Norfolk Southern Railway Co. v. Trimiew

Present: All the Justices

NORFOLK SOUTHERN
RAILWAY COMPANY
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 960533 January 10, 1997

CLINTON TRIMIEW

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Randall G. Johnson, Judge

On August 20, 1993, appellee Clinton Trimiew, the plaintiff

below, was injured while working for appellant Norfolk Southern

Railway Company, the defendant below, near Burkeville in Nottoway

County. The plaintiff brought this action against defendant

under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51
et seq., to recover damages for his injuries.

The plaintiff alleged that he was injured during "his

attempt to alight and exit from the passenger side cab of a high

rail vehicle which ran along the railroad track." He asserted

that "[u]pon alighting from the vehicle, he suddenly slipped on

excessively high and ungroomed ballast rock which lined the track

area just outside his vehicle." He alleged the defendant

negligently failed to provide him a safe place to work,

negligently "failed to inspect, find, and warn Plaintiff of a

dangerous condition," and violated its "own standards as to the

proper grooming and placement of ballast rock along the railroad

line prior to Plaintiff's accident."

In a grounds of defense, the defendant denied the

allegations of primary negligence, alleged the plaintiff's

injuries were caused solely by his own negligence, and asserted

the plaintiff was guilty of contributory negligence.
 The case was submitted to a jury during a two-day trial in

December 1995 upon the issues of primary and contributory

negligence, proximate cause, and damages. The defendant did not

move to strike the plaintiff's evidence either at the conclusion

of the plaintiff's case-in-chief or at the close of all the

evidence. The jury found in favor of the plaintiff and fixed the

damages at $500,000.

Following announcement of the verdict, the defendant moved

the court to set the verdict aside upon the ground that the

plaintiff had failed to prove the defendant was negligent. See

Gabbard v. Knight, 202 Va. 40, 43, 116 S.E.2d 73, 75 (1960) (in

testing sufficiency of evidence, defendant has option of making a

motion to strike the plaintiff's evidence or awaiting the jury's

verdict).

The trial court denied the motion and entered judgment on

the verdict. We awarded the defendant this appeal, limited to

consideration of whether the trial court erred in denying

defendant's motion to set aside the verdict and in ruling the

evidence was sufficient to present a jury issue upon the question

of defendant's negligence.

Recently, we summarized the settled principles applicable to

cases of this type. We apply federal decisional law, because

whether negligence has been established for purposes of the FELA

is a federal question. Drawing on federal law, we have noted

that a plaintiff's proof must justify with reason the conclusion

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that an employer's negligence played any part, even the

slightest, in producing the injury for which damages are sought.

Norfolk and W. Ry. Co. v. Johnson, 251 Va. 37, 43, 465 S.E.2d

800, 805 (1996). Reasonable foreseeability of harm is an

essential ingredient of FELA negligence. Id. at 43-44, 465

S.E.2d at 805. Ordinarily, the issue of FELA negligence is a

question of fact to be decided by the jury. Norfolk and W. Ry.

Co. v. Hodges, 248 Va. 254, 260, 448 S.E.2d 592, 595 (1994).

However, in the rare case when fair-minded persons cannot differ

on whether the employer was at fault and whether that fault

played any part in the employee's injury, the question becomes

one for the court. Stover v. Norfolk and W. Ry. Co., 249 Va.

192, 199, 455 S.E.2d 238, 242, cert. denied, ___ U.S. ___, 116

S.Ct. 186 (1995).

Under the FELA, an employer has a nondelegable, continuing

duty to exercise reasonable care in furnishing its employees a

safe place to work. Johnson, 251 Va. at 44, 465 S.E.2d at 805.

The employer must conduct proper inspections to discover dangers

in places where employees are required to work, and must take

reasonable precautions for the employees' safety after

determining the existence of such dangers. Id. But even under

the FELA, an employee still must establish that the employer was

guilty of some act of negligence in order to recover. Norfolk

and W. Ry. Co. v. Hughes, 247 Va. 113, 116, 439 S.E.2d 411, 413,
cert. denied, ___ U.S. ___, 114 S.Ct. 2136 (1994).

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 Examining the facts of this case against the background of

the foregoing principles, we hold the evidence was insufficient

as a matter of law to raise a jury issue upon the question of

defendant's negligence.

Rules of appellate procedure require us to consider the

facts, some of which are disputed, in the light most favorable to

the plaintiff, who is here armed with a jury verdict confirmed by

the trial judge. During daylight hours in August 1993, the

plaintiff was riding in the passenger seat of the cab of a "high

rail" vehicle operated by Robert Forsythe on defendant's track.

They were inspecting the track near Burkeville. The plaintiff,

employed by defendant for 20 years, was a track laborer.

