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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 1078

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0753%3A1. Public record. Not legal advice.