Petition — Richmond v. Chesapeake & Ohio Railway Co.

Supreme Court, U. Ss

FILED

DEC 13 1976

MICHAEL RODAK, 5R., CLERK

—_

In THE

Supreme Court of the United States

Ocroser Term, 1976

76-3801

Peittioner,

Mack B. Ricumonp,

—against—

Tae CHesaPgaKe aNpD Oxn10 Ramway Company,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

Wnuuarp J. Moopy Arnotp B. Exxrnp

Attorney for Petitioner Attorney for Petitioner

County at Court Street 122 East 42nd Street

Portsmouth, Virginia 23705 New York, N. Y. 10017

TABLE OF CONTENTS

PAGE

GIN SII secibhcsiiasthaiesninlesinitaticcinitelianideincesipensibaiiniiiissatiesde 1

Jurisdiction ........... ‘s isiagiinndiiilaitn 2

Question Presented for Review ..2.02.2............-.cecseceeceseeees 2

Statutes Involved ........... jaasieiRinsipgienieingiliialauipiahiniticbahaaiaini 3

I Cie Pete GOED: vi sitiiciinicciniiisieiiintenniiiemniitiiianiaciilaie 3

Reasons for Granting Writ ............... niniciidieiasiaes 4

CE» aiscitestirsitesnsndatectocidivcincdeatinithisitbabaiiadaabitadios 8

Supreme Court Cases Vindicating Jury Deter-

I CII isteach ecient )

APPENDIX

Decision of Judge Sheffield on Post Verdict

Motions ............ iehesscesiiateaiasiandllgnntiaatitataapapitiantalinicesialais la

Opinion of Supreme Court of Virginia .................. 19a

Order Denying Application for Rehearing ............ 33a

Se ee ee ee

IN THE

Supreme Court of the United States

Octoser Term, 1976

Mack B. Ricumonp,

Petitioner,

—against—

Tue CHESAPEAKE AND Onto Rartway Company,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

To the Honorable, the Chief Justice of the United States

and the Associate Justices of the Supreme Court of the

United States:

Petitioner respectfully prays that a writ of certiorari

issue to review a decision of the Supreme Court of Vir-

ginia, reversing a judgment entered in favor of Petitioner

based on a jury verdict in the sum of $125,000.U0, recovered

in the Circuit Court of the City of Richmond, Division I,

and entering final judgment in favor of the Respondent.

Opinions Below

The Memorandum Opinion of the Trial Judge, Judge

James Edward Sheffield (A. 1),* denying Respondent’s

post-verdict motions is not reported.

* A. references are to appendix to this petition.

OE

2

The opinion of the Supreme Court of Virginia (A. 19)

was written by Justice Albertus S, Harrison, Jr. The Chief

Judge of the Supreme Court of Virginia, I’Anson, dis-

sented without an opinion. The opinion is not yet officially

reported.

The Supreme Court of Virginia denied a rehearing (A.

33) by order dated October 8, 1976.

Jurisdiction ?

Jurisdiction in the action below was under the Federal

Employers’ Liability Act (45 U.S.C. $51 et seq.), the claim

being that of a railroad employee to recover damages for

personal injuries.

The judgment and order of the Supreme Court of Vir-

ginia reversing Petitioner’s judgment and entering final

judgment for the Respondent was entered on September 2,

1976. The petition for rehearing was denied on October 8,

1976. This Court has jurisdiction to review the judgment

by granting a writ of certiorari pursuant to the provisions

of 28 U.S.C. §1257(3).

Question Presented for Review

1. Whether the 7th Amendment of the Constitution of

the United States and Federal siandards are applicable to

the review of judgments in Federal Employers’ Liability

Act cases in State Appellate Courts so as to bar a State

Appellate Court from making findings of fact contrary to

those found by a jury and approved by the Trial Judge

the basis of a final judgment in favor of the verdict loser

at trial?

Statutes Involved

Article VI, Clause 2 of the Constitution of the United

States provides:

“This Constitution and the Laws of the United

States which shall be made in Pursuance thereof; and

all Treaties made, or which shall be made, under the

Authority of the United States, shall be the supreme

Law of the Land; and the Judges in every State shall

be bound thereby, any Thing in the Constitution

Laws of any State to the Contrary notwithstanding.

Amendment 7 to the Constitution of the United States

reads:

“Trial by Jury in Civil Case.—In Suits at common law,

where the value in controversy shall exceed twenty

dollars, the right of trial by jury shall be preserved,

and no fact tried by a jury, shall be otherwise re-

examined in any Court of the United States, than

according to the rules of the common law.” (Emphasis

supplied. )

The pertinent section of the Federal Employers’ Liability

Act (45 11.S.C. §51 et seq.) is as follows:

“656, * * * The jurisdiction of the courts of the United

States under this chapter shall be concurrent with that

of the courts of the several States.”

Statement of the Case

Petitioner, a Conductor in the freight service of the

Respondent, recovered a judgment for damages in a

Cireuit Court of the City of Richmond in the sum of

$125,000.00, entered on a jury verdict. The evidence at the

4

trial included testimony from which a jury could find inter

alia that a cause of his injuries was the swaying of a box

car over tracks in a poorly maintained yard which caused

Petitioner to be rclled against a standing car on an ad-

jacent track, the clearance between the two cars being

insufficient to clear the Petitioner’s body as he climbed

down a ladder at a lead corner of the car to perform his

duties. The Trial Judge found that, under the FELA

(45 U.S.C. §51), there was adequate evidence for jury

determination and denied the railroad’s post-verdict mo-

tions (la). The Supreme Court of Virginia selected ev-

idence favorable to the railroad as being issue deter-

minative, ignored or otherwise downgraded the evidence

which would support the jury verdict, found that the

evidence established 100% negligence on the part of the

employee (32a), and entered judgment for the railroad.

Reasons for Granting Writ

The Supreme Court of Virginia has done something that

ne appellate court in the Federal judicial system could do

—certainly not in an FELA case in the last 25 years. The

Supreme Court of Virginia, contrary to both the second

portion of the 7th Amendment to the Constitution of the

United States and in disregard of the teachings of this

Court during its era of rigorous oversight to secure the

benefit of jury determination of fact issues in FELA cases,’

has disregarded evidence supporting a jury verdict and

has made its own selective factual determinations the basis

for entering a judgment against an injured railroad worker

as a matter of law.

While citing Federal authorities in its opinion, the

Supreme Court of Virginia misunderstood its role in FELA

1 Cases are listed as footnote 1, pages 9 and 10, infra.

5

cases by a mistaken reliance on Brady v. Southern R. Co.

(1943), 320 U.S. 476.2

It is self-evident after a jury verdict and the considered

denial by the Trial Judge of pcst-verdict motions (A. 1

to A. 18) that there is at least, prima facie, a rational

basis to outlaw appellate reversal under the guise of the

Brady formulation. There is no suggestion here that

either the Trial Jadge or the jury were improperly in-

fluenced or that the jury was not properly instructed on

the law or on its role as fact finders. Subsequent deci-

sions by this Court (footnote 1, pages 2 and 10, infra)

have honed the authority of Brady to the proposition that

a trial court has the right to direct verdicts or grant judg-

ments n.o.v., even in an FELA case, but only if there is

no version of the evidence which will support a contrary

verdict. See Boeing Company v. Shipman, 411 F.2d 365

(Fifth Circuit, 1969) but compare Davis v. Burlington

Northern, Inc., 541 F.2d 182 (Eighth Cireuit, 1976), peti-

tion for writ pending, with Chicago, RI. d& Pac. R. Co. v.

Melcher, 333 F.2d 996 (Eighth Cireuit, 1964).

The Seventh Amendment jury trial is part and parcel

of the remedy afforded railroad workers under the FELA.

Schulz v. Penn. R. Co. (1956), 350 U.S. 523.

The federal standard for reviewing the sufficiency of ev-

idence in FELA cases at an appellate level has recently

been clearly stated by the Seventh Circuit in Heater v.

? Brady is also authority for the need of a uniform rule as to

the necessary amount of evidence for jury determination in FELA,

cases, whether the case be tried in State or Federal Courts. In the

same year that the Supreme Court decided Brady it also decided

Bailey v. Central Vermont Ry., 319 U.S. 250, saying (354): “To

deprive [railroad] workers of the benefit of a jury trial in close

or doubtful cases is to take away a goodly portion of the relief

which Congress has afforded them.”

