Eversole v. Consolidated Rail Corp.

• Decision Date: 19 March 1990
• Docket Number: No. 73A01-8903-CV-109,73A01-8903-CV-109
• Citation: 551 N.E.2d 846
• Parties: Kenneth M. EVERSOLE, Plaintiff-Appellant, v. CONSOLIDATED RAIL CORPORATION, a/k/a Conrail, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 846

551 N.E.2d 846

Kenneth M. EVERSOLE, Plaintiff-Appellant, v. CONSOLIDATED RAIL CORPORATION, a/k/a Conrail, Defendant-Appellee.

No. 73A01-8903-CV-109.

Court of Appeals of Indiana,

First District.

March 19, 1990.

Rehearing Denied April 30, 1990.

John C. Green, Hume, Smith, Geddes & Green, Indianapolis, and Charles T. Bate, Bate, Harrold & Meltzer, Shelbyville, for plaintiff-appellant.

Nicholas C. Nizamoff and Cynthia L. Wodock, White & Raub, Indianapolis, for defendant-appellee.

STATEMENT OF THE CASE

BAKER, Judge.

Plaintiff-appellant, Kenneth M. Eversole (Eversole), appeals the alleged insufficiency of a damage award entered in his favor on a claim against his employer, defendant-appellee, Consolidated Rail Corporation, a/k/a Conrail (Conrail).

We affirm.

STATEMENT OF THE FACTS

On September 23, 1985, Eversole was injured while performing his duties as a railroad car inspector with Conrail. While attempting to connect an air brake hose between two cars, Eversole stepped into the gauge (the space between the two rails of each track). As he did so, he stepped on a discarded brake shoe which caused him to fall and severely injure his back.

The customary practice at the Conrail railroad yard was to distribute new brake shoes on the ground outside the gauge and to discard warn brake shoes inside the gauge. Eversole knew of the practice and participated in both distributing and discarding brake shoes.

Prior to the accident, Conrail promulgated a safety rule requiring its employees to remove tripping hazards from their path. Following the accident, a disciplinary hearing was held to determine whether Eversole violated Conrail's safety rule. When asked at the hearing why he did not remove the brake shoe from his path, Eversole responded, "I did not see it necessary. I tried to avoid it." Record at 1332.

Eversole filed a claim against Conrail pursuant to the Federal Employers' Liability Act (FELA), ¹ alleging negligence on the part of Conrail. Eversole testified at the jury trial that the brake shoe was located outside the gauge and that he did not see it in time to avoid stepping on it. The jury determined Eversole's gross damages to be $140,000. The jury also found Eversole was 86% contributorily negligent and reduced his damages to $19,600. Following the trial court's entry of judgment on the jury verdict, Conrail filed a Motion of Setoff and Entry of Satisfaction of Judgment. Conrail alleged in its motion that it was entitled to a setoff against the judgment for sickness and insurance benefits previously received by Eversole. Conrail's motion was granted and the trial court ordered a $17,466.93 setoff against the judgment. Eversole filed a Motion to Tax Costs totaling $2,434.80 of which the trial court awarded $46.00. Eversole appeals the reduction in the damages award, the granting of Conrail's setoff motion, and the amount awarded in costs.

ISSUES

Eversole raises nine issues for our review:

I. Whether the trial court erred in giving Final Instruction No. 8 regarding Eversole's burden of proof.

II. Whether the trial court erred in giving Final Instruction No. 21 regarding Conrail's and Eversole's duty with respect to safety at the workplace.

III. Whether the trial court erred in giving Final Instruction No. 22 regarding Eversole's choice of ways in performing his activities.

IV. Whether the trial court erred in giving Final Instruction Nos. 26 and 28 regarding the calculation of lost wages based on net earnings.

V. Whether the trial court erred in giving Final Instruction No. 27 regarding computation of future damages on the basis of present value.

VI. Whether the trial court properly admitted interest and actuarial tables into evidence for purposes of present value calculations.

VII. Whether Eversole's unsworn statements made at the disciplinary hearing were admissible as impeachment evidence.

VIII. Whether the trial court erred in granting Conrail's motion for setoff.

IX. Whether the trial court erred in awarding only $46 of the $2,434.80 requested by Eversole in costs.

DISCUSSION AND DECISION

As an initial matter, we note that Eversole's challenges to the jury instructions given by the trial court involve substantive issues arising from the application of FELA. Although FELA actions are adjudicated in state courts and follow state procedural rules, the proceedings are governed by federal substantive law. St. Louis Southerwestern Ry. Co. v. Dickerson (1985), 470 U.S. 409, 105 S.Ct. 1347, 84 L.Ed.2d 303. Whether it was error to give the instructions, as well as whether evidence offered in connection with the instructions was properly admitted, is a question of federal law. Norfolk & W. Ry. Co. v. Liepelt (1980), 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689. In determining whether the jury was adequately instructed, we consider the trial court's jury instructions as a whole. Caillouette v. Baltimore & Ohio Chicago Terminal R.R. Co. (7th Cir.1983), 705 F.2d 243.

