Montgomery v. CSX Transp., Inc.

• Decision Date: 06 December 2004
• Docket Number: No. 3903.,3903.
• Citation: 608 S.E.2d 440,362 S.C. 529
• Court: South Carolina Court of Appeals
• Parties: Harry MONTGOMERY, Appellant, v. CSX TRANSPORTATION, INC., Respondent.

362 S.C. 529

608 S.E.2d 440

Harry MONTGOMERY, Appellant, v. CSX TRANSPORTATION, INC., Respondent.

No. 3903.

Court of Appeals of South Carolina.

Heard October 13, 2004.

Decided December 6, 2004.

Rehearing Denied February 16, 2005.

Mark A. Stephens and Robert A. McKenzie, both of Columbia, for Appellant.

Mark C. Wilby, of Augusta, GA, for Respondent.

ANDERSON, J.:

Harry Montgomery, a railroad employee with CSX Transportation, Inc. (CSX), was injured as he attempted to tighten a bolt on a railroad track. Montgomery filed this action against CSX Transportation, Inc. under the Federal Employers' Liability Act. The circuit court granted summary judgment. We reverse and remand for trial.

FACTUAL/PROCEDURAL BACKGROUND

CSX Transportation, Inc. (CSX) owns and operates two mainline tracks north of Charleston, South Carolina: the "A-line" and the "S-line." The A-line runs from Charleston to Dillon, South Carolina to Rocky Mount, North Carolina to Richmond, Virginia and beyond. The S-line runs from Charleston to Andrews, South Carolina then cuts inland to Hamlet, North Carolina, then to Raleigh, North Carolina and then cuts eastward and reconnects with the A-line north of Rocky Mount.

Other than the physical places that the rails run, there are several significant differences between the A-line and S-line. First, the A-line is made of "welded rail," which is continuous quarter-mile rail sections welded together. Thus, there are no track bolts or nuts on the A-line needed to hold the rail together. Contrastively, the S-line is made up of "jointed rail." "Jointed rail" is made from thirty-nine foot rail sections held together by "rail joints," which are iron plates placed on either side of the ends of the rail where they abut. The plates are attached to the rails by six large track bolts and nuts which hold the rail sections together.

Second, the A-line is much more active than the S-line in terms of the amount of traffic run by CSX on the rail. The A-line is a "Class 4 Track" — a high speed passenger track through which most of the freight is run. On the other hand, the S-line is a "Class 3 Track" that is mostly used for local freight. Between sixteen and seventeen trains run daily on the A-line. Approximately three trains run daily on the S-line.

Third, at the time of the events which form the basis of this suit, the A-line was in much better condition than the S-line. Harry Montgomery, the plaintiff in this action and a CSX employee since 1977, described the difference between the two tracks:

[The S-line] was tore up and run down for many years and you had to be there to see it. It was — it was a bad railroad track. It was a bad piece of track. It was rough, it was rugged, there was a lot of work. I mean a whole lot more work to have been done on that piece of railroad track than it was on the A Line.

Because of the S-line's poor condition, CSX placed a lot of "slow orders" on the S-line, which meant that the freight that needed to be run was often "backed-up." In fact, CSX's employees were told that the Federal Railroad Administration (FRA) was going to shut down the S-line because the track was in such bad shape. Fourth, the employees working on the A-line were given more equipment and much superior equipment than that given to Montgomery, the only track maintenance employee on the S-line.

Montgomery began working for CSX in 1977. In 1994, he was promoted to foreman. At the time of Montgomery's injury in 1999, James F. Reed was Montgomery's Roadmaster in charge of both the A-line and the S-line. Darrell Crook was CSX's Assistant Division Engineer. There were two track inspectors working for Reed: Montgomery and Ussery. A track inspector's job is to inspect the railroad tracks, look for anything that is unsafe, and try to make it safe or take it out of service. Montgomery summarized a track inspector's duties:

[T]ighten[ed] track bolts, replaced broken joints, replaced broken joint bars, replaced anything that's — that might be broken or defective in a switch or on — on, not necessarily in a switch, but preferably ina — well, more important in a switch or on just railroad tracks to assure proper rock, railroad we call a balance, but it's railroad rocks, so that you would understand, make sure that on a given day if there is a lot of rocks, ample rocks, enough rocks on a given — anything to make sure that signs, railroad signs, that they're supposed to be in place are in place, report anything that we see that's out of the ordinary that would — that would allow a piece of track to be unsafe.