Chesapeake & Ohio Ry. Co., 497 F.2d 1243 (1974), cert.

den., 419 U.S. 1013, in which the Court said:

“The test of a jury case, under the FELA, ‘is simply

whether the proofs justify with reason the conclusion

that employer negligence played any part, even the

slightest, in producing the injury or death for which

damages are sought.’ Id. at 506 (emphasis added).

The fact that there may have been a number of causes

of the injury is, therefore, irrelevant as long as one

cause may be attributable to the railroad’s negligence.

In passing on the issues of fault and causality, more-

over, the jury has a broad power to engage in in-

ferences. ‘The very essence of [the jury’s] function

is to select from among conflicting inferences and con-

clusions that which it considers most reasonable.’ Ten-

nant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 35,

64 S.Ct. 409, 412, 88 L.Ed. 520 (1944). The jury’s ver-

dict ean only be set aside ‘when there is a complete

absence of probative facts to support the conclusion

reached.’ Lavender v. Kurn, 327 U.S. 645, 653,* 66

S.Ct. 740, 90 L.Ed, 916 (1946). The Supreme Court

has repeatedly warned that in FELA cases, ‘courts are

not free to reweigh the evidence and set aside the jury

verdict merely because the jury could have drawn dif-

ferent inferences or conclusions or because judges

feel that oiuer results are more reasonable.’ Tennant

v. Peoria & Pekin Union Ry. Co., supra at 35.”

Federal appellate courts following the teachings of Rog-

ers v. Missouri-Pacific, 352 U.S. 500, and Webb v. Illinois

Central R. Co., 352 U.S. 512, are proscribed from selecting

those facts which would deprive the plaintiff of a jury

determination in FELA cases and entering judgment in

* The Supreme Court saying in Lavender: “It is no answer to

say that the jury’s verdict involves speculation and conjecture.”

7

favor of the verdict loser. The same restrictions on appel-

late latitude in FELA cases should expressly be imposed

on State appellate tribunals reviewing FELA judgments.

Gallick v. Baltimore & O. R. Co., 372 U.S. 108 (and p. 10,

infra).

This Court has also said, in Arnold v. Panhandle & S.F.

R. Co., 353 U.S. 360, that injured rail employees having

asserted Federal rights governed by Federal law are en-

titled to be fully protected even though their actions are

asserted in the State courts. In the Arnold case this Court,

citing Davis v. Wechsler, 263 U.S. 22, 24, Dice v. Akron,

C. d Y. R. Co., 342 U.S. 359, and Brown v. Western R. Co.,

338 U.S. 294, stated that the assertion of these Federal

rights “is not to be defeated under the name of local prac-

tice.” Green, Jury Trial and Mr. Justice Black, 65 Yale

L.J. 482 (1956). But see: Bowman v. Illinois Central R.

Co., 9 Ill. App.2d 182. Cf. Minneapolis & St. Louis R.R.

v. Bombolis (1916), 241 U.S. 211, 36 S.Ct. 595.

At worst, the Supreme Court of Virginia should have

remanded the parties back to the Trial Court to determine

whether or not a new jury trial should be granted in the

light of its view of the evidence. Cone v. West Virginia

Pulp & Paper Co., 330 U.S. 212, 215, 216 (1947) ; Virginian

Ry. Co. v. Armentrout (Fourth Cirevit), 166 F.2d 400, 409.

The assertion of claims under the Federal Employers’

Liability Act represents a not insignificant portion of the

civil judicial workload in the U.S. District Courts. Pur-

suant to 45 U.S.C. $56, injured employees have the choice

of bringing FELA cases in either the State or Federal

Court. Unless the applicable conflicts principle for review-

ing FELA judgments in State appellate tribunals are em-

phatically stated with black letter clarity to be those of the

Federal judic’~ y as heretofore enunciated by this Court

(e.g., Gallick v. B. & O., supra, 114), the desirable result of

8

dispersing these cases throughout both judicial systems

in aceurdance with congressional intent (45 U.S.C. 456),

will be impeded and the Federal courts will definitely be-

come the forum of choice in FELA cases. This presents

a serious problem to many U. 8. District Courts, whose

judicial time is prioritized by the rigid requirements of

the Speedy Trial Act of 1974 (P.L. 93-619).

New York counsel for petitioner, a regional counsel des-

ignated by tae United Transportation Union, has, for ex-

ample, currently on file, thirty-four actions brought under

the FELA in the United States District Courts and none

in the State Court system of New York, where the Appel-

late Division notoriously engages in fact-finding at the

appellate level. 176 New York Law Journal 82 (October

27, 1976) p. 1, col. 6.

What is needed in a firm statement of accountability to

federal principles in FELA cases processed through the

state court systems. This can be accomplished without

an independent appraisal of the evidence in this partic-

ular case.

CONCLUSION

For the reasons set forth above, it is respectfully sub-

mitted that this petition for a writ of certiorari should be

granted.

Respectfully submitted,

Arnotp B. Evxrnp

Attorney for Petitioner

es er

Footnote 1 (pp. 4, 5, 7)

Supreme Court Cases Vindicating Jury Determinations

(1943-1968)

4TH Part or APPENDIX

Tennant v. Peoria & P.U.R. Co., 321 U.S. 29.

Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574.

Blair v. Baltimore & O. R. Co., 323 U.S. 600.

Keeton v. Thompson, 326 U.S. 689.

Lavender v. Kurn, 327 U.S. 645.

Cogswell v. Chicago & M.R. Co., 328 U.S. 820.

Jesionowski v. Boston & M.R. Co., 329 U.S. 452.

Ellis v. Union P. R. Co., 329 U.S. 649.

Pauly v. McCarthy, 330 U.S. 802.

Lillie v. Thompson, 332 U.S. 459.

Anderson v. Atchison, T. é S.F. R. Co., 333 U.S. 821.

Eubanks v. Thompson, 334 U.S. 854.

Penn vy. Chicago & N.W. R. Co., 335 U.S. 849.

Coray v. Southern P.R. Co., 335 U.S. 807.

Wilkerson v. McCarthy, 336 U.S, 53.

Hill v. Atlantic Coast Line R. Co., 336 U.S. 911.

Urie v. Thompson, 337 U.S. 163.

Brown v. Western R. Co., 338 U.S. 294.

Carter v. Atlantic & St. A.B.R. Co., 338 U.S. 430.

Stone v. New York, C. & St. L.R. Co., 344 U.S. 407.

Harsh v. Illinois Terminal R. Co., 348 U.S. 940.

Smalls v. Atlantic Coast Line R. Co., 348 U.S. 946.

O’Neill v. Baltimore & Ohio R. Co., 348 U.S. 956.

Neese v. Southern R. Co., 350 U.S. 77.

Anderson vy. Atlantic Coast Line R. Co., 350 U.S. 807.

Strickland v. Seaboard Air Line R. Co., 350 U.S. 893.

Cahill v. New York, N.H. & H.R. Co., 350 U.S. 898.

Rogers v. Missouri Pacific R. Co., 352 U.S. 500.

10

Supreme Court Cases Vindicating Jury Determinations

Webb v. Illinois Cent. R. Co., 352 U.S. 512.

*Arnold v. Panhandle & S.F.R. Co., 353 U.S. 360.

*Futrelle v. Atlantic Coast Line R. Co., 353 U.S. 920.

Shaw v. Atlantic Coast Line R. Co., et al, 353 U.S. 920.

*Deen v. Gulf, C. € S. F.R. Co., 353 U.S. 925.

Thomson v. Texas & Pacific R. Co., 353 U.S. 926.

*McBride v. Toledo Terminal R. Co., 354 U.S. 517.

Ringhiser v. Chesapeake & O.R. Co., 354 U.S. 901.

*Gibson v. Thompson, 355 U.S. 18.

*Stinson v, Atlantic Coast Line R. Co., 355 U.S. 62.

*Honeycut v. Wabash R. Co., 355 U.S. 424.

*Ferguson v. St. wouis-San Francisco R. Co., 356 U.S. 41.

