Kozar v. Chesapeake and Ohio Railway Company
| Decision Date | 23 October 1970 |
| Docket Number | Civ. A. No. 5925. |
| Citation | 320 F. Supp. 335 |
| Parties | Anne P. KOZAR, Administratrix of the Estate of John P. Kozar, Deceased, Plaintiff, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, a Virginia corporation, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
COPYRIGHT MATERIAL OMITTED
Miller, Johnson, Snell & Cummiskey, Grand Rapids, Mich., Stephen C. Bransdorfer, Grand Rapids, Mich., of counsel, for plaintiff.
Paul O. Strawhecker, Grand Rapids, Mich., local counsel, Robert A. Straub, general trial counsel, Southfield, Mich., for defendant.
This action was brought by Anne P. Kozar, as administratrix of the Estate of John P. Kozar, against The Chesapeake and Ohio Railway Company, for damages resulting from the February 12, 1968 accident that took John Kozar's life, pursuant to the Federal Employers' Liability Act. 45 U.S.C. § 51 et seq.
The complaint charged that the defendant's wrongful conduct caused John Kozar's death. Accordingly, the plaintiff sought damages for the financial loss suffered by his beneficiaries. Damages were also sought for the injuries that John Kozar endured before his death as the result of the defendant's conduct. Finally, the plaintiff claimed that the railroad's conduct was so wrongful that it was liable for punitive damages.
The answer denied that the railroad's conduct was wrongful or that it had caused John Kozar's death. Instead, it asserted that John Kozar's negligence was the sole cause of his death.
The court, pursuant to Rules 1, 42(b) and 83 of the Federal Rules of Civil Procedure, ordered separate trials on the issues of liability and damages. This was done to facilitate the jury's performance of its function and to promote the "expedition and economy" contemplated by Rule 1 and Rule 42(b). Such a separation of issues in a Federal Employers' Liability Act case also avoids any potential prejudice arising from the issue of contributory negligence. This latter, under the statute, is material only to damages, and its consideration, to any extent, when determining liability can substantially endanger the rights of an injured plaintiff. Thus a separation of issues here not only reduces confusion but enhances the likelihood of the just determination, based solely on the merits of the case, demanded by Rule 1.
The issue of liability was presented first and submitted to the jury on written interrogatories from the court, pursuant to Rule 49(b):
UNITED STATES OF AMERICA
ANNE P. KOZAR, Administratrix of the Estate of John P. Kozar Deceased Plaintiff v. CIVIL ACTION NO. 5925 THE CHESAPEAKE & OHIO RAILWAY CO Defendant ________________________________ The jury will from the evidence answer the following in writing: (1) Was the Chesapeake & Ohio Railroad guilty of negligence, in whole or in part, by reason of acts or omissions of any of its officers, agents or employees, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, works, or other equipment? Yes X No___ If the answer to question number (1) is "yes," then answer question number (2).
(2) Was such negligence a proximate cause of the injuries and death of John Kozar, and the resulting injuries to his wife, Anne P. Kozar, and their children? Yes X No___ /s/ Howard Bruce Connell Foreman of the Jury Following the jury's response above, the issue of damages was tried and submitted on two separate sets of interrogatories. The jury was instructed to first consider compensatory damages, striking from their minds any factors relevant only to the punitive damage issue. This done, they were then to proceed to the punitive damage question. The jury followed the court's instructions, and decided as follows:
UNITED STATES OF AMERICA
ANNE P. KOZAR, Administratrix of the Estate of John P. Kozar, Deceased, Plaintiff, v. CIVIL COURT NO. 5925 THE CHESAPEAKE & OHIO RAILWAY CO., Defendant. _______________________________ COMPENSATORY DAMAGES COUNTS I and II. (1) Was John Kozar guilty of negligence? Yes ___ No___ If you answer question number (1) "yes," then answer question number (2). (2) If John Kozar was guilty of negligence, was this negligence a proximate cause of his injuries? Yes___ No___ If you answer both question number (1) and question number (2) "yes," then answer question number (3). (3) What percentage did John Kozar's negligence contribute to the total negligence involved in this case? 5% (4) What is your verdict of compensatory damages for the loss of contribution for support which John Kozar would have provided for his wife, Anne Kozar, and his son, John Scott Kozar? $76,545.40 (5) What is your verdict for compensatory damages for the loss of the value of any services which John Kozar would have performed for his wife, Anne Kozar? $8,000.00 (6) What is your