I.

Eversole contends the trial court erred in giving Final Instruction No. 8 which provides as follows:

Before you would be warranted in returning a verdict for plaintiff you are instructed that the plaintiff must prove by a preponderance of the evidence that:

1. The defendant railroad was negligent; and

2. The injury and damages for which the plaintiff seeks recovery in this action resulted from such negligence.

If you determine that the plaintiff has failed in his burden of proof on any one of the two elements, your verdict should be for the defendant railroad, Consolidated Rail Corporation.

Defendant contends that:

1. Defendant had a reasonable procedure for the placement of brake shoes in the Departure Yard;

2. The brake shoe in question was located in a reasonable place in light of all of the circumstances;

3. Plaintiff's injuries were not caused by any debris unreasonably present in the Departure Yard;

4. Defendant was not negligent in any way which caused or contributed to plaintiff's injuries;

5. Plaintiff failed to keep a lookout for the brake shoe which was plainly visible;

6. After seeing the brake shoe, plaintiff failed to exercise reasonable care when he stepped on it.

The burden of proving the elements of the plaintiff's case is always with the plaintiff, and never shifts to the defendant.

Record at 917. Eversole argues that while the first part of the instruction correctly states the law, the insertion of Conrail's contentions in the middle of the instruction was error. Eversole claims the inclusion of Conrail's contentions in the instruction was confusing and misleading to the jury because it appears as if the contentions were a part of Eversole's burden of proof. Eversole also claims that because the contentions contain elements of Conrail's affirmative defense of contributory negligence, the jury believed Eversole had the burden of disproving Conrail's claim of contributory negligence.

When looking at Instruction No. 8 together with the court's other instructions on the burden of proof, we find the jury was not misled or confused. Final Instruction No. 9 set forth Eversole's burden of proof on the elements of negligence and did not list Conrail's contentions. Final Instruction No. 7 listed Eversole's contentions regarding his claim. Furthermore, Final Instruction No. 12 explained the elements of contributory negligence and the nature of the claim as an affirmative defense. Instruction No. 12 explicitly stated in pertinent part that:

The defendant has the burden of proving, by a preponderance of the evidence, that the plaintiff was contributorily negligent. If the proof fails to establish any essential element of such defense by a preponderance of the evidence, or if the evidence on any essential element thereof is equally balanced, then such defense would fail.

Record at 921. We find that when looking at all of the instructions given on both parties' burden of proof, the jury was adequately instructed.

II.

Eversole next contends the trial court erred in giving the following Final Instruction No. 21:

The defendant may not be charged with negligence in this case by failing to anticipate that the plaintiff would not take the ordinary and proper precautions to protect and safeguard his health and welfare. Railroad employees have a duty to use reasonable care in the workplace.

Record at 930. Eversole argues this instruction does not correctly state the law because it assumes away Conrail's non-delegable duty to provide its employees with a safe workplace.

In support of his argument, Eversole cites Ackley v. Chicago and N.W. Transp. Co. (8th Cir.1987), 820 F.2d 263. In Ackley, a railroad employee was injured while using a defective ladder provided by his employer. The eighth circuit found the trial court's reading of the following instruction was prejudicial error: "The Defendant has a right to assume that its employees will exercise reasonable care for their own safety and that they will not disobey safety rules and practices." Id. at 266. The court's concern was that if the railroad was allowed to assume its employees would not act negligently, then the scope of foreseeability required of the railroad would be significantly diminished.

Ackley is distinguishable from the present case. The court in Ackley found error in the instruction because of the danger it presented in suggesting that a safety rule violation would bar all recovery in a FELA action. In the present case, the trial court instructed the jury in Final Instruction No. 18 that, "violation of a safety rule will not ordinarily constitute negligence as a matter of law...." Record at 927. This instruction guarded against the concerns articulated by the eighth circuit in Ackley.

Further, Instruction No. 21 correctly states the law as articulated by the fifth circuit in Atlantic Coast Line R.R. Co. v. Dixon (5th Cir.1951), 189 F.2d 525, cert. denied 342 U.S. 830, 72 S.Ct. 54, 96 L.Ed. 628. In Dixon, the fifth circuit noted the duty of every employee to...