Petition for Writ of Certiorari — Clark v. C & O Railway Co.

a

bs ay,

SS on i ] a ne - Supreme Court, tis

FILED

Jn Ch p DEC 2! 1988

WOSEPH F. SPANiO!. JR,

Supreme Court Of Che Uni

OCTOBER TERM, 1988

GARY R. CLARK,

Petitioner,

V.

C & O RAILWAY COMPANY,

Respondent.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

<<

PETITION FOR WRIT OF CERTIORARI

Raymond H. Strople

Randall E. Appleton

C. Gerard Thompson

MOODY, STROPLE & KLOEPPEL, LTD.

Post Office Box 1138

Portsmouth, Virginia 23705

(804) 393-4093

Counsel for Petitioner

BAA ret SRC ERA NILA TTS aiiaeiaiieamaaials Cy

J

LAWYERS PRINTING COMPANY 7th & Franklin Bidg. Richmond, Virginia 23219 (804) 648-3664 Y

QUESTIONS PRESENTED FOR REVIEW

Bs

IS EVIDENCE OF DAMAGE CAUSED BY A

FLOOD OR ACT OF GOD ON NOVEMBER 4, 1985

AND THE SUBSEQUENT WORK EFFORT TO OVERCOME

THE AFFECTS OF THE FLOOD ADMISSABLE TO

SHOW REASONABLE CARE EXERCISED BY A

RAILROAD WHERE A RAILROAD EMPLOYEE WAS

INJURED ON JANUARY 14, 1986 BECAUSE OF

AN ALLEGED DEFECT IN A SWITCH.

Il.

IS A RAILROAD EMPLOYEE IN A FEDERAL

EMPLOYERS’ LIABILITY ACT CASE ENTITLED

TO AN INSTRUCTION OR EXPLANATION STATING

THAT THE RAILROAD EMPLOYEE WAS NOT

NEGLIGENT WHERE THE COURT RULES IN

CHAMBERS THAT THE RAILROAD EMPLOYEE WAS

NOT NEGLIGENT BUT REFUSED TO TELL THE

JURY THAT THE RAILROAD EMPLOYEE WAS NOT

NEGLIGENT?

Page

Questions Presented for Review . ]

Reference to Official and Unofficial

Eos ie ss «se « 2

Grounds of Jurisdiction .... 3

Sememee INVOIVGG . 2. 2 sw ew tw 3

Starement.or Case ..«....-.-. 6

Reasons for Granting Writ... 18

ee ee 26

Sererrecece OF Service ..... 27

eet ss i» ke ee le (i)

TABLE OF AUTHORITIES

Supreme Court Cases Page

Gallick v. Baltimore and Ohio R.

Company, 372 U.S. 108, 83 S.Ct.

Gos, 9 L.€d.2@¢ GIS (1963) ... 21

Rogers v. Missouri Pac. R. Co 352

U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d.

493 (1957) Reh. Den. 353 U.S. 943,

77 S.Ct. 808 1 L.Ed.2d 764... 19, 25

Shenker v. Baltimore and Ohio R.

Company, 374 U.S. 1, 83 S.Ct. 1667,

10 L.Ed. 709 (1963) :

20

ii

Sinkler v. Missouri P. R. Company,

356 U.S. 326, 78 $.Ct. 758,

S MBG EG FPG: CbGee) sis eck cw 19

Tiller v. Atlantic Coastline R.

Company, 318 U.S. 54, 63 S.Ct. 444,

oP - Se. fee 21

Webb v. Illinois L. R. Company,

i 2 oe mee Pe ee es ee Se

Be F & 2s. of ee er eee 25

Other Federal Cases

Baker v. Baltimore and Ohio Railway

Company, 502 Fed.2d 638

[Gen Gere EBPOe 8 oo 19

Statutes

28 U.S.C. Section 1257(3)

28 U.S.C. Section 2010(c)

REFERENCE TO OFFICIAL AND

UNOFFICIAL OPINIONS

This case has not been reported in

any official or unofficial reports

either at the trial level or at the

appellate level.

GROUNDS OF JURISDICTION

The Circuit Court of Portsmouth on

June 23, 1987 entered judgment on a

jury verdict for the C & O Railway

Company (See App.: xlvii). A Petition

for Appeal was timeiy filed by Clark

with the Supreme Court of Virginia and

the Petition for Appeal was denied by

the Supreme Court of Virginia on August

2, 1988. (See App. xlviii) A Petition

for Rehearing was then filed in the

Supreme Court of Virginia and the Petition

for Rehearing was denied by the Supreme

Court of Virginia on September 23,

1988. (See App. xlix) This Petition

for Writ of Certiorari is timely field

in accordance with 28 U.S.C. 2010(c).

This Court has jurisdiction in

accordance with28 U.S.C. Section 1257(3),

which provides:

By Writ of Certiorari,

where the validity of a treaty

3

or statute of the United States

is drawn in question or where

the validity of a state statute

is drawn in question on the

ground of its being repugnant

to the Constitution, treaties

or laws of the United States,

or where any title, right,

privilege or immunity is specially

set up or claimed under the

Constitution, treaties or

statutes of, or commissioned

held or authority exercised

under, the United States.

STATUTE INVOLVED

Section 51 of the Federal

Employers’ Liability Act provides,

"Every common carrier by railroad

while engaging in commerce

between any of the several

states or territories, or between

any of the states or territories,

or between the District of

Columbia or any of the states

or territories and any foreign

nation or nations, shall be

liable in damages to any person

suffering injury while he is

employed by such carrier in

such commerce, or, in case of

death of such employee, to his

or her personal representative,

for the benefit of the surviving

widow or husband and children

of such employee; and, if none,

then the next of kin depending

upon such employee, such injury

or death resulting in whole or

in part from the negligence in

any of the officers, agents or

4

employees of such carrier or by

reason of any defect or

insufficiency due to its

negligence in its cars, engines,

appliances, machinery, track,

roadbed, works, boats, wharfs

or other equipment. See 45

U.S.C. Section 51 Federal

Employers’ Liability Act.

EB oe PERN MR

ET BERS LOE TE BE OR LLP AE FAR ANON REY LO NE EE Ig” PE LSME BALIN BIEN LLOL TG OPORTO SOULE POR IIE REM TS .

eee ea tees

STATEMENT OF CASE

Clark filed a Motion for Judgment

against the C & 0 Railway Company under

the Federal Employers’ Liability Act

seeking damages for an on the job injury

that he sustained while in the employ

of the C & 0 on January 14, 1986 due to

the failure of the C & 0 to furnish him

with a safe place to work. The C & 0

denied that Clark was injured, denied

that the C & 0 was negligent, and alleged

that Clark was negligent. The matter

was tried before a jury in the Circuit

Court of Portsmouth on May 13, 14, 15

and 18. During to the course of the

trial Clark objected to the introduction

of any evidence showing the _ flood,

which occurred on November 4, 1984, and

the repairs made subsequent to the

flood since the injury to Clark did not

occur until January 14, 1986 and was

alia al it TERNS EE NAT

not relevant to the case (See App.

xxxiii). The Court, over the objection

of Clark allowed a video to show the

damage and allowed testimony by Frost

to show the extensive work that was

done on part of the C & 0 to make repairs

caused by the flood. After the parties

rested, Clark moved to have the Court

rule that Clark was free of contributory

negligence as a matter of law and have

the Court tell the jury that Clark was

free of negligence. The Court in

chambers, out of the presence of the

jury, ruled that Clark was free of

negligence but the Court, despite requests

by Clark, would not tell the jury that

Clark was not negligent (See App. xxviii

and xl). On May 18, 1987 the jury

returned the verdict for the C & O.

