Bailey v. Missouri Pac. RR Co.

383 So. 2d 397
CourtLouisiana Court of Appeal
DecidedJune 13, 1980
Docket7451
StatusPublished
Cited by7 cases

This text of 383 So. 2d 397 (Bailey v. Missouri Pac. RR Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bailey v. Missouri Pac. RR Co., 383 So. 2d 397 (La. Ct. App. 1980).

Opinion

383 So.2d 397 (1980)

Curtis BAILEY, Plaintiff-Appellee,
v.
MISSOURI PACIFIC RAILROAD CO., Defendant-Appellant.

No. 7451.

Court of Appeal of Louisiana, Third Circuit.

March 5, 1980.
Rehearing Denied May 5, 1980.
Writ Refused June 13, 1980.

*398 Anderson, Leithead, Scott, Boudreau & Savoy, Everett R. Scott, Jr., Lake Charles, for defendant-appellant.

Perrell Fuselier, Oakdale, for plaintiff-appellee.

Before CULPEPPER, GUIDRY and DOUCET, JJ.

GUIDRY, Judge.

This is an action brought under the Federal Employers' Liability Act, 45 U.S.C. Sec. 51[1] et seq., for injuries alleged to have been *399 sustained by the plaintiff as a result of defendant's negligence. Plaintiff-appellee, Curtis Bailey, alleges that defendant-appellant, Missouri Pacific Railroad Company, negligently required him to perform tasks normally assigned to more than one person under such conditions so as to cause him to suffer a heat stroke. Plaintiff further alleges that as a direct result of the heat stroke he subsequently suffered a myocardial infarction which left him permanently disabled. Defendant denied any negligence on its part and pled alternatively plaintiff's independent negligence and contributory negligence in diminution of plaintiff's claim for damages.[2] The matter was tried without a jury. The trial judge in his written reasons concluded as follows:

"A. Defendant was negligent in requiring the plaintiff to perform a two man job alone considering his age and the weather conditions.
B. This negligence caused the plaintiff's heart attack and resulting damages.
C. It was forseeable considering plaintiff's age and weather conditions that he would suffer some sort of collapse similar to that which he experienced as a result of this increased activity under the circumstances.
D. Plaintiff was not negligent in performing the task assigned to him which caused his collapse. He could hardly refuse to do the work he was instructed to do. The remaining crew members had other tasks to perform and could not help him. He could not procrastinate because trains periodically used that section of track. There was apparently no other way for plaintiff to perform the work assigned to him other than the way he did. It is therefore the opinion of the court the plaintiff is entitled (sic) damages against defendant undiminished by any negligence on the part of the plaintiff.
                      DAMAGES
1.  Loss of Earnings to
    date of trial              $ 35,565.54
2.  Loss of Future Earnings
    (To age 65)                  30,000.00
                                 _________
    Total Special Damages        65,565.54
    Pain, Suffering, and
    Emotional upset, past,
    present and future,
    and loss of enjoyment
    of life                      50,000.00
                               ____________
    Total damages              $115,565.54"

Accordingly, judgment was granted in favor of plaintiff and against defendant; condemning defendant to pay to plaintiff damages in the amount of $115,565.54. Defendant appeals and asserts that the trial court's findings are unsupported by the testimony and evidence adduced at trial and urges reversal of the lower court judgment. We disagree and affirm the trial court judgment for reasons which follow.

FACTS

The record shows that on the morning of June 30, 1975, plaintiff was employed by defendant as a Helper on a Bridge and Building Gang (B & B Gang). Plaintiff was 58 or 59 years old and had been working *400 for defendant for over thirty years. The B & B Gang to which plaintiff was assigned consisted of five men: Ronnie Latiolais, Foreman; Robert Duran, Assistant Foreman; Jack N. Fontenot and Ira E. Fuselier, Sr., Carpenters; and plaintiff, Helper. As helper, plaintiff assisted generally in the B & B Gang's operations and in particular, was the "crab" operator. The "crab" is a small motorized crane mounted on a small non-motorized platform car. One of the functions of the crab is to move cross-ties from a storage area along the railroad tracks to the point where the ties are to be installed and when used thusly, is a two-man job: one to operate the crane; the other to secure the cables around the ties to be moved; and then both to assist in rotating the loaded crane's boom and pushing the crab along the track. On June 30, 1975, plaintiff was required to operate the crab without a helper as the crew was shorthanded. Ira E. Fuselier, Sr., who normally assisted plaintiff in operating the crab, was on vacation.