*Sinkler v. Missouri Pacific R. Co., 356 U.S. 326.

*Moore v. Terminal R. Asso., 358 U.S. 31.

*Baker v. Texas & P.R. Co., 359 U.S. 227.

*“Conner v. Butler, 361 U.S. 29.

*Harris v. Pennsylvania R. Co., 361 U.S. 15.

*Gallick v. Baltimore & Ohio R. Co., 372 U.S. 108.

*Harrison v. Missouri Pacific R. Co., 372 U.S. 248.

*Basham v. Pennsylvania R. Co., 372 U.S. 699.

*Dennis v. Denver & Rio Grande Western R. Co., 375 US.

208. :

*Davis v. Baltimore & Ohio R. Co., 379 U.S. 671.

Grunenthal v. Long Island R. Co., 393 U.S. 156.

* Certiorari directed to State Courts since Rogers v. Missouri

Pacific.

APPENDIX

Decision of Judge Sheffield on Post Verdict Motions

This Court denies all of the Defendant’s post verdict

motions and Orders that judgment be entered on the jury’s

verdict herein. * * *

DISCUSSION

I. Whether The Trial Court Properly Submitted To The

Jury And [To] The Jury Properly Decided, The Ques-

tions Of The Primary Negligence Of The Defendant,

C & O Railway Company, And The Contributory Neg-

ligence Of The Plaintiff, Mack B. Richmond.

FACTS

On February 19, 1973, Plaintiff (Richmond) was the

conductor of a crew, which was in the process of placing

railroad cars in various railroad yards, between Hinton,

West Virginia and Clifton Ford, Virginia, and was at or

about the time of his alleged injury working on Defendant’s

freight train. There were two cars on the train which were

to be left in Ronceverte, West Virginia where the accident

occurred. The crew consisted of Finley Bennett, a brake-

man; David Lilly, a brakeman; Charles Harrah, the engi-

neer, and the plaintiff, the conductor.

The train proceeded to the Ronceverte yard and moved

past the point of the plaintiff's injury, placed a car at

Allied Mills and returned east again to the point where the

plaintiff was injured on the passing track (Tr. p. 91).

There were three sets of tracks at the point in the Ronce-

verte yard where the accident occurred. Plaintiff’s train

was proceeding on the passing track. The main track was

to the left of the passing track and the “fill out” track was

to the right of the passing track.

la

2a

Decision of Judge Sheffield on Post Verdict Motions

The train at the time of the plaintiff's injury, consisted

of a car followed by the engine, then a caboose, and then

one car which was located on the west end (rear end) of

the caboose. (Bennett Depositions, 415).

Plaintiff was riding on the brake platform on the front

or east end of the lead car. Lilly was riding on the side

step on the south side of the engine, just in front of Harrah,

the engineer. Harrah was riding in the caboose on the side

of the south side of the caboose, next to the fill out track.

Bennett was riding in the caboose on the west side.

It was approximately a quarter mile from the point

where the plaintiff released the handbrake on the Allied

ear and the point where the accident occurred. The plain-

tiff remained on the brake platform on the front of the

ear on which he was riding because of the distance the

train would travel to the next switching point and because

he had a platform to stand on on the front of the car

which was approximately a foot wide and 24 to 30 inches

long. (Tr. p. 98).

The train was moving at 8 m.p.h. and as the train moved

across the Ronceverte yard to a point where it approached

a crosswalk, plaintiff decided to get down from the brake

platform on the front of the train, move to the side ladder

of the car so that (he testified), he could better signal the

engineer as he could not adequately signal to the engineer

at the crosswalk from the brake platform at the front of

the car, (Tr. p. 98-99), and to get himself into a position

so as to get off the car in order for him to receive permis-

sion from the dispatcher to cross the main line track. (Tr.

p. 98-99).

Just as plaintiff reached the side ladder on the car, his

right shoulder came into contact with the northwest corner

of a covered hopper car which was parked on the fill-out

3a

Decision of Judge Sheffield on Post Verdict Motions

track. Plaintiff was knocked from the grab iron and fell

to the ground in between the passing track on which his

car had been traversing and the adjacent fill-out track.

Measurements taken by the C & O on the day after the

the plaintiff's injury indicated that there was 211% inches

between the car on which Richmond was riding and the

hopper car. All witnesses, who testified on the point agreed

that the clearance was “close” (Tr. p. 324). There is also

evidence that there was not enough room for a man riding

on the side of the car (as was plaintiff), to pass the hopper

car without injury. There were no signs indicating the

closeness of the clearance between the cars and it is uncon-

troverted that someone from the defendant had positioned

the hopper car on the fill-out track prior to the plaintiff’s

injury.

There was also a protruding metal strip from the hopper

ear, (Tr. p. 272), and the hopper car measured 334 inches

wider than a normal car. (Tr. p. 310).

It is uncontroverted that the tracks in the yard at or

about the point of the plaintiff’s injury had not been al-

tered to accommodate the hopper car since its development.

The condition of the tracks in the yard “were not good”

and plaintiff testified that the car that he was riding on

swayed and rocked backwards and forwards as it passed

over the tracks because of low places in the track bed.

(Tr. p. 102, 105, 106 and 107). Another witness, Lilly,

testified that he saw no rocking of the car on which Rich-

mond was riding and could not say that the car’s rocking

had anything to do with the accident. (Lilly Depositions,

p. 21)

Plaintiff was positioned on the front of the car and was

charged under the rules of the defendant with the duty to

———— ee a...

ta

Decision of Judge Sheffield on Post Verdict Motions

keep a proper lookout. Plaintiff admitted, however, that

he rode the east end of the car from Allied Mills to the

point of his injury, on the brake platform in a position

where he couldn’t be seen by the brakeman, Lilly, and could

not give the engineer, Harrah, signals in accordance with

company rules which required that when shoving a car, a

man be placed on the leading end of that car for purposes

of being able to give signals to the engineer. That, although

the plaintiff was charged with the duty of looking out for

obstructions, as he rode on the front of the car, he failed

to see the obstruction caused by the hopper car. (Tr. p.

151-155). Plaintiff was not warned of any cars on the

adjacent fill-out tracks (Tr. p. 325) and had not known

the defendant to place cars on the fill-out track before (Tr.

p. 109, 110). None of the plaintiff’s co-employees warned

plaintiff of the closeness of the hopper ear although com.

pany rules required all members of the crew to keep a

lookout for close clearances (Tr. p. 113). Lilly saw the

cars there, but testified that he did not know the clearance

was so close (Lilly depositions, p. 27) and admitted that

had he realized the clearance was as close as it was, he

would have yelled to Richmond. (Jd. at p. 28)

The rear brakeman did not apply the emergency brake

before the plaintiff was struck, even though he was looking

in the direction that the train was proceeding (Tr. p. 115,

116). The engineer did not see anything until Richmond

was struck by the hopper car. (Harrah dep. p. 8)

Plaintiff filed its Motion For Judgment in this Court

seeking compensatory damages in the amount of $250,.-

000.00 for physical pain, mental anguish, past and future

medical expenses, loss of income, and permanent injury

pursuant to the Federal Employers Liability Act (45

U.S.C.A., Chap. 2, Secs. 51-60), as amended August 11,

5a

Decision of Judge Sheffield on Post Verdict Motions

1939; (F.C.L.A.)* and The Safety Appliance Act (45 U.S.

C.A. Chap. 1, Sec. 1-16). Plaintiff alleged, inter alia, that

the defendant, through its officers, agents, and employees

negligently and carelessly failed to supply plaintiff with

a safe place to work; failed to provide it with adequate

and effective assistance; and failed to maintain efficient

and safe equipment.

A. Issues Of Primary Negligence And Of Contributory

Negligence Were Properly Submitted To, And Decided

By The Jury

Defendant first contends, inter alia, that there was not

sufficient legal and credible evidence in the record to war-

rant the court’s submission of the case to the jury on the

joint issues of the defendants’ primary negligence and the

plaintiff's contributory negligence, and that having thus

submitted the issues to the jury, the jury improperly de-

cided these issues in favor of the plaintiff. This Court

rejects this contention as there is legally sufficient evidence

in the record as to both primary and contributory negli-

gence to warrant, and indeed, to require the submission of

both issues to the jury.

