Waller v. Southern Pacific Co.

• Decision Date: 01 November 1966
• Citation: 54 Cal.Rptr. 421
• Court: California Court of Appeals Court of Appeals
• Parties: John F. WALLER, Plaintiff and Respondent, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Appellant. Civ. 11189.

Page 421

54 Cal.Rptr. 421

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

Civ. 11189.

District Court of Appeal, Third District, California.

Nov. 1, 1966.

Rehearing Denied Nov. 28, 1966.

For Opinion on Hearing, see 57 Cal.Rptr. 353, 424 P.2d 937.

Diepenbrock, Wulff & Plant by Robert R. Wulff, Sacramento, for appellant.

Colley & McGhee, by Nathaniel S. Colley, Sacramento, for respondent.

FRIEDMAN, Justice.

John F. Waller, a former train dispatcher for the Southern Pacific Company, sues the railroad under the Federal Employers' Liability Act, alleging negligence of the railroad's medical personnel in returning him to a job whose work stress caused cumulative aggravation of his arteriosclerosis to the point of disability. A jury awarded Waller damages of $35,000. Defense motions for judgment notwithstanding the verdict and for new trial were denied. Principal ground raised by the railroad's appeal is absence of any evidence to justify the verdict.

A reviewing court's appraisal of the evidence to determine whether a jury question exists in a FELA case is governed by the rule or test announced in Rogers v. Missouri P.R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493. Judicial inquiry is narrowly limited to the single inquiry "whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death * * * " (Rogers v. Missouri P.R. Co., supra, 352 U.S. at p. 506, 77 S.Ct. at p. 448; see also Dennis v. Denver & Rio Grande Western R.R. Co., 375 U.S. 208, 210, 84 S.Ct. 291, 11 L.Ed.2d 256; Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108, 116, 83 S.Ct. 659, 9 L.Ed.2d 618; Inman v. Baltimore & Ohio R. Co., 361 U.S. 138, 140, 80 S.Ct. 242, 4 L.Ed.2d 198; Webb v. Illinois Central R. Co., 352 U.S. 512, 516, 77 S.Ct. 451, 1 L.Ed.2d 503; Annot. 4 L.Ed.2d pp. 1787-1818; Note, 98 A.L.R.2d 653 at pp. 663-677.) It is also said: "Only when there is a complete absence of probative facts to support the conclusion reached [by the jury] does a reversible error appear." (Dennis v. Denver & Rio Grande Western R.R. Co., supra, 375 U.S. at p. 210, 84 S.Ct. at p. 293, quoting from Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916.)

Mr. Waller had been employed as a train dispatcher for Southern Pacific Company and other railroads since 1942. From 1954 onward he worked in the Sacramento office of Southern Pacific as a train dispatcher on the 4 p.m. to midnight shift. In 1950 he entered the Southern Pacific General Hospital in San Francisco, suffering from sharp chest pains which radiated into his arms. The hospital record notes some enlargement of the heart (which was not beyond the range of average size), mild coronary insufficiency, normal heart sounds, an ulcer possibility plus spasms of the cardiac sphincter (a portion of the digestive, not coronary, tract) possibly incited by heavy smoking. 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 construction in his legs. A rule of the railroad prevented any hospitalized employee from returning to work without medical authorization. Waller was discharged from the hospital on June 2, 1959, with a certificate evidencing his fitness for duty. He resumed his work in Sacramento as a train dispatcher on June 8, 1959.

As a train dispatcher Waller issued and recorded orders for the movement of all trains in an assigned area. Train movement orders were carried by radio. There was evidence, both lay and medical, justifying a jury conclusion that the position was exacting and exposed its occupant to tension or emotional stress.

In November 1961 Mr. Waller returned to the Southern Pacific hospital for a checkup. He complained of severe chest pains after exercise. Although testing and subsidiary diagnoses appear to have been conducted by other doctors, Dr. Simmons and Dr. Charles J. Monahan, also a general surgeon, were primarily responsible for diagnosis and treatment. The doctors concluded that the patient had definite coronary artery insufficiency; that he had angina pectoris symptoms, caused by worsening of the arteriosclerotic condition; that the stress of his work might culminate in a heart attack; that he could not safely return to work. In December 1961 he 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 General Hospital. Waller was 51 years old at the time.

