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Norfolk Southern Railway Co. v. Sumner

Supreme Court of Virginia

January 31, 2019



          PRESENT: Lemons, C.J., Mims, McClanahan, Powell, Kelsey, and McCullough, JJ., and Russell, S.J.



         This is an appeal by a railroad corporation from a judgment in favor of one of its employees in an action brought under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. §§ 51 through -59, as amended.


         In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the prevailing party at trial. Mark A. Sumner (the plaintiff) was an employee of Norfolk Southern Railway Company (the defendant), a corporation operating a railroad as a common carrier in interstate commerce.

         On February 26, 2013, the plaintiff was working as the conductor of a northbound Norfolk Southern freight train running from Greensboro, North Carolina through Danville, Virginia and points north. The temperature was in the 30's and it was cloudy with light mist or rain. The yardmaster at Greensboro warned the train's engineer, Teddy Lester, that some ice might be encountered farther north. The engineer had orders to proceed through the railroad yard at Danville and stop at a point about two miles north of the yard where a side track called the "East Bradley pass track" diverged from the northbound main line. The train crew was directed to make a "cut," a designated series of cars that were to be separated from the train and left on the side track to be picked up by another locomotive later for delivery to a nearby destination. The train's remaining cars were then to be reunited on the main line and continue northbound. The train was stopped on the main line at a point where the last car of the "cut" was just south of the switch to the side track.

         As conductor, the plaintiff's duties required him to separate the last car of the "cut" from those to be left on the main line, to board the last car of the "cut," and, using his hand-held radio, to call the engineer to proceed. The locomotive then pulled the "cut" north of the switch to the side track and stopped on the conductor's signal. This part of the operation was performed without incident.

         Thereafter, the evidence is entirely circumstantial as to the fall that resulted in the plaintiff's injury. The plaintiff had no memory of the event and there were no eyewitnesses to the fall. The conductor's duties required him to dismount the last car in the "cut" and walk south, away from the locomotive, turning off an electric timing device on the switch, and continue walking south nearly 200 feet to release the "derail," a protective device to prevent movement of cars on the side track. He would then return north to throw the switch and call the engineer to back the "cut" onto the side track.

         After the plaintiff dismounted and began to walk south, the engineer expected a radio call from him but heard nothing. He called the plaintiff but there was no response. Concerned, he dismounted the locomotive and began walking south in the "walk path" that ran east of and parallel to the side track. Close to the east edge of the path was a steep embankment that dropped down a 70-degree slope into a ravine. Looking over the edge of the embankment, the engineer saw movement and recognized the plaintiff lying about 36 feet below. The engineer climbed down to the plaintiff with some difficulty, using one hand to support himself. The plaintiff was lying on his back, with his head uphill. At trial, the engineer testified that the plaintiff was conscious but "very disoriented." The plaintiff said: "What are we doing here? What happened?" He complained of great pain in his shoulder and chest. He had bitten through his tongue. Using the plaintiff's handheld radio, which was lying nearby, the engineer called the Danville Yardmaster who in turn called a team of paramedics to come to the scene. The team tied the plaintiff to a "backboard," placed it inside a fiberglass "sled," and with ropes pulling from above and men pushing from below, hoisted the plaintiff out of the ravine.

         The plaintiff was taken to the Danville Medical Center where he was treated for his injuries. At trial, two medical expert witnesses testified by video deposition. Steven Norris, M.D., an orthopedic surgeon, diagnosed the plaintiff with a displaced fracture of the clavicle (i.e., collarbone) and three fractured ribs. This required surgery on two occasions: the first to realign the fragments of the clavicle, to secure them with a metal pin, and the second to remove the pin when healing was well advanced. David Meyer, M.D., a neurologist, diagnosed a brain concussion. It was his opinion that this had caused the plaintiff to suffer amnesia, which destroyed his memory of the traumatic event itself and for the events during the period of time immediately preceding and following it. In some patients, he said, fragmentary recollections of these events would occur in later years, but others would never recall them. He testified that brain scans showed no condition that would have caused the plaintiff to have a seizure or spontaneous "blackout." The doctors found the plaintiff to be disabled by his injuries but able to return to work eight months after his fall.

         The plaintiff brought this action in the Circuit Court of the City of Danville to recover damages under the FELA for his injuries. The case culminated in a three-day jury trial wherein the jury found for the plaintiff and awarded him damages in the amount of $336, 293. The court entered judgment on the verdict and we awarded the defendant an appeal.

         At trial, the plaintiff testified that he had no memory of any events after he dismounted the train to begin his walk south. He said: "It's like somebody flipped a switch." He had no memory of his hospital stay. He testified that he later had a vague, dreamlike recollection of Teddy Lester, the engineer, looking down at him and of being placed on a "backboard." He said that continuous, accurate memory did not begin again until he was in therapy in July, five months after the accident. As stated above, there were no eyewitnesses to the fall.

         The plaintiff called as an expert witness Raymond Duffany as an expert in "railroad engineering practices, including track construction, inspection, maintenance and repair, especially with respect to railroad walkways." There was no objection to his qualifications. He had a degree in Civil Engineering and had been working in the railroad industry since 1975 as a construction engineer, an executive and as a safety consultant. He examined the scene of the accident in 2015, two years after the plaintiff's fall. He went over the scene with Terry Lester, the engineer, and examined depositions of other witnesses and photographs of the scene taken at the time of the accident. He concluded that the conditions he observed were substantially unchanged from those existing at the time of the plaintiff's fall.

