Rubley v. LOUISVILLE & NASHVILLE RAILROAD COMPANY

• Decision Date: 05 September 1962
• Docket Number: Civ. A. No. 4315.
• Parties: Robert F. RUBLEY v. LOUISVILLE & NASHVILLE RAILROAD COMPANY.
• Court: U.S. District Court — Eastern District of Tennessee

208 F. Supp. 798

Robert F. RUBLEY v. LOUISVILLE & NASHVILLE RAILROAD COMPANY.

Civ. A. No. 4315.

United States District Court E. D. Tennessee, N. D.

September 5, 1962.

Arnett, Gilbertson & Draper, Knoxville, Tenn., for plaintiff.

Poore, Cox, Baker & McAuley, Knoxville, Tenn., for defendant.

ROBERT L. TAYLOR, Chief Judge.

Robert F. Rubley sued Louisville & Nashville Railroad Company to recover damages for "industrial deafness". His action was based upon alleged violations of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The case was tried to a jury and resulted in a verdict in favor of plaintiff for $8,500.00.

Defendant has moved for a judgment notwithstanding the verdict of the jury, or in the alternative for a new trial. The basis of the motion is that there is no material evidence to support a verdict, and that the Court erred in refusing to direct a verdict in favor of the defendant pursuant to a motion made at the conclusion of plaintiff's proof and renewed at the conclusion of all the proof.

The sole question for determination is whether the record contains any evidence of negligence upon the part of the defendant that caused plaintiff's disability.

Plaintiff began work for the defendant as a switchman in 1944. He continued as a switchman until the night of July 22, 1960 when he was retired from service due to defective hearing. At that time, he was 56 years of age. He suffered with a bad cold in October, 1956 and that was the beginning of the ear trouble. He attributed his defective hearing to the cold. In 1957 and the first part of 1958, there was little change in his hearing, but in November, 1958, the trouble became progressively worse. In 1959, the trouble became worse and in March, 1960 it became very bad.

At that time, a hearing aid was obtained. During this period he was off from work, but returned on May 11, 1960 wearing his hearing aid. A hearing test was given by the company with and without the hearing aid and following these tests he was directed to return to Dr. Knight for further examination. Doctor Knight made an audiometer test which disclosed his hearing to be defective. He was asked if he worked around heavy noises, and replied in the affirmative. The steam engine was used when he first began work, but it was replaced by the diesel in 1952. He did not claim that the noise from the steam engine affected his hearing. Doctor Knight concluded that the heavy noises were a factor in his trouble, which he described as a nerve type loss.

Mr. Lawson, another switchman, was the only man who worked for the Company that plaintiff thought had hearing difficulty. Mr. Lawson did not testify and there is no evidence in the record that the alleged difficulty was caused by his exposure to prolonged noise caused by diesel engines.

Plaintiff worked in the West Knoxville Yards and City Yards. He was what was known as an engine man. His chief duties were to signal the engineer to move the train. He did not work near the engine all the time. The record shows that he worked 277 days as an engine man and 63 days as a field man in 1959 and 1960. One who works as a field man is usually several cars away from the engine.

There were about 75 employees of the defendant who worked under conditions similar to those under which plaintiff worked, about 50 of whom were switchmen.

As previously indicated, Dr. Knight first examined plaintiff on July 2, 1960 and it was his opinion that a big factor in plaintiff's type of hearing loss was exposure to loud noises over a prolonged period. Any noises that have an intensity between 80 and 100 decibels over any period of time should require consideration to determine whether an employee is being injured. The sound level was between 80 and 100 decibels in the yards where plaintiff worked when the cars were in motion or particularly when being coupled or when the engine was starting and stopping. The average intensity was not over 100 decibels, but this was of sufficient intensity to cause the type of injury which plaintiff sustained.

Ear plugs "are fairly good where ear plugs can be worn with safety in industry", in the opinion of Dr. Knight. He thought ear plugs could be used by a switchman on the railroad, but he never put ear plugs on a switchman.

Doctor Knight had the following to say on the subject of ear plugs:

"Q. I see. From your standpoint as a physician if a man wears ear plugs, less sound goes in his ears?

"A. Yes.

"Q. Actually, that is all you are saying on that subject?

"A. Yes." Tr. p. 105

Plaintiff was aware of his hearing trouble from 1956 to the date of his retirement, but never advised defendant of it until he was examined by defendant's doctor in 1960.

