Baltimore and Ohio R. Co. v. Taylor

• Decision Date: 01 April 1992
• Docket Number: No. 49A02-9110-CV-444,49A02-9110-CV-444
• Citation: 589 N.E.2d 267
• Parties: The BALTIMORE AND OHIO RAILROAD COMPANY, Appellant-Defendant, v. Dawn TAYLOR, Individually and as Administratrix of the Estate of Gregory Taylor, Deceased, Appellee-Plaintiff. 1
• Court: Indiana Appellate Court

Page 267

589 N.E.2d 267

The BALTIMORE AND OHIO RAILROAD COMPANY, Appellant-Defendant, v. Dawn TAYLOR, Individually and as Administratrix of the

Estate of Gregory Taylor, Deceased, Appellee-Plaintiff.

No. 49A02-9110-CV-444. ¹

Court of Appeals of Indiana,

First District.

April 1, 1992.

Victor L. Frost II, Frost & Hugon, Indianapolis, for appellant-defendant.

John F. Townsend, Jr., Townsend, Hovde, & Montross, Indianapolis, for appellee-plaintiff.

ROBERTSON, Judge.

The Baltimore and Ohio Railroad Company [B & O] appeals the judgment in the amount of $837,597.00 entered after a bench trial in favor of Dawn Taylor, individually and as administratrix of the Estate of Gregory Taylor, deceased. Dawn Taylor is the widow of Gregory Taylor who was shot and killed while working on the railroad. The B & O raises two issues, neither of which constitutes reversible error.

FACTS

The facts in the light most favorable to the trial court's judgment indicate that on July 22, 1985, Gregory Taylor was working as a brakeman for the B & O Railroad. As the train upon which Taylor was working traveled through a rural part of Rush County, Taylor stepped up on a seat in the locomotive, leaned forward, and projected his head out of the locomotive's side window in order to toss a written message wrapped in a fusee ² to someone outside of the train he must have thought was a fellow employee. The message Taylor was attempting to pass read "[e]at a bag of shit." As Taylor exposed his head out the window, he was struck by a .22 caliber bullet fired from a nearby field by a thirteen (13) year-old boy. Taylor died from the bullet wound. The record does not indicate whether the boy intentionally shot Taylor or was merely taking a "pot shot" at the train.

Taylor's widow brought suit against B & O under 45 U.S.C. Sec. 51 et seq., the Federal Employers' Liability Act [FELA], alleging the railroad failed to provide Taylor with a reasonably safe workplace. Evidence (a photocopied article) was presented that, in 1978, railroad companies in the United States and Canada reported 757 shooting incidents. The same article quoted Federal Railroad Administration (FRA) data indicating that, in 1978, 291 people were injured by "thrown or otherwise impelled objects." The side windows of locomotives are required, under 49 C.F.R. Sec. 223, to have a protective glazing applied upon them sufficient to withstand the impact of a .22 caliber bullet. The windows on the locomotive in question did in fact have the protective glazing. However, Taylor was not protected by the bullet-proof glass because the window was open and he was projecting his head out of the window at the time he was shot. The trial court found that B & O's negligence played at least a small part in Taylor's death finding the shooting was reasonably foreseeable and that:

[t]he locomotive engine herein was equipped with windows that complied with the aforesaid glazing requirement, but [B & O] had made no provision whatsoever concerning when and under what circumstances the window should be kept in a closed or mostly closed position so as to afford protection to the occupants of the locomotive as intended by the glazing regulation. In addition, [B & O] did nothing to communicate in any way to Taylor that the window was, in fact, glazed so that it would withstand the impact of a .22 caliber bullet. Nor did [B & O], in any way, educate or communicate with Taylor concerning the risks of gunshot incidents which form the rationale behind enactment of the glazing regulation. [B & O] did nothing to cause the glazed window to be used in such a manner as to implement the intent of the

regulation, to provide protection to the occupants of the locomotive.

