St. Louis-San Francisco Ry. Co. v. NesSmith

• Citation: 435 P.2d 602
• Decision Date: 03 October 1967
• Docket Number: No. 41560,LOUIS-SAN,41560
• Parties: ST.FRANCISCO RAILWAY COMPANY, a Corporation, Plaintiff in Error, v. J. A. NesSMITH, Defendant in Error.
• Court: Supreme Court of Oklahoma

Page 602

435 P.2d 602

1967 OK 204

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation Plaintiff in Error, v. J. A. NesSMITH, Defendant in Error.

No. 41560.

Supreme Court of Oklahoma.

Oct. 3, 1967.

Rehearing Denied Dec. 19, 1967.

Syllabus by the Court

1. Where, after being injured while working as a welder's helper on defendant's railroad, plaintiff received unemployment benefits through the Railroad Retirement Board upon applications in which he made representations tending to indicate that he was able to do such work, but, in the present action for damages for personal injuries, he introduced evidence to the effect that he was physically unable to perform some of the tasks of this former job and to do heavy manual labor, the trial court committed no error in overruling defendant's special demurrer to plaintiff's evidence and instructing the jury, over defendant's objections, on plaintiff's disability to do such work, against the contention that plaintiff was estopped from making his present claim because of its inconsistency with the representations he had previously made to the Railroad Retirement Board, and to defendant's Division Engineer, when seeking reemployment.

2. Where defendant contended that two of the trial court's instructions as to its duty to furnish plaintiff with safe tools were inapplicable to the present case, because there was no evidence joining such an issue, but it could reasonably be inferred from the testimony of one of plaintiff's witnesses that performance of the task, in which plaintiff was injured, would have been less dangerous if a traction chisel, he had customarily used in doing that kind of work for defendant, had been used, and there was no evidence that this tool was available to plaintiff, defendant's argument as to these instructions showed no ground for reversal.

3. Where an instruction defined the defendant employer's duty of furnishing plaintiff safe tools and a safe place to work, as exercising ordinary care to discharge this duty, but also described this duty as an absolute, non-delegable one, and other instructions demonstrated to the jury that the word 'absolute', as there used, did not relieve plaintiff from the burden of proving that defendant had not used ordinary care in the matter of discharging such duty, the court's error, if any, was harmless, and did not render the court's instructions confusing, or constitute prejudicial error.

4. Where plaintiff pleaded four separate items of damages, including a large amount for loss of future earnings, and introduced evidence--not complained of as incompetent--as to all of them, and the jury, upon trial of the case, returned a general verdict for him in a sum smaller than the damages he sought, and the evidence tended to show he suffered, as loss of future earnings, the verdict could not be said to be excessive and rendered under the influence of passion and prejudice.

Appeal from the District Court of Bryan County; Ralph B. Hodges, Judge.

Action for damages for personal injuries under Federal Employment Liability Act, 45 U.S.C.A. § 51 et seq. After verdict and judgment for plaintiff, and the overruling of its motion for a new trial defendant appealed. Affirmed.

E. D. Grinnell, Jr., St. Louis, Mo., Franklin, Harmon & Satterfield, Oklahoma City, for plaintiff in error.

Tow Shaw, Madill, for defendant in error.

BLACKBIRD, Justice.

This appeal involves an action instituted by defendant in error, hereinafter referred to as 'plaintiff', under the Federal Employers' Liability Act (FELA), 45 U.S.C.A. § 51 et seq., from plaintiff in error, hereinafter referred to as 'defendant', on account of personal injuries he allegedly suffered while employed by said defendant as a welder's helper, on September 27, 1962.

When allegedly injured, plaintiff and his foreman, Mr. W. C. Dye, employed by defendant as a 'frog', or switch, repairman, were removing the angle bars joining sections of defendant's railroad track, near the depot at Ravia, Oklahoma, preparatory to replacing the insulation between these rail sections, where they were joined and held together by the angle bars. At the particular joint, or joinder of rail sections, where plaintiff and Dye were working, the angle bar had adhered to the rail sections (referred to as being 'froze') and it was necessary to pry it away from them. To do this, a 'claw bar', or crow bar, five feet long, was wedged in between the rail and the angle bar. While plaintiff, grasping the crow bar handle, with his foot placed against the outside of the track, was pulling the crow bar handle toward him to pry the angle bar away from the track, Dye struck the angle bar with an 8-pound 'mundy maul', or sledge hammer, causing the crow bar to suddenly become dislodged and plaintiff to lose his balance and fall to the ground on the railroad right of way, suffering the alleged personal injuries involved here.

