996 F.2d 922 (7th Cir. 1993), 92-3181, Frazier v. Norfolk & Western Ry. Co.

Docket Nº:92-3181, 92-3182.
Citation:996 F.2d 922
Party Name:Alfonzo T. FRAZIER, Jr., Appellee, v. NORFOLK & WESTERN RAILWAY COMPANY, Appellant, and Post Express, Incorporated, Appellant.
Case Date:June 23, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 922

996 F.2d 922 (7th Cir. 1993)

Alfonzo T. FRAZIER, Jr., Appellee,

v.

NORFOLK & WESTERN RAILWAY COMPANY, Appellant,

and

Post Express, Incorporated, Appellant.

Nos. 92-3181, 92-3182.

United States Court of Appeals, Seventh Circuit

June 23, 1993

Argued March 31, 1993.

Rehearing Denied Aug. 4, 1993.

Page 923

Kenneth A. Peterson (argued), Chicago, IL (Weston W. Marsh, Jane W. Grover, and Freeborn & Peters, on the brief), for appellant Norfolk & Western Ry. Co.

Robert A. Glaves (argued), Chicago, IL (Lyndon C. Molzahn, and Menges, Mikus, & Molzahn, on the brief), for appellant Post Express, Inc.

Robert W. Schmieder (argued), East Alton, IL (Gregory M. Tobin, William J. Harte, Courtney C. Nottage, and Pratt, Jones, Tobin & Hylla, on the brief), for appellee Alfonzo T. Frazier, Jr.

Before CUDAHY and MANION, Circuit Judges, and TIMBERS, Senior Circuit Judge. [*]

TIMBERS, Senior Circuit Judge.

Appellants Norfolk & Western Railway Co. (Norfolk) and Post Express, Inc. (Post Express) appeal from a $2,300,000 judgment entered on a jury verdict in the Northern District of Illinois, George M. Marovich, District Judge, in this Federal Employers' Liability Act (FELA) action. 45 U.S.C. § 51 et seq. (1988).

The appeals bring up for review post trial orders denying Norfolk's motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50 and the motions by Norfolk and Post Express for a remittitur or a new trial pursuant to Fed.R.Civ.P. 59.

For the reasons that follow, we affirm the judgment in all respects.

I.

We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.

On September 30, 1988, appellee Alfonzo T. Frazier, Jr., a carman employed by Norfolk, injured his back while unloading 11,600 pound double axle railroad wheel assemblies (bogies) from a flatbed trailer owned by Post Express. To unload the bogies, Frazier had to climb upon the trailer and secure a crane cable harness onto each bogie. Once attached, the crane lifted the bogie six inches above the trailer. The truck then was driven forward, out from under the suspended bogie. Norfolk used this procedure to minimize the movement of the crane. Frazier was to give the truck's driver a hand signal after he dismounted to indicate that it was safe to drive the truck forward.

In the process of unloading one of the bogies, the driver of the trailer pulled away while Frazier was still on the trailer. Frazier claimed that he never gave the signal to move the truck. The truck's driver claimed that, although he did not see a hand signal, he heard Frazier give what he interpreted as a verbal signal to drive away. To avoid being hit by the suspended bogie, Frazier jumped off the moving trailer and fell five feet to the ground. As a result of this fall, Frazier sustained two ruptured disks in his lower back. Eventually, in a process known as a diskectomy, both disks were removed surgically.

In 1990, Frazier commenced the instant action against Norfolk, Post Express, Norfolk & Southern Railway Co., and Triple Crown Services, Inc. alleging that their negligence caused his injuries. Frazier sought recovery under both FELA and common law negligence. On March 5, 1991, Norfolk & Southern and Triple Crown were dismissed

Page 924

with prejudice from the action. Norfolk and Post Express subsequently filed cross-claims alleging that the other was liable for Frazier's injuries and seeking indemnification and contribution. At a jury trial Frazier adduced evidence supporting two theories under which Norfolk would be partially liable for Frazier's injuries. First, he claimed that Norfolk, contrary to its normal practice, did not have enough workers on the site safely to unload the bogies. Second, he claimed that Norfolk was negligent because it used an inadequate crane to unload the bogies.

The jury awarded Frazier damages in the amount of $2,300,000. On the cross-claims, the jury found Post Express 90% at fault and Norfolk 10% at fault. On June 11, 1992, a judgment in the amount of the jury verdict was entered in favor of Frazier and against Norfolk and Post Express. On June 19, 1992, Frazier filed a motion to amend the judgment to provide that Norfolk and Post Express were jointly and severally liable. On June 25, 1992, the court granted this motion and entered an amended judgment accordingly.

On June 23, 1992, Norfolk and Post Express filed various post-trial motions. Norfolk sought judgment as a matter of law on the ground that neither Frazier nor Post Express established that Norfolk's negligence caused Frazier's injuries. Norfolk also moved to apportion costs between it and Post Express in the same proportion that the jury apportioned liability. Norfolk, together with Post Express, sought a remittitur or, in the alternative, a new trial on the issue of damages, claiming that the $2,300,000 award was...

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