Mair v. C & O R.R.

• Decision Date: 12 July 1988
• Docket Number: Nos. 85-1565,85-1566,s. 85-1565
• Citation: 851 F.2d 829
• Parties: Andrew David MAIR; David Mair; Patricia Mair; Kathryn Mair, a minor, by her next friend David T. Mair; and Douglas Mair, a minor, by his next friend, David T. Mair, Plaintiffs-Appellants, Cross-Appellees, v. C & O RAILROAD a/k/a the Chesapeake & Ohio Railroad, Defendant-Appellee, Cross- Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 829

851 F.2d 829

Andrew David MAIR; David Mair; Patricia Mair; Kathryn

Mair, a minor, by her next friend David T. Mair; and Douglas Mair, a minor, by his next friend, David T. Mair, Plaintiffs-Appellants, Cross-Appellees, v. C & O RAILROAD a/k/a the Chesapeake & Ohio Railroad,

Defendant-Appellee, Cross- Appellant.

Nos. 85-1565, 85-1566.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 21, 1987.

Decided July 12, 1988.

Richard E. Shaw, Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick, Detroit, Mich., Monica Farris Linkner, Donald S. Edwards, Columbus, Ind., Sheldon L. Miller (argued), Sheldon D. Erlich, Detroit, Mich., for plaintiffs-appellants, cross-appellees.

Gene S. Davis, Driggers, Schultz, Herbst & Paterson, Troy, Mich., for defendant-appellee, cross-appellant.

Before MARTIN, JONES and WELLFORD, Circuit Judges.

NATHANIEL R. JONES, Circuit Judge.

In this action defendant Chesapeake and Ohio Railroad Company ("C & O") appeals from the district court's judgment entered on a jury verdict finding it liable for injuries suffered by Andrew Mair in a railroad accident. Plaintiffs Andrew, David and Patricia Mair appeal from the district court's order reducing their damage award. Upon consideration, we find that the judgment entered on the jury's verdict was erroneous, thus we hereby reverse.

I.

The salient facts of this appeal are as follows. On March 20, 1976, Andrew Mair, then age 16, and two companions (Robert Katon, age 15 and Jack Brown, age 16) entered onto C & O's property in Wayne, Michigan, with the intention of hopping a train. At that time, Mair told his companions that he was experienced in this activity. Mair later admitted, however, that he had never previously hopped a moving train, but formed the belief that it would be easy to do so from watching television.

Mair, Katon and Brown entered C & O's railroad yard by climbing over an embankment. Once in C & O's yard, the boys hopped a slow moving flat car that was being switched between tracks. They hoped to ride this car back home to Ypsilanti. Shortly after hopping the car, however, it stopped and all three were approached by two C & O employees, brakeman Donald Darling and engineer John Guthrie. The two workmen were engaged in switching operations. Their job duties also apparently included watching for and removing trespassers from C & O's property. C & O's policy provided that anyone who did not belong on company property should be "removed." Standard procedure required that trespassers be informed that their presence on railroad property was not authorized and that they should leave.

There is some dispute over what was said and done during the encounter between the trio and C & O's employees. The three teenagers all testified that when Darling and Guthrie approached them, they explained that their car had broken down and they were trying to get home to Ypsilanti. They contended that neither man ordered or instructed them to leave the premises, nor warned them of any danger. All three boys testified that the railroad men told them that the train they wanted to hop was a westbound Penn Central train that would be coming by in about fifteen minutes.

Guthrie and Darling deny this version of the facts. Darling testified that when he noticed Mair, Katon and Brown he pulled the switching engine (on which he and Guthrie were working) alongside the flat car where they were first seen. They then asked the boys what they were doing in the C & O yard, and instructed them to leave the area because of the dangers associated with moving trains. Darling further testified that he observed Guthrie escorting the trio off C & O's property.

Guthrie testified that when he saw the boys, he climbed off the engine, went over to them, and told them that the yard was not a safe place. He then escorted them to C & O's property line and watched as they walked away from the C & O yard.

In any event, following this encounter, Mair, Katon and Brown left C & O's property. They crossed numerous railroad tracks in their effort to reach Penn Central's yard. The three boys claim that they followed the men's directions and upon arriving at the stated location, sat in a Penn Central box car and waited until a Penn Central freight train came by. As the lead engine of the train passed they waved at the locomotive engineer and he waved back. The engineer took no other action after seeing the boys in the Penn Central yard. As the train was moving at approximately fifteen miles per hour, all three boys proceeded to hop it. Mair was the first to try. He tried to grab onto a ladder on the side of the moving train. His grasp slipped, however, and he was pulled under the train's wheels and suffered severe and crippling injuries. Both legs were amputated and his spine was broken, rendering him a quadriplegic. Mair has spent about half of his life since the accident in hospitals.

