Heater v. Chesapeake and Ohio Railway Company

• Decision Date: 05 June 1974
• Docket Number: No. 73-1133.,73-1133.
• Citation: 497 F.2d 1243
• Parties: Francis V. HEATER, Plaintiff-Appellee, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

497 F.2d 1243 (1974)

Francis V. HEATER, Plaintiff-Appellee, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant.

No. 73-1133.

United States Court of Appeals, Seventh Circuit.

Argued November 30, 1973.

Decided June 5, 1974.

COPYRIGHT MATERIAL OMITTED

John H. Gobel, James R. Gannon, Chicago, Ill., for defendant-appellant.

David P. Schippers, Chicago, Ill., for plaintiff-appellee.

Before CLARK^*, Associate Justice, and CUMMINGS and PELL, Circuit Judges.

PELL, Circuit Judge.

Francis Heater, plaintiff-appellee, brought this action to recover damages for personal injuries under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. The jury awarded damages to the plaintiff in the amount of $100,000. The defendant, the Chesapeake and Ohio Railway Company, appeals.

Viewing the evidence, as we must, from the point of view most favorable to the party prevailing on trial, it fairly establishes the following. Heater was employed by the defendant railroad as a carman, a job which required that he inspect and repair railroad cars. On March 3, 1969, the railroad's car foreman asked Heater and another employee to assist him in moving a load of yokes which were partially projecting through the door opening of a boxcar. Each yoke was approximately forty inches long, seven to eight inches wide at one end and ten to eleven inches wide at the other end, and each weighed over two hundred pounds. The yokes were stacked inside the boxcar approximately three levels high and six to eight across. The men did the work entirely by hand without the aid of any mechanical equipment.

While lifting one of the yokes, Heater felt a sharp pain in his back. Heater hesitated for a minute before he did any further work. He later mentioned to the foreman that he would like to take a short rest. Heater did, however, continue working that day. A few days thereafter the Trainmaster saw Heater limping and sent him to a doctor. In June 1971, surgery was performed on Heater's back. He had continued to work from the time of the accident until the operation. Thirteen days after the surgery, Heater suffered a heart attack and has not worked since then.

The railroad raises a number of issues on appeal: (1) whether the district court properly submitted the matter to the jury; (2) whether the court abused its discretion in permitting plaintiff's counsel to call the car foreman as an adverse witness; (3) whether the court committed error in connection with the giving of instructions.

I

The defendant contends that the plaintiff failed to present sufficient evidence of either negligence or causation to create a jury question. With respect to negligence, the railroad argues that yokes were often lifted by hand in repair work. There was, moreover, no mechanical device which could be effectively used, according to the defendant, to rearrange yokes inside a boxcar. The railroad thus contends that the mere fact that Heater was required to move the yokes by hand was not evidence of negligence. The railroad further argues that even if the requirement that the yokes be lifted is deemed negligence, the plaintiff failed to prove that the lifting was the cause of his back injury and subsequent heart problem. In particular, the defendant points out that, at the trial, Heater himself admitted not knowing the cause of his back pain:

". . . I don\'t know whether I lifted crooked, whether I slipped, or anything — I don\'t know whether I done that, but I sure felt a pain in my back."

Under the Federal Employers' Liability Act, the plaintiff must show both negligence on the part of the employer and causation. "The Act does not make the employer an insurer." Inman v. Baltimore & Ohio R. R. Co., 361 U.S. 138, 140, 80 S.Ct. 242, 4 L.Ed.2d 198 (1959).

Having accorded the customary, albeit somewhat psittacistic, deference to the non-insurer aspect of the FELA defendant, we will now proceed to discuss that statute as it is. Before doing so, we observe that while the FELA in its terms does not purport to border on a workman's compensation act, certain parallelisms may be found. We will not assume that Congress is unaware of the judicial gloss that the Act has received. If the Act as it has been interpreted and applied does not correctly reflect what was intended by the legislative branch then the change must be made there. The duty of this court is to follow what is now well-established authority.

