Before MAJOR, SWAIM, and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
This is an action brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for injuries claimed to have resulted when a truck driven by a fellow worker backed into plaintiff, a tractor driver employed at defendant's Gary, Indiana Kirk Yard, as he was waiting for his tractor to be filled with gasoline at the start of his day's work on June 12, 1948. There was a trial before the court and a jury, which returned a verdict for the plaintiff for $25,000. Defendant's motions for judgment notwithstanding the verdict, or, in the alternative, for a new trial were overruled, and judgment was entered on the verdict. Defendant appeals.
Defendant in its answer admitted the allegations of the complaint that it was at the time of the accident in question, engaged in the transportation of freight in interstate commerce, that as a part of its system, it maintained a railroad yard in Gary, Indiana known as "Kirk Yard," and that, on and prior to the date of the accident, plaintiff was employed by it as a trucker in said Kirk Yard in transporting materials and parts for repairing cars used by it in interstate commerce.
There was evidence tending to prove the facts now set forth.
Plaintiff's duties consisted of driving a tractor delivering supplies to carpenters and tools and repair parts to car repairmen, and occasionally using the tractor to push cars along the repair tracks to clear paved passageways and to enable the repairmen to get around and between the cars in order to do their repair work and also to enable other employees to pass between the cars.
He began work on the morning of June 12, 1948, and took a tractor assigned to him from the garage to the defendant's gasoline pump where its tank was filled with gasoline by the attendant, another employee of the defendant. This was required to be done by the plaintiff each morning. Plaintiff held the hose in the tank of the tractor while the attendant operated the pump. When the tank was filled, plaintiff was putting on the gas tank cap when a truck of the defendant, driven by a fellow employee of plaintiff, backed into plaintiff, crushing him between the back of the truck and the tractor. The truck struck the plaintiff in the small of his back, crushing and squeezing him until he lost consciousness.
Plaintiff was taken to Mercy Hospital at Gary, where he came under the care of defendant's doctors. One of them, Dr. Donchess, a witness for defendant, testified that his diagnosis on that day was a contusion with a superficial abrasion of the right lower chest and a contusion of the left arm, and that there was an old arthritic condition. Plaintiff complained of pain in the right lower chest and the lower part of the sternum. He did not complain at that time of pain in the lower back. X-ray pictures were taken and, according to Dr. Donchess, they did not reveal any evidence of fracture, pathology of the bone, or any dislocation. He was discharged from the hospital on the morning of June 14, 1948. Thereafter plaintiff received physiotherapy treatments at the hospital on four occasions, ending July 6. On each of these occasions Dr. Donchess examined plaintiff, who made no complaint of pain or difficulty in the lower back. He was told to go to work on July 7, Dr. Donchess being of the opinion that he was able to do his regular work, as the abrasion had completely healed and he was greatly improved. Dr. Donchess examined him on July 22, 1948, and found that he complained of pain over the lower part of his sternum. An examination was essentially negative. More X-ray pictures were made, and they showed no evidence of fracture or bone pathology of the ribs, sternum, "heart, or lungs."
Thereafter Dr. Donchess saw plaintiff on July 28, September 25 and 27, and October 5, 1948. On July 28, plaintiff was still complaining of pain in the lower part of the sternum and the upper part of the abdomen and stomach area. X-rays were then taken at the hospital "to rule out any intrinsic or any lesion of the stomach, or any lesion of the diaphragm, such as a rupture," and the X-rays were negative.
On cross-examination Dr. Donchess testified that there were no symptons of severe internal injuries or of aggravation of the old arthritis.
Doctors Cooper and Bennett, also witnesses for defendant, examined plaintiff and testified there was no evidence of a fracture and no disability resulting from the accident. Dr. Cooper thought there was a possibility of a gastro-intestinal disorder which was responsible for the man's complaints. From Dr. Turner's X-rays, made at Dr. Bennett's request, of plaintiff's cervical, dorsal and lumbar spine, the left shoulder and the ribs, Dr. Bennett found no pathology due to trauma in the humerus, clavicle, scapula or ribs, but found an extensive old osteoarthritis generalized throughout the entire spine, "a common condition in a man 60 years of age," but no evidence of fracture or injury due to trauma. He testified further that he found no symptons of ruptured intervertebral discs or of aggravation of the pre-existing arthritis.
Plaintiff's only medical witness was Dr. Albert C. Field, by whom plaintiff was examined at his attorney's direction a month before the trial in 1953, which was nearly 5 1/2 years after the accident. According to Dr. Field, plaintiff complained of pain in the back and X-rays taken by him showed a scoliosis of the spine, "which alone wouldn't bother him a lot." He also found arthritis in the lumbar spine and bridging between the second and third vertebrae. Upon examination he found some spasticity in the lower back, some tremor of the tongue, and positive leg-raising tests, "which indicates an inflammatory condition." In response to a hypothetical question he testified there might or could be a causal connection between the described accident and the conditions he found. In his opinion plaintiff was unfit for manual work. He testified that there was no evidence of fracture and that he could not tell how long the scoliosis had been present.
The errors relied on arise out of the court's failure to direct a verdict for the defendant, rulings during the argument to the jury and the modification of an instruction tendered by defendant.
1. The court instructed the jury as a matter of law that the plaintiff at the time and place of the happening in question, came within the provisions of the Federal Employers' Liability Act. Defendant contends that in so doing the court erred. At the close of the plaintiff's evidence the court denied defendant's motion for a directed verdict ...