J.T. Baggerly v. Csx Transp., Inc., 26208.

• Decision Date: 28 August 2006
• Docket Number: No. 26208.,26208.
• Citation: 635 S.E.2d 97
• Court: South Carolina Supreme Court
• Parties: J.T. BAGGERLY, Appellant, v. CSX TRANSPORTATION, INC., National Railroad Passenger Corporation, d/b/a Amtrak, Southern Companies of South Carolina, Inc., and Ervin Lavern Lucky, Defendants, Of Whom CSX Transportation, Inc. and National Railroad Passenger Corporation, d/b/a Amtrak are Respondents.

635 S.E.2d 97

J.T. BAGGERLY, Appellant, v. CSX TRANSPORTATION, INC., National Railroad Passenger Corporation, d/b/a Amtrak, Southern Companies of South Carolina, Inc., and Ervin Lavern Lucky, Defendants, Of Whom CSX Transportation, Inc. and National Railroad Passenger Corporation, d/b/a Amtrak are Respondents.

No. 26208.

Supreme Court of South Carolina.

Heard June 7, 2006.

Decided August 28, 2006.

Rehearing Denied September 20, 2006.

COPYRIGHT MATERIAL OMITTED

John K. Koon, of Koon & Cook, P.A., of Columbia, and John S. Nichols, of Bluestein & Nichols, LLC, of Columbia, for Appellant.

Charles Craig Young, of Young, Miller & Braddock, LLC, of Florence, James M Saleeby, Jr., of Aiken, Bridges, Nunn, Elliott & Tyler, P.A., of Florence, John C. Millberg, of Millberg Gordon & Stewart, P.L.L.C., of Raleigh, for Respondents.

Justice WALLER:

This is a direct appeal from the trial court's grant of a directed verdict in favor of respondents. Appellant also raises various evidentiary issues, including whether the trial court erred in excluding one of his expert witnesses, a professional engineer. We affirm in part, reverse in part, and remand for a new trial.

FACTS

At approximately seven a.m. on August 21, 2000, an Amtrak Silver Meteor passenger train derailed in Lake City. Minutes before the derailment, a street sweeper had jumped the curb and collided with the railroad track after defendant Ervin Lucky ("Lucky") fell asleep while operating the sweeper. Appellant J.T. Baggerly was the locomotive engineer driving the Amtrak train. Appellant suffered injuries from the derailment and brought suit against: his employer, respondent National Railroad Passenger Corporation ("Amtrak"); the track owner, respondent CSX Transportation, Inc. ("CSX"); the owner of the street sweeper, defendant Southern Companies of South Carolina, Inc. ("Southco"); and the sweeper operator, Lucky. Appellant's complaint alleged a Federal Employers' Liability Act¹ (FELA) claim against Amtrak, and separate negligence claims against CSX, Southco, and Lucky. Appellant sought actual and punitive damages.

The trial court denied cross-motions for summary judgment, and the case proceeded to trial. After appellant presented his case regarding liability, respondents moved for a directed verdict which the trial court granted. The trial continued against defendants Southco and Lucky, and the jury returned a verdict for appellant, finding $577,000 in actual damages.

ISSUES

1. Did the trial court err in directing a verdict for Amtrak and CSX?

2. Did the trial court err in excluding appellant's out-of-state professional engineer expert pursuant to S.C.Code Ann. § 40-22-30?

DISCUSSION

1. Directed Verdict

Appellant argues that he presented sufficient evidence to withstand respondents' motion for directed verdict. Specifically, appellant contends there was enough evidence to show that the negligence of Lucky, the street sweeper operator, combined with CSX's negligence regarding insufficient ballast on the roadbed, to bring about the derailment. We agree.

Appellant presented evidence from two experts who each established that if CSX had maintained the proper ballast level at the point of derailment, then the street sweeper would not have collided with the cross-tie, but instead would have ridden the incline up and over the tracks, with only the tires coming into contact with the track.

Tom Paton, a railroad industry safety consultant and former employee of the Federal Railroad Administration, testified that CSX did not comply with its own internal specifications for ballast requirements at the point of derailment.² When asked what factors contributed to cause the misalignment of the track, Paton responded as follows: "Well, obviously, the fact that Mr. Lucky fell asleep and drove the sweeper up towards the tracks is a factor, and the absence of a full ballast section of the part of CSX is another factor." As to the fact that a piece of wood from the crosstie was found lodged in the sweeper's underframe, Paton opined that the wood "came from the track upon impact with the tie itself." In addition, Paton stated that the bumper of the sweeper actually struck the rail.