verdict for compensatory damages for the loss to his son, John Scott Kozar, of the care, attention, training and guidance which John Kozar, his father, would have given to his son had he lived? $30,000.00 (7) What is your verdict for compensatory damages for the loss of services, advice and aid which John Kozar would have performed for his daughters, Sandra Beurkens and Pamela Murray? $5,000.00 (8) Was John Kozar aware of the fact that the refrigerator car was falling on him, so as to sustain damages from fright and mental anguish in anticipation of death? Yes X No___ If you answer question number (8) "yes," what is your verdict on this element of damages? $500.00 (9) Did John Kozar sustain conscious pain and suffering between the time he was struck by the refrigerator car and his death? Yes___ No X If you answer question number (9) "yes," what is your verdict on this element of damages? ___________ /s/ Howard Bruce Connell Foreman of the Jury
ANNE P. KOZAR, Administratrix of the Estate of John P. Kozar, Deceased, Plaintiff, v. CIVIL ACTION NO. 5925 THE CHESAPEAKE & OHIO RAILWAY CO., Defendant. ________________________________ PUNITIVE OR EXEMPLARY DAMAGES COUNT III. (1) Were the officers, agents and employees of the Chesapeake and Ohio Railway Company guilty of willful, wanton, or reckless disregard for the safety of John Kozar? Yes X No___ If you answer question number (1) "yes," then answer question number (2). (2) Did the Chesapeake and Ohio Railway participate in, authorize or confirm this conduct on the part of its officers, agents or employees so as to make the Chesapeake and Ohio Railway liable for punitive damages? Yes X No___ If you answer questions number (1) and (2) "yes," then answer the following question: (3) What amount do you assess for punitive damages? $70,000.00 /s/ Howard Bruce Connell Foreman of the Jury
Defendant filed a motion for new trial, claiming more than seventy instances of prejudicial error. Many of the objections are repetitious and some are frivolous.
This opinion will not cover all of the objections raised by the defendant, but only some of the essential rulings of the court. The remainder of the objections will be dealt with in an Appendix.
To the extent that this motion challenges the verdict as being contrary to the evidence, this court must consider the evidence in the light most favorable to the verdict. Fritts v. Toledo Terminal Ry. Co., 293 F.2d 361 (6th Cir. 1961); Padgett v. Southern Ry. Co., 396 F.2d 303 (6th Cir. 1968); Jenkins v. Associated Transport, Inc., 330 F.2d 706 (6th Cir. 1964); Weekes v. Michigan Chrome & Chemical Co., 352 F.2d 603 (6th Cir. 1965); Stevens v. Continental Can Co., 308 F.2d 100 (6th Cir. 1962), cert. denied 374 U.S. 810, 83 S.Ct. 1702, 10 L.Ed. 2d 1034.
John Kozar had been an employee of the defendant for over thirty-five years at the time of his death, and was then foreman of a wrecking crew.
This wrecking crew of eight or nine men was charged with the responsibility of clearing the company's railroad beds of all the wreckage or derailments from freight or passenger trains in order to maintain the free flow of interstate commerce. This crew's task was not only essential to the railroad's operation, but because the crew had to take each wreckage situation as they found it, the job was extremely hazardous.
The crew's main equipment was a crane that rode on a set of train wheels. This crane was built by the Industrial Brownhoist Corporation, and is known as the DK-8 wrecker crane.
This crane had two hoist lines, either one of which could have been used to lift a railroad car off the ground, thereby permitting John Kozar's crew to put the derailed car back on the tracks. The auxiliary hoist was in use at the time of John Kozar's death. This hoist, often called the "small line" or "little line," had two brakes which could control it; a hand brake and a foot brake. These brakes and the other controls of the crane were operated from the crane's cab by the wrecking crew's engineer, Joe Kierepka.
It was essential that this equipment be in excellent condition so that it would be in a state of readiness to meet all eventualities.
At the time of the accident, John Kozar and the wrecking crew were attempting to rerail a refrigerator car which had gone off the defendant's tracks near Holland, Michigan. This refrigerator car was approximately 50 feet long and weighed approximately 40 tons. This particular derailment presented the wrecking crew with a difficult task because the car was in a deep ravine and lay perpendicular to the tracks, requiring that it first be raised out of the ravine and then turned so that it would be parallel to the tracks before it could be rerailed. To complicate the situation further, the refrigerator car was...
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