Hancock v. Norfolk and Western Ry. Co., 51702

• Decision Date: 23 March 1987
• Docket Number: No. 51702,51702
• Citation: 39 Ohio App.3d 77,529 N.E.2d 937
• Parties: HANCOCK, Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, Appellant. *
• Court: Ohio Court of Appeals

Page 77

39 Ohio App.3d 77

529 N.E.2d 937

HANCOCK, Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, Appellant. ^*

No. 51702.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

March 23, 1987.

Syllabus by the Court

1. In an FELA action the violation of a company rule does not constitute contributory negligence as a matter of law, and it is for the jury to determine whether a violation of such rule is a proximate cause which contributed in part or in whole to the injury.

2. In an FELA action, counsel's generalized estimates of plaintiff's future economic losses, as stated in his opening remarks, do not constitute "admissions" which limit the plaintiff's recovery, unless it is apparent that the plaintiff will not be able to establish an actionable claim against the defendant.

Michael B. Michelson, Cleveland, for appellee.

Arter & Hadden, Curtiss L. Isler, John D. Maddox and Irene C. Keyse-Walker, Cleveland, for appellant.

PATTON, Judge.

Plaintiff-appellee Roger T. Hancock was injured while in the employ of defendant-appellant Norfolk and Western Railway Company (hereinafter "Railway"). Hancock subsequently brought this action pursuant to the Federal Employers' Liability Act, Sections 51-60, Title 45, U.S. Code (hereinafter "FELA"), to recover past and future economic losses incurred by reason of the Railway's alleged negligence. At the close of the trial, the jury awarded Hancock damages in the amount of $1,510,000. The facts giving rise to this appeal, as contained in the record, provide the following:

Hancock was hired by the Railway in May 1979 as an apprentice carman. For the period of his employment, Hancock's job was to hang sides on coal cars in the Railway's assembly line in Virginia. Hancock learned his employment responsibilities by observing his predecessor at the position for several days. In 1981, Hancock was promoted to the status of an "upgraded apprentice."

Hancock explained that he and his co-worker, Fred Bond, stood on a metal scaffold to fit sheets of metal to the coal car's side. When the metal sheet was properly fitted and bolted, the car would proceed along the assembly line. The coal cars were approximately fifteen feet high. The floor of the scaffold on which Hancock and Bond worked was approximately ten feet off the ground. The scaffold was two feet wide and extended in excess of the length of a typical coal car. The scaffold also had a one- to two-inch lip at the base and a metal hand railing which was approximately thirty-five inches high. The workers stored many of their tools and other equipment on the scaffold.

Periodically, the workers would need to have their supplies of bolts replenished. The bolts, contained in boxes weighing close to eighty pounds, would be delivered to the workers' scaffold by forklift. The forklift ordinarily would raise the pallet on which the boxes were placed to a level approximately two inches above the floor of the scaffold. However, due to the crowded and confined work area, the forklift was unable to directly approach the workers' scaffold. Instead, the forklift approached the scaffold at an angle such that one corner of the forklift was as close as six inches from the scaffold while the other corner was as far away as two feet from the scaffold. As a result of these awkward conditions, the workers frequently had to reach over the metal railing to lift the boxes off the pallet and onto the scaffold. The record discloses that supervisors regularly passed by the employees but at no time advised the employees that their conduct was unsafe or in violation of any Railway safety rule.

On March 4, 1982, Thomas Burwell, another Railway employee, delivered a supply of bolts to Hancock and Bond by forklift in the normal manner. After the pallet was raised to the appropriate height, Hancock bent over the thirty-five-inch handrail to pick up a box of bolts. Hancock felt a sharp pain and heard a snap in his back. He sensed additional pains in his legs. Hancock attempted to stand up but was unable to do so, and he remained draped over the handrail. With the assistance of his co-workers, he was helped off the scaffold and was taken to the hospital. While Hancock was being lowered from the scaffold, his co-worker, Fred Bond, continued to lift the eighty-pound boxes from the pallet in a similar manner without correction from the employees' supervisors, who were standing by.

