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Howard v. Gulf

MAY 15, 1957.

ROSCOE HOWARD, PLAINTIFF-APPELLEE,

v.

GULF, MOBILE & OHIO RAILROAD COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison county; the Hon. WILLIAM J. JUERGENS, Judge, presiding. Judgment affirmed.

PRESIDING JUSTICE SCHEINEMAN DELIVERED THE OPINION OF THE COURT.

Plaintiff Roscoe Howard was injured during the course of his employment as fireman by the defendant railroad, and he filed this suit under the Federal Employers Liability Act. He obtained judgment on a verdict of $125,000, and the post-trial motions of defendant were overruled. On this appeal the defendant concedes that the evidence adequately disclosed negligence on its part, but asserts there are other errors requiring reversal.

The accident in question occurred at night in an unlighted area. The engine, on which plaintiff was the fireman, was backing, pushing a caboose around a long curve, and this car obstructed the light on the rear of the tender so that there was no illumination of the track ahead. A switchman with a hand lantern for signaling was on the lead platform of the caboose, on the engineer's side. The engineer was on the inner side of the curve, where he had a view ahead so far as visibility permitted. The fireman at his post was on the convex side of the curve where he could neither see the switchman nor the terrain ahead. The train came upon some loaded gondolas, which the lookout did not see in time (he said he was looking for box cars), he jumped to safety, giving no signal to the engineer, a collision ensued, and plaintiff was thrown and injured.

The plaintiff was 31 years of age at the time of his injury and 32 at the time of the trial. An actuary testifying as a witness for the plaintiff gave the life expectancy based upon tables and explained the method of computing the present value of future earnings by the use of various rates of interest. He also qualified to testify as to work expectancy, based upon statistics published by the Railroad Retirement Board, which would include the factor of possible incapacity and other causes which might terminate or diminish a railroad employee's career. This latter testimony was excluded pursuant to an objection made by the defendant. Complaint is made in this court that the testimony of the actuary was based upon life expectancy with no evidence of work expectancy, but this alleged error cannot be considered here, since the ruling which excluded this evidence was obtained by the defendant on its own objection.

The defendant cites the case of Avance v. Thompson, 387 Ill. 77; also Allendorf v. Elgin, J. & E. Ry. Co., 8 Ill.2d 164, concerning the possibility of misleading the jury in the use of life expectancy statistics. The defendant tendered no instruction pertaining to their use, but the plaintiff did tender, and the court gave the following instruction which, in our opinion, meets the requirements outlined by the cases cited.

"The court instructs the jury that any evidence introduced of life expectancy of a person of 32 years of age is only an estimate and is not conclusive, and that if the jury considers such evidence and testimony, they should do so in the light of the jury's general knowledge and good judgment of what plaintiff's life expectancy would be, considering that some persons may live beyond the age of expectancy and that some persons may not live to reach the age of expectancy; that some persons may work all the years of their lives and that other persons may not so work; that the earnings of some persons may not remain stationary, but may reasonably be expected to increase in the future or may reasonably be expected to diminish in the future. The expectancy of life should not be used as a factor by multiplying the years of expectancy by the annual earnings."

Three points raised by the defense require a summary of the medical evidence. It is too voluminous and complicated to permit full detail. An orthopedic surgeon and a neurological surgeon testified for plaintiff. A variety of specialists, seven in all, appeared on the defense.

For the plaintiff: The anterior curve of the cervical spine is reversed. Limited motion of head and neck. Torticollis (wry neck) tends to tilt his head to the right and twist his chin to the left. Paralysis of left arm and some of left leg. Atrophy of these limbs caused by nonuse. Spasm of the muscles which control head and neck. Pain in movement has produced nervousness called functional overlay, or anxiety neurosis, which means fear of pain, causes him to limit his movements to less than his physical condition would permit; also results in spasmodic shaking or tremor of the head when unsupported. Anatomical cause is not known, but several possibilities are suggested which might be improved by surgery. In absence of surgery, present condition is permanent. Surgery recommended because it might bring improvement, possibly substantial, but there is no means of knowing except by trying, and patient refused.

For defendant: Various examinations, including X-rays and other tests, failed to disclose damage to bone structure. For ten months he was under examination and treatment by an able staff. Several times he was placed in traction for days or weeks. Also tried wearing a cast that held his head and neck rigid. Also was supplied with a Thomas collar. At times he appeared to improve, but as soon as he tried to exert himself, the symptoms returned. Symptoms indicate damage to muscle and soft tissue, but under the treatment given, this should have cleared up. Nothing said about surgery. The anxiety neurosis is recognized. It is not malingering, the patient wants to get well and cooperates in suggested treatment.

At present, the patient lies in bed traction at night, and by day wears a leather collar with steel plates against chest and back to support the head. Removal causes tremor and muscle spasm and swelling. The three points made by the defense in connection with the foregoing are as follows:

First. It is said there is no evidence of permanent injury, therefore the use of expectancy tables was error. With this we cannot agree. The orthopedist testified that the present conditions are permanent. He had recommended a serious operation, on the possibility that some pathology might be found that could be corrected. He thought it worth while to try, in the hope that plaintiff's pain and discomfort might be alleviated, but he was merely expressing a hope rather than an opinion. Cross-examined on this, he declined to conjecture on the subject. He was corroborated by the neuro-surgeon. We find the evidence of permanent disability is entirely adequate.

Second. It is argued that plaintiff has refused to submit to an operation to prevent his being cured prior to trial. Perhaps, in some cases, there may be a duty to submit to surgery to minimize damages, such as where there is a known disability that readily yields to a comparatively simple technique, according to medical experience. The general rule is that an injured person is under no obligation to undergo a serious operation to minimize the liability of a tort-feasor. See Annotation, 11 A.L.R. 230. Since the proposed surgery in this case is serious, not minor, besides being completely uncertain as to results, the plaintiff had no obligation to submit thereto.

Third. It is contended that the court erred in permitting the plaintiff, over objection, to have his collar removed to demonstrate his affliction. It is said that, upon removal, the patient's head shook and he groaned and made sounds of pain.

The Second Appellate District has taken the position that a plaintiff has a right to exhibit his injury, and that it is reversible error to prohibit it. Stegall v. Carlson, 6 Ill. App.2d 388; Villegas v. Kercher, 11 Ill. App.2d 282. This court has not gone to that extent. Whether it be called real evidence, or demonstrative, in our opinion the rule is the same: it is primarily in the discretion of the trial judge whether to permit the exhibition. The possibility that the demonstration may be unpleasant or gruesome is not ...


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