(See App. xxxviii) Clark then moved to

set aside the verdict on the basis of

error during the trial and the Court

overruled Clark’s motion on June 23,

1987. (See App. xlvii) Clark argued

on the Motion to Set Aside the Jury

Verdict that the Court should have

instructed the jury that Clark was free

of negligence and that it was a

prejudicial error to admit evidence of

the flood and subsequent repairs which

flood and subsequent repairs were not

relevant to the accident of January 14,

1986. Clark then timely filed a Petition

for Appeal with the Supreme Court of

Virginia arguing that the Trial Court

should have instructed the jury that

Clark was free of negligence and that

the Court should not have admitted

evidence as to the flood conditions and

subsequent repairs. The Supreme Court

of Virginia denied the Petition for

Appeal on August 2, 1988 (See App.

xlviii) A Petition for Rehearing was

then filed with the Supreme Court of

Virginia and this Petition for Rehearing

was denied on September 23, 1988. (See

App. xlix)

Page references in this Petition

will be to the transcript unless the

matter has been printed in the Appendix

attached, in which case the reference

will be to the Appendix filed with this

Petition.

Clark, a C & O brakeman was working

as a conductor on a freight train on

January 14, 1986 for the C & O in the

James River Subdivision between Gladstone

and Clifton Forge. Wright was the

engineer, Hurt was head brakeman and

Nicely was the rear brakeman (187-89).

Clark was working the rear -of the train

in the caboose, approximately 100 cars

away from the engine where Hurt, Nicely

and Wright worked. The crew and train

was headed west from Gladstone to Clifton

Forge but had to stop at Tyree and get

On a passenger siding so the eastbound

train could get through on the main

line (T92). Hurt aligned the power

switch at Tyree so the movement could

go from the main line into the passenger

siding and the train would be clear of

the main line (195). Exhibits 3 and 4,

photographs of the scene and the switches,

were introduced into evidence and showed

the condition of the switch that existed

as of January 14, 1986. Hurt manually

operated the switch and it was difficult

to throw and told both Nicely and Wright

that it was hard to throw (196-105).

No one reported to Conductor Clark that

the switch was hard to throw. After

the rear of the train had cleared the

Switch, Clark was to manually operate

10

the power switch back to the position

it was in to start with so that the main

line train could pass. Clark was keeping

in touch with the engine by radio,

but, the radio was not working well

(T92). Clark had to stop the rear of

the train just clear of the switch so

he could realign the switch (194).

Clark got off of the caboose and walked

to the switch, observed the switch

points and noticed there were no

obstructions (T98). Clark stood in

front of the switch, took a firm hold

of the switch as he was trained to do,

moved the switch and as the switch got

about three-fourths of the way back the

switch hung, causing him to lose his

footing (T98-99). According to Clark,

the mud and the switch hanging up caused

him to lose his footing. Clark injured

himself and tried to notify the

11

Yardmaster of his injury (199) and

later reported his injury at the end of

his shift to the proper parties and

filed the necessary reports.

There was a dispute as to the

condition of the switch. Clark maintained

that Exhibits 3 and 4 showed the condition

of the switch on January 14, and that

the switch was defective because there

was mud around the switch, there was no

ballast under the switch, there was no

place to get a firm footing and there

was no ballast under the switch ties

(ree, : F7,. 206, « 2Ray ‘108). Millard

Thomas, an expert maintenance of way

railroad employee, maintained that you

had to have ballast under the switch in

order to have a level place to stand

anc that the ballast kept the mud away

(T7227). Ballast was also needed under

12

the switch so the switch would operate

correctly and not hang up.

The C & O maintained that the switch

was in proper condition. Connor, a track

inspector, inspected the switch on

January 13, and reported that the switch

was working properly (7T124). Wingfield,

a brakeman, operated the switch several

times afterwards and indicated that the

switch in question operated without

difficulty and that she had no problem

with her footing (1266-269). Frost,

the roadmaster, tested the switch on

January 20, and except for operating a

little stiff maintained that the switch

was normal (1196). The C & O denied

that Exhibits 3 and 4 represented the

condition of the switch.

Evidence showed that the switch

that was operated by Clark was normally

a power switch, but the switch could

13

not be operated by power because telephone

poles carrying electrical lines’ had

been damaged by the flood and had not

been put back up. As a result, the

switch had to be operated manually.

Evidence did show that a power switch

that was operated manually operated

with more difficulty than a_ normal

manual switch and that a power switch

should only be operated manually in an

emergency.

Prior to the C & OQ introducing

evidence, Clark objected to evidence

of the flood of November 4, 1985 or any

evidence of repairs or work done by the

C & O other than repairs in the area

where Clark was injured (See App. xxxii).

The Court overruled this objection and

allowed the C & 0 to introduce evidence

of the flood and subsequent repairs

between Gladstone and Clifton Forge,

14

the area where Clark would work but not

limited to the area wnere he was injured

(See App. xxxv). Clark was injured at

Tyree, which was between Gladstone and

Clifton Forge but there was little

damage there due to the flood. The C &

O then used Frost, a roadmaster, to

testify as to the conditions caused by

the flood between Gladstone and Clifton

Forge and showed a video to the jury

showing the damage. Frost also testified

as to the numerous loads of ballast

that were used to fill the areas that

were washed out and described in detail

what the C & O did to clean up the

area. However, at the place where

Clark was injured the C & O did not

maintain there was major damage. The

power switch was not operable because

lines were still not reconnected from

Richmond. There was no damage to the

15

roadbed at the area where Clark was

injured and the C & 0 immediately cleaned

out the mud and dirt from the switch

and the C & 0 maintained that the switch

was working properly. The C & O

maintained that it did not have to add

any ballast or clean up any debris in the

area where Clark was injured. Cieark

maintained that he was free of any

negligence from the outset. Clark

testified that he checked the switch

points before operating the switch and

then positioned himself in a manner he

had been trained to do and then operated

the switch using both hands and pulled

the switch up in the fashion that he

was instructed to do when the switch

hung up causing him to lose his footing.

The C & O introduced in to evidence the

Safety Rule No. 119 which’ provided

that if a switch required excessive

16

force, you should get help to operate.

The C & O also called Brakeman Wingfield

to testify that she would call for help

if the switch was difficult to operate.

