Thompson v. Tippit

• Decision Date: 14 March 1957
• Docket Number: No. 13077,13077
• Citation: 300 S.W.2d 351
• Parties: Guy A. THOMPSON, Trustee, et al., Appellants, v. Orville J. TIPPIT, Appellee.
• Court: Texas Court of Appeals

Page 351

300 S.W.2d 351

Guy A. THOMPSON, Trustee, et al., Appellants, v. Orville J. TIPPIT, Appellee.

No. 13077.

Court of Civil Appeals of Texas, Galveston.

March 14, 1957.

Rehearing Denied April 4, 1957.

Hutcheson, Taliaferro & Hutcheson, Woodul, Arterbury & Wren and Roy L. Arterbury and Carroll R. Graham, Houston, for appellant.

Enlow & Kee and Floyd Enlow and Leland B. Kee, Angleton, for appellee.

GANNON, Justice.

Plaintiff, Orville J. Tippit, aged forty, and employed for many years in railroad section work-first as a hand and later as a foreman-sued Missouri Pacific Railroad Company, successor to the liability of Guy A. Thompson, Trustee of the St. Louis, Brownsville & Mexico Railway Company, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages resulting from a heart attack suffered in the performance of the duties of his employment.

Plaintiff experienced his heart attack while engaged in the work of replacing two very heavy 16-foot ties which supported the main line as well as a very weighty mechanical switching device placed alongside it. Plaintiff alleged negligence in the employer's failure to furnish a sufficient force of men to do the work, as a result of which failure plaintiff with the aid of but one other man was required to pull the old rotted ties from under the main line and the switching machine and up over a nearby team track, and later replace the removed ties with new ones. There is proof that the ties weighed as much as 500 pounds apiece.

On the occasion in question the over-all work was being conducted by a section crew of which plaintiff was foreman. Ordinarily the crew consisted of plaintiff and five others, but on the day of plaintiff's heart attack the crew was short one vacationing employee. By reason of the presence of the switching machine and certain subjoined steel plates, the detail of preparing to remove the ties is complicated. Even after the switching machine and rails are jacked up, three men are required to lift the weight of the rails and the machine and subjoined plates off of the switch ties while the actual removal of the ties is in process. In the case of a short-handed crew this leaves only two men to do the actual work of loosening and removing, pulling and replacing the heavy and lengthy 16-foot ties which support the track and the switching machine. On the occasion in question plaintiff and one other man, Taylor Hall, undertook this part of the work.

It is plaintiff's claim that it was negligence for his employer to require him with the aid of only a four-man crew to attempt the work and to undergo the severe strain to which he necessarily subjected himself in doing it, which strain plaintiff claims proximately caused his heart attack. It is plaintiff's position that an additional man by the use of a crowbar to pry under the ties and push them forward would have prevented plaintiff's being subjected to excessive strain and physical exertion in his part of the work, as he and Taylor Hall pulled on and lifted the ties with hook tongs, and that has such extra man been furnished the strain to which plaintiff was subjected would have been so mitigated that his heart attack would not have ensued.

There is evidence that before undertaking the work of removing and replacing the switch ties plaintiff requested his road master to furnish at least one additional man to replace the member of the section crew on vacation, to assist in the work of replacing the ties, but that the request was refused. Plaintiff's heart attack occurred on June 27, 1952, and there is evidence that plaintiff was instructed by the road master to do the work as best he could with the men he had and to get the ties in before the 1st of July.

Defendant argues strenuously that the plaintiff as foreman should have waited until the 30th day of June to undertake the work, on which day the crew member on vacation was expected back, and that there is no evidence in the record that the employer expected or required plaintiff to do the work short-handed. We think this argument lacks merit. Plaintiff's testimony is that he was instructed by the road master 'to do the best we can with what we had to do it with' and that the road master refused another man to replace the vacationing employee. This, we think, amounts to a categorical instruction to do the work short-handed, and circumstances considered defendant is in no position to claim it could not be anticipated that plaintiff would undertake the work with only himself and four additional men before the very last day upon which it would be possible to do the work within the required time. In going ahead before the return of the absent employee it seems to us plaintiff was only being prudent and faithful. Had he waited until the last day of the month during which he had been positively instructed to get the work done, inclement weather or other emergency might have prevented it being accomplished within the commanded time limit.

