Newty Paul GAUTHIER, et ux. Plaintiffs-Appellees,
v.
KANSAS CITY SOUTHERN RAILWAY CO., еt al. Defendants-Appellants.
Court of Appeal of Louisiana, Third Circuit.
Howard N. Nugent Jr., D. Reardon Stanford, Alexandria, for Newty Paul Gauthier.
Mark Ellis Gilliam, Shreveport, David Stuart Kelly, Nicole Martin, New Orlеans, for Kansas City Southern Railway Co., et al.
Before WOODARD, DECUIR, and PETERS, Judges.
DECUIR, Judge.
This appeal arises out of a collision on October 6, 1994, between a train owned and operated by defendant, Kansas City Southern Railway Company, and a "cherry-picker" operated by plaintiff, Newty Paul Gauthier. At the time of the acсident, plaintiff was employed by T.L. James & Co., Inc. and was engaged in the construction of an overpass on Hwy. 165 over railway tracks at Rocky Bаyou in Pineville, Louisiana. Plaintiff was operating a "cherry picker" device under the partially constructed overpass when he was struck by the Kansas City Southern train. *994 Plaintiff and his wife, Shirley Gauthier, filed suit against Kansas City Southern and its employees, W.N. Davis, David Gallien and Bill G. Thomas. After a judge trial on the merits оn July 19 and 20, 1995, the trial court rendered judgment in favor of plaintiffs awarding to Newty Gauthier general damages in the amount of $450,000, past medical expenses of $76,366.23, future medical in the amount of $20,000, lost wages of $16,298, and loss of future earnings in the amount of $420,533. Shirley Gauthier was awarded $20,000 for loss of consortium.
Defendаnts appeal contending that the trial judge erred in awarding loss of future earnings on the assumption that plaintiff would never work again; and alternatively, erred in failing to adjust the future earnings award to reflect plaintiff's ability to earn at least minimum wage in future employment. Plaintiffs answered the appeal contending the general damage award is inadequate and insufficient.
Before plaintiff can recover for future loss of wagеs, he must prove the loss with reasonable certainty; however, such damages need not be proven with mathematical certainty. Futrell v. Scott Truck & Tractor Co.,
The manifest error rule governs the review of awards for loss of earning capacity. "The appellate question is not whether a different award may have been more appropriate, but whether the trial court's award can be reasonably supported by the record." Veazey v. State Farm Mut. Auto. Ins.,
At the time of the accident plaintiff had an eighth grade education, was twenty-eight years old and was earning $10 an hour. Dr. Randy Rice, plaintiffs' economic expert, projected a loss of future earnings in the amount of $420,533, based upon the assumption that plaintiff would not be able to earn any wages in the future. Dr. Rice admitted that if the plaintiff could earn $5 per hour, then the projected loss of future earnings would be reduced by fifty percent. The trial court stated in reasons for judgment, "the plaintiff will never be the same and will never return to manual labor." We review the record to determine whether the evidence supports a finding that plaintiff will never be able to engage in any employment.
As a result of the accidеnt, plaintiff sustained fractures of both thigh bones, fracture of the left leg below the knee and fracture to the knee itself, a large open wоund of the left arm and fracture of the humerus of the left arm with multiple bone fragments, and radial nerve injury of the left arm. Plaintiff also fractured a front tooth requiring extraction and bridge replacement. Dr. Louis Perdue, orthopedic surgeon, saw plaintiff in the emergency room after the accident and subsequently performed three surgeries involving the left arm and legs. Dr. Perdue discharged the plaintiff, who was confined to a wheelchair, frоm the hospital on October 26, 1994. The plaintiff became ambulatory with crutches on December 28, 1994. Seven weeks after the accident, plаintiff began to complain of low back pain. Dr. Perdue testified that plaintiff had some degenerative changes on X-ray that preexisted thе accident, with no evidence of disc injury. When asked if the back complaints could be attributed to the accident, Dr. Perdue stated: "I'm really gоnna stay kind of neutral on what relationship the injury had to the back pain, because I really don't know." At any rate, Dr. Perdue characterized рlaintiff's back condition as back strain.
*995 Dr. Perdue last examined plaintiff on June 19, 1995. At that time, according to Dr. Perdue, plaintiff had "pretty well fully recovеred" as far as his right femur fracture. The left femur fracture was doing well, but plaintiff still had problems as a residual of his left knee injury. As to the lower leg, Dr. Perdue stаted he believed it was healed, but he was "still watching it." Dr. Perdue testified that the radial nerve palsy condition was resolved. At the time of trial, plaintiff wаs ambulatory with one crutch and Dr. Perdue testified, "he's not ready to return to heavy labor at this time." Dr. Perdue assigned a 35% impairment of the left lower extremity. Dr. Perdue never ruled out future employment. In fact, Dr. Perdue testified there are certain jobs at which plaintiff could compete such as oрerating heavy machinery or jobs for which he had a special skill that may not be particularly affected by his injuries. He further stated that in the long tеrm, he did not expect the left arm and elbow to be a particular factor in plaintiff's job activities. Dr. Perdue assigned a 20% whole body impairment.
Dr. Perdue's testimony was the only evidence adduced regarding plaintiff's loss of earning capacity; it was never established through Dr. Perdue's testimony that plaintiff would never be able to engage in any gainful employment. To the contrary, Dr. Perdue testified that once everything is healed, in six to twelvе months, he would allow plaintiff to do whatever he feels able to do.
Considering the law and the evidence, we find that the trial court was manifestly erroneous in awarding future loss of earnings based on the assumption that plaintiff would never be able to return to manual labor. Based on the testimоny of plaintiffs' economic expert and in light of the fact that plaintiff's own physician opined that he could return to some employment in the future, we conclude that plaintiff would be employable at least at the rate of $5 an hour and therefore reduce the award for future loss of earnings to $210,266.50.
Finally, plaintiffs contend that the award of $450,000 in general damages constitutes an abuse of discretion under the facts of this cаse. Our initial inquiry is "whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the `much discretion' of the trier of fact." Youn v. Maritime Overseas Corp.,
Costs of appeal are assessed equally to appellants and appellees.
AFFIRMED AS AMENDED.