Waller v. Southern Pac. Co.

• Court: California Supreme Court
• Writing for the Court: MOSK; TRAYNOR
• Citation: Waller v. Southern Pac. Co., 57 Cal.Rptr. 353, 66 Cal.2d 201, 424 P.2d 937 (Cal. 1967)
• Decision Date: 21 March 1967
• Parties: , 424 P.2d 937 John F. WALLER, Plaintiff and Respondent, v. SOUTHERN PACIFIC COMPANY, Defendant and Appellant. Sac. 7793. In Bank

Page 353

57 Cal.Rptr. 353

66 Cal.2d 201, 424 P.2d 937

John F. WALLER, Plaintiff and Respondent, v. SOUTHERN PACIFIC COMPANY, Defendant and Appellant.

Sac. 7793.

Supreme Court of California,

In Bank.

March 21, 1967.

Diepenbrock, Wulff & Plant and Robert R. Wulff, Sacramento, for defendant and appellant.

Colley & McGhee and Nathaniel S. Colley, Sacramento, for plaintiff and respondent.

MOSK, Justice.

Defendant appeals from a judgment in favor of plaintiff entered on a jury verdict in a personal injury action brought under the Federal Employers' Liability Act (hereinafter called F.E.L.A.).

Defendant maintains that the evidence is insufficient to justify the conclusion either that defendant was negligent or that its negligence played any role in aggravating plaintiff's preexisting condition; that hypothetical questions propounded to plaintiff's expert were not accurate statements of the record and contained facts contrary thereto; that the court erroneously instructed the jury on the applicable test for determining defendant's liability under the F.E.L.A.; and that the court erroneously refused to limit the charge of negligence to the 'proper' time period. We have concluded that these contentions lack merit and that the judgment should be affirmed.

Inasmuch as an attack has been made upon the sufficiency of the evidence, we shall briefly summarize the facts viewed in a manner most favorable to the plaintiff who prevailed below, as required on appellate review. (See Estate of Teel (1944) 25 Cal.2d 520, 527, 154 P.2d 384; Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183; Laymon v. Simpson (1964) 225 Cal.App.2d 50, 52, 36 Cal.Rptr. 859.)

Plaintiff had been employed as a train dispatcher for defendant Southern Pacific Company and other railroads since 1942. After 1954 he worked in defendant's Sacramento office on the 4 p.m. to midnight shift. In 1950 he entered the Southern Pacific Hospital in San Francisco, suffering from sharp chest pains which radiated into his arms. The hospital record notes enlargement of the heart, mild coronary insufficiency, normal heart sounds, an ulcer possibility, plus spasms of the cardiac sphincter (a portion of the digestive tract). A 1958 entry in the hospital records included a diagnosis of hypertensive vascular disease. In May 1959 a private physician suggested a thorough examination at the Southern Pacific Hospital. Plaintiff was admitted to the hospital and placed under the care of Dr. Bradford Simmons, a general surgeon. A diagnosis of general arteriosclerosis was made. A bilateral sympathectomy was performed in the hope of relieving arterial constriction in his legs.

A rule of the railroad prevented any hospitalized employee from returning to work without medical authorization. Plaintiff was discharged from the hospital on June 2, 1959, with a certificate evidencing his 'fitness for duty.' He resumed his work as a train dispatcher on June 8, 1959.

The job required plaintiff to issue and record orders for the movement of all trains in an assigned area. There was evidence, both lay and medical, justifying the jury conclusion that the position was exacting and exposed its occupant to tension and emotional stress.

In November 1961 plaintiff returned to the Southern Pacific Hospital for a checkup. He complained of severe chest pains occurring after exercise. Although testing the subsidiary diagnoss appear to have been conducted by other doctors, Dr. Simmons and Dr. Charles J. Monahan, also a general surgeon, were primarily responsible for his diagnosis and treatment. The doctors concluded that the patient had definite coronary artery insufficiency; that he had angina pectoris symptoms, caused by a worsening of the arteriosclerotic condition, and that he could not safely return to work. In December 1961 plaintiff was informed by the company that he would not be restored to duty as a train dispatcher without permission of the chief surgeon at the Southern Pacific Hospital. This permission was not forthcoming.