The case was submitted to the jury on special issues, in response to which it was found: (a) that plaintiff sustained his heart attack in the course of the work of replacing the switch ties, (b) that his employer failed to furnish a sufficient number of men to do the work safely, (c) that such failure was negligence, and (d) that such negligence proximately caused plaintiff's heart attack. The verdict relieved defendant of a charge of negligence in failing to supply proper mechanical aids to enable the work to be done safely. The jury fixed plaintiff's damages at $72,000. Judgment on the verdict followed.

The principal points at issue on the appeal are: (a) is there support in the evidence for the jury's finding of negligence? and (b) if so, does the record support the finding of proximate causation?

It is undisputed that on the occasion in question plaintiff sustained a coronary thrombosis. It is equally undisputed that prior to this occurrence so far as was known to either plaintiff or his employer plaintiff was a robust, sound, healthy, individual, 40 years of age, of greater than ordinary stature and muscular development. Neither he nor his employer had any prior warning of the condition of plaintiff's arterial system which rendered him susceptible to coronary thrombosis, and the record is undisputed that no amount of physical exertion can cause coronary thrombosis in the absence of an abnormal or diseased condition of the arteries or veins, resulting from deposits of cholesterol or fatty substances which predispose thereto. We see no material or substantial divergence in the testimony of the medical witnesses on this, either those of plaintiff or defendant. Apparently all are of one school and one thought.

The processes which predispose to heart attack are well summed up by plaintiff's witness, Dr. James B. Stubbs, a specialist in the field and a professor of internal medicine at the Texas School of Medicine at Galveston. Before testifying Dr. Stubbs had examined plaintiff, was informed of his history, and had evaluated his electrocardiograms. He described plaintiff's heart condition as 'An area (partial) of localized death of the heart muscle.' Asked to describe the nature of the damage to plaintiff's heart, he testified, 'That means that the artery which supplies the heart muscles which are known as the coronary arteries-coronary means 'crown'-these arteries encircle the upper part of the ventricle like a crown. The coronary arteries, one or more, of the branches of the coronary arteries, have become stopped up and have lost their ability to carry a sufficient supply of blood into the heart muscle; the heart muscle, being without blood, uses up its reserve of nutrient oxygen and in the process dies.' Asked if Mr. Tippit's heart attack could have resulted from unusual strain and overexertion he said it could and explained that 'The strain was too great for the condition of the coronary circulation on that day.' However, in amplifying, the doctor said: 'The normal coronary artery can withstand just about any amount of exertion or strain demanded for increased blood supply.' The doctor went on to explain that 'in some individuals there is an accumulation (in the circulatory system) of a little fatty substance known as lipod' and that 'This accumulation of this material encroaches upon the lumen of the coronary arteries so that there is not as much blood going to get to them' so that when increased demands from exertion are placed upon the heart, the coronary arteries are not able to fulfill their responsibilities (to supply blood) and the heart begins to show the effect by doing its work improperly and heart attack results. The doctor explained that change in coronary circulation is gradual and will exist for a considerable time before it would likely cause trouble from physical exertion, since 'if a man's coronary vessels are in good shape, normal, the physical exertion does not bother him.' However, he stated that in Mr. Tippit's case some time prior to his heart attack there had been an accumulation of cholesterol or fatty plaques that affected the normal flow of blood to the heart. The doctor stated Mr. Tippit would have no way of anticipating he would experience this heart attack on the occasion in question. Referring to the deteriorated condition of Mr. Tippit's blood vessels, the doctor explained that in the case of heart attack there is a 'predisposing cause and then an exciting cause' and that Mr. Tippit had a condition 'to prevent a sufficiency of flow' (of blood) when the exertion came and that whatever that condition was, it did not exist back when Mr. Tippit was able to do strenuous physical labor without ill effect. In the case of one with Mr. Tippit's arterial condition a heart attack can be precipitated by severe exertion or even by excitement from watching a horse race or a foot ball game.

Dr. Harrison, another of plaintiff's medical witnesses, explained...