During the early months of 1962 Waller made efforts to persuade company officials to permit his return to work. He sought support in a medical diagnosis contradicting that of the doctors at the Southern Pacific hospital. His efforts were unsuccessful. He filed this action in July 1962. On the basis of the parties' pretrial conference statements, the pretrial order described the negligence charge as one centering upon the company's action in returning Waller to work in June 1959 and continuing him as a train dispatcher after that date.

Southern Pacific does not question the agency relationship between it and the physicians on the staff of the Southern Pacific General Hospital. In McGuigan v. Southern Pacific Co., 129 Cal.App.2d 482, 277 P.2d 444, the court considered that relationship in the light of the fact that the hospital is in many ways a separate entity and an independent contractor. Essentially, McGuigan holds that the railroad utilizes the hospital doctors to determine occupational fitness of the railroad's employees, thus gaining a financial benefit from the doctors' actions and assuming liability for medical negligence. (129 Cal.App.2d at pp. 493-496, 277 P.2d 444.) While some aspects of the relationship between the railroad and the hospital may have altered since 1954 when McGuigan was decided, no change appears in the essential basis for the railroad's vicarious liability (see also, Sinkler v. Missouri P.R. Co., 356 U.S. 326, 330-332, 78 S.Ct. 758, 2 L.Ed.2d 799).

Unlike most FELA cases, this suit does not rest upon a charge of employer negligence in the operation of trains or the maintenance of safe working conditions. Immediate actors in the employer's alleged wrong were the doctors at Southern pacific General Hospital, whose claimed negligence lay in exposing the employee to a reasonably foreseeable risk of harm. (Gallick v. Baltimore & Ohio R. Co., supra, 372 U.S. at p. 117, 83 S.Ct. 659; Rogers v. Missouri P.R. Co., supra, 352 U.S. at p. 503, 77 S.Ct. 443; Lillie v. Thompson, 332 U.S. 459, 462, 68 S.Ct. 140, 92 L.Ed. 73.) It is not charged that Mr. Waller's train dispatching job was intrinsically perilous. It could possess peril only in relation to the occupant's deteriorating physical condition. From the employee's standpoint, two kinds of harm confronted him: an acute heart attack and further progression of his arteriosclerosis. The former has never occurred, only the latter. Since the claim of compensation does not stem from a heart attack, the employer's negligence or care in exposing him to that particular harm of guarding him from it is not in issue. ¹ The harm which did occur--and its occurrence is not disputed--is the progress of arteriosclerosis to the point of disablement. The jury found the employer negligent. Necessarily implied in that finding is another: that the risk occurred at work; that the increased arteriosclerosis was not entirely a consequence of the natural or nonoccupational progress of the disease; rather that the emotional stress of his train-dispatching duties was at least a partial factor in its acceleration or aggravation.

Medical testimony was the only evidence bearing upon the occupational character of Mr. Waller's increased arteriosclerosis. The defense called three doctors. Two, Doctors Bradford Simmons and Charles J. Monahan, were surgeons on the staff of the Southern Pacific General Hospital and had played principal roles in the prognosis which barred him from further work as a train dispatcher. The third, Dr. John B. Reardan, was a specialist in internal medicine. Both the Southern Pacific doctors testified to the general effect that the patient's angina pectoris or chest pains occurred because not enough oxygen-carrying blood was supplied to the heart; that this inadequacy in turn resulted from the progress of the patient's arteriosclerosis; that they refused to permit Mr. Waller's return to duty as a train dispatcher in 1961 because the stress of his work might cause a spasm of the coronary arteries and the formation of a blood clot, thus producing a heart attack. All three doctors called by the defense expressed the opinion that there is no relationship between emotional stress and the progress of arteriosclerosis.

Plaintiff's medical witness was Dr. Abraham McIntosh. Although he had seen plaintiff professionally on several occasions, he had never attempted a diagnosis of his heart condition. Dr. McIntosh responded to a series of hypothetical questions put to him by plaintiff's trial counsel. His testimony on direct examination will be crucial to the outcome of this appeal. Thus we do not attempt to paraphrase it, but set out in the margin those portions of his direct examination which seem particularly significant. ² A question and answer during the course of Dr. McIntosh's cross-examination have additional significance. ³

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There are two reasons for giving crucial significance to Dr. McIntosh's testimony. First, the issue of medical causation are within the reach of lay experience. (Davis v. Memorial Hosp., 58 Cal.2d 815,...