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March 25, 1970

Harold FARMER, Plaintiff,

Marsh, Chief Judge.

The opinion of the court was delivered by: MARSH

MARSH, Chief Judge.

 The defendant has timely filed a "Motion for Judgment in Accordance with Motion for Directed Verdict and in the Alternative for a New Trial" following a jury trial and verdict for the plaintiff rendered on October 14, 1969.

 The record in this Federal Employers' Liability Act case discloses evidence, presented by plaintiff, that defendant negligently exposed plaintiff to Varnolene mist which he breathed; that as a result of defendant's negligence plaintiff's lungs were made more susceptible to tuberculosis; and that plaintiff did in 1963 contract tuberculosis resulting in a permanent injury. Defendant's contention "that the evidence was insufficient to support a finding of any negligence on the part of the railroad which caused or contributed to plaintiff's injuries" is therefore without merit.

 At the trial defendant moved for a directed verdict based on the three year statute of limitations, and this contention was renewed by defendant in an amendment to the motion. The evidence shows that plaintiff's tubercular condition was first diagnosed on July 17, 1963, and the plaintiff ceased working for the defendant on July 13, 1963. There was no suggestion that plaintiff should have known he had tuberculosis at any earlier date. "'* * * [The] afflicted employee can be held to be "injured" only when the accumulated effects of the deleterious substance manifest themselves * * *.'" Urie v. Thompson, 337 U.S. 163, 170, 69 S. Ct. 1018, 1025, 93 L. Ed. 1282 (1949). See also: Fowkes v. Pennsylvania Railroad Company, 264 F.2d 397 (3d Cir. 1959). The complaint was filed on May 26, 1966. Having commenced his action "within three years from the day the cause of action accrued", 45 U.S.C. § 56, plaintiff is not barred by the statute of limitations.

 The defendant's motion for judgment n.o.v. must be denied.

 After counsel had concluded their summations and prior to the court's instructions to the jury, counsel for defendant orally requested a charge that, if plaintiff's condition was caused jointly by defendant's negligence and by cigarette smoking, the jury should apportion damages between these two causes and award only those damages which were caused by defendant's negligence. Counsel excepted to the failure to so charge the jury. There was no error in refusing to charge as requested. Where a railroad's negligence causes, in whole or in part, an injury to its employee, it is liable for the entire amount of damages, and there is no provision for reduction of damages for innocent causes which concur with the defendant's negligence in causing an injury. 45 U.S.C. § 51. Cf. Sentilles v. InterCaribbean Corp., 361 U.S. 107, 109, 80 S. Ct. 173, 4 L. Ed. 2d 142 (1959); Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S. Ct. 443, 1 L. Ed. 2d 493 (1957); Fleming v. Husted, 164 F.2d 65, 67-68 (8th Cir. 1947); Restatement, Second, Torts § 433A, comment a.

 The jury was instructed that the defendant would not be liable to pay money if excessive cigarette smoking caused defects or weaknesses in plaintiff's lungs which predisposed him to contract tuberculosis. The court emphasized twice that defendant should not be held responsible if the negligence of the defendant was not the cause of the tuberculosis.

 The defendant assigns as error the refusal to submit the issue of contributory negligence to the jury. There was evidence that cigarette smoking was a lung irritant. Even though plaintiff's excessive cigarette smoking may have been a contributing cause of his tuberculosis, there was no affirmative evidence that by indulging in this habit the plaintiff negligently ran the risk of contracting the disease.

 Although the defendant pleaded contributory negligence in its answer, it was not mentioned as an issue in its pretrial narrative statements nor in the transcript of the pretrial conference. After the testimony was closed counsel was informed of the court's opinion that there was no contributory negligence in the case; defendant's counsel agreed with the court but desired to further "reflect" on the matter (T., pp. 188-189); he made no argument on the point to the jury. The next day, just before the charge, he contended orally that contributory negligence was in the case due to plaintiff's excessive cigarette smoking and requested appropriate instructions (T., p. 215). The court, still being of the opinion that there was no proof of contributory negligence and that the issue had been abandoned by defendant, did not comply, and the defendant excepted to the failure to so charge (T., pp. 238-239). At oral argument on the motions, defendant's counsel again conceded that contributory negligence was not in the case; and his brief on behalf of the defendant does not mention the issue. In the circumstances, we are still of the opinion that the issue of contributory negligence was not in the case.

 Defendant made three motions for a mistrial: (1) The plaintiff testified that after his hospitalization for tuberculosis "he had tried to go back to work for the railroad but the railroad would not permit him to do so" (defendant's 10th reason for a new trial); (2) argument by plaintiff's counsel "(a) that Varnolene was a caustic compound; (b) that the said solvent burned plaintiff's lung tissue; (c) that defendant considered plaintiff to be nothing more than a donkey" (defendant's 11th reason for a new trial); (3) cross-examination by plaintiff of Dr. Titchworth "brought before the jury, over defendant's objection, the statement that plaintiff had been exposed to two Pennsylvania Railroad employees who had tuberculosis" (defendant's 12th reason for a new trial). The defendant contends the testimony, argument and cross-examination singly and cumulatively were prejudicial and assigns the failure to grant the motions as reasons for a new trial (cf., T., pp. 212-213).

 As to the testimony of plaintiff concerning his attempt to go back to work, no objection was made; he was cross-examined on the matter; and then when defendant moved to strike the testimony, the court complied and the jury was instructed not to consider it (T., pp. 84-87).

 The argument by plaintiff's counsel concerning Varnolene was perhaps an overstatement, which frequently occurs in the heat of battle, but nevertheless it was founded upon the evidence adduced in the Varnolene warning label and the testimony of plaintiff's doctor that Varnolene would irritate and weaken lung tissue. It is difficult to believe that the objectionable argument so exceeded the bounds of propriety or was so unduly prejudicial in the context of the case as to require a mistrial. No motion was made immediately following the argument to instruct the jury to disregard it and no corrective instruction was requested. The next day when the motion for mistrial was made, the exact words of counsel were difficult to ...

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