Gilbert v. CSX Transp., Inc., APAC-GEORGI

• Decision Date: 04 September 1990
• Docket Number: APAC-GEORGI,INC,A90A0860,Nos. A90A0859,s. A90A0859
• Parties: GILBERT et al. v. CSX TRANSPORTATION, INC.v. CSX TRANSPORTATION, INC.
• Court: Georgia Court of Appeals

Page 447

397 S.E.2d 447

197 Ga.App. 29

GILBERT et al. v. CSX TRANSPORTATION, INC.

APAC-GEORGIA, INC. v. CSX TRANSPORTATION, INC.

Nos. A90A0859, A90A0860.

Court of Appeals of Georgia.

Sept. 4, 1990.

Rehearing Denied Sept. 24, 1990.

Certiorari Denied Oct. 24, 1990.

Jones & Granger, Gary F. Easom, C. Michael Hardman, Atlanta, for appellant (case no. A90A0859).

Webb & Daniel, Keith M. Wiener, William C. Gentry, Atlanta, for appellant (case no. A90A0860).

Alston & Bird, Jack H. Senterfitt, Gerald L. Mize, Jr., Richard T. Fulton, Atlanta, for appellee.

BANKE, Presiding Judge.

Barney C. Gilbert and his wife, Betty, sued CSX Transportation, Inc., and APAC-Georgia, Inc., to recover for personal injuries sustained by Gilbert during the performance of his duties as a railroad worker for CSX. The accident occurred while Gilbert, who was employed by CSX as a "trackman," was on the premises of an asphalt plant operated by APAC, attempting to pick up a truckload of asphalt to be used in repairing a grade crossing. His claim against CSX is predicated on the Federal Employers' Liability Act, 45 USC § 51 et seq. ("FELA"), while his claim against APAC is based on common law negligence principles. His wife, who seeks damages for loss of consortium, has directed her claim solely against APAC, inasmuch as the FELA affords an employee's spouse no cause of action against the employer under such circumstances. See, e.g., Kelsaw v. Union Pac. R. Co., 686 F.2d 819 (9th Cir.1982).

The loading of trucks at the APAC facility was accomplished by positioning them under a chute from which the asphalt was then discharged. Immediately after the truck in front of him had received its load and had pulled away, Gilbert proceeded forward to position his truck to be loaded. As the hood of the vehicle was passing under the chute, he heard a release of air pressure which indicated that a discharge of asphalt was imminent. He responded by pressing down on the accelerator, but the truck stalled as he did so, either because he let the clutch out too quickly or because of an engine problem. Immediately thereafter, a large quantity of hot asphalt came down the chute, striking the vehicle's hood, cab and windshield. The force of the impact caused the roof and windshield to collapse, with the result that hot asphalt poured into the passenger compartment, where it came into contact with Gilbert and burned him severely.

The loading procedures in force at the APAC plant called for the truck drivers to await a combination horn and hand signal before attempting to drive their vehicles underneath the asphalt chute. It is apparent without dispute that Gilbert was unfamiliar with these procedures and did not await such a signal on the occasion in question. However, there is evidence that his ignorance of these procedures had not prevented him from obtaining truckloads of asphalt at the APAC facility on prior occasions without incident.

Gilbert contends that CSX was negligent in the following respects: In not providing him with a truck equipped with a "cab shield" which would have prevented the cab and windshield from being crushed under the weight of an impact such as the one which occurred; in sending a "trackman" to the plant to pick up the asphalt rather than sending one of its "regularly assigned" drivers; in failing to instruct him as to the proper procedures to follow when obtaining a load of asphalt at the APAC plant; in failing to inspect the plant to determine if its procedures were reasonably safe; and in supplying him with a truck which was not in proper mechanical condition. CSX and APAC filed cross-claims against each other for indemnity and contribution, each alleging that, as between the two of them, the other had primary responsibility for the accident and thus was entirely liable for the damages. The present appeals are from an order granting summary judgment to CSX on the main claim as well as the two cross-claims. The case has been litigated with consuming intensity, the parties having thus far generated a 1,600-page record in the lower court and having filed briefs totalling over 170 pages in this court. Held:

1. In support of his contention that CSX was negligent in not giving him a truck equipped with a cab shield, Gilbert submitted the affidavit of an engineering expert who averred that a properly installed cab shield would have been effective in preventing the asphalt from entering the cab under the circumstances. This witness further averred that it was standard industry custom and practice for trucks which are to be loaded from overhead to be equipped with cab shields or "FOP" (falling object protective) devices. CSX contends on appeal that this latter testimony has no evidentiary value because it was based in part on a regulation promulgated by the federal Occupational Health and Safety Administration (OSHA)--specifically, 29 CFR § 1926.601(b)(6)--which is applicable only to "construction" activities. However, even assuming, without deciding, that the grade crossing repairs for which the asphalt was to be used did not constitute a construction activity within the contemplation of the OSHA regulations, it certainly does not follow that this witness was prohibited from taking the existence of these regulations into account in reaching his conclusion that industry custom and practice called for the use of a truck equipped with a cab shield under the circumstances. We note that the witness also based his opinion in this regard on the existence of an "S.A.E." (Society of Automotive Engineers) standard calling for the use of falling object protective devices on transport vehicles designed to be loaded from above. Generally speaking, "[e]xpert testimony as to the practices of an industry is admissible," Dan Gurney Ind. v. Southeastern Wheels, 168 Ga.App. 504, 506, 308 S.E.2d 637 (1983), as is expert testimony "as to whether a particular condition is safe or unsafe." Pembrook Mgmt. v. Cossaboon, 157 Ga.App. 675, 679, 278 S.E.2d 100 (1981). See generally OCGA § 24-9-67. We find CSX's objections to the admissibility of the opinion testimony in question (which were not, in any event, asserted in the trial court) to be without merit.

2. While CSX concedes that it owed its employees a non-delegable duty under the FELA to provide them with reasonably safe equipment and working conditions, and while it further concedes that this duty extended to work performed on the property of third parties, it contends that, in the absence of evidence showing that there had ever before been a similar accident at the APAC plant, it could not reasonably have foreseen the occurrence of such an accident and thus cannot be held liable for failing to protect Gilbert against it by providing him with a truck equipped with a cab shield. However, if industry custom and practice called for the use of a truck equipped with a cab shield under the circumstances, then it certainly was foreseeable that the failure to adhere to this custom and practice might result in the type of injury which such shields are designed to prevent.

" ' "In order for a party to be liable ... for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued. It is sufficient, if in ordinary prudence he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might result. (Cits.)" ' Milton Bradley Co. v. Cooper, 79 Ga.App. 302, 307, 53 S.E.2d 761 [1949]." Lewis v. Harry...