In chambers, after both parties had

rested, Clark moved to strike the C &

0’s evidence as to Clark’s negligence

and asked the Court to instruct the jury

that Clark was free of negligence (See

App. v-xxviii). The Court ruled that

Clark was free of negligence but would

not tell the jury that Clark was free of

negligence (See App. xxviii) and denied

any instructions on contributory

negligence (See App. xxx).

17

aS

REASONS FOR GRANTING WRIT

This Court should grant this Petition

for Certiorari because the Trial Court

and the Supreme Court of Virginia did

not follow the lan of the Federal

Employers’ Liability Act and its

interpretation by the Supreme Court of

the United States and by other Federal

Courts and State Courts.

Clark was injured on January 14,

1986 while operating, what he alleged,

a defective switch. The C & 0 maintained

that it was not defective and to show

that it exercised reasonable care,

introduced evidence over objection of a

video and oral testimony showing damage

that was done on account of a flood on

November 4, 1984 and evidence of the

nature and extent of repairs that were

performed by the C & 0 between Gladstone

and Clifton Forge, the line where Clark

18

worked on. None of the video showed

damage where Clark was injured. In

fact, the C & O maintained there was

little damage caused by the flood where

Clark was injured and no ballast was

added and no repairs were done to the

roadbed or around the switch. The power

switch was still not working because

electricity to the switch had not been

restored and the switch had to be operated

manually. The liberal and humanitarian

purpose of the Federal Employers’

Liability Act must be considered when

confronting arguments that restrict an

employer’s liability under the act.

See Sinkler v. Missouri P. R. Company,

a86 U.5. 326, 78 S.Ct. 750, 2 1.86.26

799 (1958); see Baker v. Baltimore and

Qhio Railway Company, 502 Fed.2d 638

(6th Cir. 1974); see Rogers v. Missouri

oe. oe. - ae Ce.” See, Fe) SCR.

19

443, 1 L.Ed.2d 493 (1957) Reh. Den. 353

U.S. 943, 77 S.Ct. 808 1 L.Ed.2d 764.

The C & O had a nondelegable duty to

furnish Clark a safe place to work

and can not escape this duty by showing

evidence of a flood and extensive damages

to be repaired to the railroad tracks and

equipment where the damage happened

over sixty (60) days prior to the date

of Clark’s injury. See Shenker v.

Baltimore and Ohio R. Company, 374 U.S.

1, 83 S.Ct. 1667, 10 L.Ed. 709 (1963).

The Federal Employer’s Liability Act

did not intend that a railroad could

use evidence of an Act of God to show

that it acted as a reasonably prudent

person meeting the standard of care

under the circumstances where the

flood/Act of God happened over sixty

(60) days prior to the date where the

railroad employee was injured. A railroad

20

pte at ow

employee cannot assume the risk of his

injury by working under conditions that

are dangerous no matter what the cause.

See Jiller v. Atlantic Coastline R.

Company, 318 U.S. 54, 63 S.Ct. 444, 87

L.Ed. 610 (1943). The Railroad by using

evidence of damage caused by a flood

and the nature and extent of repairs

was shifting its burden of exercising

due care to Clark by making him assume

the risk of a dangerous condition that

had not been repaired. In Gallick v.

Baltimore and Ohio R. Company, 372 U.S.

108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963),

the railroad employee was bitten by an

insect and the railroad defended on the

ground that the bite was beyond the

realm of reasonable foreseeability and

that there was no duty to exercise care

in this regard. The Supreme Court

rejected this argument and held the

21

railroad liable. Here the C & O knew

the switch was not working by power but

sent Clark on the job to use the switch

and required him to operate it manually.

Evidence showed that the switch should

not be operated manually unless it was

an emergency and the C & O was claiming

that because of a flood, which occurred

more than sixty (60) days before and

the power lines were still out, it was

still operating under an emergency.

Allowing the admission of such evidence

as to the railroad’s standard of care

in this case was prejudicial and should

not have been allowed. The jury in

this case was allowed to weigh and

consider evidence that was too remote

in time and was designed to alter the

obligation of the railroad to furnish a

safe place to work. The Court should

not have allowed the railroad to use an

22

Act of God defense to defend a claim of

its negligence for the maintenance of a

defective switch over sixty (60) days

later.

Clark, under the Federal Liability

Employers’ Liability Act was entitled

to have the jury instructed on his

theory of the case. Clark maintained

that he was not negligent. The C & 0

maintained that he was negligent and

submitted evidence to support its

contention that Clark was negligent.

After the parties rested Clark moved

the Court to strike the C & 0’s evidence

as to Clark’s negligence which the

Court did. The Court then refused to

grant the C & O any instructions as to

Clark’s negligence but also refused to

tell the jury that the Court had ruled

that Clark was not negligent. During

the course of the trial C & 0 had put

23

into evidence Safety Rule 119 to support

its contention that Clark was negligent

and introduced additional testimony

from another brakeman who testified

that a brakeman should call for help if

excessive force was needed to operate the

switch. The jury had this evidence

before them and was never told by the

Court that Clark was not negligent and

that they should not consider any of

Clark’s conduct in their deliberations.

The C & O argued in opening statement

(T33-34) that Clark was negligent and

again in closing statement that Clark

was negligent even after the Court had

ruled there was no evidence of Clark’s

negligence (T110-111). The jury could

have perceived that Clark’s conduct was

negligent and that Clark had not carried

his burden of proof to show that the

railroad was negligent (See App. xlix).

24

x + 7 re ? _ oe Sewer PPE EVEL IO I~ i * oie

A ARP Yom tik kage re eee gerese NORPRO a ON

: Rosi

The Supreme Court and other Courts have

been careful to insure that the jury

ruled on questions of negligence and

causation under the Federal Employers’

Liability Act. See Rogers v. Missouri

P. R. Company, supra.; see Webb v.

Lilinets +. 8. Company, 352 U.S. $12,

e S.Ck ee OST, 2 RES. Be: $03. (1987),

Reh. Den. 353 U.S. 943, 77 S.Ct. 809, 1

L.Ed.2d 764. The Court by not telling

the jury that Clark was not negligent

deprived Clark of having the jury fully

and fairly informed on the issue before

it and deprived Clark of his rights

under the Federal Employers’ Liability

Act. There were ne instructions or

explanations to the jury as to Clark’s

negligence and the jury could have

concluded that because of Clark’s conduct

Clark failed to carry his burden of

proof that the C & O was negligent.

25

|

|

|

|

The Court should have told the jury

that Clark’s negligence was not an

issue and should not be considered by

them.

CONCLUSION

WHEREFORE, for the reasons. set

forth above, the Petitioner respectfully

prays that this Court grant this Petition

for Certiorari to review the decision

of the Supreme Court of Virginia.

Respectfully submitted this G2

day of December, 1988.