The quantum of evidence necessary to establish liability is much less in a FELA case than it would be in an ordinary negligence case. The FELA "was enacted because the Congress was dissatisfied with the common-law duty of the master to his servant. The statute supplants that duty with the far more drastic duty of paying damages for injury or death at work due in whole or in part to the employer's negligence." Rogers v. Missouri Pac. R. R. Co., 352 U.S. 500, 507, 77 S.Ct. 443, 449, 1 L.Ed. 2d 493 (1957) (footnotes omitted).

The test of a jury case, under the FELA, "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." Id. at 506 (emphasis added).¹ The fact that there may have been a number of causes of the injury is, therefore, irrelevant as long as one cause may be attributable to the railroad's negligence. In passing on the issues of fault and causality, moreover, the jury has a broad power to engage in inferences. "The very essence of the jury's function is to select from among conflicting inferences and conclusions that which it considers most reasonable." Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520 (1944). The jury's verdict can only be set aside "when there is a complete absence of probative facts to support the conclusion reached." Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916 (1946). The Supreme Court has repeatedly warned that in FELA cases. "courts are not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable." Tennant v. Peoria & Pekin Union Ry. Co., supra at 35.

In the present case, under the established standards to which we have adverted, plaintiff presented sufficient evidence of both negligence and causation to present a jury question. The railroad had assigned only three men — Heater, the car foreman, and another employee — to the task of rearranging the yokes. Heater and the foreman worked together, each lifting one end of the same yoke. This meant that each man was continually lifting a heavy load. Moreover, the railroad admitted that it would have been possible to have the men push the yokes out of the boxcar on to the ground, without lifting the yokes. A mechanical crane could then have been used to reload the yokes. Such a procedure might have been inefficient in the sense that it would have taken more time, but it was, nonetheless, possible and would have avoided having the men lift the yokes by hand. Furthermore, the car foreman testified that this procedure would probably not have harmed the yokes. The jury could reasonably have inferred, on the basis of such evidence, that the railroad was negligent in failing to use a mechanical crane or, at least, in failing to assign more men to the task.

There was also sufficient evidence for the jury to find that Heater's back pain and subsequent heart attack were caused, at least in part, by the lifting of the yokes. Admittedly, Heater could not say whether the pain arose from lifting or whether his foot also slipped or he bent over at an odd angle. Heater did testify, however, that the pain definitely began while he was doing the lifting. Moreover, a cardiologist testified that Heater's heart problems were the direct result of the operation on Heater's back. The jury could reasonably conclude that the lifting of the yokes was at least part of the cause of Heater's back pain and heart attack. "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." Rogers v. Missouri Pac. R. R. Co., supra at 506-507 (emphasis added).

The question is not whether we would have reached the same conclusion as did the jury but rather whether there was sufficient evidence to permit the jury to reach the conclusion it did. Under established standards we must answer the question in the affirmative.

II

The railroad next contends that the district court erred in permitting the plaintiff to call the railroad's car foreman, Henry Rzyski, as an adverse witness under Rule 43(b), Fed.R.Civ.P. this ruling prejudiced defendant's case, it is argued, since it allowed plaintiff's counsel to cross-examine and impeach Rzyski.

Rule 43(b) provides, in pertinent part:

"A party may call an adverse party or an officer, director or managing agent of a public or private corporation . . . which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party . . . ." (Emphasis added.)

Rzyski was clearly not an officer or director of the railroad. The issue becomes whether the district court could correctly characterize him as a "managing agent" of the railroad.

Rule 43(b) "does not provide that any employee of an adverse party may be called adversely." Hosie v. Chicago & North Western Ry. Co., 282 F.2d 639, 641 (7th Cir. 1960). An employee is a "managing agent" only if he acts with supervisory authority, being invested with general powers to exercise his discretion and judgment in dealing with corporate matters and his interests are identified with those of the corporation. Skogen v. Dow Chem. Co., 375 F. 2d...