Keeton v. Norfolk Southern Corp., C-1-96-1148.

• Decision Date: 05 February 1999
• Docket Number: No. C-1-96-1148.,C-1-96-1148.
• Citation: Keeton v. Norfolk Southern Corp., 49 F.Supp.2d 590 (S.D. Ohio 1999)
• Parties: Ernest L. KEETON, Plaintiff, v. NORFOLK SOUTHERN CORPORATION, Defendant.
• Court: U.S. District Court — Southern District of Ohio

49 F.Supp.2d 590

Ernest L. KEETON, Plaintiff, v. NORFOLK SOUTHERN CORPORATION, Defendant.

No. C-1-96-1148.

United States District Court, S.D. Ohio, Western Division.

February 5, 1999.

Dexter Arthur Rabourn, Colleen Marie Hegge, Waite, Schneider, Bayless & Chesley Co — 1, Robert Alan Steinberg, Waite Schneider Bayless & Chelsey, Cincinnati, OH, for plaintiff.

Walter Elliott Haggerty, Jr., Frost & Jacobs — 1, Cincinnati, OH, for defendants.

ORDER

SPIEGEL, Senior District Judge.

This matter is before the Court on Plaintiff's Motion For Judgment As A Matter Of Law On The Issue Of Contributory Negligence And/Or For A New Trial (doc. 73), to which Defendant filed a Response (doc. 76) and Plaintiff filed a Reply (doc. 83).

DISCUSSION

On December 9, 1996, Plaintiff Ernest Keeton ("Plaintiff") brought suit against Defendant Norfolk Southern Corporation ("Norfolk" or the "Railway Company"), alleging that Norfolk's negligence caused Plaintiff's personal injuries in an accident that occurred while he was working as a carman for Norfolk at the Gest Street Yard in Cincinnati, Ohio. The facts giving rise to this case are as follows.

On June 7, 1995, Plaintiff's supervisor, Paul Gunkel instructed him to assist a fellow worker, Donald R. Hostiuck, in opening the left door of a bulging container that was located in the loading dock area. The previous day, the container had been placed to the "side" in the railyard because of its bulging condition. On the day of the accident, Plaintiff and Mr. Hostiuck attempted to open the door. However, the contents of the door collapsed and the load fell out onto Plaintiff, causing injuries to his leg. Plaintiff claimed that the Railway Company knew that the load was unstable before the accident occurred.

Plaintiff filed suit pursuant to the Federal Employers Liability Act ("FELA"), claiming that the Railway Company was negligent because it failed to provide him with a reasonably safe place to work, failed to properly warn him of the unstable load in the container, failed to properly inspect and maintain its work area so that the load would not be unsafe to its employees, failed to train him in handling unsafe loads, failed to adopt, enforce, and carry out safe customs and practices of doing said work, and failed to provide proper implements and/or tools for handling an unsafe load. Plaintiff also argued that the Railway Company negligently created or permitted a dangerous and unsafe condition to exist on its premises so that the safety of its employees was jeopardized and that the Railway Company assigned Plaintiff to work in an unsafe and dangerous work area.

Norfolk denied Plaintiff's assertions and contended that Plaintiff's own negligence caused the accident and his personal injuries.

Trial began in this case on May 19, 1998 and continued until June 2, 1998. On June 2nd, the jury returned a verdict for Plaintiff to recover damages in the amount of $600,000.00 from Norfolk. However, the jury also found Plaintiff contributorily negligent in the amount of 50% and, thus, the recovery was reduced to $300,000.00 (See docs. 70 & 71). On June 15, 1998, Plaintiff filed a Motion for Judgment as a Matter of Law on the issue of contributory negligence and/or for a new trial. Thereafter, Norfolk filed a Response and Plaintiff replied.

DISCUSSION

In this matter, Plaintiff argues that, pursuant to Rule 50(b)¹ of the Federal Rules of Civil Procedure, this Court should reconsider the jury's verdict and find for the Plaintiff as a matter of law on the issue of contributory negligence. Alternatively, Plaintiff asserts that, pursuant to Rules 59² and 50(b) and (c)³, this Court should grant a new trial limited to the issue of contributory negligence.

Based on Plaintiff's main arguments in his Motion for Judgment as a Matter of Law, we find that Plaintiff is primarily asserting that the jury charge regarding contributory negligence should not have been submitted to the jury based on the record. Having reviewed the Parties' briefs and the trial record, we believe that the issue of contributory negligence should not have been submitted to the jury. Accordingly, we GRANT Plaintiff's Motion for Judgment as a Matter of Law on the issue of contributory negligence and set aside the jury's verdict. The judgment of the Court is hereby AMENDED whereby Plaintiff is entitled to the full amount of the jury's award of negligence against Defendant Norfolk for $600,000.00. The reasoning for our decision is set forth below.