. Appleton

C. Gerard Thompson

MOODY, STROPLE & KLOEPPEL

Post Office Box 2238

Portsmouth, VA 23705

Counsel for Petitioner

26

CERTIFICATE OF SERVICE

This is to certify that I have this

day mailed to Susan Armstrong and Russell]

Palmore at Mays & Valentine, Post Office

Box 1122, Richmond, Virginia 23208-

9970 counsel for respondent, C & 0O

Railway, by mailing three copies of the

Corrected Petition for Certiorari by

depositing same in the United States

mail postage prepaid this 13th day of

January, 1989.

C. Gerard Thompson

MOODY, STROPLE & KLOEPPEL

Post Office Box 1138

Portsmouth, VA 23705

27

——

IN THE SUPREME COURT OF

THE UNITED STATES

GARY R. CLARK,

Petitioner,

Vv.

C & O RAILWAY COMPANY,

Respondent.

APPENDIX

MOTION OF CLARK TO HAVE THE COURT RULE

THAT THE C & O WAS NEGLIGENT AS A MATTER

OF LAW WHICH MOTION WAS NOT GRANTED

MR. APPLETON: I’d like to go

ahead at this setat and move, first of

all -- and I have two of them. Do you

want me to make both motions at the

same time or make one, let them respond

and then make the other one?

THE COURT: Give them to them one

at a time.

MR. APPLETON: The first motion I

have is to strike the railroad’s defense,

Judge, and to submit this case to the

jury solely on the issue of damages,

our position being that the railroad

had both actual and constructive notice

of a defect at the switch; that although

there was evidence of some repairs done

at some other points on the _ track,

there’s no evidence showing any type of

repairs or maintenarce done on that

ii

track prior to Mr. Clark hurting himself,

and therefore, that the railroad is in

fact liable for Mr. Clark’s damages.

At this point, taking the railroad’s

evidence at its best, it shows that the

ballast was deficient at the point of

the switch; and even taking Dr. Bowman’s

testimony, Mr. Clark did in fact sustain

a back sprain when he threw the switch,

and that disability-resutted in a period

of time of at least three or four months.

MISS ARMSTRONG: Your Honor, there

has not -- it is not uncontroverted

that the ballast was deficient at the

switch. The defendant’s evidence, that

was only contradicted by Millard Thomas,

the plaintiff’s expert who had never

visited the _ site. The defendant’s

uncontroverted testimony was that the

ballast was fine, it was not defective,

it did not need attention, that it was

not necessary to put more ballast in

that area between the flood. And in

fact, they didn’t. put any more ballast

in that area after the flood and after

the switch was back on power. The

evidence is that -- the defendant’s

evidence is that the condition as it

existed at Tyree when the plaintiff

alleges to have been injured was purely-

-it was completely adequate and did not

require any additional corrective action,

so Mr. Appleton’s statement that the

ballast was deficient, that’s

uncontroverted, is mistaken. It may be

uncontroverted that defendant was injured

but it is certainly not uncontroverted

that his back was injured. All the

evidence other than the plaintiff’s

alone is that the only injury that he

received or injuries he is complaining

of today -- the only injuries that he

received on January 14th were to his

right shoulder and his’ right’ hip.

That’s all he told the emergency room

doctor about; that’s all he told his

family doctor about; so as far as the

exteat ef ats tajgury, that is

controverted, but more importantly, the

question of actual and constructive

notice of the defect at the switch is

the main point in controversy here, the

defendant’s position being that it was

not defective either at the time of the

injury or later on without any corrective

action being taken. (12-4)

THE COURT: All right. That motion

is denied, Mr. Appleton.

MOTION OF CLARK TO HAVE THE COURT RULE

THAT CLARK WAS FREE OF NEGLIGENCE AS A

MATTER OF LAW WHICH MOTION WAS SUSTAINED

BY THE COURT REFUSING TO ALLOW THE C &

0 TO HAVE AN INSTRUCTION ON CONTRIBUTORY

NEGLIGENCE (SEE C & O RAILWAY INSTRUCTION

L) BUT THE COURT REFUSED TO GRANT

INSTRUCTION NINETEEN.

MR. APPLETON: The next motion is

to strike the railroad’s defense of

contributory negligence and submit the

case to the jury solely on the issue of

primary negligence.

THE COURT: All right. This is the

one that does give me some concern. Go

ahead.

MR. APPLETON: There is no evidence

in this case at all, Judge, Mr. Clark

did in fact undertake anything that was

negligent in the conduct of his operation

of the switch. He testified at direct

examination that he was performing his

duties in the only way practicable and

during the care of those duties, he

suffered an injury. The railroad comes

forth with evidence showing that he

maybe should have got additional help

or they -- I think they’ve alleged in

their pleadings that somehow, he threw

vi

the switch from an awkward position.

Yet, there is no evidence of any type

of investigation alleging any type of

problem throwing “the switch, and I

think more importantly, the case law on

this point is clear in that once the

plaintiff encounters difficulty in

performing duties for the railroad and

he continues to perform those duties,

that any type of issues concerning

contributory negligence cr assumption

of the risk that arise at that point

clearly fal? within the ambit of

assumption of the risk; and assumption

of the risk, as Your Honor knows, is

not a defense in an FELA case.

I think if there is any type of

problems with Mr. Clark’s action at ail

in connection with this case, it certainly

should come under the ambit of assumption

of risk and not contributory negligence;

vii

and thus, contributory negligence should

not be given to the jury.

THE COURT: All right.

MISS ARMSTRONG: Your Honor, there

are two major facts that support the

defendant’s claim of contributory

negligence. The first is that the

plaintiff has admitzed that he _ had

thrown that switch there a week earlier;

that he had thrown it I believe the

testimony was two or three times, but

I’m certain that he said that he had

thrown it there a week earlier and that

the conditions when he threw it a week

earlier were exactly the same as when

he threw on it on Jaruary 14, 1986.

I submit to the Court that the case

of Beamer vs. Virginia Railway, 18]

Va., 650, is similar. That case involved

a man who was making some repairs in an

area that was very hot, that he knew to

viii

——————

be very hot; that his allegation was

that having to work in this extreme

heat caused his death.

What the virginia Supreme Court

said was the railway company was only

required to exercise ordinary care in

furnishing a safe place for Mr. Beamer

to work.

Mr. Beamer had worked in the same

place on many occasions, doing the same

type of work he was engaged in just

prior to his death. He knew the place

was hot. The efficiency of the plan could

not have been maintained if the heat

had been eliminated. Employees are

often called upon to work in places

that are hot and dusty. It is hot

where Mr. Beamer is working. Care's

required by standards of good practice

for such plants. The point here is

that he knew what he was doing and he

knew -- he went there and he did it and

it wasn’t -- what he was called upon to

do was just what he had been called

upon to do before.

In addition to that, his testimony

was that he had spent ten to fifteen

minutes there at the switch, trying to

throw that switch. He admitted that on

cross-examination. Remember? We were

at a bench conference and Your Honor

said, “Doesn’t make any sense”. Well,

it may not make any sense but that’s

what the man’s testimony was and that

was never cleared up, so his own testimony

is that it took him ten or fifteen

minutes to throw the switch; that he

knew the switch was hard, and the safety

rules that are in evidence say that

he’s supposed to get help when it’s a

difficult job to perform.

