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May 16, 1958

Walter DUNN, Plaintiff,

The opinion of the court was delivered by: GOURLEY

This is an action under the Federal Employers' Liability Act to recover damages for injuries sustained while plaintiff was employed as a trackman for the Conemaugh and Black Lick Railroad. 45 U.S.C.A. § 51 et seq.

Upon jury trial verdict was returned in favor of plaintiff in the amount of $ 60,000.

 The matters before the court are twofold:

 (1) Motion to set aside the verdict or for judgment notwithstanding the verdict.

 (2) Motion for new trial.

 Motion to Set Aside the Verdict

 The cause of action is predicated upon the thesis that defendant returned plaintiff back to work when it knew and/or should have known that he was not physically able to do the type of work assigned him. In support of his position, plaintiff produced testimony, viewed in a light most favorable to the plaintiff, establishing that he had undergone a serious operation for ulcers requiring a resection of two-thirds of his stomach on January 28, 1952. Before he could return to work, defendant required that he undergo a physical examination to be conducted by an examining physician who was deceased at time of trial. The examining physician of defendant certified him back to his regular employment to perform strenuous work as a trackman on February 28, 1952, in spite of request by the plaintiff's operating surgeon to defendant's personnel manager that he be given light work.

 That plaintiff worked on March 3 and 4, 1952, at which time he complained to his superior of pain and reported to the dispensary. Nevertheless, defendant required plaintiff to perform strenuous work involving greasing and throwing switches, with the consequence that on March 21, 1952, while throwing a stiff switch, he experienced a sharp pain in the abdomen. That plaintiff as a result of his strenuous labors, in his weakened condition, between March 21, 1952 until June 2, 1952, suffered a swelling of the abdomen at the incisional area, accompanied by a ventral hernia. That he underwent two operations for the hernia on July 14 and July 28, 1952, at which time tantalum mesh was installed and was discharged with good healing on August 8, 1952. He was certified back to regular employment on October 8, 1952, and as a result of heavy work and the picking up of a rail on August 4, 1953, developed another hernia in the same incision, requiring surgery on September 4, 1953.

 Medical testimony established that the ventral hernia was brought about by plaintiff's too early return to strenuous work and that the successive hernias resulted from the incisional wall having been weakened by the original stress of working on March 21, 1952 and until June 2, 1952, when he was finally advised to submit to repair.

 That during this interval of strenuous work in spite of plaintiff's complaining to his foreman as to his physical weakness, defendant denied him light work pursuant to company policy of giving light work only to employees who had been injured while working and not to ailing or sick employees.

 This Circuit has spoken with clarity on the proposition that where a plaintiff can prove that management forced a sick employee, of whose illness they knew or should have known, into work for which he was unfitted because of his condition, a case is made out for the jury under the Federal Employers' Liability Act. Nuttall v. Reading Co., 3 Cir., 235 F.2d 546. Whether or not a physician is acting as an employee for the Railroad if and when he has committed a negligent act is material in establishing negligent conduct on the part of the Railroad. Because of the crucial nature of the question, involving the sifting of conflicting and contradictory facts and inferences to be drawn therefrom, I relegated the issue of the relationship of the examining physician to the Railroad as a specific interrogatory for the jury's determination.

 If the question is indigenous to an issue of law, it is my judgment that no prejudicial error could have resulted since during trial and again by way of reaffirmation, upon an evaluation of the testimony and the evidence I concluded, and I again conclude, that as a matter of law the examining physician at the time the divers examinations were made of the plaintiff and certification made as to his fitness to return to work, said examining physician was acting as defendant's employee.

 In addition, I am satisfied that substantial evidence was produced to establish evidence of negligence not only on the part of the examining physician but also on the part of officials and servants of the defendant acting solely on behalf of the defendant. The record is replete with complaints by the plaintiff of his sick condition, the defendant's knowledge of his condition through its examining physician, and/or supervisory employees, and the assignment, nonetheless, of the plaintiff to strenuous work for which he was unfitted, predicated upon company policy refusing sick employees as distinguished from injured employees the benefit of light work.

 Upon the evidence produced by the plaintiff and elicited from company medical witnesses and supervisory employees, the jury was well justified in its conclusion that defendant had failed to exercise due care in requiring plaintiff to perform heavy work in view of his weakened physical condition which was known and/or should have been known by defendant.

 It is not plaintiff's burden, as defendant contends, that plaintiff was required to prove a case of malpractice against the examining physician. It is sufficient that defendant knew that plaintiff was unable to do hard work so soon after an operation both through its examining doctor and/or its foreman, and nevertheless ordered him back to work. Recovery, therefore, is premised upon negligence on the part of the defendant Railroad. Nuttall v. Reading Co., supra; Blair v. Baltimore & O.R. Co., 323 U.S. 600, 65 S. Ct. 545, 89 L. Ed. 490; O'Donnell v. Pennsylvania R. Co., D.C., 122 F.Supp. 899; Bascho v. Pennsylvania R. Co., 3 N.J.Super. 86, 65 A.2d 613.

 I am satisfied that the evidence was sufficient to establish a reasonable inference that plaintiff was forced to return to work prematurely by reason of the fact that his benefits were cut off and the examining physician certified him back to work. The evidence produced the further inference that plaintiff's failure to return to the work assigned him at the time of his certification would have resulted in his dismissal.

 Assuming that this court were in error in the conclusion that the negligence of an examining physician was attributable to defendant Railroad, I am satisfied that evidence of negligence on the part of supervisory employees acting in the course of their employment in carrying out defendant's policy of refusing light work to a sick employee as distinguished from an injured employee, in itself was sufficient to sustain the jury's finding of negligent conduct on the part of defendant.

 A motion for a directed verdict or judgment notwithstanding the verdict under the Federal Rules raises a question of law only; Fed.Rules Civ.Proc. rule 50, 28 U.S.C.; that is, whether there is any evidence which, if believed, would authorize a verdict against the defendant, and the trial court in considering such motion does not exercise any discretion but makes only a ruling of ...

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