Under familiar principals, it is the duty of this Court

to affirm the verdict of a jury on its findings of fact on

conflicting material evidence, and this Court cannot set

aside a jury verdict unless it is contrary to the weight and

preponderance of the evidence. A jury verdict will not be

disturbed when it is supported by credible evidence or if

reasonable men may differ as to the inferences to be drawn

from the evidence. But when fairminded men can reach

only one conclusion from the facts in a jury case, the ques-

tion becomes one of law to be decided by the court. This

* Sic.

eS enn

6a

Decision of Judge Sheffield on Post Verdict Motions

is not such a case, as there is in the instant case credible

evidence in the record to support the jury’s verdict.

Ilere, the evidence, and the reasonable inferences flow-

ing therefrom was in significant conflict as to the primary

negligence of the defendant and the contributory negli-

gence of the plaintiff and the case was properly submitted

to the jury. There was sufficient credible evidence in the

record upon any of which the jury could properly reach

the decision for the plaintiff that it did. In this regard,

it is not necessary at this juncture that this court cata-

logue, review and discuss all of the relevant evidence in

the case which would warrant the jury verdict but only to

indicate any of which would so warrant the jury’s deter-

mination of in this ease. This is a case brought under the

Federal Employers Liability Act and as such negligence

on the part of the plaintiff unless it is the sole negligence

in the case is not a bar to his recovery, but only in such

instance mitigates as to the amount of plaintiff’s recovery.

It is therefore essential that the court also review the ques-

tion of whether the issue of contributory negligence of the

plaintiff was also properly submitted to the jury.

The defendant argues inter alia, that the record does

not contain “... proof that the Chesapeake and Ohio Rail-

road failed to exercise reasonable care in any respect to

protect the plaintiff’s safety. That plaintiff’s failure to

exercise reasonable care for his own safety was the sole

cause appearing in the record of his injury.” (Emphasis

supplied, Defendant’s Memo. of Law, p. 1)

The first pivotal question is what duty owed to the plain-

tiff on the part of the defendant does the record reveal

that the jury could legally find by a preponderance of the

evidence was breached by the defendant’s action or inaction,

which proximately caused the injuries and losses as alleged

7a

Decision of Judge Sheffield on Post Verdict Motions

by the plaintiff and as proved in the record by a prepon-

derance of the evidence?

The first act or omission constituting contributory neg-

ligence on the part of the plaintiff relied upon by the

defendant as being the “sole reason appearing in the record

as the cause of his [plaintiff’s] injury, is plaintiff’s breach

of Operating Rule 103-A that required an employee to be

on the leading end of a car being shoved. Defendant argues

that the plaintiff “. .. knew that the purpose of that rule

was to be sure that such person was ‘in position to be

clearly seen and to give signals’ (Tr. p. 152-153).” (De-

fendant’s Memo. of Law, p. 2)

Defendant further argues that plaintiff, although like-

wise familiar with the purpose of Safety Rule 182,' that

requires trainmen to maintain lookout in the direction of

movement to avoid contact with cars on adjacent tracks,

failed to maintain a proper lookout and therefore com-

mitted his second act of negligence which constituted the

sole cause of his injury. Defendant argues that this is

especially so since “Richmond, [the plaintiff], conceded

that, being the first on the end of the pushed car, he was

the person in the movement that he was there making that

was ‘primarily charged with keeping a lookout forward’;

‘the first eyes.’ (Tr. p. 157, 159, 228-229).” (Defendant’s

Memo. of Law, supra) Defendant argues that the evidence

established that plaintiff was negligent in that “Richmond

rode the approximately one-quarter mile from Allied Mills

on the brake platform where he could not be seen to give

signals, in violation of Rule 103-A until the accident oc-

1 Safety Rule No. 182 provides: “Employees will maintain a

lookout in the direction of movement to avoid coming in contact

with structures or obstructions alongside of track or with cars,

locomotives or trains on adjacent track.”

8a

Decision of Judge Sheffield on Post Verdict Motions

eurred. (Tr. p. 151-153, 96-101).” (Defendant’s Memo. of

Law, supra).

The defendant then at pages 2-4 of its Memorandum of

Law sets forth in hoc verba various excerpts of the plain-

tiff’s testimony in order to establish the plaintiff’s various

movements, which defendant contends were in violation of

Operating Rule 103-A and Safety Rule 182, to establish

that the plaintiff was so positioned that he could not be

clearly seen and to give effective signals as required by

Rule 103-A and that he did not keep a proper lookout

forward as required by Safety Rule 182, all of which

according to the defendant were the sole causes of the

plaintiff’s injuries. (Defendant’s Memorandum of Law, p.

2-6)

Defendant further argues that the evidence supports the

conclusion that plaintiff solely caused his injuries because

the plaintiff admitted that he was on the front of the car

and that he did not see the hopper car before his injury,

which was parked on the adjacent fill-out track and which

came into contact with his body as the car on which plaintiff

was riding passed the parked hopper car, and offered no

explanation as to why he did not see it (Tr. p. 155) and

further admitted that it was his job while positioned on

the front of the car to look ahead for obstructions on near-

by tracks.

Defendant further argues that the evidence establishes

that the hopper car which was parked on the adjacent track,

which came into contact with the plaintiff’s body “. . . was

not only open and obvious generally but was necessarily

so to Richmond in the exercise of his express duty to be

alert for, to be on the lookout for, and to become aware of

its presence.” (Defendant’s Memo. of Law, p. 5) Setting

forth the following excerpt of plaintiff's testimony:

ao ee a cml ct

9a

Decision of Judge Sheffield on Post Verdict Motions

Q. In the position as you came around as you have

described it, you would have had to have your back

to the direction that you were going, correct?

A. Not necessarily, no sir.*

Q. Well, did you have your back in the direction

you were going?

A. No, sir, J don’ think I had my back in the direc-

tion I was going at any time.

Q. Then why didn’t you see the cars?

A. Now I can’t answer that.

Q. You just failed to see?

A. I didn’t see them, no sir. As I answered in my

statement, first I saw it was when the car just looked

like it was in my face.” (Tr. 176, Italics Ours) (De-

fendant’s Memo. of Law, p. 5)

Defendant further argues that the evidence shows that

plaintiff had two opportunities to view the car which his

body came into contact with. The defendant argues that

the evidence established that the train on which Richmond

was riding passed “. . . right by the cars in the fill-out

tract* [where the hopper car was parked] when his train

first came into Ronceverte and he went to the depot for

instructions (Tr. 173). His testimony was that he then

?“His first and only statement (Tr. 117) as to how he ‘came

around’ from the brake platform indicates that his back must have

been turned to the direction of movement. He was moving east-

ward on the front of the car. The car that he struck was on the

track to his right. He had his left hand on the top rail of the ear.

He caught the side ladder with his ‘right hand and stepped around

to the left.’ This appears to place him cross-handed with his back

to the direction of movement and to the ears to the right of that

movement in order to strike his right shoulder.” (Defendant’s

Memo. of Law, p. 5)

* Sic.

10a

Decision of Judge Sheffield on Post Verdict Motions

came right back by the same cars again on his way to

Allied Mills (Tr. 174),” and that he knew the cars were

on the fill-out track. (Tr. 174) (See also Defendant’s Memo-

randum of Law, p. 5-6).

In reference to primary negligence on the part of the

defendant, the defendant argues that the record does not

contain any proof that the defendant failed to exercise

reasonable care in any respect.

As to the suggestion by the plaintiff that the defendant

was primarily negligent in that the other crew members-

employees of the defendant had a duty to warn the plain-

tiff, which they breached, proximately causing the plain-

tiff’s injuries, the defendant argues that there was no such

duty to warn plaintiff. That it was plaintiff's specific duty

to lookout for obstructions; the obstruction here was open

and obvious.

As to the suggestion by the plaintiff that the defendant

was further primarily negligent in that the roadbed in the

yard was poorly maintained and that cars rocked when

passing over those tracks, the defendant counters by urg-

ing that “the witness Lilly said he saw no rocking of the

car Richmond was on and could not say that car rocking

had anything to do with the accident (Lilly, dep. p. 21)”

(Defendant’s Memorandum of Law, p. 6).