Miss Wingfield and Mr. Hurt’s

testimony has also been they were familiar

with that safety rule and applied it by

getting help when they needed help to

throw a switch. Mr. Clark simply did not.

THE COURT: What I’m thinking about,

Miss Armstrong, is this: Is that

testimony, as I recall it is that you

don’t find out that the switch is hard

until you are about two-thirds to three-

fourths of the way through your task on

that switch. Now, I guess you can get

to that point and stop and call for

help, and he didn’t do that. And yet

one of the cases I recollect or one of

the Federal decisions is that you have

to look to the realities of the work

place.

This man was at the end of the

train, which the testimony is was about

a mile long, and the closest person was

xi

a mile away. and his testimony was that

his radio wasn’t working properly anyway,

but he throws the switch and again, as

best I can put the testimony together,

he get two-thirds to three-fourths of

the way through before you find out

just how hard it is, because that’s

when you put the pressure on to actually

make the rails move from one position

to another. At least that’s my

understanding from the testimony. And

that’s when his foot slips.

Now, previously, someone on the

front of the train had thrown the switch

the other way and now it’s up to him to

throw the switch back and I don’t know

that there’s anything other than that

safety rule which says that you are

supposed to get help, and that

controvenes, as I said, the Federal

decision that I read which says that

xii

you have to look to the realities of

the work place, and I -- I question

whether there is sufficient evidence of

negligence on the part of the -- of

contributory negligence to let that go

to the jury. It really concerns me.

MR. PALMORE: You Honor, we have

had the testimony, the trial testimony

transcribed.

THE COURT: All right.

MR. PALMORE: And if you will yield-

MISS ARMSTRONG: Sure

MR. PALMORE: He was asked, and he

-- it was referred to his deposition,

his earlier deposition. He said that,

“It was tight all the way through but I

got three-fourths of the way through

the movements when it got real tight.”

"It was tight all the way through but I

was three-fourths of the way through

xiii

the movements and it got real tight. I

was shoving so hard, I lost my footing.”

Question to me on -- my question on

cross: “You knew that it was tight all

the way that you were pushing it over,

didn’t you?

“Answer: I knew the switch was

hard to throw; yes, sir.

“Question: You knew it was hard to

throw and you were feeling some tightness

in it when you said it hung.”

Later on, he was asked was the

switch -- I can find this for you in

the transcript: was the switch on the

date that you found it in terms of the

condition of the switch, that is, the

area surrounding it and the way that it

was thrown, the same as it had been the

two or three times the week before? He

said yes.

And so take that -- let me suggest

you take that, and here’s a man that

admits -- even though it may stretch

the imagination -- ten to fifteen minutes.

What he is saying here is that he is

pushing ten to fifteen minutes.

“Answer: You know, somewhere in

the neighborhood of ten to fifteen

minutes.

"Is that the question that I asked

you in your deposition?

"Yes, sir. And that was my response.”

So whether or not it stretches the

imagination to believe that that actually

happened, what the jury could very well

have is a man that knew the switch was

tight, he had thrown it two or three

days -- or two or three times the week

before. He knows that it’s tight all

the way through. He’s pushing so hard

for ten or fifteen minutes, when it

XV

normally takes two, when his foot gives

way.

Now, I Suggest that he did have a

radio. It may not have been working as

well as it could have been, but he used

it twice to tell the train to move

forward. Remember? The first time,

the train slacked back so then he had

to get on the radio and ask it to move

foreward ag2in to clear the switch

point area and then after he threw the

switch, he telephoned them to say that

he had been injured and that the switch

was cleared.

Betty Wingfield said if she’s at

the end of the train and she can’t

throw the switch, she is going to radio

her conductor or she is going to radio

for some help, and I think that at this

point, there is clearly a jury issue of

contributory negligence and I think it

XVi

comes right out of the mouth of Gary

Clark.

MR. APPLETON: Judge, I think that

both these points have been ruled on by

Federal jurisdictions. Nixon vs. Penn

Central Railroad, its United States

Court of Appeais coming out of the

Sixth Circuit. It was decided July 27,

1973. That Court held that a defendant’s

not entitled to reach the jury on an

issue on which the defendant bears the

burden of proof on nothing but the

incredibility of the plaintiff’s

testimony. Other evidence of the matters

to be proved must be adduced.

I think that Mr. Clark’s testimony

concerning the time dealt more with the

length of time from leaving the caboose

to returning to the caboose as opposed

to actually throwing the switch.

XVii

When you talk about his knowledge

of the conditions previously to throwing

it, that case was dealt -- or that

issue was dealt with in Mumma vs. Reading,

United States District Court from the

Eastern District of Pennsylvania, decided

November 9, 1965: "Under ordinary

circumstances, knowledgeable acceptance

by an employees of dangerous conditions

when such acceptance is necessary for

the performance of his duties is

assumption of the risk, although under

extraordinary circumstances, assumption

of the risk may in itself be so

unreasonable that no prudent man would

expose himself to it”.

I think in this case, that it’s

clearly evident that Mr. Clark didn’t

know how hard it was for Hurt to throw

that switch. He knew that the switch

had been thrown; he haew that the train

XViii

moved in the siding; he knew that his

job was to throw it; he knew there was

only one way to throw that switch, and

that was to stand in that mud; and he

knew that as he got it about half way

up, I think ne testified to, that he

ran into problems. And I think once he

undertook that task and he began to

throw that switch, the difficulty that

he encounters and any actions which he

has that might constitute negligence

fall under assumption of the risk.

I think the Virginia Supreme Court

cases are clear that assumption of the

risk is characterized as being venturesome

while contributory negligence is

characterized as being reckless. I

don’t think Mr. Clark’s actions in this

case can be characterized as reckless.

He was doing what the railroad told him

to do and he was hurt doing it. It’s

that simple.

MR. PALMORE: -I don’t think it is

that simple, and if you look at the

testimony, the question was, in his

deposition, “How long would you estimate

it took you at the switch? I’m not

talking about how -- about the time

that it took you going back and forth

to the caboose when the slack action

rolled back. I’m talking about when

you were actually at the switch, trying

to throw it. How long did you spend

there?” Couldn’t be any clearer than

that.

“Well, it happened so quick. Maybe

ten or fifteen minutes.”

THE COURT: So those two answers

are almost mutually exclusive.

MR. PALMORE: “It happened so quick’,

when he was hurt: “Perhaps maybe ten

XX

or fifteen minutes. I’m not sure. I

can’t quote the exact time, you know?

Maybe somewhere in the neighborhood of

ten to fifteen minutes.”

MISS ARMSTRONG: And he admits that

he was familiar with the safety rule

that told him how to throw it and the

safety rule could have no application,

Your Honor, unless somebody had attempted

to throw a switch. How else would they

know that they were having difficulty

throwing the switch? They would have

to start to throw the switch. And that

is when the safety rule tells them if

it is hard to throw, get help. And the

evidence of Betty Wingfield corroborates

that point.

