Cent. of Ga. R.R. Co. v. Ross

• Decision Date: 23 June 2017
• Docket Number: A17A0274
• Citation: 802 S.E.2d 336
• Parties: CENTRAL OF GEORGIA RAILROAD COMPANY v. ROSS.
• Court: Georgia Court of Appeals

342 Ga.App. 27

802 S.E.2d 336

CENTRAL OF GEORGIA RAILROAD COMPANY

v.ROSS.

A17A0274

Court of Appeals of Georgia.

June 23, 2017

Laurie Webb Daniel, Atlanta, Walker Steven Stewart, Macon, John Steven Stewart, Nottingham, MD, for Appellant.

James Read Holland II, Jessie L. Harrell, Jacksonville, FL, Thomas J. Mahoney Jr., Savannah, for Appellee.

Branch, Judge.

Nathaniel Ross was employed as a conductor by Central of Georgia Railroad Company when, early in the morning on November 1, 2005, he fell and injured his right knee. Ross brought a suit for damages against Central under the Federal Employer's Liability Act ("FELA"), 45 USC § 51 et seq. Almost ten years later, the case was tried before a jury, which returned a verdict for Ross for $1,033,000 and assigned contributory negligence of 40% to Ross, resulting in a net verdict of $619,800 against Central. Central appeals, arguing that it was entitled to a judgment as a matter of law in that there was no evidence that it was negligent and that Ross's injury was caused solely by his own negligence. Central also asserts that the trial court erred with regard to certain evidentiary rulings. For the reasons that follow, we affirm.

Construed in the light most favorable to Ross as the prevailing party, the evidence shows that at about 11:30 p.m. on October 31, 2005, Ross, a one-year employee of Central, reported to work for a job that involved switching cars at a terminal where he had worked more than twenty times before the incident. To perform this work, Ross and his colleagues were often located on a 10–foot wide gravel path or road that runs east and west and parallel to the six tracks in the rail yard. Near the location of Ross's work, drainage pipes run perpendicular to and under the tracks and road. These pipes empty out into an 11–foot wide, 42–inch deep drainage ditch located at the southern or non-track edge of the gravel road.

Photographs and testimony showed that at the time of the incident, grass and vegetation was overgrown on the east and west edges of the ditch, and that the 42–inch drop at the uneven edge of the road was not guarded by a railing, curb, or any other type of barrier or warning. There was also testimony that the ditch could not be seen without looking down right on top of the ditch itself but that it could have been seen if the vegetation had been cleared. Although there was lighting nearby, Central admits that there were no lights directly adjacent to the road and ditch where the incident occurred. There was evidence that Central provided more extensive lighting at another rail yard. Workers carried lanterns after dark, which Central provided. Ross had seen the ditch during daylight hours on previous occasions but never reported it as a dangerous condition. But that night in the dark, Ross could not see the ditch due to the vegetation, which ran many yards in each direction away from the ditch, and consequently, he did not know where the ditch was located while he was working. Central had inspected the area for safety every month for 31 years, but it had never taken any precautionary measures to protect employees from the 42–inch drop at the edge of the gravel path.

Ross was injured at about 3:00 a.m., near the end of the job. As he was holding his lantern, Ross stood on the path facing a train that was slowly going by as part of an operation that involved uncoupling and recoupling certain cars to the train and switching cars to different tracks. While other employees were working nearby, Ross was on the radio giving his engineer instructions for the train movements and simultaneously keeping track of how many train cars passed until the train was in the necessary position to stop, which he planned to communicate to the engineer. The work required looking up and down the track at the progress of the train and monitoring other details of the operation. As the operation was almost over and as Ross was looking at a distance around a curve trying to locate the last car on the train, Ross, without looking back, took a step backwards with his left foot and slid down into the ditch. Ross's right foot stayed on top of the bank and his right knee was injured

as he fell.

