Davis v. Consolidated Rail Corp.

• Decision Date: 17 April 1986
• Docket Number: Nos. 85-2137,85-2157,s. 85-2137
• Citation: 788 F.2d 1260
• Parties: Lonny DAVIS, Plaintiff-Appellee, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellant, Third-Party Plaintiff-Appellee, v. TRAILER TRAIN COMPANY, a corporation, Third-Party Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1260

788 F.2d 1260

Lonny DAVIS, Plaintiff-Appellee, v. CONSOLIDATED RAIL CORPORATION, Defendant-Appellant, Third-Party Plaintiff-Appellee, v. TRAILER TRAIN COMPANY, a corporation, Third-Party Defendant-Appellant.

Nos. 85-2137, 85-2157.

United States Court of Appeals Seventh Circuit.

Argued Feb. 11, 1986.

Decided April 17, 1986.

John B. Gunn, Walker & Williams P.C., Belleville, Ill., Barry L. Kroll, Williams & Montgomery, Ltd., Chicago, Ill., for defendant-appellant, third-party plaintiff-appellee.

Mark E. Goodman, Rosenblum, Goldenhersh, Silverstein & Zafft, Claton, Mo., for plaintiff-appellee.

Before CUDAHY and POSNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

POSNER, Circuit Judge.

This is a personal injury suit under the diversity jurisdiction; the substantive issues are governed by the tort law of Illinois. The suit arises from an accident that occurred in 1983. The plaintiff, Davis, was 33 years old at the time, an experienced railroad worker who for the past six years had been employed as an inspector of cars by the Trailer Train Company, a lessor of piggyback cars to railroads. He made the inspections in railroad yards, among them Conrail's marshaling yard in East St. Louis. On the day of the accident, Davis, driving an unmarked van that was the same color as the Conrail vans used in the yard but that lacked the identifying "C" painted on each Conrail van, arrived at the yard and saw a train coming in from east to west. He noticed that several of the cars in the train were Trailer Train cars that he was required to inspect. The train halted, and was decoupled near the front; the locomotive, followed by several cars, pulled away to the west. The remainder of the train was stretched out for three-quarters of a mile to the east; and because it lay on a curved section of the track, its rear end was not visible from the point of decoupling. An employee of Conrail named Lundy saw Davis sitting in his van, didn't know who he was, thought it was queer he was there, but did nothing.

Shortly afterward Davis began to conduct the inspections. This required him to crawl underneath the cars to look for cracks. One of the cars was the third from the end (that is, from the point where the train had been decoupled). Unbeknownst to Davis, a locomotive had just coupled with the other (eastern) end of the train. It had a crew of four. Two were in the cab of the locomotive. The other two, one of whom was designated as the rear brakeman, were somewhere alongside the train; the record does not show just where, but neither was at the western end of the train, where Davis was. The crew was ordered to move the train several car lengths to the east because it was blocking a switch. The crew made the movement, but without blowing the train's horn or ringing its bell. The only warning Davis had of the impending movement was the sudden rush of air as the air brakes were activated. He tried to scramble to safety before the train started up but his legs were caught beneath the wheels of the car as he crawled out from under it. One leg was severed just below the knee; most of the foot on the other leg was also sliced off. The train had not been "blue flagged." It is law (49 C.F.R. Sec. 218) as well as custom in the railroad industry that whenever work is being done on a train a blue metal flag be placed at either end to warn employees not to move the train. Though well aware of the custom, Davis had neither blue flagged the train before crawling under it nor asked an employee of Conrail to blue flag it.

Davis brought this suit against Conrail, charging negligence. Conrail impleaded Trailer Train, seeking contribution in the event it had to pay damages to Davis, on the ground that Trailer Train had been negligent in failing to instruct Davis in proper safety procedures. A jury found for Davis, assessed damages at $3 million, but found that Davis's own negligence had been one-third responsible for the accident, and therefore awarded damages of $2 million. In Conrail's third-party suit against Trailer Train, which had been tried with the main claim, the jury held that Trailer Train had been one-third responsible for the accident; it therefore ordered Trailer Train to reimburse Conrail for one-third of the $2 million in damages. Conrail and Trailer Train appeal. Conrail argues that it was not negligent at all (which if correct would mean that Davis was entitled to zero damages) but that if it was, still the reduction in its liability of only one-third shows that the jury was carried away by "passion and prejudice," so that there should be a new trial, or at the least a reduction in Conrail's share of the damages vis-a-vis Davis. Trailer Train argues that it was not negligent even if Conrail was, and therefore it should not have to pay any part of the damage award.

