Green v. River Terminal Ry. Co.

• Decision Date: 17 April 1984
• Docket Number: No. C80-804.,C80-804.
• Citation: 585 F. Supp. 1019
• Parties: Willard GREEN, Plaintiff, v. The RIVER TERMINAL RAILWAY COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Ohio

585 F. Supp. 1019

Willard GREEN, Plaintiff, v. The RIVER TERMINAL RAILWAY COMPANY, Defendant.

No. C80-804.

United States District Court, N.D. Ohio, E.D.

April 17, 1984.

COPYRIGHT MATERIAL OMITTED

Michael Occhionero, Cleveland, Ohio, Frank E. Van Bree, Chicago, Ill., for plaintiff.

George Moscarino, James Young, Joseph Castrodale, Cleveland, Ohio, for defendant.

MEMORANDUM OPINION AND ORDER

BATTISTI, Chief Judge.

This matter comes before the Court on defendant's motion for a directed verdict under Federal Rule of Civil Procedure 50. Defendant moved for a directed verdict at the close of plaintiff's case, at which time the Court deferred its ruling. Upon the close of all the evidence, defendant renewed its motion. For the reasons outlined below, the Court grants defendant's motion.

I.

Plaintiff, Willard Green, suffered injuries as the result of an unprovoked attack at the end of a work shift on September 29, 1978 by Jerald Dawson, a fellow employee at defendant, River Terminal Railway Company (River Terminal). Plaintiff, a conductor for River Terminal, began his shift around 8:00 p.m. on September 27, 1978. The shift was scheduled to begin at 3:00 p.m. but was delayed because the River Terminal employees had been honoring a sympathy strike for clerical workers at the Norfolk & Western Railroad. When the strike ended, River Terminal officials attempted to call in crews to resume operations at the railroad. Plaintiff, Dawson, and three other employees were called at home and told to report to work for job 210. River Terminal encountered difficulty in assembling a full complement of crews that evening due to the strike having just ended, and as a result only one crew, rather than the normal six to eight, reported to work.

Job 210's orders were to transport coal cars from the Norfolk & Western Terminal to the mills at the Republic Steel Corporation's mill in the Flats area in Cleveland.¹ Job 210 made four round-trips that evening. The crew on job 210 consisted of Willard Green, conductor; A.M. Gold, engineer; Jerald Dawson, fireman; Raymond Rabino, brakeman; and Ross Sizemore, brakeman.

When job 210 started A.M. Gold, the engineer, noticed a non-union crew, comprised of Republic Steel supervisory personnel who had been operating the engines during the strike, on another track. Gold refused to commence work while the nonunion personnel were at the work site. The engine which job 210 was using was equipped with a two-way radio. The radio was placed on the engines to enable the yardmaster to give the crews orders, telling them what jobs they were to perform. If, for example, a load of coal were needed at the mill, the yardmaster would call the engine by number and speak to the engineer. The engineer would then contact the conductor, who would then communicate with the yardmaster in person, over the radio, or by telephone, to receive the job order. The receiver on the radio on Gold's engine was missing, so that while transmissions from the yardmaster could be heard by the engine, the personnel on the engine could not call back over the radio. Therefore, Green walked from the engine to the Harvard Avenue Yardmaster's office and placed a call to the Clark Avenue Yardmaster's office where he spoke to Mr. George Goble, the Trainmaster. Mr. Goble in turn contacted Patrick Kelley, the yard clerk, to stop the second engine.

Job 210 then commenced its work for the night. Early on, Green and Dawson got into an argument when Dawson asked if anyone knew what Bob Eliot made in pensions. When Green answered, Dawson called him a "liar." Later, job 210 passed an engine operated by Republic Steel foremen. As the two engines passed, Dawson called the men "scabs" and shook his fists at them. The crew continued its work over the evening. At one point Dawson offered Rabino and Sizemore beer from two cans of beer he allegedly had in his possession.² Still later, Dawson and Green got into another argument, this over social security payments and railroad retirement pay.