Paton further testified that if the ballast had been "full," i.e., in compliance with CSX's own specifications, "neither the piece of crosstie would have wedged in the undercarriage, nor would the front bumper have contacted the rail." Paton did not believe that the street sweeper's speed was a factor because the relevant fact was that "the undercarriage in the bumper struck the track itself." Finally, Paton stated that with a proper ballast section, the air-filled tires of the sweeper would have struck the rail.

Don Bowden also provided expert testimony for appellant. Bowden, a railroad safety consultant and former Road Master³ for CSX, testified that at the point of derailment, the ballast was missing between the ends of the ties and had eroded down the bank of the footpath that crossed the track at that particular location; he further stated that he did not believe that CSX was in compliance with federal regulation 49 C.F.R. § 213.119 which required CSX, as track owner, to comply with written procedures which address the maintenance and inspection of Continuous Welded Rail.⁴ In Bowden's opinion, if the railroad track had been properly ballasted, the street sweeper should not have misaligned the track because the ballast would have protected the end of the crosstie. Additionally, Bowden testified that a CSX employee in the Florence division had, at deposition, testified that in the Florence subdivision, vehicles strike CSX tracks approximately three or four times a year.

When reviewing the grant of a directed verdict, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the party against whom the verdict was directed. E.g., Quesinberry v. Rouppasong, 331 S.C. 589, 594, 503 S.E.2d 717, 720 (1998). If the evidence is susceptible to more than one reasonable inference, the case should be submitted to the jury. Id.

To establish a negligence cause of action under South Carolina law, the plaintiff must prove the following three elements: (1) a duty of care owed by defendant to plaintiff; (2) breach of that duty by a negligent act or omission; and (3) damage proximately resulting from the breach of duty. E.g., Bloom v. Ravoira, 339 S.C. 417, 422, 529 S.E.2d 710, 712 (2000).

Normally, proximate cause is a question of fact for the jury, and it may be proved by direct or circumstantial evidence. Player v. Thompson, 259 S.C. 600, 193 S.E.2d 531 (1972). Proximate cause requires proof of: (1) causation-in-fact, and (2) legal cause. Bramlette v. Charter-Medical-Columbia, 302 S.C. 68, 72, 393 S.E.2d 914, 916 (1990). Causation-in-fact is proved by establishing the injury would not have occurred "but for" the defendant's negligence, and legal cause is proved by establishing foreseeability. Id.

Indeed, foreseeability is considered "the touchstone of proximate cause," and it is determined by looking to the natural and probable consequences of the defendant's act or omission. Koester v. Carolina Rental Ctr., Inc., 313 S.C. 490, 493, 443 S.E.2d 392, 394 (1994). However, while foreseeability of some injury from an act or omission is a prerequisite to establishing proximate cause, the plaintiff need not prove that the defendant should have contemplated the particular event which occurred. Whitlaw v. Kroger Co., 306 S.C. 51, 410 S.E.2d 251 (1991).

Moreover, it is not necessary to prove that the defendant's negligence was the sole proximate cause of the injury. Player v. Thompson, supra. Instead, it is sufficient if the evidence establishes that the defendant's negligence is "a concurring or a contributing proximate cause." Id. at 606, 193 S.E.2d at 534. "`[C]oncurring causes operate contemporaneously to produce the injury, so that it would not have happened in the absence of either.'" Id. (emphasis added, citation omitted). In other words, "[i]f the actor's conduct is a substantial factor in the harm to another, the fact that he neither foresaw nor should have foreseen the extent of harm or the manner in which it occurred does not negative his liability." Childers v. Gas Lines, Inc., 248 S.C. 316, 325, 149 S.E.2d 761, 765 (1966).⁵

Appellant argues that a jury issue was created regarding respondents' liability because of the insufficient ballast level at the point of derailment. More specifically, appellant's liability theory is that the inadequate ballast level was a contributing, concurring cause which combined with Lucky's negligence to produce appellant's injuries. We agree with appellant that the evidence presented was sufficient to create a jury question on each element of negligence, and therefore, the trial court erred by granting respondents' directed verdict motion.

As to duty, it is reasonable to infer from appellant's evidence that both CSX and Amtrak had a duty to properly inspect and maintain the tracks which includes keeping proper ballast levels.⁶ Regarding breach appellant's experts testified that at the point of derailment the crossties were exposed, and therefore, the ballast was not compliant with CSX's own specification drawing 2602.

The critical issue is whether appellant presented sufficient evidence of proximate cause. As to cause-in-fact, both experts supplied testimony that but for the lack of proper ballast, the street sweeper would not have collided with the tie and the track. Viewing the expert testimony in a light most favorable to appellant, a reasonable inference can be drawn that had the ballast been fully in compliance, the sweeper would have ridden over the tracks instead of colliding with the track and causing the misalignment.

As to foreseeability, there was evidence presented that: (1) sufficient ballast maintains proper track alignment; and (2) vehicles strike track three or four times per year in the Florence...