Neither appellant challenges the $3 million price tag that the jury put on Davis's injury, although Davis is able to walk with the aid of prosthetic devices, to drive, to work, and in short to lead almost a normal life. Of course the loss of a leg is a terrible disfigurement, especially for a young man, and a substantial award of damages would therefore be entirely justified even without any evidence of pain (and there was evidence of severe though transitory pain) or reduced longevity. But $3 million--only $170,000 of which represents lost earnings and past and future medical expenses--may well be excessive; and although appellate review of the amount of damages awarded by a jury or trial judge is highly deferential, we and the other courts of appeals have not hesitated to cut down grossly excessive damage awards. See, e.g., Joan W. v. City of Chicago, 771 F.2d 1020, 1025 (7th Cir.1985); Douglass v. Hustler Magazine, Inc., 769 F.2d 1128, 1144 (7th Cir.1985); Abernathy v. Superior Hardwoods, Inc., 704 F.2d 963, 972-74 (7th Cir.1983); Dixon v. International Harvester Co., 754 F.2d 573, 590 (5th Cir.1985); Harper v. Zapata Off-Shore Co., 741 F.2d 87, 91-93 (5th Cir.1984); Shaw v. United States, 741 F.2d 1202, 1210 (9th Cir.1984); Stratis v. Eastern Air Lines, Inc., 682 F.2d 406, 415 (2d Cir.1982). But as we have said, the defendants have not asked us to do that here.

The defendants do complain, however, that the jury allocated too small a share of responsibility for the accident to Davis. They ask us to order either a remittitur or a new trial limited to damages, but alternatively they argue that the jury's allocation shows that the jury was carried away by passion and prejudice, so that a new trial on liability as well as on damages should be ordered. See Douglass v. Hustler Magazine, Inc., supra, 769 F.2d at 1143. This argument has no merit. Although (as will become clear when we discuss the evidence of Conrail's and Trailer Train's negligence) the jury probably allotted too little of the blame for the accident to Davis, the error is not of such magnitude as to call into question the rationality of its verdict on whether the defendant was liable. Only in an unusual case will a court order a new trial on liability because of an error in assessing damages or in apportioning them among multiple defendants. This is not an unusual case. The jury may well have underestimated Davis's relative fault, but it did not so take leave of its senses in dealing with this issue that we are entitled to conclude that it did not use its reason in deciding whether Conrail was negligent at all.

On the question of Conrail's negligence, Davis presented three theories to the jury. The first was that Conrail's employee Lundy, whose auto was equipped with a two-way radio, should have notified the crew of the train that an unknown person was sitting in a van parked near the tracks. We consider this a rather absurd suggestion. Lundy had no reason to think that the man in the van would climb out and crawl under a railroad car. If he had called the crew and told them there was a man in a van by the tracks, they undoubtedly would have replied, so what? Maybe, since the van resembled the vans used by Conrail employees, it should have occurred to Lundy that the person in the van had business on the tracks. But it is a big jump from recognizing that possibility to thinking that the man was in danger because he might crawl under a car without taking the usual precautions. And any Conrail employee would know better than to crawl under a car on a live track (a track that had not been blue-flagged). In sum, the probability that Davis would crawl under a car without first asking that it be blue flagged was too low, as it reasonably appeared to Lundy, to obligate Lundy to warn Davis or alert the train's crew.

In the famous negligence formula of Judge Learned Hand, which is recognized to encapsulate the more conventional verbal formulations of the negligence standard, see Prosser and Keeton on the Law of Torts 173 and n. 46 (5th ed. 1984), a defendant is negligent only if B < PL, meaning, only if the burden of precautions is less than the magnitude of the loss if an accident that the precautions would have prevented occurs discounted (multiplied) by the probability of the accident. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947). If P is very low, elaborate precautions are unlikely to be required even if L is large, see United States Fidelity & Guaranty Co. v. Jadranska Slobodna Plovidba, 683 F.2d 1022, 1027-28 (7th Cir.1982); and here the necessary precautions would have been elaborate.

Davis's second theory of Conrail's negligence is even more fantastic. It is that before the train was moved a member of the crew should have walked its length, looking under the cars. The probability that someone was under a car was too slight, as it reasonably would have appeared to the crew, to warrant the considerable delay in moving the train that would have been caused by having a crew member walk its entire length and then walk back, a total distance of a mile and a...