Torres v. Southern Pac. Co.

• Decision Date: 03 April 1968
• Citation: 260 Cal.App.2d 757,67 Cal.Rptr. 428
• Court: California Court of Appeals Court of Appeals
• Parties: Jose M. TORRES, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, Defendant and Respondent. Civ. 31030.

Page 428

67 Cal.Rptr. 428

260 Cal.App.2d 757

Jose M. TORRES, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, Defendant and Respondent.

Civ. 31030.

Court of Appeal, Second District, Division 4, California.

April 3, 1968.

Rehearing Denied April 23, 1968.

Hearing Denied June 26, 1968.

Magana, Olney, Levy & Cathcart, Jack Tenner and Ellis J. Horvitz, Los Angeles, for appellant.

Randolph Karr, William E. Still, Norman T. Ollestad, Los Angeles, for respondent.

COLLINS, Associate Justice. ^*

This action was brought under the Federal Employers' Liability Act (FELA), 45 U.S.C.A. § 51 et seq., to recover damages for personal injuries sustained by plaintiff on November 2, 1962, while working as a machinist on a diesel-electric locomotive at the repair shop of the defendant, Southern Pacific Company, an interstate common carrier by rail subject to the FELA.

On the date of the accident plaintiff was 56 years of age and had been a machinist in the employ of defendant for 17 years. On that date he was a member of a three-man crew working under a foreman and engaged in removing a crater pan cover from a traction motor with the aid of cable and hook equipment operated from a cab mounted on an overhead crane which moved on rails. Plaintiff was stationed in a pit, while his assistant, Moreno, was outside the pit and above him on the traction motor. The third member of the crew, Jones, was not engaged in the initial activity. The practice was for the crane operator to lower to position two cables to each of which was affixed a hook; then one hook would be placed in a hole in the crater pan and the other looped around a bar or rod, after which the crane operator, on signal, would haul in the cable causing it to become taut and to firmly hold the hooks in place. When the crater pan sticks sometimes a bar is used to pry it open. It is against safety regulations to shake the cables to break the pan loose. In this instance plaintiff encountered difficulty in placing his hook in the hole and keeping it there, so he held the hook in place with his right hand, and held the cable to the side with his left hand. Plaintiff testified that he called to the crane operator: 'Up one' which was an expression commonly used and understood by the workers to mean that the cable should be taken up slowly. Instead the crane operator hauled the cable up rapidly and plaintiff's right forearm became caught between the crossbar on the frame and the crater pan. Jones, the third worker, being alerted by Moreno, used an iron bar to force the crater pan away in order to free plaintiff's forearm. Approximately three weeks prior to the accident the old cable hooks had been replaced by new hooks 'which were smaller, closer hooks than the old ones.' The workmen had encountered problems with the new hooks. Plaintiff testified: 'The trouble was in attaching them or putting them on and also taking them off.' Both plaintiff and Moreno complained to Jones, who in turn told the general foreman, Smitty, but apparently no remedial measures were taken prior to the accident. Moreno's testimony as to how the accident happened agreed essentially with that of plaintiff, except Moreno recalled plaintiff merely said 'Up,' not 'Up one' to the crane operator.

Immediately following the accident plaintiff was hospitalized at California Emergency Hospital where his injury was diagnosed as 'severe crushing injury to the right forearm with rupture of blood vessels and extensive hemorrhage into soft tissue.' Plaintiff's initial hospitalization period was about two weeks followed by outpatient therapy for an additional three months. He returned to work on January 7, 1963, and continued working until August 2, 1963. Plaintiff testified that during the entire period following the accident he felt pain in the right arm; that at times he could not open his right hand; that he performed most of his work with his left hand; that he was still experiencing pain and discomfort in August 1963 when Southern Pacific referred him to its company hospital at San Francisco where X-rays were taken and medical examinations made. He remained there one month; on his return to Los Angeles he informed the Southern Pacific doctor that he was unable to return to work because his hand and arm were not improved and needed treatment which was not given him. He did return to work on January 14, 1964, and continued to work at his regular machinist duties until April 16, 1964, when he injured his left hand while operating an air gun with his right hand. He was referred to the Southern Pacific hospital for examination. He returned to work on May 18, 1964, and continued working up to the time of trial, although he was assigned to 'light duties' and never was permitted to put in overtime work, which prior to the original accident had averaged 48 hours a month at overtime rates of one and one-half times the regular rate. On November 2, 1962, his regular hourly pay rate was $2.74 and at the time of trial the rate of $3.04 an hour. The normal work period was 40 hours a week.

At the trial on February 15, 1966, plaintiff testified that he continued to feel bad, that he had not received any helpful treatment, that he had been in continuous pain since the time of the accident; that his sleep was impaired; that he had no strength (grip) in his right hand, and at times had trouble opening his right hand and using his fingers. In addition, he added to his original complaint of arm injury claims of pains in his neck and shoulder area.

The hospital records of California Emergency Hospital covering plaintiff's admission, confinement and treatment for the period November 2 through November 17, 1962, were received in evidence. These records, particularly the nurse's notes, show that dressings were changed daily; that ice packs were applied regularly; that sedatives and other medicants were administered; that the patient complained of pains in the arm rather continuously; that after the first few nights he slept well at night; that the swelling in his fingers and arm had practically disappeared by the thirteenth day in the hospital; that he was discharged from the hospital on November 17th with instructions to return for outpatient observation on a monthly basis. The monthly reports thereafter disclosed that the patient demonstrated a relatively lower gripping power in the right hand compared to the left hand, but the doctor's report stated that the patient was not putting forth his best effort when gripping with the right hand. The doctor's last supplemental report of examination made on July 19, 1963, stated that no permanent disability was anticipated other than the existing slight cosmetic cleft in the right forearm.

A neurological surgeon, testifying for plaintiff, stated that he was engaged by plaintiff's attorney to make three separate examinations for the purpose of evaluating plaintiff's disability but not for purposes of treatment. These examinations took place on March 30, 1964, March 1, 1965, and February 14, 1966--each approximately one year apart. The doctor first saw the California Emergency Hospital records at the time of the third examination in February 1966. He did not rely on these records but upon the history given him by the patient and his own examinations. The doctor's first report to plaintiff's attorneys in March 1964 referred to a marked weakness in the shoulder girdle on the right with evidence of wasting of the scapular muscles on the right--which would be the lower half of the shoulder blade. The doctor recalled that plaintiff complained of neck pain at the time of the first examination and this is mentioned in his notes but not in his first report. The doctor acknowledged that X-rays are a diagnostic tool of the medical profession, but that no X-rays were ordered by him in March 1964, that it was on March 1, 1965, one year later, that he first ordered X-rays. On the basis of his examinations, the doctor concluded at the time of trial that plaintiff sustained injuries in the accident which resulted in various permanent disabilities, to-wit,...