Lastly, as to the plaintiff’s argument that the defendant

was primarily negligent in that clearance between the hop-

per car which struck plaintiff and the car on which plaintiff

was riding at the time of plaintiff's injury was shown to

have been 211% inches and therefore so close as to consti-

tute negligence; the defendant urges that the mere fact of

close clearance standing alone does not establish negligent

causal connection as a contributing factor to Richmond’s

lla

Decision of Judge Sheffield on Post Verdict Motions

admitted failure to perform his specific duty. (Defendant’s

Memorandum of Law, p. 6).

There is also ample evidence in the record upon which

the jury could reasonably and legally conclude that there

was also a protruding metal strip on the hopper car which

came into contact with the plaintiff, (Tr. p. 272); that the

hopper car was 334 inches wider than a normal car (Tr.

p. 310) and that the tracks in the yard had not been altered

since the development and use of the larger hopper car.

(Tr. p. 323)

There is a conflict in the evidence as to whether the car

on which plaintiff was riding swayed or not as to the

general condition of the tracks in the yard. Plaintiff testi-

fied that the tracks in the yard were not good, (Tr. p.

102), and that the car on which he was riding swayed and

rocked backwards and forwards as it passed over the track

because of low places in the track (Tr. p. 105-107). The

witness, Lilly, on the other hand, testified that he saw no

rocking of the car on which plaintiff was riding and he

could not say that car’s rocking had anything to do with

the accident. (Lilly dep. p. 21).

There is competent evidence in the record upon which

the jury could properly find that plaintiff had been

warned of the existence of any cars on the fill-out tracks

(Tr. p. 325) and that the plaintiff had not seen the de-

fendant’s cars stored on the fill-out tracks before (Tr.

p. 109-110).

It is undisputed that none of the plaintiff's fellow mem-

bers warned plaintiff although all members of the crew

were required to keep a lookout for close clearances (Tr.

p. 113). Plaintiff saw the cars, and his fellow employee,

Lilly, also saw the cars parked on the track, however,

Lilly stated that he did not know the clearance between

12a

Decision of Judge Sheffield on Post Verdict Motions

the cars was so close (Lilly dep. p. 27). There is evidence

in the record that Lilly, however, admitted that if he had

realized the closeness of the cars, he would have yelled

to Richmond (Lilly dep. p. 28). The jury could reason-

ably find, however, that Richmond was never warned

even by the engineer who was operating the train and

he did not see the obstruction until Richmond was in-

jured (Harrah dep. p. 8).

The jury could also properly find on the evidence in

this case that the rear breakman did not apply the emer-

gency brake even though he was looking in the direction

that the train was proceeding (Tr. p. 115-116).

In spite of the foregoing testimony and other evidence

in the record, the defendant argues that it was error for

this Court to submit to the jury for determination the

question of the defendant’s primary negligence and that

once submitted, the jury improperly reached its decision.

The question of the quantum of evidence in a given

case that is sufficient to warrant its submission to a jury

presents no novel or new question. Further, the test has

been enunciated in many cases pertaining to actions

brought pursuant to the Federal Employers’ Liability

Act. For example, this question was presented to the Su-

preme Court of the United States in Webb v. Illinois Rail-

road Company, 352 U.S. 512 (1957), wherein the Court

ciated in pertinent part that:

In passing upon whether there is sufficient evidence

to submit an issue to the jury, we need only to look to

the evidence and reasonable inferences which tend to

support the case of a litigant against whom a pre-

emptory instruction has been given.

— = a

= UF SS te tng 2 be ~ oh

13a

Decision of Judge Sheffield on Post Verdict Motions

Subsequently, the Supreme Court of the United States

had oceasion to again enunciate the test in Rogers v. Pacific

R. Co., 352 U.S. 500 (1957) wherein the Court stated in

pertinent part:

. * .

Under the Statute [Federal Employer’s Liability

Act], the test of a jury case is simply whether the

proofs justify with reason the conclusion that employ-

er’s negligence played any part, even the slightest, in

producing the injury or death for which the damages

are sought . . . Judicial appraisal of the proofs to

determine whether a jury question is presented is nar-

rowly limited to the single inquiry whether, with rea-

son, the conclusion may be drawn that negligence of

the employer played any part at all in the injury or

death. Judges are to fix their sights primarily to make

that appraisal, and, if that test is met, are bound to

find that a case for the jury is made out, whether or

not the evidence allowed the jury a choice of other

probabilities. (Jd. at 506-507) (Emphasis supplied)

It is thus clear that the test to be applied here is whether

evidence, and the reasonable inferences to be drawn there-

from, leads one reasonably to the conclusion that negligence

of the employer (the defendant) played any part at all in

the injury complained by the plaintiff, for if it did then

this was a proper case for the jury.

First, clearly there was evidence offered on both sides

as to the closeness of the cars and tracks at or near the

point of the plaintiff's injury. The evidence on this point

is not in dispute that the clearance between the car on

which the plaintiff was riding and the hopper car with

which his body came into contact with, which was located

l4a

Decision of Judge Sheffield on Post Verdict Motions

at or near the point of the plaintiff’s injury was 21% inches.

(Lilly dep. p. 26-27) (Bennett dep. p. 7)

There was further evidence that the hopper car was

334 inches wider than a normal freight car (Tr. p. 310),

and that the defendant’s tracks located at or about the

point of the plaintiff’s injuries had not been altered or

changed since the development and utilization of the hop-

per cars. (Tr. p. 323).

It is not contended by the defendant that it did not have

a duty to maintain its tracks and cars in such proximity

to each other as not to negligently injure the plaintiff.

Defendant, inferentially admits the duty, however, in its

own argument on the point (stated in its Memorandum of

Law) defendant states that “The mere fact of close clear-

ance standing alone does not establish negligent causal

connection as a contributing factor to Richmond’s admitted

failure to perform his specific duty.” (Id. at p. 6)

There is ample authority for the proposition that it is a

proper issue for the jury as to whether the railroad was

negligent in maintaining its cars and tracks in close prox-

imity to each other, where such inquiry is relevant to issues

raised in this case. See: Chesapeake and O. Ry. Co. v.

Mears, 64 F.2d 295 (4th Cir. 1933); Chicago, St. P.M. and

O.R. Co. v. Arnold, 160 F.2d 1002 (8th Cir. 1947); Bartle-

baugh v. Penn. Railroad Company, 78 N.E.2d 410, Texas

and N.O.R. Co. v. Warden, 49 S.W. 29, 486. See also 50

A.L.R.2d 674, “Duty Of The Railroad Company Toward

Employees With Respect To Close Clearance Of Objects

Alongside Track.”

In the instant case, it clearly was proper for the jury to

determine whether the clearance between the cars was so

close as to constitute negligence on the part of the defen-

dant, Railroad. The test enunciated by the Supreme Court

15a

Decision of Judge Sheffield on Post Verdict Motions

in Rogers, supra, that the employer’s negligence play “any

part even the slightest, in producing the injury or death

for which damages are sought” is clearly met in the instant

case.

The resolution of the question of close clearance alone

would justify the submission of the case to the jury, how-

ever, there is more.

There is competent evidence in the record that there was

no warning given to the plaintiff as to the existence of the

close clearance of the tracks and cars. It is uncontroverted

that none of plaintiff's co-workers warned plaintiff al-

though all crew members, including the plaintiff, were

required to keep a good lookout for close clearances among

other things and conditions. (Tr. p. 113). There is com-

pelling evidence that Harrah, the engineer on the train on

which plaintiff was riding, did not see anything until after

plaintiff was injured. (Harrah dep. p. 8). There is further

evidence that Lilly, a brakeman on plaintiff’s train, saw the

cars in question, but did not know the clearance was as

close as it actually was and stated that he would have

yelled to plaintiff if he had realized at the time that the

clearance was as close as it actually turned out to be.

There is even further evidence that the defendant had

knowledge of the close clearance as the cars had been

placed there for several days before the accident, but no

one in the Ronceverte yard warned plaintiff or his crew

of the close clearance. (Lilly Depositions, p. 27-28).

The defendant argues that, “There was no duty on the

part of anybody to warn Richmond [of the close clearance].

