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Weinell v. McKeesport Connecting Railroad Co.

decided: June 4, 1969.

ARTHUR A. WEINELL
v.
MCKEESPORT CONNECTING RAILROAD COMPANY, A CORPORATION, APPELLANT



Biggs, Forman and Freedman, Circuit Judges.

Author: Biggs

Opinion OF THE COURT

BIGGS, Circuit Judge.

The plaintiff-appellee, Weinell, brought this suit pursuant to the Federal Employers' Liability Act, 45 U.S.C. ยง 51 et seq., to recover for personal injuries allegedly sustained during the course of his employment as a brakeman by the McKeesport Connecting Railroad Company. Following a jury verdict and judgment in favor of Weinell in the amount of $124,500 the Railroad filed a motion for a new trial. The motion was denied and this appeal followed.

It appears from the evidence that in the late afternoon of November 5, 1965, Weinell slipped on flue dust on one of the Railroad's tracks and in trying to right himself wrenched his back, causing injury in his neck area.*fn1 The jury could have found that the accident caused severe restriction in the back and neck areas, causing him to be disabled from further service as a brakeman. Dr. Sherman, an orthopedic specialist called on Weinell's behalf, stated that Weinell had prior operations for minor injuries but these apparently were not connected with his employment or related to the injuries in his back or neck areas. Following the November 5 accident, Weinell was advised by his foreman to report to the National Tube Mill Hospital, where he received some treatment. The next day he was examined by the Railroad's physician, Dr. Markle, who had him admitted to the West Penn Hospital.

Weinell remained in West Penn Hospital for about two weeks and, because he considered his condition not to have improved, he consulted Dr. Laing on his discharge. Dr. Laing testified that "There is a stiffness in * * * [Weinell's] neck in all ranges of motion, and also * * * all movements of the cervical spine and dorsal spine would produce pain." There was also evidence of recurrent muscle spasms. All the experts agree, however, that there were no injuries to Weinell's neurological and vascular systems and that tests in these fields were negative.

Compounding the adverse effects of the accident was the fact that Weinell on psychological tests "came through on the low side of average in terms of intelligence." Evidence given by Dr. Pochapin, a psychiatrist and Weinell's witness, was that because of Weinell's psychological condition the injury throwing him out of work was traumatic. Dr. Pochapin stated that Weinell was suffering from an "anxiety reaction which was chronic, severe and came as a result of injury." Dr. Tabachnick, another psychiatrist testifying on Weinell's behalf, went "one step further" than Dr. Pochapin and stated that Weinell was suffering a "conversion reaction" which, if untreated, would result in severe states of depression.

There was substantial agreement among the doctors respecting Weinell's permanent disability although there was testimony from Railroad's doctor that the "best thing" Weinell could do would be to return to work without delay and to "stay away from doctors". A letter from Dr. Pochapin to Weinell's counsel was read into the record to the effect that Weinell was permanently disabled. Dr. Sherman, an expert on rehabilitation, testified that Weinell's accident-related emotional problems without more would prevent his return to work.

The foregoing does not purport to be a complete resume of the evidence but is sufficient to permit the disposition of the appeal at bar.

The Railroad raised a number of issues some of which in view of the fact that the judgment below will be reversed need not be adjudicated in this opinion. For example the Railroad insists that the trial court erred in refusing to permit it to cross-examine Mrs. Weinell when it was discovered that Weinell himself would not take the witness stand. Since this issue is most unlikely to come before the court on the new trial, we deem it unnecessary to adjudge it. The Railroad also claims that Judge Dumbauld erred in refusing to instruct the jury that the Federal Employers' Liability Act was not the only method by which Weinell could recover damages or be paid for an on-the-job injury. The Railroad insists that this charge was necessary to counteract words used by Weinell's counsel in his opening to the jury, as follows: "Now this Federal Employers Liability Act provides the only method by which a railroad employee who is engaged in interstate commerce may recover damages or be paid for an on-the-job injury while he was at work for the Railroad." The statement was obviously an improper one and should not have been made by Weinell's counsel and we assume it will not be made again. The sole issue was the Railroad's liability to Weinell under the FELA and the amount, if any, of his recovery. Nothing else was pertinent. We deem it unnecessary under the circumstances to comment further upon the Railroad's desire for a saving or precatory charge.

The issue of the contested motion pictures taken by Batchen, the Railroad's agent, of Weinell's activities requires some discussion. The pictures were taken while Weinell was moving from one home to another and show him engaging in activities appropriate to home moving, such as lifting objects, bending, turning his head, and getting in and out of his car. The pictures tend to impeach the testimony of Mrs. Weinell and some of Weinell's experts. The trial court, relying upon Rule 5 II G, Rules of Court, United States District Court for the Western District of Pennsylvania, limited the showing of the motion pictures to what it deemed proper upon rebuttal and the court also concluded that certain frames should be omitted as irrelevant. The limitation upon displaying the pictures to the jury imposed by Rule 5 II G we assume will not arise upon the new trial. As to the elision of frames, while we concede that some, a very small portion of the total, were irrelevant, nonetheless we deem this to be too de minimis a matter to require cutting and splicing and that no damage will result to justice in showing all these pictures to the jury.

We come now to the substantial error in the proceedings, the supplemental charge. The jury was originally charged at about 10 a.m. on Thursday, December 14, 1967. The record is not clear as to the time they were discharged on that day but at 10 a.m. on Friday, December 15, no verdict had been reached. There was some delay due to the illness of a woman juror but at 11:43 a.m. on the morning of December 15, the court gave the following supplemental charge to the jury. We set out a good portion of it in order to do justice to the learned trial Judge. It is as follows:

"Ladies and gentlemen of the jury, I think probably the time has now come to give you a few words of encouragement in the course of your difficult and arduous labors.

"It is not a surprise in view of the complexity and length of the trial that we have just experienced that it will take some time for you to sort out everything and come to a ...


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