Present: All the Justices
NORFOLK AND WESTERN RAILWAY COMPANY
OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
v. Record No. 951428
April 19, 1996
JAMES L. CHITTUM
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Clifford R. Weckstein, Judge
The principal issue we consider in this appeal is whether
the evidence is sufficient to support a verdict in favor of the
plaintiff. We also consider whether the trial court erred in
refusing to deduct the plaintiff's pension contributions in
calculating his net income.
I
Plaintiff, James L. Chittum, filed a motion for judgment
under the Federal Employers' Liability Act, 45 U.S.C. § 51 et
seq. (the Act or FELA), against his employer, Norfolk and Western
Railway Company (N & W), seeking recovery of damages for personal
injuries allegedly caused by N & W during the course of his
employment. N & W denied liability, and a jury trial ensued.
The jury returned a verdict in favor of Chittum in the amount of
$300,000, and the trial court entered judgment thereon. N & W
appeals.
II
Chittum prevailed at trial; therefore, we must view the
evidence and all reasonable inferences drawn therefrom in the
light most favorable to him. Chittum commenced working for N & W
in June 1973 as a laborer, repairing railroad tracks. In
December 1973, Chittum was shot in a hunting accident, and the
bullet lodged in his spine, rendering him paraplegic. He
gradually recovered, however, and, in 1978, after an evaluation
and release by N & W's own doctor, he returned to his previous
work.
Chittum, however, experienced some residual physical
limitations, including a medical condition known as "foot drop"
and chronic leg and back pain. He also walked with a limp. With
the aid of metal foot and ankle supports attached to his shoes,
however, Chittum was able to work regularly until 1981, when a
nail punctured the heel of his right shoe.
Chittum tried to treat the wound himself, but it would not
heal. He then came under the care of Dr. Young S. Kang, a
plastic and reconstructive surgeon. In August 1981, Dr. Kang
performed a split thickness skin graft on Chittum's right heel.
In January 1982, Dr. Kang released Chittum to return to
work, and Chittum reported to N & W's terminal supervisor and
advised him about the skin graft. N & W then sent Chittum to a
local hospital for a fitness-for-duty examination by a Dr. Watts,
the physician regularly used by N & W for such examinations.
Following the examination, Dr. Watts released Chittum to return
to work without any restrictions, and Chittum returned to work
the next day. 1
In October 1989, Chittum was required to work on and around
1
The record also discloses that Dr. Watts examined Chittum's
foot in August 1989.
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piles of railroad spikes in N & W's roadway materials yard. His
work involved opening kegs containing spikes and dumping the
spikes from the kegs onto the ground so the spikes could be
salvaged for further use. While working there, Chittum tore the
skin graft when he twisted his right foot on some spikes.
Initially, Chittum treated himself as Dr. Kang had taught
him to do. In April 1990, however, he returned to Dr. Kang. The
doctor prescribed an arch support to take the weight off
Chittum's heel, and Chittum obtained the support and returned to
work. In April 1991, Chittum again tore the skin graft slightly
while working on the spike pile.
Chittum told Gary Obenchain and L.P. Porter, two of his
supervisors, that working on the spike job was hurting him. None
of his supervisors, however, did anything about his complaint or
told him to stop working.
Chittum's condition worsened, and, on June 4, 1991, he
returned to Dr. Kang. The doctor noted that the original skin
graft had deteriorated sufficiently to require a new surgical
procedure.
The day after Chittum's June 4, 1991 visit with Dr. Kang,
Chittum told Obenchain that he was going to have further surgery
relating to the skin graft on his right heel. Chittum also told
Linwood Crenshaw, another supervisor, of his impending surgery.
No one, however, told Chittum to stop working, and Chittum
continued to work until June 17, 1991, when he tore the skin
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graft a third time. Dr. Watts then ordered that Chittum be taken
out of service.
Dr. Kang performed the second surgery in two stages in June
and July 1991. Chittum was never released to return to work, and
N & W concedes that Chittum is not physically qualified to do so.
III
N & W contends that the trial court erred in permitting
Chittum to prevail on his claim of initial injury and subsequent
aggravations thereof "where there was no evidence that [N & W's]
alleged negligence played any role in [Chittum's] October, 1989
injury." N & W asserts that "[s]ince there was no evidence as to
the real cause of [Chittum's] October, 1989 injury, the jury was
left to speculate improperly and impermissibly as to what had
caused the injury."