It was his specific duty to look out for and to see the

obstruction if any existed. The situation was open and

obvious.” (Defendant’s Memo. of Law, p. 6).

l6a

Decision of Judge Sheffield on Post Verdict Motions,

There is ample authority to the effect that the defendant

Railroad has a duty to warn an employee of a danger, and

that whether in a given case the warning is required will

depend upon the facts of each individual case and thus

each case has to stand on its own individual factual situa-

tion. For jurisdictions holding that there is a duty to warn

an employee of danger, see: Evans v. Atchison, T. and S.F.

Ry., 131 S.W.2d 604 (1939); Sprankle v. Thompson, 243

S.E.2d 510; Starck v. Chicago and N.W. Ry. Co., 123 N.E.2d

826 (1955); Tiller v. Atlantic Coast Line R. Co., 318 U.S.

54 (1943).

The defendant, however, argues, without the citation of

authority, that “There was no duty on the part of anybody

to warn Richmond. It was his specific duty to look out for

and to see the obstruction if any existed.” (Defendant’s

Memorandum of Law, p. 6).

This Court adopts the position that the defendant had a

duty to warn its employees of danger. The fact that the

plaintiff also had a duty to look out for obstructions and

the fact that the obstruction may have been found by the

jury to have been open and obvious, as argued by the

defendant does not negate the existence of the duty to

warn on the part of the defendant, however, there are facts

and circumstances that the jury may properly take into

consideration in deciding how much of a warning the de-

fendant was required to give under the particular circum-

stances of this case. The duty itself, however, existed and

it was a proper question for the jury to determine whether

the defendant, under the circumstances of this case upheld

its duty.

Again, the test of Rogers, infra, has been met, for the

jury could find upon the evidence in the record and the

reasonable inferences stemming therefrom that the defen-

17a

Decision of Judge Sheffield on Post Verdict Motions

dant breached its duty to warn, and that its failure to do

so was negligence and that that negligence “played any

part, even the slightest, in producing the [plaintiff’s] in-

jury.” (Rogers, Id. at 506-507)

Even, assuming without deciding, that plaintiff was neg-

ligent himself in not keeping a proper lookout as he was

charged with doing in defendant’s Operating Rule 103-A

(Tr. p. 152-153), if the defendant was negligent and if

that negligence under the test of Rogers, supra, played

any part, even the slightest in producing plaintiff’s injury,

then it was proper to submit the case to the jury, and this

Court so holds that it was proper.

There was further competent and conflicting evidence

admitted into the record of this case concerning the con-

dition of the roadbed in the Ror<-verte yard at or about

the place where the plaintiff was injured, which further

mandated the submission of this case to the jury on the

question of the defendant’s primary negligence.

The witness Lilly, a brakeman, testified that he saw no

rocking of the car on which Richmond was riding and he

could not say that the car’s rocking played any part in

the causation of the plaintiff’s injury or the accident (Lilly

dep. p. 32).

The plaintiff on the other hand, testified concerning the

condition of the tracks in the particular area where the

accident happened that “.. . the track condition through

the whole Ronceverte area is in pretty bad shape...”

and further, that there hadn’t “. . . been any repair on it

[the fill-out track], in my 29 years, outside of maybe if

there is a broken rail or something, I don’t know, but I

never recall of the fill-out track being serviced, any ballast

rock or anything being put on it.” (Tr. p. 102). Plaintiff

further testified that the car on which he was riding

18a

Decision of Judge Shefficld on Post Verdict Motions

swayed and rocked backwards and forwards as it passed

over the tracks at or about the place where the car on

which he was riding came abreast of the parked hopper

car, because of low places in the tracks (Tr. p. 105-107).

The defendant, on this point, states that “The witness

Lilly said he saw no rocking of the car Richmond was on

and could not say that car rocking had anything to do

with the accident.” (Lilly dep. p. 2) (Defendant’s Memo-

randum of Law, p. 6). Clearly, this conflicting evidence

presents a classical jury question and this Court was com-

pelled to submit the case to the jury on this issue alone.

It was for the jury to determine whether the defendant

had in fact maintained its roadbed properly, and if not,

whether such failure proximately contributed or caused

the plaintiff's injury. The test set forth in Rogers, supra,

that the “... preofs justify with reason the conclusion

that employer’s negligence played any part, even the slight-

est, in producing the [plaintiff's] injury is manifestly met

on this issue and this issue was properly submitted to the

jury.

CONCLUSION

For the above reasons, it is held that the defendant’s

* * * Motions Tc Strike The Plaintiff’s Evidence And To

Enter Judgment For The Defendant * * * are denied and

judgment is Ordered entered on the jury’s verdict herein.

A copy of the Court’s Order entered on today’s date is

attached.

Very truly yours,

/s/ James Edward Sheffield

James Edward Sheffield

19a

Opinion of Supreme Court of Virginia

Present: All the Justices

Record No. 750956-A

Orrnton sy Justice Ausertis S. Harrison, JR.

Richmond, Virginia, September 2, 1976

Tue CHESAPEAKE AND Onto Ramway CoMPANy

—

Mack B. Ricumonp

From tue Crecurr Court or tHe Crry or RichMonp,

Division I

James Edward Sheffield, Judge

This appeal by The Chesapeake and Ohio Railway Com-

pany is from a final judgment rendered against it in an

action brought under the Federal Employers’ Liability

Act by one of its employees, Mack B, Richmond. Appellee

effected a recovery for p rsonal injuries suffered in an

accident that occurred while he was performing his duties.

The dispositive issue is whether the C & O was guilty of

negligence that contributed in whole or in part to cause

the injuries.

On February 19, 1973, Richmond was the conductor in

charge of a local freight train engaged in switching opera-

tions in the C & O’s Ronceverte, West Virginia yard.

The most southerly track in the yard was designated as

the “fill-out track”, on which was located a covered hop-

per car, one of the cars involved in this case. The next

20a

Opinion of Stipreme Court of Virginia

track northward was designated as “the passing track”,

on which Richmond and his crew were proceeding easterly

at the time he was injured. The next tracks to the north

were the two main lines with which we are not concerned.

Richmond’s train arrived in Ronceverte from the west

and proceeded easterly on the passing track to the vi-

cinity of the freight depot where Richmond received in-

structions concerning the switching movement of cars

in the yard. The instructions called for the train to pick

up a certain freight or boxcar parked on the fill-out track

on the south side of the yard, move the car eastward and

spot it at the Martin and Jsunes Hardware Company,

located on the north side of the yard. The movement

necessitated the permission of the station operator since

it required the train to cross the main line tracks.

The train crew consisted of Richmond; Charles D. Har-

rah, the engineer; and two brakemen, David H. Lilly and

Finley E. Bennett. The train proceeded to pick up the

designated boxcar from the fill-out track and began “shov-

ing” it on the passing track teward its destination at the

hardware company. The train then consisted of that box-

car, which was the first or lead car, followed by the en-

gine, a caboose and another boxcar. Richmond, who was

riding on the brake platform of the east or front end of

the boxcar being pushed, had released the ear’s brakes.

Harrah was sitting on the seatbox on the right side of

the engine. Lilly was on the right front side step of the

engine. Bennett was riding on the west end of the caboose.

The train was moving at about eight mph. Testimony in-

dicated that the lead boxcar was of a standard size, 50

feet 6 1/16th inches in length, 10 feet 4% inches in width

and 15 feet in height.

The brakes of the boxcar are controlled by a rod which

extends from the braking mechanism to a brake wheel

21a

Opinion of Supreme Court of Virginia

near the top of the car. At a point in front of and at-

tached to the boxcar, and located about three to four feet

from the top, is the brake platform described as being

six inches in width by twenty-four inches in length. A

trainman stands on this platform to have access to the

brake wheel and to be in position to operate the brakes.

Attached to the left front of the boxear, as one faces it,

is a ladder by which access is gained to the brake plat-

form and to the top front of the car. To the left of this

ladder and just around the left corner of the boxcar is

another ladder which reaches from the top of the ear to

a step, or “stirrup”, located between the bottom of the

ear and the bed of the railroad. The crab irons of this

ladder project about 2% inches from the side of the car.

Trainmen stand on the stirrup of this ladder during switeh-

ing operations so that they may be clearly visible when

giving signals to the engineer.