Doctor McConnell, an audiologist, stated that there was a relation between prolonged exposure to noise and loss of hearing. A person within fifteen feet of a diesel engine while it is in operation would be subjected to noise intensity from 90 to 110 decibels, depending upon the speed and power of the engine. Levels above 85 decibels will cause hearing loss in a large number of individuals if they are exposed over a long period of time.

Doctor McConnell advocated the inauguration of a hearing conservation program in the railroad industry. He stated that if the noise near which the employees work is of sufficient intensity to affect their hearing, then they should be required to wear ear plugs. He was of the opinion that defendant had a noise problem.

There are very few sound specialists. There are only two audiologists in Knoxville. No industry in Knoxville has employed a sound specialist.

Doctor McConnell was of the opinion that the noise created by defendant's diesels could have produced plaintiff's hearing trouble.

Defendant has never had a claim similar to the one made by plaintiff. Its train master in the Knoxville area tested over 2,000 railroad employees over a period of twenty years and plaintiff was the only one who failed to pass the hearing test during this period.

Mr. Hadley, who is defendant's Assistant Superintendent in the Knoxville area and an ex-switchman, stated that good hearing was required for a railroad worker. He never heard any switchman claim that his hearing had been impaired by noise made by diesels. It was his opinion that the wearing of ear plugs by switchmen would increase injury rate and fatality rate. Hearing protection devices have not been used on the railroad. Defendant has some 16,000 to 17,000 employees. The claim of the defendant is the first claim made against defendant or any other railroad within defendant's knowledge for defective hearing allegedly caused by prolonged exposure to noise.

Plaintiff does not claim that any of the diesel engines around which he worked were defective. Nor does he claim any negligence upon the part of the operators of the engines. It is his claim that the place where he worked was an unsafe place to work and that the defendant was negligent in failing to inaugurate a conservation sound program as explained by Dr. McConnell in his testimony and in failing to ascertain that his hearing was being affected by prolonged noise from the engines and in failing to furnish him with ear plugs.

Counsel for the parties have been unable to find any case involving a factual situation similar to the one presented in this case.

The Federal Employers' Liability Act imposes upon the employer the duty to use reasonable care to furnish its employees a safe place to work. Bailey v. Central Vermont Ry., Inc., (1943) 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444. The liability of an employer is grounded on negligence and is not absolute. Brady v. Southern Ry. Co., (1943) 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239.

The Act does not define negligence, but that question is to be determined by common law principles as applied in the federal courts. Urie v. Thompson, (1949) 337 U.S. 163, 174, 69 S.Ct. 1018, 93 L.Ed. 1282.

Negligence is lack of due care under the circumstances, or the failure to do what a reasonable and prudent man would have done under the circumstances, or doing what such a person under the circumstances would not have done. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610.

If there is any evidence to justify a reasonable belief that the railroad failed to exercise reasonable care, the case must go to the jury.

The determinative question in the case is whether defendant was negligent in failing to conduct sound tests to determine whether the noise of its diesel engines was injurious to its employees who worked near them, including plaintiff, and if injurious to plaintiff, whether defendant was negligent in failing to furnish him ear plugs. The fact that other railroads do not furnish ear plugs to employees or that no claim has been made against a railroad for hearing loss to an employee allegedly caused by prolonged noise, does not relieve defendant from liability as a matter of law. Charnock v. Texas & Pacific R. Co., 194 U.S. 432, 24 S.Ct. 671, 48 L.Ed. 1057; Sadowski v. Long Island R. Co., 292 N.Y. 448, 55 N.E.2d 497 (1944).

The test of a jury case under the Act as stated by the Supreme Court is whether the evidence justifies with reason the conclusion that the employer's negligence played any part in producing the injury. Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493.

A railroad is guilty of negligence if the measures adopted by it to protect its employees is inadequate, and below the standard of care required. Snyder v. Lehigh Valley R. Co., 3 Cir., 245 F.2d 112 (1957). A railroad has a continuing and non-delegable duty to use due care in providing a safe working place for its employees, and actual knowledge of a danger is not a condition precedent to a finding of negligence, constructive notice will suffice. Sano v. Pennsylvania R. Co., 3 Cir., 282 F.2d 936 (1960).

The Supreme Court has stated that the deprivation of a jury trial to the...