According to N & W, "[t]he evidence is uncontroverted that
at the time of his injury in October, 1989, [Chittum] was working
as a painter's helper with a Bridge and Building Gang [, and]
[t]he duties of a painter's helper did not require him to open
spike kegs or walk over spikes." N & W bases this conclusion on
certain answers Chittum gave during his cross-examination.
During the cross-examination, N & W's counsel confronted
Chittum with certain N & W documents which indicated that Chittum
was not working in the roadway materials yard during October
1989. When confronted with these documents, Chittum agreed "as
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far as [the documents] show." 2 On redirect examination, however,
Chittum testified that, despite what the documents indicated, he
first tore the skin graft while working in "the railway material
yard."
N & W, in asserting its contention, relies upon the
doctrine, established in Massie v. Firmstone, 134 Va. 450, 462,
114 S.E. 652, 656 (1922), that a litigant is bound by his own
factual statements. The doctrine, however, does not apply "to an
adverse statement standing in isolation from the litigant's
testimony as a whole." Baines v. Parker and Gladding, 217 Va.
100, 105, 225 S.E.2d 403, 407 (1976). Consequently, "[a]
damaging statement made in one part of [a litigant's] testimony
must be considered in the light of an explanation of such
statement made in a later part of his testimony. . . . And it is
generally for the jury to determine whether it will accept such
explanation or clarification." VEPCO v. Mabin, 203 Va. 490, 494,
2
Based on the documents and Chittum's answers during cross-
examination, N & W also contends that there was a fatal variance
between Chittum's allegations in his motion for judgment and his
proof. N & W advanced this contention in the trial court during
its post-verdict argument. The trial court rejected the
contention, reasoning that it had not been made at trial "in such
a manner as to call to the attention of the trial judge . . . and
[Chittum's] lawyer . . . the fact that [the] argument was made."
We agree with the trial court.
N & W's counsel, at one time during the trial, did state
that "the allegations . . . in the pleadings . . . are just
simply wrong. They have identified incidents that are not
possible to have happened because of the time frame and where
. . . Chittum was working." We do not think, however, that this
statement raised the issue of a fatal variance "with reasonable
certainty." Rule 5:25.
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125 S.E.2d 145, 148 (1962).
In the present case, Chittum's damaging statement made in
one part of his testimony cannot be viewed in isolation from his
later testimony. The jury resolved this conflict in the evidence
in Chittum's favor, and we conclude that the trial court properly
rejected N & W's contention.
IV
N & W further contends that Chittum produced insufficient
evidence of foreseeability to create a jury issue on the question
of negligence. N & W asserts that "there is no evidence that
[it] was on notice that allowing Chittum to do spike reclamation
put his skin graft at risk."
An essential ingredient of negligence under the Act is
reasonable foreseeability of harm to the employee. Norfolk and
Western Railway Co. v. Johnson, 251 Va. 37, 43-44, 465 S.E.2d
800, 805 (1996). However, an employer need not foresee the
particular consequences of its negligent acts; rather, it must
compensate its employee "for even the improbable or unexpectedly
severe consequences of [its] wrongful act." Gallick v. Baltimore
& Ohio R.R., 372 U.S. 108, 120-21 (1963).
When the evidence in the present case is viewed in light of
the foregoing principles of law, we conclude that the jury
reasonably could have found that the injury Chittum sustained was
reasonably foreseeable. Chittum testified that a N & W claim
agent and a N & W supervisor came to his home and saw his right
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heel while he was recuperating from the 1981 skin graft
operation. Chittum complained to his supervisors, Obenchain and
Porter, about having to work on the spike pile. N & W's own
physician, Dr. Watts, examined Chittum's skin graft in 1982 and
again in 1989 and never recommended any restrictions or
limitations regarding the work Chittum could perform. Thus, we
reject N & W's contention that it did not have notice of any risk
to Chittum. Indeed, "[c]ourts are not free to reweigh the
evidence and set aside the jury verdict merely because the jury
could have drawn different inferences or conclusions or because
judges feel that other results are more reasonable." Tennant v.