The covered hopper car, which was involved in the

accident, is 52 feet 1% inch long, 10 feet 7%4 inches wide,

and 15 feet 1 inch high. A welded metal strip eight inches

wide extends one-fourth inch from the center of the car on

the north side.

The clearance between the corner of the moving boxcar

on the passing track and the corner of the stationary

hopper car on the fill-out track was measured to be 21%

inches at the point of the accident and at a height of eight

feet from the rail.

Richmond, riding on the brake platform on the front end

of the boxcar being shoved eastward on the passing track,

moved around the southeast corner of the car from the

brake platform to the side ladder. In the course of making

this movement he struck the northwest corner of the hopper

ear and injured his right shoulder. The aceident was wit-

22a

Opinion of Supreme Court of Virginia

nessed by the two brakemen. Bennett’s version is as

follows:

“Well, we were watching, all of us, I suppose, at

least I was watching the eastbound movement there.

As we approached the car, the covered hopper in the

fill-out track, Mr. Richmond moved from the brake

step or attempted to move from the brake step to the

side ladder. As the two cars met, just about the time

he came from the brake step around to the side ladder,

it caught him between the two cars.”

Lilly testified :

“Mack [Richmond], as we were shoving eastward

through the passing siding and approaching those

covered hoppers that were on the fill-out track, stepped

around from the end of the car, around onto the side

ladder.

7. >. * * >

“Just as he got around on the side ladder, that is

when his right shoulder struck the northwest corner of

the westernmost covered hopper sitting on the passing

siding, and it knocked him off.

“Just the instant-——just about the time he came

around, just almost instantaneously when he struck the

car, of course I yelled to the engineer and he went into

emergency.

“He hit the corner of the covered hopper. . . .”

Richmond, who said that he never saw the hopper car,

testified as follows:

23a

Opinion of Supreme Court of Virginia

“Well, I was riding on the east end of the car on the

brake platform, as well as I remember, with my left

hand on the rail or whatever you want to call it, on the

top of the car. Whenever I got up to make my move

to come down the side ladder I caught it with my righ

hand and stepped around to the left, and that’s the last

I remember. It just looked to me like this car just

come right up in my face, and that was it.”

In his report of the accident, made a few days there-

after, Richmond said that he “[w]as riding on leading end

of C & O 21354 boxcar on brake platform. Swung around

to side of car and was struck by B & O 602154 standing in

fill-out track next to passing side we were on”.

This action was brought under the Federal Employers’

Liability Act, and the C & O is liable to Richmond if his

injuries were caused in whole or in part by the railroad’s

negligence. Seaboard Coast Line Railroad vy. Ward, 214

Va. 543, 202 S.E. 2d 877 (1974). Contributory negligence

is not a defense. It only mitigates damages. Norfolk South-

ern Ry. Co. v. Rayburn, 213 Va. 812, 195 S.E. 2d 860 (1973).

The C & O cannot defend on the ground of assumption of

risk for such defense has been abolished. 45 U.S.C. $54

(1964).* Richmond, having received a verdict by the jury,

which has the approval of the trial judge, is entitled to

have the evidence viewed by us in the light most favorabie

to him. Riley v. Harris, 211 Va. 359, 177 S.E.2d 630 (1970).

Here we need look only to the evidence and reasonable

inferences which tend to support appellee’s case. Wilkerson

v. McCarthy, 336 U.S. 53 (1949).

Counsel for Richmond cites numerous cases, including

Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 506-

07 (1957), where, in reviewing the sufficiency of the evidence

* Sie.

24a

Opinion of Supreme Court of Virginia

in a Federal Employers’ Liability case, the Supreme Court

stated:

“Under this statute the test of a jury case is simply

whether the proofs justify with reason the conclusion

that employer negligence played any part, even the

slightest, in producing the injury or death for which

damages are sought. It does not matter that, from the

evidence, the jury may also with reason, on grounds

of probability, attribute the result to other causes, in-

cluding the employee’s contributory negligence. Judi-

cial appraisal of the proofs to determine whether a

jury question is presented is narrowly limited to the

single inquiry whether, with reason, the conclusion

may be drawn that negligence of the employer played

any part at all in the injury or death. Judges are to

fix their sights primarily to make that appraisal and,

if that test is met, are bound to find that a case for the

jury is made out whether or not the evidence allows

the jury a choice of other probabilities. The statute

expressly imposes liability upon the employer to pay

damages for injury or death due ‘in whole or in part’

to its negligence. [Footnotes omitted].”

The C & O concedes that Rogers makes it clear that

under the FELA the test of a jury case is whether there

is proof that negligence by the employer played even the

slightest causative part in producing the injury involved.

However, appellant says there is no intimation in Rogers,

or in any other case, that causative negligence of the em-

ployer has been abolished as a prerequisite to recovery.

It further contends that the Act does not make the em-

ployer an insurer. It cites Moore v. Chesapeake & O. Ry.

Co., 340 U.S. 573, 578 (1951), where the Court said, “Spec-

ulation cannot supply the place of proof”, and Brady v.

25a

Opinion of Supreme Court of Virginia

Southern Ry. Co., 320 U.S. 476, 479-80 (1943), where it

was held:

“The weight of the evidence under the Employers’ Li-

ability Act must be more than a scintilla before the

case may be properly left to the discretion of the trier

of fact—in this case, the jury. [cases cited] When the

evidence is such that without weighing the credibility

of the witnesses there can be but one reasonable con-

clusion as to the verdict, the court should determine

the proceeding by non-suit, directed verdict or other-

wise in accordance with the applicable practice with-

out submission to the jury, or by judgment notwith-

standing the verdict. By such direction of the trial

the result is saved from the mischance of speculation

over legally unfounded claims. [cases cited].”

The testimony is remar’ ably free of conflict. Clearly

Richmond attempted to transfer from the brake platform

to the side ladder of the boxcar at the very instant the

southeast corner of the boxcar reached the northwest cor-

ner of the hopper car. The maneuver which he made, while

not unusual, was difficult at best. In order for Richmond

to move from the brake platform to the side ladder it was

necessary that he first cross over to the front ladder of

the boxcar, and then from there swing or move around the

corner of the car to the side ladder. Before making this

move Richmond had been riding at a place on the car where

he should not have been. The railroad’s operating Rule

103A provides:

“When shoving tracks ...a man must be stationed on

the leading car ... in position to be clearly seen to

give signals, unless the movement is otherwise pro-

tected.”

26a

Opinion of Supreme Court of Virginia

The movement was not otherwise protected. The only

trainman who had a clear view to the front of the box-

ear, and both to the left front and right front thereof, was

Richmond. Rule 103A envisions that a trainman will be

standing on the stirrup of the side ladder of the lead car

where any signal given by him will be clearly visible to

the engineer. Richmond was not on his station and could

not be clearly seen by the engineer. In fact the engineer

knew only that “he was somewhere in the vicinity of the

car”.

Richmond’s explanation that the car was to be pushed

a good distance, and that it was more comfortable to ride

on the brake platform than to ride holding to a ladder

with his feet in the stirrup, does not excuse his violation

of the rule. There was no other crewman on the train in

a position to protect the movement of the train. Lilly was

on the right front steps of the engine immediately below

the engineer and obviously he could not see to the left

front of the train because the front of the engine and the

boxcar obstructed his view. Neither could Bennett see to

the left front of the train for he was on the right side of

the caboose and even more remote from the front of the

boxcar.

Richmond, as the conductor, was the trainman primarily

responsible for the movement of the train and the safety

of the crew and others. He failed to maintain a proper

lookout in the direction in which the train was moving;

therefore, he was in violation of Rule 182 which provides:

“Employees will maintain a lookout in the direction of

movement to avoid coming in contact with structures

or obstructions alongside of track, or with cars, loco-

motives, or trains on adjacent track. When vision is

obscured, or location is indefinite, they will keep in the

clear.”

27a

Opinion of Supreme Court of Virginia

Richmond admitted that he never saw the hopper car,

notwithstanding there was no obstruction in front of him,

and the car was in a fixed position and clearly visible.

The hopper car was seen by other members of the crew.

They had no reason to suspect that Richmond had not

seen the car and was not aware of its presence on the

adjacent track. Richmond’s train had passed the ear on

two previous occasions that morning, prior to the acci-

dent.

