Lindsey v. Louisville & Nashville R. Co.

• Decision Date: 08 November 1985
• Docket Number: No. 84-3845,84-3845
• Citation: 775 F.2d 1322
• Parties: 18 Fed. R. Evid. Serv. 1411 James LINDSEY, Plaintiff-Appellee Cross-Appellant, Liberty Mutual Insurance Company, Intervenor-Appellee, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Defendant-Appellant Cross-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1322

775 F.2d 1322

18 Fed. R. Evid. Serv. 1411

James LINDSEY, Plaintiff-Appellee Cross-Appellant, Liberty Mutual Insurance Company, Intervenor-Appellee, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, Defendant-Appellant

Cross-Appellee.

No. 84-3845

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Nov. 8, 1985.

Julie D. Livaudais, Harry McCall, Jr., New Orleans, La., for defendant-appellant cross-appellee.

Bruce J. Borrello, Metairie, La., for intervenor-Liberty Mut. Ins. Co.

Michael L. Weiner, Minneapolis, Minn., for amicus-Assoc. of Trial Lawyers of Am.

Dan C. Garner, John G. Munoz, New Orleans, La., for Lindsey and amicus Am. Trial Lawyers.

Esmond Phelps, II, William H. Howard, III, New Orleans, La., amicus-Nat. Ass'n of Railroad Trial Counsel, etc.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before WILLIAMS, JOLLY and HIGGINBOTHAM, Circuit Judges.

OPINION

JERRE S. WILLIAMS, Circuit Judge:

Plaintiff Lindsey brought suit in federal court against the Louisville and Nashville Railroad under the Federal Employer's Liability Act, 45 U.S.C. Secs. 51-60. At the time of his injury Lindsey was carried on the employment rolls of the Douglas Public Service Corporation and was paid by that corporation. Douglas was a contractor with L & N at the L & N Gentilly yard in New Orleans, Louisiana, where the accident took place. The jury found that Lindsey was an employee of the railroad at the time of his injury and awarded him the sum of $350,000 in damages. The railroad appeals. Lindsey cross-appeals, claiming that the court should have awarded him pre-judgment interest.

Lindsey was injured when his right foot was caught between the draw-bar and undercarriage of a railroad flatcar. When he was injured he was part of a four-man crew regularly engaged in loading and unloading piggy back trailers on flatcars. Lindsey was standing on the draw-head of one flatcar providing hand signals to the overhead crane operator. The proof showed that a portion of the trailer being unloaded contacted the flatcar's locking mechanism and caused the flatcar to move. Evidence was also introduced that the handbrakes had not been secured on the flatcar contrary to safety rules and requirements of the company.

I.

The railroad raises two issues on appeal. It objects to the admission in evidence of the testimony of an expert witness who testified as to safer procedures in the loading and unloading operation. This question will be dealt with briefly later. The main focus of the appeal by the L & N Railroad is the claim that Lindsey at the time of the injury was an employee of his ostensible employer, Douglas Public Service Corp., and not of L & N.

Three general principles of law guide our decision. The first is that under the FELA a worker can be the "employee" of a railroad even though carried on the employment rolls of another company and paid by that other company. The test of employment is the established test in workers' compensation cases. It is whether the railroad has control of the employee or the right to control the employee. The law does not require that the railroad have full supervisory control. It requires only that the railroad, through its employees, plays "a significant supervisory role" as to the work of the injured employee. Kelley v. Southern Pacific Co., 419 U.S. 318, 327, 95 S.Ct. 472, 477, 42 L.Ed.2d 498 (1974).

The second principle of law is that the question whether the injured worker was acting as an employee of the railroad at the time of the injury under the FELA is a question of fact for the jury. Baker v. Texas & Pacific Ry. Co., 359 U.S. 227, 228, 79 S.Ct. 664, 665, 3 L.Ed.2d 756 (1959).

Finally, the third principle of law that guides the decision on this predominant issue in the case is the scope of judicial review of a jury verdict under the FELA. The Supreme Court defined the scope of judicial review of the jury verdict in Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946). The often quoted words of the Court are:

Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court's function is exhausted when the evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.

In the present case we cannot say that there was a complete absence of probative facts to support the jury's verdict that Lindsey under the FELA was an employee of the L &...