Frazier v. Norfolk & Western Ry. Co.

• Citation: 996 F.2d 922
• Decision Date: 04 August 1993
• Docket Number: Nos. 92-3181,92-3182,s. 92-3181
• Parties: Alfonzo T. FRAZIER, Jr., Appellee, v. NORFOLK & WESTERN RAILWAY COMPANY, Appellant, and Post Express, Incorporated, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 922

996 F.2d 922

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.

Argued March 31, 1993.

Decided June 23, 1993.

Rehearing Denied Aug. 4, 1993.

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 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 excessive. Post Express sought a new trial on the ground that it was prejudiced unduly by comments made by Frazier's counsel during opening argument. In an order dated August 11, 1992, the court denied the post-trial motions.

On the instant appeal, appellants seek reversal of the judgment in favor of Frazier, Norfolk claiming that the court erred in not granting its motion for judgment as a matter of law and Norfolk and Post Express claiming that the court abused its discretion in not ordering a remittitur or a new trial on the issue of damages.

II.

(A) Judgment As a Matter of Law

Norfolk contends that the court erred in denying its motion pursuant to Fed.R.Civ.P. 50 for judgment as a matter of law on Frazier's claim and Post Express's cross-claim because Frazier and Post Express failed to prove a causal connection between Norfolk's negligence and Frazier's injuries. Norfolk also contends that, even if it was negligent, the Post Express driver's conduct was a superseding cause that broke the chain of causation between its conduct and Frazier's injuries.

We review de novo the denial of a motion for judgment as a matter of law. Walden v. Illinois Cent. Gulf R.R., 975 F.2d 361, 364 (7th Cir.1992). Our inquiry is limited to "whether there is sufficient evidence, when combined with all inferences reasonably drawn, to support the jury's verdict when the evidence is viewed in the light most favorable to the nonmoving party". Siddiqi v. Leak, 880 F.2d 904, 908 (7th Cir.1989). Our role is not to "reweigh or reevaluate the evidence--that task is reserved to the jury as factfinder", id., but to determine whether there is any basis upon which a reasonable jury could reach the conclusion that it did. Peyton v. St. Louis S.W. Ry. Co., 962 F.2d 832, 834 (8th Cir.1992).

We have recognized that "a jury verdict [in a FELA case] can be set aside '[o]nly when there is a complete absence of probative facts to support the conclusion reached' ". Harbin v. Burlington N. R.R. Co., 921 F.2d 129, 131 (7th Cir.1990) (emphasis added) (quoting Lavender v. Kurn, 327 U.S. 645, 653, (1946)). Moreover, "[i]n passing on the issues of fault and causality ... the jury has a broad power to engage in inferences". Heater v. Chesapeake & Ohio Ry. Co., 497 F.2d 1243, 1247 (7th Cir.), cert. denied, 419 U.S. 1013 [95 S.Ct. 333, 42 L.Ed.2d 287] (1974). Indeed, the Supreme Court repeatedly has stressed that in FELA cases we are not "free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because [we] feel that other results are more reasonable". Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 35 [64 S.Ct. 409, 412, 88 L.Ed. 520] (1944).

Frazier adduced evidence to support his claim that Norfolk utilized an inherently unsafe method and an improper crane for unloading bogies and failed to provide a sufficient work crew on the day of Frazier's accident. A crane safety expert testified that the use of only two crewmen to perform the unloading operations was unsafe. Indeed, the Norfolk crane operator and a foreman testified that on all prior occasions Norfolk used three crewmen to unload bogies. The third crewman here would have functioned as a signalman to indicate to the Post Express driver that it was safe to move the trailer. The crane operator and the crane safety expert also testified that a safer practice for unloading bogies was not utilized because Norfolk's crane was not capable of moving the bogies more than six inches vertically. As a result, the bogies had to be unloaded by moving the trailer rather than moving the crane. From this testimony, the jury reasonably could infer that Norfolk created an unsafe work place that contributed to Frazier's injuries. The jury also had a reasonable basis upon which to find Norfolk 10% responsible for Frazier's injuries because of its failure to take preventative measures such as using a larger capacity crane or using an extra person for signaling the driver. Viewing the evidence in the light most favorable to Frazier, there was sufficient evidence to support the jury's verdict. Norfolk failed to show that there was a "complete absence of evidence of probative facts to support the conclusion reached". Harbin, supra, 921 F.2d at 131.

We hold that the court properly denied Norfolk's motion for judgment as a matter of law.

(B) Remittitur

Norfolk and Post Express contend that the court abused its discretion in not ordering a remittitur. They claim that the jury's award of $2,300,000 is excessive because it has no rational connection to the evidence adduced at trial and is out of line with awards in similar cases from the same geographic area.

It is well settled law in this Circuit that trial judges may vacate a jury's verdict for excessiveness only when they determine that the award was "monstrously excessive" or that there was "no rational connection between the evidence on damages and the verdict". Joan W. v. City of Chicago, 771 F.2d 1020, 1023 (7th Cir.1985) (citing Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963, 971 (7th...