The opinion of the court was delivered by: MARSH
The plaintiff brought an F.E.L.A. action against the defendant Railroad at Civil Action No. 14446 claiming that he was injured due to the negligence of the Railroad on December 27, 1953 while he was employed as a conductor. Liability was denied by the Railroad; it also claimed plaintiff was contributorily negligent.
Plaintiff also brought an F.E.L.A. action against the defendant Railroad at Civil Action No. 14449 claiming that he was injured due to the negligence of the Railroad on January 7, 1956, while he was employed as a brakeman. Liability for this accident was admitted. There was no evidence that plaintiff was contributorily negligent.
These two actions were consolidated for trial and the parties agreed that the jury render one verdict.
Plaintiff was 62 years old at trial and was subject to compulsory retirement at 65. His life expectancy was 16 years.
As a result of the first accident, plaintiff sustained injuries to his leg and the right side of his lower back, with pain radiating down his right leg; he continued to have this pain, but only lost approximately one week's work on account of these injuries; he had no medical expenses; he received no medical treatment.
As a result of the second accident, plaintiff sustained two broken ribs, injuries to his neck and the left side of his lower back. He complained of pain in his chest, continuing pain in his back which radiated down his left leg, chronic headaches and insomnia. He returned to work on April 27, 1956 and was regularly employed by defendant as a trainman. After this accident, his chest was taped, he wore a cervical collar for 8 or 9 months, and wore a back brace up to trial. He testified he accepted a road job that paid less than a yard job to which he was entitled because of his seniority. He says he did this in order to get longer resting periods. However, he said he worked in the yard for three months following his return, and rather equivocally indicated that he could do all the work required of a trainman. But he also said lifting and climbing caused pain which he tried to avoid as much as possible and indicated a steady yard job would be too much for him.
There was a conflict about the effects of the accidents. The plaintiff contended he sustained a ruptured disc and was partially permanently disabled. Dr. Philip A. Faix, his principal medical witness, recommended a disc operation which, he says, if successful would relieve the pain and terminate the disability. Plaintiff refused to have the operation because of the hazards involved. This doctor testified plaintiff was unemployable in the labor market and that the chances were good that the disc condition would become acute and plaintiff would eventually seek an operation, from which a residual disability might very well result. The doctor also testified that plaintiff may be developing hernias possibly referable to the accident. He kept plaintiff under constant sedation containing codeine. He testified plaintiff had a weak foot.
The defendant contended that as of the time plaintiff returned to work in April, 1956, except for some aches and pains mostly resulting from age and non-traumatic causes, he had recovered from the injuries and was able to and did work as before the accidents, and that his earning power was not diminished by any injury he received in the accidents. In fact, the defendant demonstrated that plaintiff's wages from April, 1955 to trial exceeded those earned prior to the second accident.
Plaintiff's actual loss of wages amounted to $ 2,052. His actual and prospective medical expenses were less than $ 1,000.
The defendant's position at trial, based on the testimony of its medical witnesses and plaintiff's work record, was that he had recovered from his injuries and was fit for duty on April 27, 1956; that he had been examined several times by defendant's medical examiners, aided by X-rays, and was found to be normal; that such pains as he had were not disabling as was shown by his uninterrupted and satisfactory work since that date; that plaintiff suffered no loss of earning power.
The plaintiff's position was that he had not recovered but sustained considerable loss of earning power; that his disability might increase at any time in the future and he might be laid off; and, although somewhat improved, he had been working without interruption up to trial out of sheer grit expected to continue to do so.
Dr. Faix was of the opinion that plaintiff should continue to work with his partial disability as long as he is willing to stand the pain.
Dr. Eugene F. Berkman, for the defendant, was of the opinion that plaintiff could continue to work because he had no disability, and his aches and pains were for the most part referable to congenital and non-traumatic causes which would decrease as time went on.
No one testified that plaintiff would be held out of service because of his complaints, and the court negatived any inference that defendant could take reprisals ...