Peoria & P. U. Ry., 321 U.S. 29, 35 (1944).
V
N & W also contends that Chittum failed to establish that N
& W's alleged negligence was the cause of his injury. N & W
asserts that none of Chittum's experts related the breakdown of
his skin graft to walking over spikes. N & W further asserts
that there is no evidence that its negligence caused the alleged
aggravations of the primary injury.
Pursuant to the Act, an employer has a duty to provide its
employees with a safe place to work. Bailey v. Central Vermont
Ry., 319 U.S. 350, 352-53 (1943). The employer also has a
nondelegable duty to inspect its premises and other areas where
its employees are required to work and to take reasonable
precautions to protect its employees from possible danger. Cazad
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v. Chesapeake & Ohio Ry., 622 F.2d 72, 75 (4th Cir. 1980).
Moreover, the employer has a duty "to assign its employees to
work for which they are reasonably suited . . . [, and it]
breaches that duty if it knew or should have known that its
assignment exposed the employee to an unreasonable risk of harm."
Sabb v. Norfolk & P. Ry. Co., 222 Va. 19, 23, 278 S.E.2d 795,
798 (1981).
The Supreme Court, in establishing the standard under the
Act by which a jury may properly determine a causal relationship
between an employer's negligence and an employee's injury, stated
the following:
[T]he test of a jury case is simply whether the proofs
justify with reason the conclusion that employer
negligence played any part, even the slightest, in
producing the injury . . . for which damages are
sought. It does not matter that, from the evidence,
the jury may also with reason, on grounds of
probability, attribute the result to other causes,
including the employee's contributory negligence.
Rogers v. Missouri Pacific R.R., 352 U.S. 500, 506 (1957)
(footnotes omitted).
Applying the foregoing principles of law, we conclude that
the evidence in the present case, when viewed in the light most
favorable to Chittum, is sufficient to support the jury's finding
that N & W was negligent in failing to provide Chittum with a
safe place to work. From the testimony of Chittum and several of
his co-workers, as well as various photographs depicting the area
where Chittum was required to work, the jury reasonably could
have found that N & W knew, or should have known, that Chittum's
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work assignment exposed him to an unreasonable risk of harm.
We also conclude that the evidence supports the jury's
finding that N & W's negligence played a part in producing the
primary injury in October 1989 and the aggravations thereof in
April and June 1991. Although much of the expert testimony
reasonably could have produced a different result, Chittum's own
testimony was sufficient to create a jury issue regarding
causation. As we have said, "`even when medical testimony fails
to establish causal connection expressly,'" a plaintiff's
testimony alone is sufficient to create a jury issue regarding
causation. Todt v. Shaw, 223 Va. 123, 126-27, 286 S.E.2d 211,
213 (1982) (quoting Peterson v. Neme, 222 Va. 477, 483, 281
S.E.2d 869, 872 (1981)).
VI
Finally, N & W contends that the trial court erred in ruling
that, for purposes of calculating Chittum's net wages under the
Act, Tier I and Tier II retirement payments made by Chittum
should not be deducted from his gross wages. N & W relies in
large part on Norfolk & W. Ry. v. Liepelt, 444 U.S. 490 (1980).
In Liepelt, a wrongful death action brought under the Act, the
Supreme Court held that, with respect to the measure of damages,
a railway company is entitled to present evidence of the effect
of income taxes on the decedent's estimated future earnings. 444
U.S. at 493-94.
The Supreme Court, however, has never held that Tier I and
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Tier II payments toward retirement are to be treated the same as
federal and state income taxes and, therefore, deducted to
establish net income. Nevertheless, building upon Liepelt, N & W
asserts that the retirement payments are congressionally mandated
federal taxes and, therefore, like income taxes, should be
deducted from gross income in determining damages. We do not
agree.
Even though retirement payments are mandated by Congress, we
do not equate them with income taxes. Furthermore, N & W has not
cited, and we have not found, a single FELA decision from either
a federal or a state court holding that such retirement payments
should be deducted from gross income in calculating net income.
We conclude, therefore, that the trial court did not err in
rejecting N & W's contention.
VII
We find no error in the trial court's rulings. Accordingly,
we will affirm the judgment.
Affirmed.
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