqualification. He testified this examination disclosed the range of motion in plaintiff's arm to be between fifteen to thirty degrees of abduction, which was a marked decrease from that shown in plaintiff's back-to-work examination of August 16, 1962.
The principal point of disagreement between plaintiff and defendant on the issue of damages is whether plaintiff should be compensated for future loss of earnings. Plaintiff states that $71,292 of the $125,000 jury verdict represents plaintiff's future loss of earnings.1
Defendant contends that, "as a matter of law, the second accident was an intervening cause; that there is no evidence that the second accident was caused, in whole or in part, from the first; that as a matter of law it is not liable for the damages therefrom, particularly loss of future wages, the undisputed evidence being that it was the second accident that rendered plaintiff — at the time of the back-to-work examination — no longer employable as a janitor."
Plaintiff cannot recover damages which are not proximately caused by defendant's alleged negligence. E.g., S. S. Kresge Co. v. Kenney, 66 App.D.C. 274, 86 F.2d 651 (1936). Plaintiff makes no claim that his fall from the stepladder and resulting back injuries were caused by any negligence of defendant. Plaintiff's position is that the doctors' disqualifications after his back-to-work examination were based upon his first injury.
Dr. Hamilton testified plaintiff was disqualified from work because of the findings by Dr. Davia that plaintiff "had a limitation of motion in his shoulder, and he was complaining about pain in his shoulder and * * * he was wearing a support to his back."
Dr. Davia's report to the United States Railroad Retirement Board stated, inter alia:
In view of these findings and report and the fact that plaintiff worked continuously for ten months after his shoulder injury and immediately prior to his back injury, we hold that no reasonable juror would find that plaintiff's disability from work was solely attributable to his shoulder injury.
Plaintiff has the burden of proving what proportion, if any, of the alleged loss of future earnings was caused by the shoulder injury. See Prosser, Law of Torts, § 45, p. 229 (2d ed. 1955). No such proof was tendered.
As stated, supra, both parties agree that plaintiff's loss of earnings for the period of time he was unable to work due to his shoulder injury and his doctor and hospital expenses for this injury totaled $3555.95. Subtracting this figure from the jury verdict leaves $121,444.05 attributable to pain and suffering, possible reduction of earning power and possible loss of future earnings. In the absence of proof concerning loss of future earnings attributable to the shoulder injury, most of this amount would have to be designated as damages for pain and suffering. We hold this amount to be grossly excessive. See Thomas v. United States of America, 7 Cir., 327 F.2d 379, fn. 7 (1964) and Goertz v. Chicago & N. W. Ry. Co., 19 Ill.App.2d 261, 274-277, 153 N.E.2d 486, 494 (1958).
Defendant's second contention is that a new trial is required because the evidence overwhelmingly demonstrates plaintiff's shoulder injury was caused by his lifting a carton or box from the floor and not by the alleged defective door. Plaintiff's testimony as to how the accident occurred was set out previously. In addition to plaintiff's testimony, evidence concerning the cause of the shoulder injury is as follows.
Plaintiff testified he had reported to the general foreman and assistant general foreman of defendant, four or five times prior to his shoulder injury, that the door was defective. This was denied at the trial by both foremen.
Machtemes, a gang foreman, was called as a witness for plaintiff. He testified that on the day of plaintiff's injury plaintiff reported the accident to him and he filled out an accident report. Machtemes testified on cross-examination as follows:
The accident report, which...
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...that a plaintiff cannot recover damages which are not proximately caused by a defendant's alleged negligence. Shupe v. New York Central System, 339 F.2d 998, 1000 (7th Cir.1965)(holding that a second accident, which plaintiff did not seek to hold his employer liable for, was an intervening ......
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