Cooksey v. Atchison, Topeka & Santa Fe Railway Co.

WOOD, J. Defendant appeals from a judgment, based upon a verdict of a jury, awarding plaintiff $42,000, as damages for personal injuries sustained by him while he was an employee of the defendant.

The accident occurred March 10, 1945, when plaintiff, who was working as a conductor, fell from a freight car on which he was attempting to set the hand brake. Defendant admitted liability under the Federal Safety Appliance Act, and the only issue before the trial court was the extent of damages.

Appellant contends that the award was excessive, and could have been given only under the influence of passion or prejudice.

At the time of the accident plaintiff was 54 years of age, was in good health, had been employed by defendant 35 years, and was receiving a salary of approximately $500 per month. It was stipulated at the trial that the American Experience Table showed plaintiff’s life expectancy to be 17.40 years. The evidence shows that, as a result of the fall, plaintiff sustained a comminuted (fragmented) fracture of the third lumbar vertebra and injuries to the surrounding area, a fractured pelvis, a fractured scaphoid bone of the right wrist, and injuries to his left heel; that he was in the hospital 59 days; that he was placed in a “body cast” which was removed a few days later and boards placed under his mattress; that he was fitted with a steel brace to support his back; that at the time of trial he had not recovered, was still wearing the brace, and suffered constant pain. There was medical testimony that plaintiff’s condition is permanent, that it will become worse, and that he may develop kyphosis (humpback).

Appellant argues that plaintiff's condition is not permanent, but will improve. Two physicians, who had examined and treated plaintiff after he left the hospital, testified that plaintiff had a severe comminuted fracture of the vertebra, which resulted in a forward displacement of his body; that there had been some bone absorption (degeneration), and only the lapse of time would determine whether kyphosis would develop ; that a fracture of the scaphoid bone is a painful injury, [506]which terminates with permanent disability and pain, stiffness of the wrist and loss of grasping power. One of those physicians testified that X-rays, in evidence as exhibits, revealed a tremendous amount of crushing of the body of the vertebra; that the bone had been more or less exploded, and the forward part of the vertebra had been pushed into the abdominal space; that the injury to the vertebra is permanent, and nothing can be done about it; that an attempt to get to it through the spinal canal would cause a total paralysis, and an abdominal approach is impossible; that a degeneration of the vertebra is going on due to a lack of blood supply which causes small pieces of bone to be absorbed; that as they are absorbed, plaintiff’s condition will get worse; that an X-ray taken January 14, 1946, shows no improvement, but on the contrary shows a definite degeneration of parts of the bone; that an X-ray, in evidence as an exhibit, shows a fibrous healing but it is not bone healing; that there was no doubt in his mind that plaintiff’s back injury is permanent and he will continue to suffer pain; that if he is “lucky enough,” however, to develop a sufficient amount of arthritis above and below the third lumbar vertebra to form a bony ridge his back would not become deformed; and that plaintiff was then apparently free from arthritis. He also testified that the second and third inter-vertebral discs, above and below the fractured vertebra, were ruptured as a result of the compression caused when the fracture occurred; that eventually the second and fourth discs will have a tendency to angle together, and the second lumbar vertebra will have a tendency to approach the third vertebra which will result in kyphosis; that, even if an inter-vertebral disc operation were performed and if transplants were put in to take care of the discs, there would not be enough area of support between the front portions of the vertebra to prevent plaintiff developing a very marked kyphosis. He testified further that fracture of the radial scaphoid bone is a disabling type of injury, and he would consider it permanent to a man of plaintiff’s age; that it is a foregone conclusion that he will always be in a state of discomfort; that there are two bones in the body, the scaphoid and the oscalcis (the heel bone) which, when broken, give discomfort continuously thereafter; that the scaphoid is so shaped and arranged that, in order to break it, five different bones are injured; that the fracture seems to be healing satisfactorily, but plaintiff will have a painful wrist particularly when he squeezes anything and when he attempts to put his palm down.