Brown v. Baltimore and Ohio R. Co., s. 85-1232

• Decision Date: 18 November 1986
• Docket Number: 85-1233,Nos. 85-1232,s. 85-1232
• Citation: 805 F.2d 1133
• Parties: George M. BROWN, II, Appellee, v. The BALTIMORE AND OHIO RAILROAD COMPANY, Appellee, v. CAMILLO IACOBONI & SONS, INC.; Baltimore County, Maryland, Appellants. George M. BROWN, II, Appellee, v. The BALTIMORE AND OHIO RAILROAD COMPANY, Appellant, v. CAMILLO IACOBONI & SONS, INC.; Baltimore County, Maryland, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1133

805 F.2d 1133

George M. BROWN, II, Appellee, v. The BALTIMORE AND OHIO RAILROAD COMPANY, Appellee, v. CAMILLO IACOBONI & SONS, INC.; Baltimore County, Maryland,

Appellants.

George M. BROWN, II, Appellee, v. The BALTIMORE AND OHIO RAILROAD COMPANY, Appellant, v. CAMILLO IACOBONI & SONS, INC.; Baltimore County, Maryland, Appellees.

Nos. 85-1232, 85-1233.

United States Court of Appeals Fourth Circuit.

Argued April 7, 1986.

Decided Nov. 18, 1986.

Alfred L. Scanlon, Jr., Baltimore, Md. (Marc Seldin Rosen, Whiteford, Taylor, Preston, Trimble & Johnson, William J. Wiseman, III, Baltimore, Md., on brief), for appellants/cross-appellees.

George F. Pappas, Baltimore, Md. (H. Russell Smouse, Neile Sue Friedman, Melnicove, Kaufman, Weiner & Smouse, P.A., C. Keith Meiser, Baltimore, Md., on brief), for appellee/cross-appellant The Baltimore and Ohio R. Co.

Richard R. Beauchemin, Baltimore, Md. (Geoffrey J.C. Boyd, Morris N. Tingle, Arnold Beauchemin & Tingle, P.A., Baltimore, Md., on brief), for appellee George M. Brown, II.

Before PHILLIPS and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

JAMES DICKSON PHILLIPS, Circuit Judge:

In this action under the Federal Employers' Liability Act (FELA), 45 U.S.C. Sec. 51 et seq., brought by George M. Brown, Jr., a brakeman employed by the Baltimore & Ohio Railroad Company (B & O), a jury found the B & O and Camillo Iacoboni & Sons, Inc. (Iacoboni), jointly and severally liable for personal injuries sustained by Brown when a B & O train struck an earth moving machine owned by Iacoboni that had been placed by unknown third persons on the B & O tracks. The B & O, in turn, was awarded a judgment for indemnification as to its liability on a third-party claim against Baltimore County pursuant to a contractual agreement. On separate appeals by the B & O, Iacoboni, and Baltimore County, we affirm the judgment against the B & O, reverse that against Iacoboni, and affirm that against Baltimore County.

I

In 1978, B & O agreed to allow Baltimore County to install a sewer line beneath its railroad tracks in the Rossville, Maryland area. A "Pipeline Crossing Agreement" was entered into by the parties, permitting the County to "install, operate and maintain one 12-inch DIP sewer pipe line together with necessary casing, vents, fixtures and appurtenances thereto, hereinafter referred to collectively as 'Crossing,' upon, under and across the land and under the tracks of the Railway at a point located ... at Valuation Station 4520 plus 00, ... at Rossville, ... Maryland." Baltimore County paid B & O $500 as consideration for this agreement, which further provided that the County would indemnify B & O against any loss or liability sustained by the railroad on account of personal injury, death, or property damage "arising out of or in any manner connected with the location, installation, existence, operation, maintenance, renewal, changing, alteration, relocation or removal of said Crossing, regardless of whether such death, injury, damage or destruction shall be caused by the negligence of the Railway or otherwise."

