Southern Ry. Co. v. Oliver, 71824
| Decision Date | 07 February 1986 |
| Docket Number | No. 71824,71824 |
| Citation | 341 S.E.2d 270,177 Ga.App. 729 |
| Parties | SOUTHERN RAILWAY COMPANY v. OLIVER. |
| Court | Georgia Court of Appeals |
Eileen M. Crowley, Keith J. Reisman, Atlanta, for appellant.
John K. Dunlap, Atlanta, for appellee.
Employee Injury--Federal Employees Liability Act. This suit involves personal injury to one of Southern Railway Company's employees and is brought under the provisions of the Federal Employees Liability Act (45 U.S.C. § 51 et seq.) Construing the evidence in the light most favorable to sustain the verdict, we find evidence as follows: Mrs. Oliver was employed by Southern in its data machine offices as a data input operator. At the time of the injury involved, Mrs. Oliver worked on the second shift which basically worked from the middle of the afternoon until late evening. The first shift preceeded the second from morning until the middle of the afternoon. The area in which Mrs. Oliver worked was a long room with a double row of data machines. Before each machine was an adjustable stool which was supported upon a column for height and had a back for support. Because employees of different shifts used the same data machine and sat in the chair before each machine, the chairs provided by Southern were adjustable in height to fit the comfort needs of the particular data input operator working at that particular machine on the particular shift. These chairs or stools had been in the data input room for several years. It was common practice for an employee to adjust the height of the stool at the beginning of each shift or sometime during the shift if the chair was not at the proper level. There was substantial evidence that on numerous occasions many of the chairs had presented problems to the employees when height adjustments had been attempted. Those most commonly occurring were that the pin that held the chair column in place would stick; that the back of the chair would fall off leaving the person without back support and on occasion the pin would slip allowing the chair to drop suddenly. These problems had been brought to the attention of the room supervisor on several occasions but Southern had provided no different stools.
On the date in which the injury involved in the case occurred, Mrs. Oliver reported to work during the second shift. She accepted the chair at her station and commenced her work. Sometime thereafter, she became uncomfortable because the stool was not high enough for her comfortably to use the machine's keyboard. In accordance with the usual practice, Mrs. Oliver sought and obtained the assistance of a fellow worker to release the pin holding the column. The stool was designed to raise or lower with relative ease when the pin was released. When Mrs. Oliver's fellow worker indicated the pin had been released, Mrs. Oliver tugged on the stool to raise it to the next notch. However, the stool stuck and this tug or jerk of the heavy stool caused a pain in Mrs. Oliver's back, a pain she had not experienced before. She went to a company doctor who diagnosed her as having an acute lumbar back strain.
From the period of August 25, 1981 until September 8, 1981, Mrs. Oliver was seen by several different doctors on five different occasions. On the first four occasions, the doctors directed Mrs. Oliver not to return to work. On September 8, 1981, a company doctor found Mrs. Oliver no longer disabled and authorized her return to work. Mrs. Oliver returned to her work site on September 9 and remained there for approximately four to five hours. She stated she experienced such great discomfort that she left her shift. Mrs. Oliver returned to the company doctor on September 11 and he again advised her to return to work.
Because she was still experiencing discomfort, Mrs. Oliver went to another doctor on September 14. This doctor diagnosed Mrs. Oliver as having a lumbosacral strain aggravated by radiculopathy (or nerve pain) radiating into her leg. He diagnosed this as being the result of a nerve root injury at the L-5 level of the spine. Mrs. Oliver continued under the care of this doctor on up until the time of the trial. This doctor conducted a conservative treatment of Mrs. Oliver, considering her unable to work at a sitting position before a data input machine until April 5, 1982. On that date, the doctor considered that even though Mrs. Oliver might continue to experience discomfort, she could be as comfortable at work as at home. Twice during the time of care under her personal physician, Mrs. Oliver was examined by a company physician, once on October 2, 1981 and again on February 1, 1982. While the company doctor detected some painfulness and recognized the diagnosis of acute lumbosacral strain, he was not asked to evaluate Mrs. Oliver as to her ability to work.
Mrs. Oliver testified that after her return, she had continued to work from April 1982 until the date of trial even though she had continued to experience discomfort. Mrs. Oliver offered evidence that she had lost wages of $11,500 as the result of her absence from August 25, 1981 until April 6, 1982. She also offered extensive evidence as to the pain she had suffered in the past and probably would continue to suffer in the future. After extensive instructions by the trial court, the jury returned a generalized verdict in favor of Mrs. Oliver in an amount of $65,000 which was made the judgment of the court. Southern moved for a new trial on several grounds which was denied by the trial court. It is that denial of its motion for new trial that forms the basis of this appeal by Southern. Held:
1. The first three of Southern's enumerations of error deal with the failure of the trial court to give requested charges. In the first rejected request, Southern asked for a charge on Mrs. Oliver's obligation to mitigate her damages and minimize her economic loss by resuming gainful employment as soon as she could do so reasonably.
We first observe generally, that a request to charge must correctly state the legal principles involved, must not be argumentative and must be adjusted to the evidence. See Berman v. Berman, 253 Ga. 298, 299, 319 S.E.2d 846; Haley v. Oaks Apts., 173 Ga.App. 44, 46, 325 S.E.2d 602; Thico Plan v. Ashkouti, 171 Ga.App. 536, 541, 320 S.E.2d 604; Fowler v. Gorrell, 148 Ga.App. 573, 576, 251 S.E.2d 819.
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