Underwood v. Missouri-Kansas-Texas R. Co.

• Decision Date: 11 May 1963
• Docket Number: No. 43113,MISSOURI-KANSAS-TEXAS,43113
• Citation: 381 P.2d 510,191 Kan. 338
• Parties: Joseph M. UNDERWOOD, Appellee, v.RAILROAD COMPANY, Appellant.
• Court: Kansas Supreme Court

Page 510

381 P.2d 510

191 Kan. 338

Joseph M. UNDERWOOD, Appellee, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Appellant.

No. 43113.

Supreme Court of Kansas.

May 11, 1963.

Syllabus by the Court

The record in an action to recover damages for personal injuries pursuant to the Safety Appliance Act (45 U.S.C.A. § 1 et seq.) is examined and, as more fully set forth in the opinion, it is held: (1) The verdict of the jury as approved by the district court was not excessive nor given under the influence of passion and prejudice; (2) the district court was not guilty of an abuse of discretion in limiting the defendant in the use of medical expert witnesses; (3) instructions Nos. 3, 5, 9 and 12 are examined and found to fairly state the law applicable in the instant case, and (4) claimed errors of the district court during the trial which were not raised on the motion for a new trial are, as a general rule, regarded as waived.

Paul L. Wilbert, Pittsburg, argued the cause, and Randall D. Palmer, E. Carter Botkin and Alois R. Bieber, Pittsburg, and Frank J. Rogers, Kansas City, Mo., were with him on the briefs, for appellant.

Payne H. Ratner, Jr., Wichita, argued the cause, and Payne H. Ratner, Louise Mattox, Cliff W. Ratner, R. R. Barnes and Tyler C. Lockett, Wichita, and Davis S. Carson and Murvyl M. Sullinger, Pittsburg, were with him on the briefs, for appellee.

FATZER, Justice.

This was a personal injury action brought by the plaintiff, Joseph M. Underwood, an employee of the defendant railroad, pursuant to the Safety Appliance Acts (45 U.S.C.A. § 1 et seq.). These acts are substantially, if not in form, amendments to the Federal Employers' Liability Act (45 U.S.C.A., §§ 51-59), and are supplemental to the latter act. (Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282.)

Following a trial on the merits, the jury awarded the plaintiff damages in the amount of $34,000. The defendant's post-trial motions were overruled, and the district court approved the jury's verdict and entered judgment for the plaintiff. The railroad company has appealed.

The evidence disclosed that the plaintiff was injured on December 27, 1960, while working as a switchman in the defendant's yards in Parsons, Kansas. At the time of the trial the plaintiff was 46 years of age and had been employed by the defendant a little over 20 years. He testified he had not sustained any prior back or neck injuries.

On the day in question plaintiff and his crew were switching two 'bad order' or defective cars which had been cut out of defendant's train for the purpose of moving the cars to the 'rip' or repair track. One was a flat car loaded with posts and the other was a tank car. It was the plaintiff's duty to board the cars and apply the hand brake so as to keep the cargo from shifting and doing further damage. As the cars came past the plaintiff they were traveling northward about six miles per hour with the tank car in the lead. Plaintiff observed the brake was clear on the tank car and the brake on the flat car was fouled by the posts--the posts had already shifted so that they were pushing the hand brake. Plaintiff attempted to board the tank car to apply the hand brake. There are three steps on the first ladder up to a platform that runs around the edge of the tank car. Above the platform and running around the entire tank is a handrail to enable the workmen to safely stand on the platform and walk around the car or apply the brake. Plaintiff climbed up four or five feet on the ladder and reached up with his right hand to get hold of the handrail to pull himself up on the platform but when he pulled on the handrail it broke and came loose and caused him to fall backward from the car landing on his left hip on a rail of an adjoining track. He fell doubled up and his momentum caused him to fall so that his head struck the ball of the rail. Other cars had been switched on the track upon which he fell and plaintiff saw them coming toward him. He rolled off toward the west, got up and walked down to where the tank car was, picked up the piece of the handrail which had broken off from the car and walked back up to the switch shanty. He testified he did not feel good, that he was sore and shaken up but was still able to walk around. A fellow workman, L. J. Cary, was standing near where the accident occurred. Plaintiff reported the accident to his foreman, and stated they would have to make out a 335 (accident) report. He did not make the report that afternoon, but went home, took some aspirin and went to bed. The next morning he attempted to call Dr. Beaty, the company physician in Parsons, but it was the doctor's day off. When he saw Dr. Beaty on December 29, 1960, he was having headaches, his neck and shoulders were stiff and he had pain down through his back and hips. Plaintiff worked January 2, and 3, 1961, but had severe headaches and became very tired. On January 3, plaintiff took a picture of the tank car before it was repaired. He returned on January 6, after the car had been repaired and took two more pictures. All of the pictures were admitted in evidence at the trial.