One object of Safety Rule 182 is to avoid exactly the

type of accident which occurred in this case. Employees

are required to maintain a lookout forward to avoid com-

ing in contact with cars on adjacent tracks. Uf their vision

is obscured, or the location of cars on the adjacent track

is indefinite, trainmen are required “to keep in the clear”.

This means staying in a position of safety. Richmond had

alternatives. He could have remained on the brake plat-

form until the car had cleared the hopper ear; he could

have moved over to the front ladder so as to be in posi-

tion to move quickly to the side ladder when the hopper

car was cleared; or he could have ridden on the side

ladder, where the safety rules required him to be, and

stood erect against the grab irons until the hopper car

was cleared. Instead, without looking, or without seeing

what was there to be seen, he unfortunately moved or

swung from the front around to the side of the ear at

precisely the time and place the movement should not have

been made, and was thereby injured.

Richmond testified that he intended to move from the

brake platform to the side ladder in order to be in posi-

tion to watch out for people at the crosswalk and to give

signals to the engineer. He also said that he planned to

get off the boxcar east of the passenger station and make

28a

Opinion of Supreme Court of Virginia

arrangements with the dispatcher for it to be pushed

across the main line. However, Lilly testified that the

point where the accident oecurred was approximately 18

ear lengths, or 900 feet, from the crosswalk. Appellee

therefore had ample time in which to move to the side

ladder after the train had cleared the hopper ear.

Appellee alleges that his injury was caused in whole or

in part by the negligence on the part of the C & O. To

prove negligence, he sought to establish the close clearance

between the boxcar und the hopper car; the failure on

the part of C & O and his fellow trainmen to warn him

of the danger; and the unsafe condition of the C & O’s

roadbed.

Frequent reference was made to the hopper car as a

“jumbo hopper”. The clearance betwen this car and a

boxear is only 15¢ inches less than is the clearance between

two boxcars. While there is no proof that a clearance of

21% inches between the cars was not adequate for a man

standing erect on the stirrup of the side ladder, Rich-

mond wag not standing on the ladder; he was trying to

reach the ladder and then descend it. Witnesses testified

that this type hopper car is not unusual in any manner

and that thousands are currently in use. The engineer

Harrah testified, referring to the hopper cars, “All the

ears we handle now are those type of cars.”

Richmond alleged that the C & O was negligent in not

warning him of a dangerous situation. This accident oc-

curred in a railroad yard where cars are constantly being

moved in, stored and moved out. Railroad ears are of

various kinds, shapes and sizes, and all railroad employees

know this. It was a routine switching operation that was

being conducted by Richmond and his crew. Richmond is

an experienced trainman, having had 27 years service at

29a

Opinion of Supreme Court of Virginia

the time of this accident. He was familiar with the Ron-

ceverte yard, with freight cars generally, and with the

job that he was doing. Rule 182 is a warning to trainmen

to maintain a lookout for close clearance by reason of cars

on adjacent tracks. None of Richmond’s fellow employees

could have reasonably foreseen that he would make the

maneuver that he made at the time and place that he

made it. Nor did they have sufficient time to give a warn-

ing even if such a warning had been indicated. Bennett

said the accident occurred just as the two cars met and

as Richmond came from the brake step to the side lad-

der. Lilly said it happened just the instant, almost simul-

taneously when Richmond came around to the side lad-

der. Richmond never saw the hopper car and said that

when he made his move, or swung around to the side of

the car, that was the last thing he remembered. Richmond

was himself in the best position to see the hopper ear and

to note its “dangerous proximity” on the adjacent track,

if in fact the hopper was so near the boxcar as to pose any

threat of danger to him.

The testimony regarding the condition of the roadbed

and the swaying and rocking of the car was vague and

affords a basis for speculation only. On cross-examination

Richmond was asked: “You are now telling the jury that

it was not the close clearance, but the rocking of the car

that knocked you off the car?” Appellee replied: “I’d say

it was the rocking of the car that knocked me off, yes, sir,

or swaying, whichever you want to call it.” In his state-

ment made soon after the accident Richmond did not com-

plain of the condition of the roadbed or the rocking or

swaying of the boxcar. It was at trial that he first testified:

“This car that I was riding rocked backwards and for-

wards.” However, when asked, “What if any problems can

‘7

30a

Opinion of Supreme Court of Virginia

it [rocking] cause to you as a conductor or brakeman?”,

appellee responded: “Well, I don’t really know as there

would be any difference riding the side ladder than there

would be up on the platform when there is a swaying.”

The sum of appellee’s testimony was that the track condi-

tions throughout the whole Ronceverte area were “pretty

bad”.

No witness testified as to any specific defect in the track

at the point where the accident occurred, or testified that

there was any depression, elevation or unusual condition at

that point. There was testimony by Lilly that in the general

area there were places where the ballast under the ties was

loose and that that sometimes caused a rocking motion.

Lilly, when asked if he was in a position to say that that

condition existed where the accident happened, responded:

“No. I can’t say it existed where the accident happened.”

He further said that he didn’t remember seeing any rocking

of the car, and that he couldn’t say that the car rocking

had anything to do with the accident.

Robert Sams, trainmaster, testified that he had never

received any complaint from Richmond regarding the con-

dition of the ballast or the condition of the passing track

in the Ronceverte yard. When asked by counsel for appellee

if railroad cars traveling over the tracks would rock and

roll and sway, Sams answered: “Well, railroad being rail-

road, on the best kept track a car will sway.”

In our view of the record, there is no evidence, nor any

inference which reasonably may be drawn from the evidence

when viewed in the light most favorable to the appellee,

which could sustain the verdict. We find no rational basis

for concluding that there was negligence by the C & O

which contributed in whole or in part to the injuries

suffered by Richmond.

3la

Opinion of Supreme Court of Virginia

Clearly, under the circumstances that existed, there was

no duty on the part of appellant or appellee’s fellow

trainmen to have warned Richmond of the presence of the

hopper car. Neither was there evidence from which the

jury could have found that the C & O’s roadbed was so

defective at the point of the accident as to have contributed

to its happening. Unlike Ellis v. Union Pac. R. Co., 329

U.S. 649 (1947), which involved an overhang of a car, a

tilt on a curve toward a building, and a higher outside

rail, there is no evidence here of any disparity in the height

of the rails, and the two adjacent tracks involved were

straight. We can safely assume that there was some rocking

or other motion of the boxear on which Richmond was

riding, notwithstanding this car was being pushed at a

speed of only eight mph. A degree of rocking and swaying

of rail cars is present whenever such cars are moved.

However, there is no evidence in the instant case that

this was caused by any negligent act or omission on appel-

lant’s part.

To hold that the C & O was negligent in having placed

the hopper car on the fill-out track would in effect say that

any railroad is negligent as a matter of law if it parks a

railroad car where its side will be 2114 inches from cars

passing on an adjacent track. In the instant case it was

not the amount of clearance between the two cars that

proximately caused or effectively contributed to cause the

accident suffered by Richmond.

The real cause of Richmond’s injuries was his own neg-

ligence, and the acts of the employer alleged to constitute

negligence played no causative part. We need only con-

sider the evidence of Richmond and his fellow trainmen.

Richmond admits that he did not see the hopper car. He

did not know or had forgotten it was on the fill-out track.

32a

Opinion of Supreme Court of Virginia

When he made his move around the corner of the boxcar

he was completely oblivious of its presence. This admis-

sion not only convicts Richmond of a violation of Safety

Rule 182, but of negligence. Although Richmond was on

the brake platform, where he did not belong, during the

pushing operation, he was in a place of safety so far as

any “contact with structures or obstructions alongside of

track, or with cars, locomotives, or trains on adjacent

track” was possible. We do not have to speculate on why

he attempted to move from the front to the side of the

boxcar at the exact time and place and in the manner he

did, instead of waiting the few seconds necessary for the

cars to pass. The appellee provided the answer when he

admitted that he was unaware of the presence on the

adjacent track of a hopper car with which he had to avoid

coming into contact.

We conclude that the evidence established as a matter

of law that Richmond’s independent and negligent act was

the sole cause of the accident and his injuries. No neg-

ligence of the C & O was shown that contributed in whole

or in part to the accident.

Reversed and final judgment.

I’Anson, C.J., dissenting.