Hancock testified that he experienced tremendous pain following his back injuries. As a result of his disc and spinal injuries, Hancock underwent surgery in June 1982. Hancock continued to experience pain, and he underwent a second surgical procedure in November 1983 for a ruptured disc. At the time of his injury, Hancock was twenty-nine years old, was married, and had two daughters. Although Hancock's medical condition has improved since he sustained his injuries, he continues to have permanent physical disabilities which limit his ability to engage in activities that he readily engaged in before his injury. He never returned to work for the Railway, and the testimony disclosed that his efforts to secure alternate employment met with discouraging results. Hancock's despondency over his injuries and inability to work led to a brief period of alcoholism, which Hancock ultimately overcame with the assistance of a therapist.

On October 14, 1983, Hancock commenced this negligence action against the Railway pursuant to the FELA. At the close of the five-day jury trial, the jury found in favor of Hancock and, in interrogatories, indicated that Hancock was not contributorily negligent. The jury returned a verdict for $1,510,000, consisting of "past economic losses" of $60,000 from the period March 4, 1982 to December 31, 1985, "future economic losses" of $850,000, and damages for pain and suffering in the amount of $600,000. The facts pertinent to the verdict will be discussed under the respective assignments of error. The Railway assigned four errors for this appeal:

"I. The trial court erred in failing to grant defendant's motion for directed verdict on the negligence of plaintiff as plaintiff's admissions established his contributory negligence as a matter of law.

"II. The trial court erred in denying defendant's motion for a new trial because the jury verdict for plaintiff's economic loss grossly exceeded the maximum amount stated in plaintiff's opening statement and testified to by plaintiff's economic expert.

"III. The trial court erred in denying defendant's motion for a new trial because plaintiff's evidence established that he was not totally and permanently disabled, yet the jury award greatly exceeded his total economic loss for life.

"IV. The trial court erred in denying defendant's motion for a new trial because the award was grossly excessive and shocks the conscience."

Before addressing the merits of the respective assignments of error, we note at the outset that an FELA action may be brought in federal court or in state court. Section 56, Title 45, U.S.Code. As a general matter, FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal. St. Louis Southwestern Ry. Co. v. Dickerson (1985), 470 U.S. 409, 411, 105 S.Ct. 1347, 1348, 84 L.Ed.2d 303. Accord Jones v. Erie RR. Co. (1922), 106 Ohio St. 408, 140 N.E. 366. The Supreme Court has candidly acknowledged "the impossibility of laying down a precise rule to distinguish 'substance' from 'procedure.' " Brown v. Western Ry. of Alabama (1949), 338 U.S. 294, 296, 70 S.Ct. 105, 106, 94 L.Ed. 100. Nevertheless, the instant appeal presents both questions of substance as well as questions of procedure, and the issues raised will be addressed accordingly.

I

Appellant's first assignment of error argues that the trial court erred in failing to grant the Railway's motion for a directed verdict on the issue of contributory negligence. ¹ The assignment of error is not well-taken.

The appellant concedes that it was negligent. (Brief of appellant, at 3.) Appellant argues that Hancock was also negligent as a matter of law for attempting to lift the eighty-pound box of bolts and for failing to observe a company rule regarding proper lifting procedures. Appellant reasons that because of Hancock's contributory negligence, his recovery should have been diminished accordingly. ² We do not agree.

In ruling on a motion for a directed verdict, the trial court must construe the evidence most strongly in favor of the party against whom the motion is directed, and the motion may not be granted unless the court finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party. Civ.R. 50(A)(4). See Bevan v. New York, Chicago & St. Louis Rd. Co. (1937), 132 Ohio St. 245, 7 O.O. 546, 6 N.E.2d 982. To find contributory negligence as a matter of law under the circumstances of this case, it would be necessary to find that appellee Hancock failed to exercise ordinary care and prudence in performing his work-related duties. If, construing the evidence most strongly in favor of Hancock, reasonable minds can differ as to whether Hancock failed to exercise reasonable care for his own safety, then the issue of Hancock's alleged contributory negligence should be submitted to the jury. See Perry v. Eastgreen Realty Co. (1977), 55 Ohio App.2d 130, 132, 9 O.O.3d 277, 278, 379 N.E.2d 599, 600.

Viewing the evidence in this light, we believe reasonable minds could differ as to whether Hancock failed to exercise ordinary care under the circumstances of this case. The testimony disclosed that Hancock's predecessor demonstrated the manner in which boxes were transferred from the forklift to the scaffold. The employees testified that they regularly transferred the boxes in the same or similar manner. Moreover, the employer's supervisors regularly patrolled the assembly line area without...