During January the headaches continued. When plaintiff moved around, his back, legs and arms hurt and he went to Dr. Beaty to try to get some relief but the pills prescribed did not help.

On February 21, 1961, plaintiff went to see a specialist, Dr. W. W. Hurst, a member of the American Association of Railroad Surgeons, at Joplin, Missouri. Dr. Hurst examined him and prescribed a leather brace with metal reinforcements to be worn around the lumbar section of his back, and also prescribed exercises. Plaintiff wore the brace and followed the exercises prescribed. Plaintiff saw Dr. Hurst again on March 6, and on April 3, 1961, and at those times Dr. Hurst gave him diathermy treatments. On March 28, 1961, Dr. Beaty referred the plaintiff to a specialist in Kansas City who examined him. About the end of March the soreness started to work out of plaintiff's neck and back. Dr. Hurst advised plaintiff he could try working if he wore the brace and Dr. Beaty examined him and released him for work. On April 21, plaintiff reported for the same job he previously had.

Plaintiff wore the brace while working, but he had trouble sleeping, and could not lie down at night without getting up and walking around. His back continued to hurt. He worked four days, had two rest days, and was off three days. During May he was off sick but it was not his back. On May 2, he was hit by an air hose when he uncoupled a car. It hurt his leg and he laid off from work on May 5, on that account and for pain in his back. Plaintiff's job necessitated that he do a great deal of walking and set many brakes, and the jar from walking and setting brakes hurt his back and shoulders. When he mounted cars moving four or five miles an hour it irritated his back and bothered him more. He was off several days in June but only one day on account of his back. He worked about eleven days as foreman where he did not have to throw as many switches or walk as much or board as many cars. The first of July plaintiff changed to foreman on the afternoon shift and worked from 3:55 to 11:55 p. m. This job was easier on him, but every time he set a brake it started his back to hurting and when he got off of a car going too fast, it would bother him. Since the injury, his neck and head have improved considerably and sometimes he gets along pretty well with his back and at other times it bothers him.

Plaintiff lost 81 days from work which at his rate of pay of $22.50 per day totaled $1,822.50. Plaintiff's pain prevented him from sleeping and he found it extremely hard to carry on the duties of his employment. His wife testified that he was very restless and could not sit or rest any length of time. Further, that he was not able to do any lifting or run a power mower. In answer to a question whether the plaintiff's injuries were permanent Dr. Hurst answered in the affirmative and rated his disability at 25 percent of the body. He further testified that plaintiff needed an operation to fuse the 4th and 5th lumbar vertebrae with the sacrum. When questioned as to the effect of plaintiff's permanent injury as related to loss of future earnings Dr. Hurst testified that plaintiff could not do heavy work such as setting brakes on a box car or stooping under a box car because of his wearing a back brace and the fact that his spine was not supple. He further testified that plaintiff's spinal injury would shorten his period of being industrially employable. Dr. Hurst made the following answers to the following questions:

'Q. Let me ask you this: Is this type of injury one that causes pain in an individual such as Mr. Underwood?

'A. Yes, he has typical pain symptoms--You can almost make a diagnosis from what the man told you if you listen to his story: pain, low back, radiating out into the buttocks, and I venture to say, all spondylolisthesis cases make the same complaint, and I can almost make a finding before x-ray.

'Q. Do you expect him to have pain in the future?

'A. Yes. He will have pain--he has got to accept it.'

Upon cross-examination Dr. Hurst testified that plaintiff did have a developmental defect in his low back consisting of a failure of fusion of the lamina arches that protect the spinal cord. He explained that the spinal ligaments hold the vertebrae in position but that when sudden stress is placed upon them, the ligaments tear and allow a hemorrhage to occur.

Two medical experts testified for the defendant. The first was Dr. Beaty who testified he found the developmental defect described by Dr. Hurst and described the defect as 'spondylolisthesis.' He agreed that with this type of spine it would take less injury to make it disabling than with a normal type of back. He further testified that plaintiff would not be acceptable for employment by the defendant, however, he expressed an opinion that the plaintiff...