Empey v. Grand Trunk Western R. Co., Civ. A. No. 84-2431 PH.

Citation710 F. Supp. 653
Decision Date19 March 1987
Docket NumberCiv. A. No. 84-2431 PH.
PartiesLeighton EMPEY, Plaintiff, v. GRAND TRUNK WESTERN RAILROAD CO., Defendant.
CourtU.S. District Court — Western District of Michigan

COPYRIGHT MATERIAL OMITTED

James A. Brescoll, Dennis P. Brescoll, Brescoll & Associates, Mt. Clemens, Mich., for plaintiff.

John L. Foster, Richard Dietz, Foster, Meadows & Ballard, Detroit, Mich., for defendant.

MEMORANDUM OPINION AND ORDER

JAMES HARVEY, District Judge.

Plaintiff brought this action under the Federal Employer's Liability Act (FELA), 45 U.S.C. § 51 et seq., seeking recovery for damages suffered as a result of a severe back injury sustained from two separate incidents while working for defendant. On September 5, 1986, the jury returned a verdict in favor of the plaintiff in the amount of $700,000.00, finding the plaintiff zero percent negligent. This matter is now before the Court on defendant's motion for judgment n.o.v. and, in the alternative, for a new trial.

I.

Plaintiff claimed that his back was first injured on September 8, 1983, at the Downtown Motor Lodge in Port Huron while on a layover following a train movement from Flat Rock to Port Huron. While exiting the shower, plaintiff slipped in a puddle of water which had accumulated on the floor outside the shower stall, causing him to fall on his back. Plaintiff offered evidence showing that the water was able to escape through the shower stall because of a faulty latch which prevented the door from being tightly shut.

The second incident occurred on September 15, 1983, while plaintiff was performing switching operations at what was described during trial as the Richmond Co-Op. Plaintiff claims he fell into a hole covered from view by high, untrimmed weeds. Plaintiff also alleged in Counts II and IV of his complaint that defendant negligently assigned him to duties beyond his physical capabilities after his injuries suffered on September 8 and 15, 1983.

At the conclusion of all the proofs, both parties moved for a directed verdict on several issues.1 Both parties sought a directed verdict on the issue of whether plaintiff was acting within the scope of his employment while injured at the Downtown Motor Lodge and whether the Downtown Motor Lodge and the Richmond Co-Op were agents of the defendant engaged in operational activities of defendant. Defendant also requested a directed verdict on plaintiff's negligence claims for the injuries allegedly incurred at the Downtown Motor Lodge and the Richmond Co-Op, and as a result of defendant's reassignment of plaintiff.

The Court held that as a matter of law plaintiff was acting within the scope of his employment during the first incident, thus denying defendant's motion and granting plaintiff's motion. The Court denied both parties' second motion finding that the question of whether either the Downtown Motor Lodge or Richmond Co-Op were agents engaged in operational activities of defendant as defined in Sinkler v. Mo. Pac. R.R., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799 (1958), was irrelevant in light of the broader nondelegable duty standard embraced by the Sixth Circuit in Payne v. Balt. & Ohio R.R. Co., 309 F.2d 546 (6th Cir.1962), cert. denied, 374 U.S. 827, 83 S.Ct. 1865, 10 L.Ed.2d 1051 (1963). The Court denied defendant's request for a directed verdict on the September 8 and 15, and negligent reassignment claims.

Defendant presents three arguments in support of its motion for judgment n.o.v. and five in support of its motion for a new trial.2 Because a motion for judgment n.o. v. and for a new trial involve different standards, the Court will treat each motion separately.

II.

The standard used for determining whether a directed verdict is proper is also applicable to a motion for judgment n.o.v. Grimm v. Leinart, 705 F.2d 179, 181 (6th Cir.1983), cert. denied, 465 U.S. 1066, 104 S.Ct. 1415, 79 L.Ed.2d 741 (1984). A directed verdict is proper only when there is "a complete absence of pleading or proof on an issue or issues material to the cause of action or where there are no controverted issues of fact upon which reasonable men could differ." Rockwell Int'l Corp. v. Regional Emer. Med. Services, 688 F.2d 29 (6th Cir.1982); Hersch v. United States, 719 F.2d 873, 877 (6th Cir.1983); Grimm v. Leinart, 705 F.2d at 181, 181 n. 2. Additionally, the Supreme Court has indicated that in a cause of action arising under FELA, a jury's interpretation of the facts deserves even greater deference. "Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear." Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946); Clark v. Ky. & Ind. R.R., 728 F.2d 307, 310 (6th Cir.1984). See also Green v. River Terminal Ry. Co., 763 F.2d 805, 806-807 (6th Cir.1985) (the court's power to direct a verdict is restricted in light of ... the remedial purposes of FELA and the legislative desire to preserve the plaintiff's right to a jury trial).

