ST. LOUIS SOUTHWESTERN RAILWAY CO. v. Richardson

• Decision Date: 07 January 1955
• Docket Number: No. 15191.,15191.
• Citation: 218 F.2d 283
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY OF TEXAS, Appellant, v. R. A. RICHARDSON, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

218 F.2d 283 (1955)

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY OF TEXAS, Appellant, v. R. A. RICHARDSON, Appellee.

No. 15191.

United States Court of Appeals, Fifth Circuit.

January 7, 1955.

John A. Kerr, Cal Estill, Fort Worth, Tex., John W. Murphy, Tyler, Tex., Adair Dyer, Dallas, Tex., Stone, Agerton, Parker & Kerr, Fort Worth, Tex., for appellant.

Denning Schattman, Maurice M. Davis, Fort Worth, Tex., Davis, Schattman & Lewis, Fort Worth, Tex., for appellee.

Before HUTCHESON, Chief Judge, RIVES, Circuit Judge, and DAWKINS, District Judge.

DAWKINS, District Judge.

Plaintiff (appellee) brought this action under the Federal Safety Appliance Act¹ and the Federal Employers' Liability Act² seeking recovery for alleged injuries sustained while in the performance of his duties as a switchman for the appellant in its Texarkana yards on December 1, 1950. He alleged that while attempting to set a hand brake on a box car, the brake rod broke and he was thrown violently over the wheel and against the end of the car, causing injury particularly to his lower back.

The evidence discloses that the car upon which the alleged accident occurred was equipped with an Ajax type brake which is arranged substantially as follows: On the back end at the top of the car there is a lever and a wheel. Attached to the wheel is a chain which extends downward approximately one-third the height of the car through a platform upon which the operator of the brake stands. Just beneath the platform the chain is connected to a vertical rod which extends to the bottom of the car. A series of chains and rods runs beneath the car toward the front or "a" end of the car to the brake shoes. The operator moves the lever to his left to "on" position and then turns the wheel to tighten all of the connections and force the brake shoes against the wheel.

At the time of the accident, plaintiff had been instructed by his foreman to set the brake on this car which was standing on one of the yard tracks. Plaintiff stated that he climbed to the platform and had turned the wheel to some extent when the brake rod suddenly broke, causing the wheel to spin loosely, and he was thrown over the wheel against the end of the car, thereby injuring his back. Plaintiff had been injured in another accident in August of 1947, but said this was to his side, and he had recovered within a few months with no subsequent ill effects.

The night foreman (mechanical department) testified he arrived at the car about fifteen minutes after the accident and inspected the rod; that it was freshly broken and otherwise described the condition of the brake mechanism; that the brake lever was in the "off" position, one of the chains beneath the car was "hanging down", and this indicated to him there had been no attempt to set the brake. He explained that before the brake could be applied it was necessary to move the lever to the "on" position, and, in his opinion, it would have been impossible to break the rod by applying hand pressure to the wheel and that such breaks were usually caused by cutting off the air when the car stopped, thus causing the emergency mechanism to function with sufficient suddenness to snap the brake rod.

The yardmaster testified he had never known a rod to be broken by hand pressure on the wheel at the back of the car. On cross-examination he stated that the rod might break from such pressure if there were a defect in it but that it would have to be "practically rusted through down to a very small point."

There was considerable conflicting testimony as to the time when plaintiff first manifested and complained of a back ailment. The records of the railroad hospital were introduced, covering plaintiff's first injury in 1947 and all his subsequent visits thereto. These showed that he complained of a back ailment prior to the accident involved here. There was also the report of Dr. Oxford, an orthopedic surgeon, dated June 20, 1949, covering a visit to him by plaintiff, which the latter objected to as hearsay. Several fellow workmen also testified that plaintiff had complained about his back intermittently since his injury in 1947 and that they had noticed no apparent change in his condition or in the manner in which he did his work since the accident of 1950.

Plaintiff denied that he had complained with his back prior to the accident in December, 1950, and specifically denied that he had sought advice and treatment from Dr. Oxford for a back condition. Appellant offered Dr. Oxford as a witness for the stated purpose of impeaching plaintiff on this point. The doctor himself took the position that any remarks made to him by the plaintiff were privileged because of the physician-patient relationship, whereupon counsel for plaintiff objected to any testimony on the ground that it was privileged. There was general discussion of the alleged privilege by the Court and attorneys, and the Court sustained plaintiff's objection; however, he allowed counsel for appellant to take the testimony of Dr. Oxford outside the presence of the jury so that it might appear in the record.

There was a verdict and judgment for plaintiff in the sum of $7,000.00 from which defendant appeals. Appellant's alleged errors may be summarized as follows: (1) the Court's excluding the testimony of Dr. Oxford on a plea of professional privilege raised by the doctor himself; (2) charging that, as a matter of law, appellant had violated the Safety Appliance Act and the only question for the jury was whether plaintiff sustained any injuries and to what extent; (3) omitting the element of foreseeability in charging the jury as to the meaning of the term "proximate cause"; and (4) submitting to the jury alleged claims for future medical and hospital expenses when admittedly there was no evidence to support them.

On the first point, plaintiff concedes there was no physician-patient privilege. Consolidated Underwriters v. Foxworth, Tex.Civ.App., 196 S.W.2d 87; Bonewald v. State, 157 Tex.Cr.R. 521, 251 S.W.2d 255. See also 44 Tex.Jur. 1075. Even so, it is argued that the exclusion of Dr. Oxford's testimony was harmless since it would only have been cumulative of much other evidence contradicting plaintiff's statements about his back.

It is true that several fellow workmen testified plaintiff had complained of his back prior to his second alleged injury; however, as will be discussed in more detail later, plaintiff's credibility was most definitely an important factor in the case. He had emphatically stated that he had not complained to Dr. Oxford of trouble in his back, and no other person could contradict his statement. Actually, the testimony of the doctor which was taken out of the presence of the jury shows that it might well have been most damaging to plaintiff's case. Moreover, had the question of privilege not been erroneously injected into the case, the examination of the doctor no doubt would have been more complete. We think the error was clearly prejudicial. Pure Oil Pipe Line Co. v. Ross, 10 Cir., 51 F.2d 925.

The second alleged error arose when the trial judge...