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Budd v. Erie Lackawanna Railroad Co.

Decided: November 24, 1967.

PHILOMENA BUDD, GENERAL ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF WILLIAM J. BUDD, DECEASED, PLAINTIFF-RESPONDENT,
v.
ERIE LACKAWANNA RAILROAD COMPANY, A NEW YORK CORPORATION AUTHORIZED TO DO BUSINESS IN NEW JERSEY, DEFENDANT-APPELLANT



Conford, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.

Labrecque

[98 NJSuper Page 50] Defendant Erie Lackawanna Railroad Company appeals from a judgment in favor of plaintiff based upon a jury verdict.

Plaintiff sued under the Federal Employers' Liability Act (hereinafter FELA), 45 U.S.C.A. § 51 et seq., and was awarded $58,500 on her claim for her husband's death and $6,000 for his pain and suffering prior to death. Defendant appeals from the judgment thus rendered and from denial of its motion for a new trial.

Decedent, a resident of Hackensack, was employed as a clerk in defendant's 28th Street Station in New York City. On the afternoon of October 26, 1962, at about 1.30 P.M. and shortly after lunch, while attempting to assist another clerk with his work, he was seen by a fellow employee to nod his head forward, break into an extremely heavy sweat and lapse into unconsciousness. The employee came to his assistance and upon observing his condition requested one Muller, the chief clerk in charge, to call a physician or an ambulance. This was not done although the request was repeated "six or eight" times during the next 45 minutes. At the end of about 25 minutes decedent appeared to partially recover consciousness, but shortly thereafter lapsed into a coma. It was 45 minutes after the onset of his illness before he started to regain full consciousness. Muller continued to be present thereafter, but no medical assistance was ever summoned although defendant employed a company physician and there was a public hospital some four blocks away. It was not until later, after decedent had vomited several times, that another executive directed a fellow employee to drive decedent home. This was some two hours after the onset of his illness. At decedent's request he was first driven to the Hackensack office of a Dr. Kristal, his personal physician, arriving there at about 4 P.M. He died approximately 15 minutes later. The cause of death was given as coronary occlusion.

Dr. Kristal's office was about 40 minutes from decedent's place of employment. He testified that decedent had called him before coming to his office, and when decedent related his symptoms he advised him that if he felt "that bad" he should see a doctor in that area immediately.

Plaintiff's cause of action was buttressed upon the "humane instincts doctrine" set forth in Szabo v. Pennsylvania Railroad Co., 132 N.J.L. 331, 332-333 (E. & A. 1945), it being alleged that defendant failed in its duty to furnish medical care and attention when decedent became acutely ill while on the job. See also Dudley v. Victor Lynn Lines, Inc., 32 N.J. 479, 493-495 (1960); compare Burns v. Bakelite Corp., 17 N.J. Super. 441 (App. Div. 1952), certification denied 9 N.J. 335 (1952). Defendant denied violation of any duty owing to decedent and set up his own contributory negligence as a bar. In arriving at its verdict the jury applied the doctrine of comparative negligence prescribed by FELA, 45 U.S.C.A. § 53, and found decedent to have been contributorily negligent to the extent of 25%. Thus the verdict rendered amounted to 75% of the sums which the jury found to represent the actual damages sustained by plaintiff.

Defendant first urges that the trial judge committed reversible error in admitting and submitting to the jury the life expectancy tables contained in the rules of court. It argues that such tables show average life expectancy only and were inapplicable in view of decedent's allegedly reduced life expectancy due to the heart attack he sustained before the occurrence of defendant's alleged negligence.

R.R. 4:45A provides that the tables of mortality and life expectancy as set forth in the appendix to the rules shall be admissible in evidence as prima facie proof of the facts contained therein. The table of life expectancy referred to indicates average life expectancy and is based upon the so-called United States Life Tables, 1959-61, as published by the United States Department of Health, Education and Welfare in December 1964. The tables of mortality which precede it in the rules furnish the present value of an annuity of $1, at 3 1/2% interest based upon the same table of life expectancy. Prior to adoption of the present rules a somewhat similar table of mortality was contained in former Chancery Rule 184. In general, such tables, or testimony

based thereon, have been held to be admissible in actions by personal representatives for wrongful death, Camden and Atlantic R.R. Co. v. Williams, 61 N.J.L. 646 (E. & A. 1898), and in suits for personal injuries where the evidence supports the contention that the claimed injuries are of a permanent nature. Dalton v. Gesser, 72 N.J. Super. 100, 116-117 (App. Div. 1962); Kappovich v. LeWinter, 43 N.J. Super. 528, 532-533 (App. Div. 1957), certification denied 24 N.J. 112 (1957).

Specifically, defendant urges that since the original heart attack suffered by decedent was not work-connected and his life expectancy was materially reduced thereby, it was error to permit the jury to use a table of average life expectancy in arriving at the amount of its verdict. It cites several cases from other jurisdictions which appear to so hold.

We are satisfied that the table was properly received in evidence regardless of what decedent's condition of health would have been had medical care been furnished so that he had survived the heart attack which overcame him on the day in question. Under our cases the use of such tables is not limited to instances where the deceased enjoys average or better health. In Camden and Atlantic R.R. Co. v. Williams, supra, 61 N.J.L., at p. 649, referring to the Carlisle ...


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