In deciding a motion for a directed verdict or a judgment n.o.v., the Court:

may neither weigh the evidence, pass on the credibility of witnesses nor substitute its judgment for that of the jury. Rather, the evidence must be viewed in the light most favorable to the party against whom the motion is made, drawing from that evidence all reasonable inferences in his favor.

Carter v. City of Chattanooga, 803 F.2d 217, 225 (6th Cir.1986) (quoting Morelock v. NCR Corp., 586 F.2d 1096, 1104 (6th Cir. 1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979)); Gomez v. Great Lakes Steel Div., 803 F.2d 250, 254 (6th Cir.1986).

A.

Defendant first argues that the Court erred in holding as a matter of law that the plaintiff was within the scope of employment when injured at the Downtown Motor Lodge.3 Defendant contends that plaintiff was not in the scope of employment because plaintiff was unavailable for duty at the Downtown Motor Lodge, he was not required to stay at the Downtown Motor Lodge and defendant did not have control over the operation of the motel.

It is settled that an employee is protected under the FELA only if injured within the scope of employment. See, e.g., Moore v. Chesapeake & Ohio Ry. Co., 649 F.2d 1004, 1008 (4th Cir.1981). No exact formula has been devised for determining when a particular accident is sufficiently related to the employee's work such that it is considered to have occurred within the scope of his employment. Each case must be decided upon its own facts. Cudahy Packing Co. v. Parramore, 263 U.S. 418, 424, 44 S.Ct. 153, 154, 68 L.Ed. 366 (1923).

Relying on Carney v. Pittsburgh & Lake Erie R.R. Co., 316 F.2d 277 (3rd Cir.1963), cert. denied, 375 U.S. 814, 84 S.Ct. 45, 11 L.Ed.2d 49 (1964), Mostyn v. Delaware L. & W. R.R. Co., 160 F.2d 15 (2d Cir.1947), and Baker v. Baltimore and Ohio R.R. Co., 502 F.2d 638 (6th Cir.1974), the Court held that plaintiff was within the scope of employment while at the Downtown Motor Lodge since it was uncontroverted at trial that defendant provided plaintiff lodging so that plaintiff could rest and recuperate to prepare himself for his next assignment. In Mostyn a track worker was housed and fed in a bunk car by a third party that was under contract with the railroad. He was struck by a passing train while sleeping outside the bunk and near the tracks because of the verminous condition of his bunk. Plaintiff was not forced to stay on the work-site and apparently was not on call. After wrestling with the "dilemma" presented in attempting to determine which activities, although not literally part of the work, are necessary to its performance, the Court stated:

It seems to us that when a railroad provides shelter or food or both for its employees, and they are using the accommodations so provided to prepare themselves for their work, as to rest and recuperate, they must be regarded as in its `employ'.

Mostyn, 160 F.2d at 17-18.

In Carney the plaintiff was a resident of Pittsburgh and was assigned to work on a project at the railroad's yard near Youngstown, Ohio. The plaintiff was injured when he fell from a bed at a Y.M.C.A. in a town near Youngstown where he was staying. Although the plaintiff was not compelled to stay at the Y.M.C.A., the railroad would not have paid or reimbursed the plaintiff for his living expenses. At the time of the injury the plaintiff was apparently not on duty or on call.

The court relied on Mostyn in concluding that plaintiff was within the scope of employment when injured:

We have the essential common elements of Mostyn. ... in that defendant provided plaintiff with shelter and food, which by custom and the economic realities of the situation he and his work group were encouraged to use. The case clearly comes within the framework of Mostyn....

Carney, 316 F.2d at 279. The court also suggested that the facts were even stronger than those in Mostyn since the plaintiff in Carney was economically compelled to stay at the "Y" because the railroad would not have reimbursed the plaintiff had he not stayed at the "Y".

The general principle which can be gleaned from Mostyn and Carney is that an employee is within the scope of employment when availing himself of lodging which the railroad has provided and encouraged him to use. The rationale behind this rule apparently is that the lodging is provided as a means of preparing the employee for work, and is, therefore, incidental to the employee's work.

At trial, this Court felt compelled to follow the reasoning of Mostyn and Carney in light of the Sixth Circuit's admonition in Baker v. Baltimore & Ohio R.R. Co., 502 F.2d 638 (6th Cir.1974), that, "FELA's liberal purpose must be kept in mind when confronting arguments that would restrict an employer's liability under the Act." Id. at 641. At issue in Baker was whether an employee who had injured the plaintiff was within the scope of employment at the time of the injury. Although Baker dealt with determining...

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