Lippert v. Norfolk and Western Ry. Co., s. 88-3038

• Decision Date: 18 January 1989
• Docket Number: Nos. 88-3038,88-3071,s. 88-3038
• Citation: 866 F.2d 431
• Parties: Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Kenneth LIPPERT, Jr., Plaintiff-Appellant, Cross-Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 431

866 F.2d 431

Unpublished Disposition

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Kenneth LIPPERT, Jr., Plaintiff-Appellant, Cross-Appellee, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant-Appellee Cross-Appellant.

Nos. 88-3038, 88-3071.

United States Court of Appeals, Sixth Circuit.

Jan. 18, 1989.

Before DAVID A. NELSON and BOGGS, Circuit Judges, and GEORGE CLIFTON EDWARDS, Jr., Senior Circuit Judge.

PER CURIAM.

Plaintiff/appellant Kenneth Lippert, Jr. appeals from a jury verdict in favor of the defendant railway (Norfolk) in his suit under the Federal Employer's Liability Act (FELA). Norfolk cross-appeals the district court's denial of its motion for directed verdict. We affirm the district court's judgment entered on the jury verdict.

I

Plaintiff Lippert seeks to recover for injuries he allegedly suffered on December 28, 1983 while working on a coal train as it passed Waverly, Ohio on its way towards Bellevue, Ohio. Lippert, a brakeman, testified that he incurred his injuries while preparing to release 122 cars of coal on a siding. He stated that while attempting to connect an airhose to a coal car, he discovered that the airhose was worn out and would not make the connection. He then decided to replace the airhose. He went to the nearest engine to obtain a wrench. (A toolbox is standard equipment on every engine, and each box contains one fixed jaw, double-ended wrench.) Lippert obtained the wrench, glancing at it as he walked down the walkway of the engine. According to his testimony, he noticed that the wrench was shorter than normal and rusty. The end sticking out of his hand, though, appeared normal.

When he reached the airhose, Lippert first tried to unscrew the hose with his hands. When this did not work, he picked up the wrench and placed it directly over and around the nut. When he turned the wrench, it slipped and Lippert struck his elbow against a part of the train, injuring his arm. After three attempts to loosen the nut with the wrench, it finally loosened. After finishing the job, Lippert examined the wrench and observed that one end was badly worn and 'rounded out', meaning that the inside part of the wrench was smooth. Lippert did not report the accident until 9 1/2 hours later, and when he did report it, he did not mention the wrench. There were no witnesses to this incident, and the wrench has never been recovered.

Lippert's complaint was filed in October 1984. A trial was held in November 1985. At the end of Lippert's case, Norfolk moved for a directed verdict. The judge granted the motion. Lippert then appealed to this court. In February 1987, this court ordered that the judgment be reversed and remanded for a new trial. The case was then retried, resulting in a jury verdict for Norfolk. Lippert then filed this appeal. ¹

II

Lippert contends that the district court erred in refusing to give instructions concerning the Boiler Inspection Act (BIA), 45 U.S.C. Sec. 23, the provision which the plaintiff now contends is the basis of his claim. Lippert argues that the fact that his complaint does not mention the BIA is irrelevant because a BIA action is pursued through a...