Mair and his parents, David and Patricia Mair, brought suit against C & O and Penn Central for the injuries sustained by Mair. Prior to trial Penn Central settled with the plaintiffs. ¹

The original complaint against C & O sought recovery based upon theories of negligence and attractive nuisance. Shortly before the trial, plaintiffs amended their complaint and also alleged willful and wanton misconduct and gross negligence. The case proceeded to trial against C & O before Judge George E. Woods of the Southern Division of the Eastern District of Michigan. At the close of plaintiffs' proofs, C & O moved for a directed verdict. The trial court dismissed all claims for attractive nuisance and took the questions of negligence, gross negligence and willful and wanton misconduct under advisement. The case was submitted to the jury and a verdict was returned in favor of the plaintiffs in the amount of $3,536,400. The jury also found that Mair had been 65% comparatively negligent. The judge calculated the damages in the following manner:

                Gross Damages                     $3,536,400
                Adjustment for Negligence Offset       x .35
                                                  ----------
                                                  $1,237,740
                Settlement offset                 $  350,000
                                                  ----------
                Total Judgment                    $  887,740
                

The judge further ordered that prejudgment interest be calculated in the following manner:

                February 26, 1979 to June 1, 1980               6%
                June 1, 1980 to Date of Judgment                12%
                Date of Judgment to Date of Judgment Satisfied  Appropriate federal treasury
                                                                  bill issuance yield rate
                

J.App. at 146. Plaintiffs thereafter moved that the court allow them to recover postjudgment interest on the entire judgment, i.e., interest on costs as well as prejudgment interest. The judge declined to do so, and in an amended judgment specifically stated that postjudgment interest was not to run on that portion of the judgment designated as prejudgment interest.

Subsequently, C & O moved for a judgment notwithstanding the verdict or a new trial. Both motions were denied by the trial court. The court noted that competent evidence was adduced at trial from which the jury could conclude that:

1) Plaintiff, Andrew Mair, while on the property of defendant, C & O, engaged in conversation with two of C & O's employees.

2) Plaintiff and his two companions left the C & O yard and traveled to the Penn Central Yard where plaintiff, Andrew Mair, was injured while attempting to board a moving train.

3) Defendant's employees, while in conversation with plaintiff, were acting within the scope of their employment in attempting to remove plaintiff and his companions from defendant's property.

4) Plaintiff acted in a negligent manner.

5) Defendant's employees acted in a negligent manner.

6) The only reasonable conclusion as to a proper verdict was to find for plaintiff and also to find plaintiff contributorily negligent.

Plaintiffs appeal from the judgment and amended judgment regarding the method of calculating the judgment to account for the pretrial settlement and comparative negligence findings. Plaintiffs also appeal from that portion of the judgment which denies the accrual of postjudgment interest on the prejudgment interest which had been awarded by the trial court pursuant to state statute. C & O cross appeals from certain rulings of the trial court during trial and the denial of C & O's motions for directed verdict, judgment notwithstanding the verdict or new trial.

II.

The dispositive issue in this appeal is whether the district court erred by submitting this case to the jury instead of granting a directed verdict to C & O. Since it is our opinion that the district court in fact erred in doing so, the other issues raised regarding jury instructions and damages need not be addressed.

Our standard for reviewing a district court's decision to grant or deny a motion for a directed verdict is the same standard as that originally applied by the district court. Gootee v. Colt Industries, Inc., 712 F.2d 1057, 1062 (6th Cir.1983). This case is in federal court due to diversity of citizenship. Pursuant to Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), federal courts are bound by state law when they determine whether there is sufficient evidence to raise a jury question. Gootee, 712 F.2d at 1062. Under Michigan law, the general standard for a directed verdict "is whether the evidence is such that, without weighing the credibility of witnesses or considering the weight of the evidence, there is substantial evidence from which the jury could find in favor of the party against whom the motion is made. In making this determination, the evidence must be viewed in the light most favorable to that opposing party. Only when it is clear that reasonable men could come to but one conclusion from the evidence should a court remove an issue from the jury." Gootee, 712 F.2d at 1062. " '[T]he...