Forsythe was one of defendant's assistant track supervisors. A

high rail vehicle is "just a regular truck" that has the

capability of being operated on a highway or a railroad track.
Forsythe stopped the vehicle to cut bushes near the track.

He alighted from the vehicle's left side and the plaintiff, after

putting on his hard hat and gloves, began to alight from the

right side, apparently to assist Forsythe in clearing the bushes.

According to the plaintiff, the ground where he was to step

from the vehicle "looked safe to get out." Holding to the

vehicle for support, the plaintiff then stepped on ballast rock

lying along the track. He testified that as he stepped down, the

"ballast just went from under me, like, if you were to step on a

pile of marbles." The plaintiff "landed down" in an adjacent

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ditch and felt "something pop" in his back.

Ballast, in this context, is stone laid on the roadbed of a

railroad track for the purpose of stabilizing the track and

facilitating drainage. According to defendant's written standard

procedures on the use of ballast, its purpose is "to provide

adequate drainage and afford a means of maintaining proper cross

level, surface, and alignment for the track under load." The

stone is commonly known as "2 inch ballast" or "3/4 inch

ballast."
Ballast is unloaded from the sides of a slowly moving,

multi-car train. A "berm" of ballast is laid beside the track

and outboard of the "head" of cross-ties supporting the track.

After laying, the berm generally is eight to twelve inches above

the top of the rail. When ballast is piled to this level, "it

makes for a difficult walking surface." These mounds of ballast

are smoothed and "groomed" by a machine called a "ballast

regulator." When groomed, the ballast supporting a level track

is even with the level of the cross-tie for six inches and then

slopes downward away from the cross-tie.

The evidence showed that railroads periodically must replace

old cross-ties and resurface sections of track. This is called a

"timbering and surfacing" (T & S) operation. Before a scheduled

T & S operation, ballast that will be used in the project is

unloaded. The piles of rock are left in an ungroomed condition

until the old ties are replaced during the T & S operation, after

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which the ballast is groomed to the prescribed profile.

In the present case, ballast was unloaded in March 1993

along a stretch of track that included the site of the

plaintiff's fall, which occurred about five months later. The

dumping of the rock was described as "unusual" because it was

frozen and did not flow smoothly from the ballast train. The

ballast came out "in chunks" and piled up along the rails,

leaving "big piles here, big piles there," according to one

witness.
The unloading was in advance of a T & S operation scheduled

for the summer of 1993. Because of "budget reasons," the T & S

operation was postponed until "the next year, or possibly the

year after that." Thus, the ballast remained as it was dumped

along the track up to the time of plaintiff's fall.

The plaintiff's evidence showed that an operational ballast

regulator owned by defendant was stored on a railroad sidetrack

about three miles away from the site of this accident and that

employees of defendant qualified to operate the machine were

available. Two witnesses who had operated a ballast regulator in

the past testified that it would take four to five hours to

"smooth out" the approximately five or six miles of ballast that

had been dumped in March. Additionally, the plaintiff's evidence

showed that a timbering and surfacing "gang" was "usually"

scheduled within one to three months of dumping to "come through

to smooth the ballast."

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 The plaintiff participated in the March unloading project

and had passed the area where he fell on work days prior to the

day of the accident. He testified he knew "ballast was in that

general area," but that he "had never stopped" there before the

day he fell.

On appeal, the plaintiff contends the trial court correctly

refused to set the verdict aside because the plaintiff "proved

multiple theories of negligence." Initially, the plaintiff

argues that his immediate supervisor, Forsythe, "failed to warn

him that there were unusually high mounds of ballast rock in the

area where the supervisor chose to stop the high rail vehicle."

Continuing, he says that even though he participated in the March

ballast dumping operation, "it should be remembered that he

worked along 105 miles of track, and that he often worked in the

area of crossings or rail switches," areas where the evidence

showed "the ballast train had not dumped unusually high mounds of

ballast." He notes that because assumption of risk has been

abolished under the FELA, 45 U.S.C. § 54, "the railroad cannot be

exonerated from liability simply because Trimiew participated in

dumping the stone five months earlier."
In addition, the plaintiff argues that because defendant

knew the T & S gang would not come through Burkeville at all

during 1993 and because it was aware of the danger of the

unusually high mounds, it was incumbent upon defendant to groom

the ballast promptly. According to the plaintiff, "the

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preventive measure to correct the dangerous condition was so

simple, a four or five hour work assignment, . . . there was

plainly a basis for the jury to determine that the railroad was

negligent in failing to assign a worker to operate this ballast

regulator to smooth the ballast mounds."