MR. APPLETON: Judge, as far as the

safety rule goes, that is not the law.

That is something that, you know, that

the railroad makes up itself to exculpate

xxi

itself in cases like this. I think

that the case law is one thing; the

safety rule is something else.

THE COURT: Well, the cases I read

on this thing give me great pause because

MR. PALMORE: Are you familiar with

the Beamer case, Your Honor? The case

that Susan read?

THE COURT: Talking about the heat?

MR. PALMORE: Yes, sir.

THE COURT: Well, I was reading

some FELA cases.

MISS ARMSTRONG: That is an FELA

case. The headnotes in that that are

highlighted address what we are talking

about.

MR. PALMORE: It does.

THE COURT: Let me see.

MR. APPLETON: What is the year in

that case?

XXii

a —————

MR. PALMORE: Forty-five.

MISS ARMSTRONG: And the only cases

that Mr. Appleton cited happen to be

Pennsylvania Third Circuit cases. He

doesn’t have any Fourth Circuit.

MR. APPLETON: I have a lot of

other cases, too: Wilson vs. Burlington

Northern. That is a Fourth Circuit

case decided in ‘82. Atlantic Tiller

vs. Atlantic Coastline Railroad, 318 S

Ct. 84. I don’t know that I can get

much higher than that.

MR. PALMORE: What he is saying is

that there is no reason and no room for

a jury to conclude otherwise. That is,

basically what he is asking the Court

to decide, to take this from the province

of the jury is to in effect say reasonable

people could not disagree.

MR. APPLETON: That’s exactly what

xxiii

I’m saying, Judge. I think the case

law is clear.

MR. PALMORE: I think that is black

letter and I think if you review what

we just said to Your Honor and view his

testimony --

THE COURT: Wait for me just a

minute. You all wait for me just a

minute.

(Whereupon, the proceedings continued

following a brief recess.)

THE COURT: Have you got a copy of

that Burlington case?

MR. APPLETON: Yes, sir. First of

all, here is the memo we prepared and

then let me give you 2 copy of the case.

THE COURT: Are you sure this is a

-- this is an Eighth Circuit case. But

the language in herethat worries me is

the railroad’s argument simply is not

XXiv

consistent with the realities of the

work place.

When you’ve got a -- when you’ve

got a train where the man is by himself

to throw the switch and the nearest

help is a mile away, it’s just not

realistic to anticipate that he is

going to call for help from a mile

away. That’s my recollection now of

how long that train was, was a mile.

MISS ARMSTRONG: Hundred cars.

MR. THOMPSON: At fifty-two feet

each, 5,200 feet: amile. That’s right.

THE COURT: He said it was a mile.

Somebody testified it was a mile.

MISS ARMSTRONG: Betty Wingfield

was asked the question even if --

THE COURT: Betty Wingfield is a

slight young woman and I imagine she

might need help on every switch.

XXV

MISS ARMSTRONG: ‘Su? If the plaintiff

has --

THE COURT: So they wouldn’t put

her in a position where she was by

herself.

MISS ARMSTRONG: She testified that

they do and that she does call for

help. Even when the question was asked

to her on redirect -- I don’t remember

whether it was direct or redirect.

MR. PALMORE: I asked her whether

she ever needed help and I asked her if

she asked for it and she said, "I don’t

like to ask for it but I’ve asked for

ea

MISS ARMSTRONG: You also asked her

if she was by herself when she asked

for help at the rear of the train and

she said yes: that is where she usually

works, at the rear of the train. So

XXVi

the realities of the work place has

been testified to through Betty Wingfield.

MR. PALMORE:. Our Supreme Court

certainly is as persuasive as the Eighth

Circuit. I mean, we are talking about

the same Federal act We are talking

about the Supreme Court here.

MR. APPLETON: I think that the

facts in cases that I’ve cited to the

judge are somewhat more relevant.

Plus, these cases are certainly more

contemporary.

Judge, I don’t -- Miss Wingfield

testified over my objection during

trial anyway. She said she needs help

throwing some switches sometimes.

There was never any testimony as _ to

when or how or anything else. She’s in

the back of a train; she needs help. I

don’t know that that has any relevance

to the -- to this case.

XXvii

MR. PALMORE: Well, that’s in.

MR. APPLETON: I know that this is

over my objection, but you are arguing

it and I think it’s got to be given

proper weight.

THE COURT: Well, I’ve got to do

something and I’m going to -- I’m not

going to let you give the instruction

on the contributory negligence. And

note your objections. There’s plenty

of objections in this. (14-20)

DEFENDANT’S JURY INSTRUCTION NO. L

The railroad contends that Mr.

Clark’s contributory negligence in his

inspection and operation of the switch

was a cause of the injuries and damages

which he may have sustained. By the

defense of contributory negligence, the

railroad in effect alleges that Mr.

Clark, by his own failure to use ordinary

care for his own safety under’ the

XXViii

¢

circumstances, caused or contributed to

cause the injury and damages he suffered.

The burden is: on the railroad to

establish by a preponderance of the

evidence that Mr. Clark was negligent,

and that such negligence contributed to

cause the injury and damages he sustained.

Under the Federal Employees’ Liability

Act, if you find from a preponderance

of the evidence that the railroad is

liable for the breach of some duty to

Mr. Clark, but that Mr. Clark himself

was guilty of some contributory negligence

which caused or contributed toward

bringing about his own injury, you must

first determine the amount of damages

which you think he has sustained; and

you should then diminish Mr. Clark’s

damages by an amount equal in proportion

to that which his negligence bears to

xxix

the total negligence of both Mr. Clark

and the railroad, if any.

Clark vs C&O 1987

DENIED 5/18/87

LCM

PLAINTIFF’S JURY INSTRUCTION NO.: 19

The Court instructs the jury that

as a matter of law, the plaintiff, Gary

R. Clark, was free of any negligence

which caused or contributed to cause

his injury.

REFUSED 5/18/87

LCM

OBJECTION TO REFUSING TO GRANT PLAINTIFF’S

JURY INSTRUCTION NO.: 19

MR. APPLETON: And then Instruction

No. 19. I’ve looked at your other ones

and I think those are really the only two.

THE COURT: Number 19? Which one

is that?

XXX

MR. APPLETON: The one I gave to

you at the end. It says, “The Court

”

THE COURT: Okay. Your proposed

instruction, and we’ll put proposed

Instruction No. 19. Will you so note

that?

MR. APPLETON: Yes, sir.

THE COURT: Make that a proposed

instruction. That’s the instruction

which would restate that the plaintiff

was free of all negligence?

MR. APPLETON: Yes, sir.

THE COURT: Is that what it amounts

to? All right; and of course you excepted

to that. (1135-137)

MR. APPLETON: Objections are as

follows: On Instruction No. 19 that

was refused by the Judge, it reads,

"The Court instructs the jury as a

matter of law the plaintiff, Garry R.