The crew's shift ended around 11:00 p.m. As the engine passed by the No. 5 Guard Station and the Harvard Yard office, Gold stopped the engine to let off Green and Dawson, who were not needed to put the engine away in the train yard. As the two men got off the train Dawson yelled to Green to get his son, who was a friend of Dawson's, and to come to the Forest City Tavern, where he threatened to beat them both up. Green proceeded into the Harvard Yard office, where he made a phone call to the Clark Avenue Office to inform them of an empty car out on the tracks and to inquire about where to deliver the crew's time slips. As he finished his call, Dawson walked in the Harvard yard office and without provocation began to strike Green with his hard hat.

Thereafter, Green brought the following suit, alleging causes of action for his injuries under the Federal Employers' Liability Act, 45 U.S.C. §§ 51 et seq. (1976) (F.E. L.A.) and the Locomotive Boiler Inspection Act, 45 U.S.C. §§ 22, 23 (1976) (the Boiler Act). In his Complaint, Green asserted the River Terminal was negligent in failing to exercise ordinary care to furnish plaintiff with a reasonably safe place of work, in failing to provide protection for the plaintiff in a potentially volatile atmosphere by permitting union and non-union employees to work together, and by failing to take action after Dawson exhibited threatening, erratic, and abusive behavior. Green also alleged that the radio was inoperable and in violation of the Boiler Act and was a cause of plaintiff's injuries.

II.

The general standard governing the propriety of the grant of a directed verdict is whether sufficient evidence has been presented to raise a question of fact. The trial court, without weighing the evidence or passing upon the credibility of the witnesses, must view the evidence in the light most favorable to the party against whom the motion was made. Only if, having drawn from the evidence all reasonable inferences in favor of the opponent, the court determines that reasonable minds could not come to different conclusions may the motion be granted. Coffy v. Multi-County Narcotics Bureau, 600 F.2d 570 (6th Cir. 1979); Morelock v. NCR Corporation, 586 F.2d 1096 (6th Cir.1978), cert. denied 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979).

This standard, however, is inapplicable to matters involving the Federal Employers' Liability Act. The F.E.L.A. represents "an avowed departure from the rules of the common law" as a "response to the special needs of railroad workers who are daily exposed to the risks inherent in railroad work and are helpless to provide adequately for their own safety." Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 329, 78 S.Ct. 758, 762, 2 L.Ed.2d 799 (1958). The Supreme Court has enunciated the following test for a directed verdict in F.E.L.A. matters:

Under this statute 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. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry, whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities.

Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 506-07, 77 S.Ct. 443, 448-49, 1 L.Ed.2d 493 (1957).³

Mindful of the Congressional intent behind the F.E.L.A. to provide a remedy for those employees injured in the course of their duties in the railroad industry, the lower federal courts have applied the Rogers standard liberally in favor of the employee. See, e.g., Baker v. Baltimore & Ohio Railroad Company, 502 F.2d 638, 643 (6th Cir.1974); Missouri-Kansas-Texas Railway Company v. Hearson, 422 F.2d 1037 (10th Cir.1970). The standard applied in such cases commands that a directed verdict in favor of a defendant employer be granted "only when there is a complete absence of probative facts" that any negligence of the employer may have played a role in the employee's injuries. Allen v. Seacoast Products, Inc., 623 F.2d 355, 360 (5th Cir.1980).⁴ This does not mean, however, that an F.E.L.A. case may never be withdrawn from the jury. Although the court must permit all reasonable inferences to be drawn from the evidence presented, there exists an "essential requirement ... that mere speculation be not allowed to do duty for probative facts." Tenant v. Peoria & Pekin Union Railway Co., 321 U.S. 29, 32, 64 S.Ct. 409, 411, 88 L.Ed. 520 (1944).

III.

With this standard in mind, the Court will now proceed to examine all the evidence presented in the case. The F.E. L.A. provides, in part,

Every common carrier by railroad while engaging in commerce between any of the several States ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.

45 U.S.C. § 51 (1976). The general concept of "proximate cause" in common law negligence actions plays no role in F.E.L.A. cases, Peymann v. Perini Corp., 507 F.2d 1318 (1st Cir.1974), cert. denied, 421 U.S. 914, 95 S.Ct. 1572, 43 L.Ed.2d 780 (1975), and it is sufficient if plaintiff proves that...