DECISION

B & O requested special findings of fact and conclusions of law pursuant to Ind. Trial Rule 52. The purpose of making special findings is to provide parties and reviewing courts with the theory upon which the judge decided the case so that the right of review might be preserved effectively. Willett v. Clark (1989), Ind.App., 542 N.E.2d 1354. Whether special findings are adequate depends upon whether they are sufficient to disclose a valid basis under the issues for the legal result reached in the judgment. Id. On appeal, we construe the trial court's findings together liberally in support of the judgment; however, we may not add anything to the special findings of fact by way of presumption, inference, or intendment. Sandoval v. Hamersley (1981), Ind.App., 419 N.E.2d 813, trans. denied. On review of judgments entered in conjunction with T.R. 52 findings, we apply a two-tier standard of review. National Advertising Co. v. Wilson Auto Parts, Inc. (1991), Ind.App., 569 N.E.2d 997. First, we determine whether the evidence supports the findings; second, we determine whether the findings support the judgment. Id. The trial court's findings will not be set aside unless they are clearly erroneous; that is, the record contains no facts or inferences properly drawn upon facts which support the findings. Id. Similarly, we will not reverse the trial court's judgment unless it is clearly against the logic and effect of the facts, or the reasonable, probable deductions to be drawn therefrom. Id.

I.

Whether the trial court's finding of negligence on B & O's part was clearly erroneous because the shooting in rural Rush County was not reasonably foreseeable?

The present lawsuit was brought under 45 U.S.C.A. Sec. 51 [FELA] which reads:

Every common carrier by railroad while engaging in [interstate commerce], shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

(Emphasis ours). FELA imposes liability on railroad employers only for negligence and does not make the railroad an absolute insurer against personal injury or death suffered by its employees. Wilkerson v. McCarthy (1949), 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497. However, the standard of negligence under FELA is substantially more liberal than that governing ordinary common-law negligence actions. Lindauer v. New York Cent. R. Co. (2nd Cir.1969), 408 F.2d 638. FELA imposes liability upon railroad employers if the railroad's negligence played any part, even the slightest, in the employee's death or injury. Gallick v. Baltimore & Ohio R. Co. (1963), 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618. The railroad/tortfeasor must compensate his victim for even the improbable or unexpectedly severe consequences of its wrongful act. Id.

In FELA negligence actions, the role of the jury (factfinder) is much greater than in common-law negligence actions; the right of the factfinder to pass upon the question of the employer's liability must be most liberally viewed. Johannessen v. Gulf Trading & Transportation Co. (2nd Cir.1980), 633 F.2d 653. Under FELA, the factfinder's power to draw inferences is greater than in common-law actions. Burns v. Penn Central Co. (2nd Cir.1975), 519 F.2d 512.

Certain employer duties have become integral parts of FELA. Ragsdell v Southern Pacific Transp. Co. (9th Cir.1982), 688 F.2d 1281. These duties include: the duty to provide a reasonably safe place to work, Bailey v. Central Vermont Ry., (1943), 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; the duty to promulgate and enforce safety rules, Ybarra v. Burlington N., Inc. (8th Cir.1982), 689 F.2d 147; and, the duty to warn employees of unsafe working conditions, Terminal R. Ass'n of St. Louis v. Howell (8th Cir.1948), 165 F.2d 135. These employer duties are nondelegable. Bailey, 319 U.S. at 352, 63 S.Ct. at 1063.

The reasonable foreseeability of harm is an essential ingredient of negligence under FELA. Gallick, 372 U.S. 108, 83 S.Ct. 659. An employer's duty of care in a FELA action turns in a general sense on the reasonable foreseeability of harm. Id. The employer's conduct is measured by the degree of care that persons of ordinary, reasonable prudence would use under similar circumstances and by what these same persons would anticipate as resulting from a particular condition. Id. At the same time, FELA provides that the employer's duties become more imperative as the risk to the employee increases. Bailey, 319 U.S. at 352, 63 S.Ct. at 1063. The continuous duty to provide a reasonably safe place to work, while measured by foreseeability standards, is broader under FELA than a general duty of due care. Because of the myriad of factors involved, whether the railroad used reasonable care in furnishing its employees a safe place to work is normally a question for the factfinder. Gallose v. Long Island R. Co. (2nd Cir.1989), 878 F.2d 80. As with all factual issues under FELA, the right of the factfinder to pass on this issue must be liberally construed. Id. Only in instances where reasonable jurors could reach only one conclusion may the court take the determination from the jury and decide the question as a matter of law. Id.

A railroad/employer breaches its duty to provide a safe workplace when it knows or should know of a potential hazard in the workplace, yet fails to exercise reasonable care to inform and protect its employees. Id. The catalyst which ignites this duty is knowledge, either actual or constructive. Id. Thus an employer is not liable if it has no reasonable way of knowing that a potential hazard exists because FELA was never intended to hold an employer absolutely liable for workplace injuries. Id. However, if an employer learns or should learn of a...