XXXi

eee

Clark, was free of any negligence which

caused or contributed to cause his

injury”. The basis for my objection to

the refusal is that the Judge had already

ruled that contributory negligence was

not an issue in this case and in an

FELA case, since assumption of the risk

is not a defense, he has in essence

ruled that the plaintiff is free of

negligence, and this was essential to

correctly insturcting the jury on the

issues of law before it. (1137-138)

OBJECTION TO EVIDENCE OF FLOOD

MR. APPLETON: Ohay; so you are not

going to make any mottons now?

Judge, I have a motion to make

pending them starting their evidence.

It appears that there is going to be

extensive testimony concerning repairs

and maintenance done to areas on the

James River subdivision other than the

XXXii

LT

switch that’s involved in this case. I

submit to the Court that that’s irrelevant

and al] the testimony needs to be confined

to the switch that Gary Clark claims he

was injured on on January 14, 1986.

They’ve got a duty to make the area

where he was working reasonably safe.

What they did a mile down the track or

two miles down the track, it doesn’t

have anything to do with the area where

he was injured.

MR. PALMORE: We have a duty to use

reasonable care under the circumstances

as they exist at the time. The question

is and the law is did we breach our

duty of care to exercise -- did we

breach any duty to exercise reasonable

care under the circumstances? That is

clearly the law. And I think that

given the nature of the circumstances

as they existed along the entire line,

XXXiii

clearly, clearly it is relevant as to

what the railroad was doing in trying

to clean up and_ trying to put this

track back in order, and to me, the

evidence with respect to what was going

on, what was having to be done clearly

goes to what that position of the law is.

MR. APPLETON: Judge, my position

is just we’ve already heard from the

railroad in opening statement, "We knew

that the track was --”

MR. PALMORE: Heard from me.

MR. APPLETON: “-- washed out.”

WE11, you are the railroad.

MR. PALMORE: I’m not going to say

anything.

MR. APPLETON: “We knew the track

was washed out”. They knew it was in

bad shape; they knew it was a dangerous

condition. They got my client down

there. They are going to say, “We

XXXiV

fixed the other areas. We didn’t have

time to get to the area where Gary

Clark was injured”.

MISS ARMSTRONG: His point was well

taken. They heard there was extensive

damage and what they might get from

that, they have to have the relative

damage -- other damage at relative places.

THE COURT: Gary Clark worked on it

from -- I can’t think of the name of

the place -- Glad Stone to Clifton.

THat was the area.

MISS ARMSTRONG: Clifton Forge.

THE COURT: Clifton Forge. That’s

the area that he worked on and that’s

the area that I think you ought to

limit your expressions to.

MISS ARMSTRONG: Fair enough.

MR. PALMORE: That’s the James

River subdivision.

XXXV

MR. APPLETON: We have an agreement

between us, it it’s all right with you,

that any testimony concerning work done

on that switch will be subject to my

objection to relevancy.

THE COURT: Okay. (T10-12)

MR. APPLETON: Does it show the

part where Mr.Clark got hurt, the part

of the track where the switch was?

MISS ARMSTRONG: I don’t believe it

does.

MR. APPLETON: My objection to that

would be the same as to the other

testimony.

THE COURT: Right.

MR. APPLETON: Concerning relevance.

THE COURT: Continuing.

MR. APPLETON: Yes, sir. (T1111)

Q. Now, with respect to the condition

of the James River subdivision during

XXXVi

this period of time, what was the general

condition of the overall subdivision?

MR. APPLETON: Judge, I’m going to

object based on your vuling earlier. I

think you confined his examination to

points between Clifton Forge and

Gladstone.

MR. PALMORE: All right.

BY MR. PALMORE:

Q. Between Gladstone and Clifton

Forge, what if any effect had the flood

had on that stretch of track?

A. Well, that stretch of track in

there wasn’t really hurt as bad as a

lot of it on west of there. (7141-142)

VERDICT OF THE JURY

VIRGINIA: IN THE CIRCUIT COURT OF THE

CITY OF PORTSMOUTH

GARY R. CLARK,

Plaintiff

vs. AT LAW NO.: L-86-415

XXXVii

THE CHESAPEAKE & OHIO

RAILWAY COMPANY,

Defendant.

On this the 18th day of May, 1987,

again came the parties in person and by

their Attorneys and Court convened as

of its adjournment of Fri. May 15,

1987, and the jurors sworn to try the

issue again joined in this case appeared

in Court according to their adjournment

and after fully hearing all the argument

of counsel, the jury retired to their

room to consult of their verdict and

after sometime returned into Court

having found the following verdict:

We, the jury, find for the defendant,

signed Bernard M. Brown, Foreman, 5-18-

87. ;whereupon the plaintiff, by counsel,

moved the Court to set the verdict to

the jury aside and to grant him a new

trial on the grounds that said verdict

is contrary to the law and the evidence,

XXxXViii

which motion being heard, the Court

doth continued generally.

5/28/87

LCM |

Entered 5-28-87

LB

HEARING ON MOTION TO SET ASIDE JURY

VERDICT

MR. APPLETON: Judge, first point

I’d like to bring up, which is probably

the one that causes me the most concern;

certainly like to talk to you about

initially: When we went through the

jury instructions on this case, I asked

the Court to grant me the instruction

that says, “The Court instructs the

jury as a matter of law that the

plaintiff, Gary R. Clark, was free of

any negligence which caused or contributed

to his injury”, and you refused it

despite the fact that you had ruled as

xxXxX1x

a matter of law that Mr. Clark was not

contributorily negligent.

THE COURT: Let we say this: What

I did is I refesed an instruction offered

by the defendant on contributory

negligence.

MR. APPLETON: It was my understanding

that you had ruled that you had struck

the defense of contributory negligence.

THE COURT: Well, in essence that’s

what I did, becuase I refused their

instruction on contributory negligence

and I refused your’ instruction’ on

contributory negligence.

MR. APPLETON: 1 think after you

had ruled, this was what I offered. I

didn’t offer a contributory negligence

instruction. I offered the --

- THE COURT: I know you didn’t. The

defendant did.

MR. APPLETON: Yes, sir.

x1

THE COURT: And I denied it.

MR. APPLETON: Yes, sir. And it’s

my position that in light of the ruling

on the contributory negligence on my

motion at the conclusion of defendant’s

evidence, that this -- the denial of my

request for this instruction allowed

the jury to speculate as to Mr. Clark’s

negligence,. There had been continual

testimony or evidence. There had been

continual testimony or evidence brought

forth concerning safety procedures,

requesting instruction or requesting

assistance and all those things lying

in the realm of the _ contributory

negligence issues, and since the jury

was not instructed that Mr. Clark was

not contributorily negligent, they were

allowed to speculate as to his negligence

in this case.

THE COURT: All right.

x1li

Miss Armstrong?