Ross received some treatment in a hospital emergency room the day after the accident but did not immediately report his injury to Central as required by company rules. He informed Central on November 12. One month after the accident, he had arthroscopic surgery

for a torn meniscus followed by physical therapy. By March 2006, he was approved to return to work as a railroad conductor. Ross continued as a full-time conductor from March 2006 through the autumn of 2006, and he was able to do his work until October 2006, when, as is more fully explained below, he was terminated by Central. His knee pain continued, however, and he had an MRI and a second surgery by a different doctor in May 2007, as well as other treatments. Ross thereafter received another evaluation that he could return to doing the job of a conductor. Nevertheless, despite surgery, physical therapy, and knee injections, Ross, in fact, could no longer perform repetitive squatting or ladder climbing as required for his job. He continues to have pain during heavy lifting and prolonged standing. Ross saw a third doctor in September 2008, but he has not had any additional surgery. At the time of trial, he had been working for Wal–Mart in the pharmacy for about five years.

Dr. Fred Johnson, Ross's expert witness on economic damages, testified regarding Ross's wage-related damages from the date of injury to trial and from the trial going forward. For damages prior to trial, Johnson took Ross's earnings from the time of the injury in 2005 and, based on a similar Central employee, determined what Ross could have made working for Central though the date of trial, less what Ross actually made working for other employers, including Wal–Mart, and less any earned income credit he received on his taxes. Using this calculation, Johnson determined that Ross had lost income of $158,992 in the almost ten years since the injury.

For future income loss, Johnson calculated the net-present value of the difference between the after-tax income that Ross would have been receiving at the time of trial if he still worked for Central (so-called "railroad wages") and the after-tax income that Ross was receiving in his job at Wal–Mart, with both values extended over Ross's remaining work-life expectancy of approximately 15 years. Using this calculation, Johnson determined Ross's future income loss to be $236,416. Johnson also calculated Ross's future loss of benefits from Central as $233,859. The total of these three calculations is $629,267. Other damage evidence not relevant to this appeal also was presented.

During trial and thereafter, Central argued in motions for directed verdict, for judgment notwithstanding the verdict, and for new trial, that it was entitled to a judgment as a matter of law on the ground that Ross failed to show any negligence on the part of Central. The trial court denied the motions. In denying Central's motion for new trial, the trial court found that some evidence was presented to show that Central "did not maintain a safe working place in the area of the ditch and should have known that this vegetation-covered ditch next to a walking path was a potential hazard" and that there was some evidence "that there was inadequate lighting at the location."

1. In its first enumeration, Central argues that the trial court erred in these rulings by not entering judgment in favor of Central as a matter of law. On appeal of these rulings, this Court must determine whether there is any evidence to support the jury's verdict. See Ga. Power Co. v. Irvin , 267 Ga. 760, 762 (1), 482 S.E.2d 362 (1997).

Under FELA, Central has "a duty to use reasonable care in furnishing its employees with a safe place to work." Norfolk Southern R. Co. v. Zeagler , 293 Ga. 582, 587 (2) (a), 748 S.E.2d 846 (2013)

(citations omitted).¹ This duty requires the railroad "to exercise the care that a reasonable and prudent person would exercise under the same circumstances." Id. at 588 (2) (a), 748 S.E.2d 846 (citations and punctuation omitted). "The carrier is required to take precautions commensurate with danger inherent in the situation and to exercise ordinary care proportionate to the consequences that might be reasonably anticipated from neglect." Hepner v. Southern R. Co. , 182 Ga. App. 346, 347, 356 S.E.2d 30 (1987) (citations omitted). And "what particular action a railroad should take to address a given workplace hazard is a question of whether the railroad breached the standard of care," which is a question for the jury. Ze a gler , 293 Ga. at 586, 589, 748 S.E.2d 846.

The jury must also decide issues of causation, and under FELA, the normal rules of causation are relaxed:

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. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence.

Rogers v. Missouri Pacific R. Co. , 352 U.S. 500, 506–507, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957) ; see also Zeagler , 293 Ga. at 587 (2), 748 S.E.2d 846.

Here, there was some evidence from which a jury could conclude that Central breached its duty to keep the workplace safe and some evidence that the breach caused Ross's injury. The large, deep ditch was immediately adjacent to the work area, it was partially obscured by weeds and vegetation, it was not marked in any way as a hazardous area, it was not protected by a chain or rail of any sort, and the area was not well lit. Thus, some evidence was presented that Central failed to keep the workplace safe, and at least slight evidence was presented to show...