         The East Bradley pass track ran parallel to, and just east of the Norfolk Southern northbound main line. The terrain on the east side of the pass track sloped downhill at an angle of 20 degrees to the walkway the railroad provided for its employees to walk between the switch to the north and the derail to the south. The walkway ran along the foot of this slope. The eastern edge of the walkway extended to a cliff that dropped at an angle of approximately seventy degrees into a ravine over 30 feet deep. No guardrail or other protection was provided to prevent falls into the ravine. Both tracks, the 20-degree slope down to the walkway, and the walkway itself, were covered with "track ballast." These facts were undisputed at trial and were shown to the jury by photographs admitted into evidence.

         Duffany testified that, at the point where the plaintiff had evidently fallen and gone over the edge of the embankment, the walkway was only 15 inches wide. At the north end, beside the switch, it was about 48 inches wide, but rapidly narrowed to 15 inches and remained at that approximate width all the way south to the derail. In his opinion, those conditions did not afford railroad employees a safe place in which to work. He testified that safety standards accepted by railroads throughout the country specify a minimum width of 24 inches for walkways.[1] He said that a walkway 24 inches wide "gives you that extra margin you have to recover from a possible fall or an area [in which] to fall [] other than over the cliff." He said that this is especially important when walking over ballast rock "which moves and tends to roll under foot traffic." A 24-inch walkway "give[s] you an adequate place to walk [and] if you do stumble on the ballast or trip, you have room to recover." The grade of a walkway, he testified, should be relatively flat, not exceeding seven to eight degrees in slope. For that reason, the area west of the walkway was unavailable to foot traffic as it sloped upward at an angle of 20 degrees. This state of affairs confined users of the walkway to a narrow and unprotected passage between the toe of the slope and the edge of the cliff.

         Duffany also testified that the walkway was covered with "track ballast," defined as large crushed rock pieces 2 to 2 ½ inches in diameter used to support and stabilize the main line of the railroad. This large ballast is unsafe for foot traffic because of its tendency to roll or slide underfoot. Instead, he said that smaller pieces of crushed rock should be used in railroad yards and on walkways. This material, called "yard ballast," was about ¾ inch in diameter, compacted well, was stable, and made a smooth walking surface.


         The FELA, 45 U.S.C. § 51, was enacted by Congress in 1908, and has since been amended to serve the humanitarian purpose of imposing on railroads engaged in interstate commerce as common carriers the duty to provide their employees a safe place to work. Railroad employees who suffer injuries or death, to which a breach of that duty contributed, even to the slightest degree, were granted a remedy by way of a civil action for damages against the employer. The federal and state courts were given concurrent jurisdiction to adjudicate such actions. 45 U.S.C. § 56.

         What constitutes negligence under the FELA is a federal question and federal decisions govern such cases in state courts. Norfolk & W. Ry. v. Hodges, 248 Va. 254, 260 (1994). Because the statute is remedial in nature, it is liberally construed by the courts in favor of railroad workers. Rodriguez v. Delray Connecting R.R., 473 F.2d 819, 820 (6th Cir. 1973).

         Under the FELA, a railroad has a non-delegable and continuing duty to use reasonable care to furnish its employees a safe place to work. Norfolk & W. Ry., 248 Va. at 260. The employer must perform inspections to discover dangers in the place where employees are required to work and after discovering the existence of dangers the employer must take precautions for the employees' safety. Id. at 260-61 (citing Atchison, Topeka & Santa Fe Ry. v. Buell, 480 U.S. 557, 558 (1987), and Williams v. Atlantic Coast Line R.R., 190 F.2d 744, 748 (5th Cir. 1951)). Under the FELA, a breach of these duties constitutes negligence. The FELA also expressly excludes the traditional common-law defenses of contributory negligence and assumption of the risk.[2] Furthermore, a FELA plaintiff may carry that burden by proof that is entirely circumstantial. Ackley v. Chicago & N.W. Transp. Co., 820 F.2d 263, 267 (8th Cir. 1987), Norfolk & W. Ry. v. Johnson, 251 Va. 37, 43 (1996); Norfolk & W. Ry. v. Hodges, 248 Va. at 260. Indeed, the standard of proof in an FELA action is significantly more lenient than in a common-law tort action. Norfolk & W. Ry. v. Hughes, 247 Va. 113, 116 (1994).

         The issue of proximate cause is also treated more leniently in FELA cases than in common-law tort actions. In Rogers v. Missouri Pacific Railroad, 352 U.S. 500, 506 (1957), the Supreme Court held that an FELA plaintiff need only show, "with reason[, ] that the employer's negligence played any part, even the slightest, in producing the injury or death for which damages are sought." (Emphasis added.) Ordinarily, the Court stated, that issue should be decided by a jury. Id. See also Norfolk & W. Ry. v. Chittum, 251 Va. 408, 415 (1996), Stover v. Norfolk & W. Ry., 249 Va. 192, 199 (1995), Norfolk & W. Ry., 248 Va. at 260.

         At the conclusion of the evidence, the defendant moved the court to strike on the ground that the evidence was insufficient to go to the jury. The court denied the motion.

         The court then gave instructions agreed upon by counsel as correct statements of the applicable law, although the defendant preserved its objection to the court's ruling on its motion to strike. Among other things, the instructions told the jurors that there were two issues for them to decide: whether the defendant was negligent and if so, did that negligence play a part, no matter how small, in producing the plaintiff's injury. The jurors were told that they could use their common sense in judging the evidence and could draw all reasonable inferences from it. They were also instructed that the defendant had a continuing duty to afford the plaintiff a reasonably safe place to work and to maintain and keep it in a safe condition. ...

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