MISS ARMSTRONG: Your Honor, it

seems to me that once the contributory

negligence count was struck, that it

wasn’t appropriate to have any instruction

go to the jury, and that’s what the

Court did. Contributory negligence,

it’s just as -- once the contributory

negligence count was struck, it’s just

like contributory nealigence was not an

issue in this lawsuit and it was therefore

not appropriate to instruct them in any

way on the point so I believe that what

the Court did in that regard is exactly

what it should have done, which was not

to instruct them either way as either

the plaintiff or the defendant requested.

It wasn’t an issue and therefore there

was no reason, no need. It would not

have been appropriate to instruct them

on that point.

xlii

THE COURT: All right. What else

do you have?

MR. APPLETON; Judge, the next

point that I have to bring up is just a

renewal of my objection to the testimony

of Miss Wingfield and the testimony or

the evidence that came in through the

videotape of the flood. The evidence

that the defendant presented at trial

was that the flood was not shown at

the point where Mr. Clark was injured;

that all the other flooding was really

irrelevant to this case, and it simply

misled the jury to the extent of the

nature of the damage at the point where

Mr. Clark claims he was injured. The

testimony at trial was that the film

showed damage from mile post 147 to 165

and as the Court recalls, Mr. Clark was

injured at mile post 143. Mr. Frost,

who verified the fiim, also testified

xliii

specifically that the point of the

injury was not on the film so I don’t

think it was relevait to the jury’s

determination of the issue of liability

in this case.

THE COURT: All right.

Miss Armstrong?

MISS ARMSTRONG: Your Honor, it was

extremely relevant to the issue of

liability in this case in that as the

instruction that the Court gave the

jury, which was a proper instruction,

the jury had to determine what was

reasonable under the circumstances, and

the flood was definitely a circumstance

of this case: a circumstance that was

very involved in this case. Indeed the

testimony was that because of the flood,

the switch that the plaintiff alleges

to have been injured on had to be thrown

manually whereas usually, it was a

xliv

power switch. It was important for the

jury to understand the damage that the

flood caused so that the jury could

understand the reasonable way in which

the railrod reacted to that flood, so

it would be totally inappropriate to

ask the jury to make a decision as to

what was or wasn’t reasonable on behalf

of the railroad without allowing them

to make that decision in context, without

allowing them to understand the extremely

unusual circumstances with which the

railroad was dealing. (T2-6)

TRIAL COURT’S OPINION OVERRULING MOTION

TO SET ASIDE VERDICT

June 19, 1987

Randall E. Appleton, Esquire

Suite 201, J. J. Henry Building

P. O. Box 1138

Portsmouth, Virginia 23705

Susan C. Armstrong, Esquire

Mays and Valentine

P. QO. Box 1122

Richmond, Virginia 23208

xlv

Re: Gary R. Clark v.

The Chesapeake and Ohio Railway

Company

At Law No.: L-86-415

Dear Ms. Armstrong and Mr. Appleton:

Reference is made to the Motion to

Set Aside the Jury Verdict which was

heard on Monday, June 15, 1987.

Please be advised I am overruling

the motion and will enter the verdict

for the defendant in this case.

Very truly yours,

L. Cleaves Manning, Judge

COURT ORDER ENTERING JUDGMENT ON JURY

VERDICT

VIRGINIA: IN THE CIRCUIT COURT OF THE

CITY OF PORTSMOUTH

GARY R. CLARK,

Plaintiff,

Vs. AT LAW NO.: L-86-415

THE CHESAPEAKE AND OHIO

RAILWAY COMPANY,

Defendant.

On this the 15th day of June, 1987,

came again the parties by their Attorneys

and the Court having fully heard the

xlvi

motion of the plaintiff to set aside

the verdict of the jury heretofore

rendered herein, and io grant him a new

trial on the grounds that said verdict

is contrary to the law and the evidence,

which motion the Court doth overrule,

and judgment is entered on the verdict,

therefore it is Considered by the Court

that the defendant go thereof without

day and recover of the plaintiff its

costs by it in this behalf expended and

this case is removed from the docket.

ENTER 6/23/87

LCM

ORDER OF SUPREME COURT OF VIRGINIA

DENYING PETITION FOR APPEAL

VIRGINIA:

In the Supreme Court of Virginia

held at the Supreme Court Building in

the City of Richmond on Tuesday the 2nd

day of August, 1988.

xlvii

Gary R. Clark, Appellant,

against Record No. 871094

Circuit Court No. L-86-415

The Chesapeake and Ohio

Railway Company, Appellee.

From the Circuit Court of the City of

Portsmouth

Upon review of the record in this

case and consideration of the argument

submitted in support of and in opposition

to the granting of an appeal, the Court

is of opinion there is no reversible

error in the judgment complained of.

Accordingly, the Court refuses’ the

petition for appeal.

A Copy,

Teste:

David B. Beach, Clerk

By: R. R. Re

Deputy Clerk

ORDER OF SUPREME COURT OF VIRGINIA

DENYING PETITION FOR REHEARING

VIRGINIA:

xlviii

In the Supreme fourt of Virginia

held at the Supreme Court Building in

the City of Richmond on Friday the 23rd

day of September, 1988.

Gary R. Clark, Appellant,

against Record No. 871094

Circuit Court No. L-86-415

The Chesapeake and Ohio

Railway Company, Appellee.

Upon a Petition for Rehearing

On consideration of the petition of

the appellant to set aside the judgment

rendered herein on the 2nd day of August,

1988 and grant a rehearing thereof, the

prayer of the said petition is denied.

A Copy,

Teste:

Dail B. Duck, Clerk

INSTRUCTION NO. 6

The Court instructs the jury that

it was the continuing duty of the

Chesapeake and Ohio Railway Company, as

xlix

an employer at the time and place in

question, to use ordinary care under

the circumstances in furnishing the

plaintiff with a reasonably safe place

in which to work and to use ordinary

care under the circumstances to maintain

and keep such place of work in a

reasonably safe condition.

The Court instructs the jury that

it is a continuing duty of the Chesapeake

and Ohio Railway Company to use reasonable

care to provide Gary R. Clark with

reasonably adequate and efficient

equipment with which to perform his work.

The Federal Empioyers’ Liability

Act does not, however, give an employee

the right to recover simply because he

has been injured while working for the

railroad. Moreover, the railroad is

not an insurer of its employees’ safety

and is not required to provide an

absolutely safe place for its employees

to work. The mere fact that an accident

occurred and that plaintiff was injured

creates no oresenption that the injury

was caused by the negligence of the

railroad. The plaintiff, Mr. Clark,

must prove by a preponderance of the

evidence that his injuries were caused

by the railroad’s negligence. If you

find that the preponderance of the

evidence is favorable to the railroad,

or that the weight of the evidence is

evenly balanced, then Mr. Clark has not

borne his burden, ard you must return

your verdict for the railroad.

If you believe from a preponderance

of the evidence that the Chesapeake and

Ohio Railway Company failed to exercise

reasonable care in the performance of

its duties and that such failure was

the cause of or contributed in any

Vi

sis cere

degree to cause the injuries to the

plaintiff, then you shall return a

verdict for the plaintiff.

Granted

5/18/87

LCM

lii