The instant suit was tried on the theory that it was negligence for defendant to conceal from plaintiff the true nature of his illness, informing him prior to 1959 only that he was suffering from an upset in his digestive system when in fact he also suffered from cardiovascular disorders. Negligence was also predicated on the assignment of plaintiff to duties between 1959 and 1961 which defendant knew, or should have known, would aggravate his condition.

At the threshold it must be emphasized that substantive state law is inapplicable to litigation based upon the F.E.L.A. (see Garrett v. Moore-McCormack Co. (1942) 317 U.S. 239, 244, 63 S.Ct. 246, 87 L.Ed. 239), and that the question of sufficiency of the evidence is controlled by federal law. (Davee v. Southern Pac. Co. (1962) 58 Cal.2d 572, 576, 25 Cal.Rptr. 445, 375 P.2d 293.)

In Rogers v. Missouri Pacific Railroad Co. (1957) 352 U.S. 500, 506--507, 77 S.Ct. 443, 448--449, 1 L.Ed.2d 493, the Supreme Court set out the applicable standards for review in an action under the F.E.L.A.: 'Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities. The statute expressly imposes liability upon the employer to pay damages for injury or death due 'in whole or In part' to its negligence. (Emphasis added.)' The court went on to point out, 'for practical purposes the inquiry in these cases today rarely presents more than the single question whether negligence of the employer played nay part, however small, in the injury * * * which is the subject of the suit. The burden of the employee is met, and the obligation of the employer to pay damages arises, when there is proof, even though entirely circumstantial, from which the jury may with reason make that inference.' (Id. at p. 508, 77 S.Ct. at 449.)

More recently the Supreme Court has said: 'It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. Washington & Georgetown R. Co. v. McDade, 135 U.S. 554, 571, 572 10 S.Ct. 1044, 1049, 34 L.Ed. 235; Tiller v. Atlantic Coast Line R. Co., supra, 318 U.S. 68, 63 S.Ct. 451 (87 L.Ed. 610); Bailey v. Central Vermont Ry., 319 U.S. 350, 353, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444. That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. Courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.' (Italics added.) (Gallick v. Baltimore & Ohio R. Co. (1962) 372 U.S. 108, 114--115, 83 S.Ct. 659, 664, 9 L.Ed.2d 618, quoting from Tennant v. Peoria & P.U. Ry. Co. (1943) 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520.)

These and numerous other pronouncements of a similar nature induced the Court of Appeals for the Seventh Circuit to suggest that '(u)nder the recent decisions of the United States Supreme Court in F.E.L.A. cases, speculation, conjecture and possibilities suffice to support a jury verdict.' (Gibson v. Elgin, Joliet & Eastern Railway Co. (7th Cir. 1957) 246 F.2d 834, 837, cert. denied, 355 U.S. 897, 78 S.Ct. 270, 2 L.Ed.2d 193; but see menorandum of Mr. Justice Frankfurter (ibid.).) We need not adopt the somewhat cynical position suggested by the court in Gibson, since under the test enunciated in Rogers v. Missouri Pacific Railroad Co. (1956) supra, 352 U.S. 500, 506--507, 77 S.Ct. 443, 1 L.Ed.2d 493, there is sufficient evidence in the record here to support the jury's verdict.

Detailed in the margin are the relevant portions of a series of hypothetical questions propounded by plaintiff to his expert Dr. Abraham McIntosh, and the doctor's answers thereto. ¹ It is readily apparent from a reading of these questions and answers that the jury could have inferred therefrom it was reasonably foreseeable that a person with plaintiff's symptoms and condition would have the symptoms and condition aggravated by assignment to a job involving great responsibility, stress and tension. The interrogation also reveals the doctor was of the opinion that if the duties of train dispatcher would make plaintiff's condition worse in 1961, as defendant's doctors admitted both by a letter discussed hereinafter and by direct testimony, those same duties would have also injured him between 1959 and 1961. From this the jury could have inferred that defendant was negligent in reassigning plaintiff to his work in 1959.

Defendant contends that...