Henderson v. CSX Transp., Inc., 92-2338

• Decision Date: 27 April 1993
• Docket Number: No. 92-2338,92-2338
• Citation: 617 So.2d 770
• Parties: 18 Fla. L. Weekly D1103 Gerald D. HENDERSON, Sr., Appellant, v. CSX TRANSPORTATION, INC., a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 770

617 So.2d 770

18 Fla. L. Weekly D1103

Gerald D. HENDERSON, Sr., Appellant, v. CSX TRANSPORTATION, INC., a corporation, Appellee.

No. 92-2338.

District Court of Appeal of Florida,

First District.

April 27, 1993.

Rehearing Denied May 27, 1993.

R.J. Beckham and Gary F. Easom of Beckham & McAliley, P.A., Jacksonville, for appellant.

Peter J. Kellogg, Ronald R. Oberdier and Homer H. Humphries, Jr., of Humphries, Kellogg & Oberdier, P.A., Jacksonville, for appellee.

WEBSTER, Judge.

Appellant (Henderson), plaintiff in the trial court, seeks review of an adverse summary final judgment entered in an action brought pursuant to the Federal Employers' Liability Act (FELA). 45 U.S.C. Secs. 51-60. We reverse.

In his amended complaint, Henderson alleged that, at all relevant times, appellee (CSX) "owned and operated a common carrier railroad engaged in interstate commerce"; and that Henderson was an employee of CSX, "working in the scope of his employment and in furtherance of interstate commerce." According to the amended complaint, Henderson was injured "when, contrary to the established custom and practice of [CSX's] workplace, an employee of [CSX] (while in the line of duty) placed torpedos [sic] [small devices placed on a rail, which are designed to explode when the wheel of a railroad car or locomotive passes over them, to warn employees] between the chock [a blocking device] and wheel of a railroad car, and when [Henderson] attempted to remove the chock, the car moved and torpedo exploded." Henderson alleged that CSX was negligent because it "fail[ed] to exercise reasonable care to provide [him] with a reasonably safe place to work"; and because it "fail[ed] to warn [him] that a torpedo had been placed near the wheel of a car [he] was required to move." CSX's answer generally denied the material allegations of the amended complaint; and asserted several affirmative defenses, none of which is relevant for purposes of this appeal.

CSX subsequently filed a motion for summary judgment. The sole ground asserted in support of the motion was that, at his deposition, Henderson had conceded that he was unaware of any direct evidence which would support his contention that an employee of CSX had placed the torpedo on the rail. In addition to the amended complaint and the answer, the trial court had before it when it considered the motion for summary judgment Henderson's deposition, to which were attached various documents, including a report submitted by Henderson to CSX shortly after the accident and a statement taken from Henderson by CSX approximately one year after the accident; and the affidavit of John D. Ganon, filed by Henderson.

At the time of the accident, Henderson had been employed by CSX or its predecessors for nearly twenty-two years. Since the accident, Henderson has consistently said that his injury was caused by an exploding torpedo. Henderson did not see the torpedo. (The accident occurred at approximately 1:30 a.m.) However, based upon his twenty-two years of experience as a trainman, he testified that he was certain that the offending device had been a torpedo. At his deposition, Henderson testified that he did not know who had placed the torpedo on the track. However, he said that he believed that it had to have been someone employed by CSX, because only employees would have access to torpedoes.

In opposition to the motion for summary judgment, Henderson filed the affidavit of John D. Ganon. Ganon, like Henderson, had been employed by CSX for more than twenty years. His affidavit states that torpedoes such as those mentioned in Henderson's complaint are routinely stored by CSX on engines and cabooses, for use by employees; that operating rules of CSX specify that not less than six torpedoes be available in each engine cab and in the last car of each train, and that not less than twelve torpedoes be available in each occupied caboose; that safety rules of CSX require that torpedoes be carefully stored, so that they cannot be obtained by unauthorized persons, because CSX considers torpedoes to be "extremely dangerous instruments"; that CSX "has stressed the utmost in accountability of" torpedoes; and that, in his more than twenty years as an employee of CSX, he has "never known [of] an unauthorized person gaining access to any torpedoes."

CSX offered no evidence to contradict either Henderson's version of events or Ganon's affidavit. Instead, it argued that, because Henderson had no direct evidence that one of its employees had placed the torpedo on the track, it was entitled to a summary judgment. Without explanation, the trial court granted CSX's motion, and entered a summary final judgment. It is from that summary final judgment that Henderson appeals.

FELA actions tried in state courts are generally subject to the forum state's procedural rules. However, the controlling substantive law is federal. St. Louis Sw. Ry. v. Dickerson, 470 U.S. 409, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985). It has long been recognized that common law tort principles have little to do with the statutorily created FELA action. E.g., Nelson v. Seaboard Coast Line R.R., 398 So.2d 980 (Fla. 1st DCA), review denied, 411 So.2d 383 (Fla.1981); Gaymon v. Quinn Menhaden Fisheries of Texas, Inc., 118 So.2d 42 (Fla. 1st DCA 1960).

The controlling case on the quantum of evidence which must be presented in an FELA action to create a jury question is Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). In light of the trial court's decision in this case, we believe it appropriate, once again, to quote at some length from that decision:

Under this statute [FELA] 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...