THE CIRCUIT COURT OF THE CITY OF DANVILLE James J. Reynolds,
PRESENT: Lemons, C.J., Mims, McClanahan, Powell, Kelsey, and
McCullough, JJ., and Russell, S.J.
CHARLES S. RUSSELL JUSTICE
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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. 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.
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.
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.
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).
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. 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).
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.
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.
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. ...