Also, the plaintiff contends defendant should have trained

him "about dismounting from a high rail vehicle into unusually

high mounds of loose ballast." The evidence showed that, prior

to plaintiff's fall, defendant maintained no written safety rule

or informed the plaintiff about "how a worker's arms and legs are

to be positioned prior to exiting from the cab of a high rail

vehicle."
We reject each of the plaintiff's "multiple theories of

negligence." The FELA "does not make the railroad an absolute

insurer against personal injury damages suffered by its

employees." Wilkerson v. McCarthy, 336 U.S. 53, 61 (1949). And,

under the FELA, the weight of the evidence must exceed a

scintilla before the case properly may be left to the jury's

discretion. Stover, 249 Va. at 200, 455 S.E.2d at 243 (citing

Brady v. Southern Ry. Co., 320 U.S. 476, 479 (1943)). If,

without weighing the credibility of the witnesses, the evidence

supports "but one reasonable conclusion as to the verdict," the

court should decide the matter, thus saving the result "from the

mischance of speculation over legally unfounded claims." Stover,

249 Va. at 200, 455 S.E.2d at 243 (quoting Brady, 320 U.S. at

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479-80) (internal quotations omitted).

In the present case, the record is devoid of proof, lay or

expert, that there was anything improper in the manner the

ungroomed ballast was situated along the track. In his argument,

the plaintiff dwells on the erroneous conclusions that the

ungroomed ballast was "excessively high" and "dangerous." All

the evidence was to the contrary; the ballast where plaintiff

fell was at the normal height for ungroomed ballast. The berm is

generally eight to twelve inches above the top of the rail on

each side of the track, and that was the condition, according to

all the evidence, that existed at the point of plaintiff's

accident.
There was no proof that the plaintiff fell on any of the

previously frozen "chunks" or lumps of stone discharged during

the March unloading. Indeed, the plaintiff submitted as evidence

photographs he had taken of the "exact area" of his fall, and

these photos do not show ballast lying in "chunks" or lumps; they

merely show a smooth, constant mound of ballast piled along the

rails.

Workers like this plaintiff were fully aware of the normal

condition of ungroomed ballast from long railroad experience and

from participating in unloading the very ballast upon which the

plaintiff fell; they knew that ungroomed ballast was "difficult"

to walk upon. Thus, given these facts, there was no basis for

the defendant to foresee that the ballast, laid in routine

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fashion for miles along track in open country, posed an

unreasonable danger to employees such as this plaintiff.

Because the berm of ballast lay in a normal condition, the

length of time the rock remained ungroomed becomes irrelevant

upon the question of any alleged negligence charged to the

railroad for failing to timely groom the rock with a ballast

regulator. The ungroomed ballast where plaintiff fell, according

to the uncontradicted evidence, was in the same condition and

degree of stability the day after it was spread as it was five

months later on the day of the accident. As the defendant

argues, under the plaintiff's theory the railroad should have

scheduled a special operation to groom the ballast when the

original T & S operation was postponed, and then repeated the

entire ballast unloading process when the T & S operation was

rescheduled. To find that the railroad owes a duty to its

employees under these circumstances to regulate ungroomed

ballast, a known condition, in a specified period of time is to

reach the unreasonable conclusion that the railroad may never

spread ballast in anticipation of a T & S operation for fear of

being found liable for an employee's injuries sustained during a

perfectly routine maintenance project.
There are a number of reported cases decided in other

jurisdictions under the FELA involving falls by railroad workers

on ballast, none of which is persuasive because they are

factually inapposite to this case. See generally, e.g., Atl.

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Coast Line R.R. Co. v. Gunter, 229 F.2d 842 (5th Cir. 1956);

Seaboard Air Line R.R. Co. v. Gentry, 46 So.2d 485 (Fla. 1950);

Hahn v. Norfolk and W. Ry. Co., 375 N.E.2d 914 (Ill. App. 1978);

Harp v. Illinois Cent. Gulf R.R. Co., 370 N.E.2d 826 (Ill. App.

1977).

Finally, the plaintiff complains on appeal of the failure of

the defendant to instruct him or provide written rules about the

safe method of dismounting a high rail vehicle. The plaintiff

did not present this theory of negligence at trial; there was no

such allegation in the motion for judgment and there was no

instruction that would have allowed the jury to make a finding

against the defendant on this subject. As a matter of fact,

plaintiff's failure to properly dismount the vehicle was an issue

raised by the defendant and presumably was considered by the jury

on the contributory negligence question. Thus, we shall not

discuss the issue further.
Accordingly, we hold that the trial court erred in denying

the defendant's motion to set the verdict aside. Thus, we will

reverse the judgment for the plaintiff and enter final judgment

here in favor of the defendant.
Reversed and final judgment.

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