After the accident, plaintiff resumed working, and continued the rest of that day, but missed work the next day. Thereafter, he returned to his job and continued to work for defendant until the day after Thanksgiving when he was convicted of income tax evasion at Fort Worth and was thereafter incarcerated in the federal correctional institution at Seagoville, Texas, until June 21, 1963.

About three months after he left Seagoville, plaintiff commenced the present action in September, 1963, alleging in his amended petition that his fall and injuries hereinbefore referred to were caused by the negligence of the defendant and its foreman, Dye, in several particulars, some of which were described as follows:

'(C) Failure of the defendant to furnish the plaintiff a reasonably safe place to work in that the common crow bar above five (5) feet long was not a reasonably safe and suitable piece of equipment with which to loosen said angle bar;

'(D) The act of the defendant's agent and foreman, W. C. Dye * * * in instructing the plaintiff to use equipment which was known or should have been known to be unsafe and unsuitable to perform the particular job that plaintiff was instructed to perform, to-wit: loosening an angle bar from a railroad track;

'(E) The defendant knew or should have known that using equipment such as a claw bar to remove an angle bar from the track would create a dangerous condition and situation and would likely result in injuries to the plaintiff;

'(F) Failure of the defendant's agent and foreman, W. C. Dye, to warn the plaintiff that he was about to hit said angle bar with said (8) pound sledge hammer; * * *.'

In paragraph VI of his amended petition, plaintiff alleged that, on the date of the accident, he had a previously existing arthritic condition in his lumbar spine, but further alleged that the accident aggravated it, because of 'a progressively narrowing of the disc spaces in the entire lumbar spine', and that it caused the spinal discs to progressively and continuously deteriorate.

Plaintiff further alleged that, on the date of the accident, he was a 'healthy, able-bodied man' of the age of fifty years, with a life expectancy of 20.91 years, and was earning $4,852.12 per year.

Plaintiff further alleged, in substance, that since the accident, he has suffered extreme pain in his back, hips and legs, and will continue to do so the rest of his life, the pain and suffering being permanent. His petition set forth the amount he allegedly had expended in medical bills as a result of the accident, and further alleged that he will be compelled to spend additional sums for medical treatment in the future.

The total amount of damages plaintiff prayed for was $132,720.20, including $101,409.20 for loss of future earnings, $25,000.00 for future pain and suffering, and $6,270.00 for future medical treatment.

Defendant's answer to plaintiff's petition contained a general denial, a plea of contributory negligence, and special denials that its employee, Dye, 'was in any way negligent in hitting the angle bar with a sledge hammer since this is a common customary and accepted method for moving 'angle bars' or 'joint bars' * * *' and that the tools used by plaintiff and Dye in the work were safe and proper, and the ones ordinarily used in such work. Defendant specifically denied that plaintiff suffered any injury that had impaired his ability 'to work or earn.'

When the case came to trial in November, 1964, plaintiff was allowed to file a reply in the form of a general denial, and it was stipulated that he had a life expectancy of 20.91 years. When plaintiff testified at the trial, defense counsel elicited from him, on cross examination, the information that, after he left defendant's employment, he had applied for, and received, unemployment benefits through the Railroad Retirement Board, beginning before October, 1963, and ending May 31, 1964; and that, on his applications therefor to said Board, he had answered affirmatively inquiries as to whether he was 'ready, willing and able to work.'

At the close of the trial, the cause was submitted to the jury under instructions which permitted it to include in its verdict, an assessment of damages for plaintiff's loss of future earnings, among the other items of damages he had alleged. After a general verdict for plaintiff in the sum of $47,900.00, judgment was entered accordingly. After other proceedings, unnecessary to mention, a motion for a new trial, filed by defendant, was overruled. Thereafter defendant perfected the present appeal.

Under its first proposition for reversal, defendant asserts that, in submitting the issue of plaintiff's alleged impairment of earning capacity to the jury, the trial court committed prejudicial error. This proposition evidently refers to the court's instruction No. 20, which was, in part, as follows:

'If you find that he (plaintiff) will suffer any disability in the future, you should take into account and consideration the extent to which he has been incapacitated to work and earn money in...