The sequence of events on the Monday morning of June 30, 1975 are as follows: Plaintiff's B & B Gang started work at 8:01 A.M. at the railroad's Bridge No. 630.5, north of Oakdale, Louisiana. The weather was hot and humid. The crew had a stop order out and flags were set up on the track to inform trains of their presence. The crab was moved onto the tracks from a set-off and the gang began pulling spikes out of the railroad ties in the bridge that were to be replaced. The replacement ties had been stacked about 125 feet north of the bridge the week before in preparation for this work. Plaintiff's work as crab operator after the first set of spikes were pulled consisted of pushing the crab along the track to the stack of ties; manually rotating the crane's boom to a position over the ties; securing the winch cable around six cross-ties (each weighing 150 lbs.); manually rotating the boom back parallel to the tracks; pushing the loaded crab back to the bridge; and, finally, operating the boom to position the replacement ties for the other members of the gang to slide under the rails into position on the bridge. After making two such trips, plaintiff went back for his third load between 8:30 and 9:00 A.M. and was in the process of getting onto the crab to boom up the replacement ties when he collapsed. After a delay of approximately 30 minutes, plaintiff was taken by Robert Duran to the Mowad-Nesom Clinic in Oakdale. Plaintiff was examined and treated by Dr. George B. Mowad, who diagnosed plaintiff's condition as a classical case of heat prostration. Plaintiff was hospitalized the same day at Oakdale General Hospital. Sometime during the night of July 1 and/or the morning of July 2, 1975, while still being treated for the effects of the heat stroke, plaintiff suffered a myocardial infarction. On July 4, 1975, plaintiff was transferred to the St. Francis Cabrini Hospital in Alexandria, Louisiana, where he remained under the care of Dr. M. L. Godley, until he was discharged to return home on July 24, 1975. As a result of plaintiff's heart attack, he is permanently disabled from performing his job with defendant and is, and will continue to be, highly restricted in his physical activities. Further, plaintiff will be required to take medication for the rest of his life to prevent heart failure.

MEDICAL EVIDENCE ON CAUSATION

The medical evidence presented at trial consisted of the depositions of the two physicians who treated plaintiff for his heat stroke and heart attack: Dr. George B. Mowad and Dr. M. L. Godley. In reference to the cause of heat strokes in general, Dr. Mowad explained as follows:

"... Anything that would cause an increase, cause an increased amount of activity, regardless of what it is, in the sun, that would cause an increased amount of oxygen requirement by the body could cause more of a strain, whether be it a stroke or whatever it is.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Germano v. Taishan Gypsum Co.
706 F. Supp. 2d 655 (E.D. Louisiana, 2010)
In Re Chinese Manufactured Drywall Products
706 F. Supp. 2d 655 (E.D. Louisiana, 2010)
Smith v. Washington Metropolitan Area Transit Authority
133 F. Supp. 2d 395 (D. Maryland, 2001)
Albert v. Southern Pacific Transportation Co.
30 Cal. App. 4th 529 (California Court of Appeal, 1994)
Tingstrom v. Smith
630 So. 2d 257 (Louisiana Court of Appeal, 1993)
Dufour v. UNION PACIFIC RR CO.
610 So. 2d 843 (Louisiana Court of Appeal, 1992)
Turner v. New Orleans Public Belt RR
414 So. 2d 847 (Louisiana Court of Appeal, 1982)

Cite This Page — Counsel Stack

Bluebook (online)
383 So. 2d 397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-missouri-pac-rr-co-lactapp-1980.