The primary controversy in this case surrounds whether Plaintiff's actions on the date of the accident in any way constitute contributory negligence or whether they merely show that he assumed the risk of his employment. Generally, if there is any evidence to support an instruction of contributory negligence, a defendant in an FELA case is entitled to such an instruction. Harris v. Illinois Cent. R.R. Co., 58 F.3d 1140, 1144 (6th Cir.1995) (indicating that the failure to give instructions concerning contributory negligence may constitute prejudicial error where there is any evidence to support the charge) (citation omitted); see also Dixon v. Penn Central Co., 481 F.2d 833, 835 (6th Cir.1973). We note that "the same causation standard-whether the act contributed in any way to the injury-applies both to defendant's negligence and plaintiff's contributory negligence." Ganotis v. New York Cent. R.R. Co., 342 F.2d 767, 768-69 (6th Cir.1965). Thus, just as the plaintiff who fails to produce sufficient evidence that the defendant was negligent faces dismissal of his case, the defendant who fails to produce sufficient evidence showing contributory negligence by the plaintiff may be denied a jury instruction on contributory negligence. In other words, the plaintiff is burdened with proving that the defendant's actions constituted negligence that proximately caused his injuries; and the defendant bears the burden of proving the defense of the contributory negligence which in some manner proximately contributed to the injuries of the plaintiff. Dixon, 481 F.2d at 837. In satisfying the burden of showing that the plaintiff's actions constituted contributory negligence in cases where alternate reasonable courses of action existed, the defendant needs to show that the plaintiff's actions were unreasonable. Id.

We note that even though there seems to be some overlap between the defenses of contributory negligence and assumption of risk, their meanings are different and their applications in regard to FELA cases are different. Contributory negligence is considered a careless act or omission on the plaintiff's part tending to add new dangers to conditions that the employer negligently created or permitted to exist. Taylor v. Burlington Northern R.R. Co., 787 F.2d 1309, 1316 (9th Cir. 1986). Assumption of risk, on the other hand, is when an employee is knowledgeable of a dangerous condition, yet voluntarily accepts the condition in order to perform his duties. Id. While contributory negligence is not necessarily a absolute defense in a FELA case, it must be considered in diminution of damages. 45 U.S.C. § 53;⁴ Patterson v. Norfolk and W. Ry Co., 489 F.2d 303, 306 (6th Cir.1973) (citing Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 505 n. 9, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957)). In regards to the assumption of risk doctrine, "every vestige" of the doctrine has been eliminated as a defense in FELA cases. See 45 U.S.C. § 54;⁵ Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 64, 63 S.Ct. 444, 87 L.Ed. 610 (1943).

In support of his Motion, Plaintiff cites Dixon, 481 F.2d 833, as being directly on point to the facts of the instant matter. In Dixon, the Sixth Circuit reversed and remanded the case to the trial court for an entry of judgment on full verdict, concluding that, because the defendant railroad company failed to provide evidence that there was a safer way for the employee to perform his task, there was nothing to support a finding of contributory negligence. Dixon, 481 F.2d at 835. Moreover, the appellate court concluded that the district court should have granted the claimant's request to not present the instruction about contributory negligence to the jury. Id. at 837.

The claimant in Dixon worked as a block operator for the defendant railroad. Id. at 834. His usual duties included operating chest high mechanical levers that threw track switches controlling the movement of trains as they passed throughout the station. He performed his duties from the control tower. Apparently, one of the switches that the claimant handled had a history of trouble and had not been overhauled or replaced despite the railroad's knowledge of the problems. Id. One day the switch malfunctioned and assistance was called to repair the problem. The claimant remained in the control tower, having agreed to operate the lever in response to hand signals from the repairmen at the track side. As the claimant jiggled and pushed the lever to help the repairman locate the problem, the lever "bounced back" and caused the claimant severe injuries. Id.

The claimant brought suit against the railroad company pursuant to FELA and a jury awarded him $80,000.00. Subsequently, the jury found the claimant 50% contributorily negligent for his injuries and reduced the award to $40,000.00. Id. The claimant appealed, contending that there was no evidence from which the jury could have properly found contributory negligence. Id. Reversing the trial court's decision on the exclusion of the contributory negligence charge, the appellate court noted the claimant's testimony that it was customary to finish throwing a lever once it had been pushed in so far and that the defendant did not dispute that a reasonable man would have done otherwise. In essence, the court concluded that, because the railroad company failed to show that the claimant's actions were not customary and that a prudent man would have taken extra caution in dealing with the...