Baltimore County thereafter contracted with Iacoboni to perform the Rossville sewer line work, which commenced in May 1979. The evidence indicated that on the day of the accident, a Caterpillar 930 earth-mover (CAT 930) was parked by Iacoboni employees between 30 and 100 feet from the pipeline crossing in an isolated area surrounded by trees. Iacoboni's foreman testified at trial that before leaving the worksite that day, he personally confirmed that padlocks securing the machine's doors, engine compartment, and fuel tank were secure. The heavy gauge padlocks, which were secured by hasps welded to the machine, had been specially ordered by Iacoboni after another CAT 930 was stolen from the Rossville site and driven into a nearby stream nine months earlier. There was undisputed evidence at trial that, following the first episode of vandalism, Iacoboni had hired a professional security guard to monitor the equipment, at least until the padlocks were installed. There was also evidence that one of the three teenagers involved in that earlier incident was ordered by a juvenile judge to act as a night watchman on the work site until the project was completed, although no one guarded the earth-mover on the day of the accident. Iacoboni's foreman also testified that the machine could be started with any of thousands of identical CAT 930 keys but doubted whether this particular three- or four-year-old machine might also be started using two nails, as was the case with certain older models.

The train's engineer, Ronald George, testified that at the time of the accident (7:15 p.m.), visibility of the tracks ahead was between one and two miles and that the train could, and in fact did, make an emergency stop within a quarter mile of application of the brakes. Both George and Brown testified that they had a short conversation about sharing a can of soda just before they saw the CAT 930 on the tracks ahead.

The engineer testified that when he saw the CAT 930 he immediately applied the emergency brakes and "hit the deck," although he had first considered jumping out. Railroad safety rules prohibit jumping from a moving train unless "necessary in the performance of duty." The engineer was essentially unharmed by the accident. Although Brown claimed at trial that he could not remember how or why he left the train, the engineer testified at trial that he believed that just before impact Brown had exclaimed that he intended to jump; the treating physician's report indicated that Brown had explained that he had jumped from the train; and, in his complaint, Brown specifically alleged that he had jumped. Brown suffered a broken right leg and various facial lacerations.

Brown originally sued only the B & O under the FELA. The B & O in turn asserted third-party claims against Iacoboni as a joint tortfeasor liable over to the B & O for full indemnification or contribution for its primary or concurrent negligence under Maryland law, and against Baltimore County for full indemnification under the contractual agreement between the B & O and Baltimore County. Brown then amended his complaint to add Iacoboni as a defendant on the main claim. The case went to trial to a jury on Brown's main claim against the B & O and Iacoboni, and the B & O's cross-claim against Iacoboni for indemnification or contribution under state law, and to the court on B & O's third-party claim for contractual indemnification against Baltimore County under state law.

After the district court denied motions by the B & O and Iacoboni for directed verdicts on Brown's claim, the jury returned a verdict of $300,000 for Brown against the B & O and Iacoboni as joint tortfeasors and a verdict for the B & O on its cross-claim for contribution against Iacoboni. The court in turn, sitting without a jury, entered judgment for the B & O against Baltimore County on the former's contractual indemnification claim.

These appeals, by the B & O, Iacoboni, and Baltimore County respectively, followed.

B & O and Iacoboni separately challenge the district court's dismissal of their respective motions for directed verdict, asserting that there was not sufficient evidence of the actionable negligence of either to warrant submission of Brown's claims to the jury. Baltimore County challenges the district court's enforcement of the contractual indemnification agreement under the facts of the case. Finally, the B & O contends that a mistrial should have been declared because of a prejudicially improper jury argument by Brown's trial counsel.

We take these contentions in order.

II

We consider first the sufficiency of the evidence to support the jury verdict against the B & O.

In an FELA action, "the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957). The evidence here amply supports, under this most lenient standard of proof, a jury finding that B & O's negligence played some part in producing Brown's injuries. The railroad itself specifically charges its engineers to keep "a vigilant lookout in the direction moving." George, B & O's engineer, testified that his visibility at the time of the accident was between one and two miles and that he was able to stop the train within a quarter mile after applying the brakes. Given such evidence, a jury reasonably could infer that B & O's engineer failed to "lookout" for and thus avoid the three- to four-ton earth-mover although, by his own testimony, it was visible from a distance at which the collision could have been prevented.

B & O contends that it "could not reasonably have anticipated that an unknown third party would flagrantly disregard the criminal laws and plain common sense and place a heavy piece of earth moving machinery directly in the path of a moving train." Perfect foresight, however, is not an element of the legal duty of care here in issue. See Restatement (Second) of Torts Sec. 435(1) (1965) ("If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable."). Given its "vigilant lookout" rule, B & O cannot seriously contend that the risk of an obstruction on its tracks in general represents an unanticipated hazard or that injuries caused by an engineer's failure to keep a lookout are not foreseeable. Under the inferable circumstances of the obstruction's visible presence on the tracks, the means by which it was placed there were essentially irrelevant to the duty to see it in time to avoid collision.

The district court therefore...