Although Montgomery had twenty years of experience and Ussery had only worked for CSX for two years, Reed and Crook took Montgomery off the A-line and gave supervision of that line to Ussery. Montgomery was made the inspector of the S-line. Ussery was then labeled the "Senior" Track Inspector. These changes occurred approximately one to two months before Montgomery's accident. Because Montgomery felt his job would be in danger if he complained, he did not refuse to work on the S-line. Montgomery was responsible for the "Andrews Subdivision" of the S-line, a stretch of track forty-five to fifty miles long. Crook professed that at the time he assigned Montgomery to the Andrews Subdivision of the S-line, he knew that it "had a lot of bolts out, [it] had broken bars over there, [it] had a good many weak ties and had some surface conditions." In actuality, the condition of the track was much worse. Few of the bolts that held the jointed rails together were secure. Some were loose, while others were missing. In fact, some joint bars needed to be totally replaced and/or lifted up.

Although Montgomery was technically a "foreman" at the time of his injury, he had no employees working under his supervision on the S-line. Not only was Montgomery the only person assigned to inspect the S-line, but he was also the only person to make the repairs and maintenance on the S-line. Montgomery was required to inspect and repair and/or replace every bolt on every joint bar on the S-line. There are approximately 130 joints per mile per rail on the S-line, meaning that there were 3,120 bolts and nuts that needed to be checked per mile. Montgomery was required to be certain that more than 70,000 bolts were tightened and/or replaced in addition to all the other problems with the S-line.

Before Montgomery began work on this project, Crook advised Montgomery that he knew the S-line "was in bad shape." Because the S-line was in a state of disrepair, Crook promised Montgomery that CSX would provide him with a "bolt-tightening machine" to do the assignment. A "bolt-tightening machine" is a hydraulic, eight horsepower machine that mechanically tightens and loosens track nuts. Crook gave Montgomery a bolt-tightening machine, albeit a very old one. However, Montgomery was provided no other power equipment or welding equipment to repair the S-line. On the other hand, even though the A-line has no bolts to tighten (because it was welded rail) and was not in disrepair, Ussery was given a new truck with which to maintain the A-line. The truck was equipped with a newer bolt-tightening machine, a MAT-weld unit — a detachable hydraulic and gas-powered unit that allowed the user to operate power tools while working on the line, including, but not limited to, power wrenches, power saws, power drills, welding equipment, and a welding torch. On Montgomery's first day of work on the S-line, the old bolt machine given to him by Crook failed and became inoperable. It was neither repaired nor replaced by CSX. The other bolt-tightening machine issued to Ussery, the only remaining machine that CSX allocated to Crook's department, which covered 1400 miles of track, was not made available to Montgomery even though Ussery had no real need for it. Because CSX would not give Montgomery another machine or even Ussery's machine, Montgomery's only alternative was to replace and tighten the bolts by hand with a three to four foot long manual "track wrench."

To use the track wrench, Montgomery had to stand on the ground facing the rail with the head of the wrench pointing down and fastened on the nut. The nut is on the opposite side of the rail from the bolt head. The head of the bolt is oblong and fits into an oblong hole on the inside of the joint bar so it will not move if the nut is tightened or loosened on the other side. Montgomery would then push the handle of the wrench from right to left to remove the nut or left to right to tighten the nut.

Every day for the entire day, Montgomery tightened and replaced bolts by hand with the manual track wrench. Montgomery stated that he "was supposed to go on as far as, you know, my work time would allow me to [every day]." Although Montgomery had been working over a month on the S-line's Andrews Subdivision at the time he was injured, he had only been able to repair a few of the forty-five miles of his assignment before he was hurt.

Montgomery was injured on July 13, 1999, between 11:30 a.m. and 12:00 p.m., approximately three-and-a-half hours after he began working that day. He was trying to tighten a loose nut with the track wrench when the nut stiffened up or froze on the bolt. When Montgomery applied more pressure, the frozen nut suddenly gave way, the end of the wrench came off the nut, he was thrown between the rails by his momentum, and he landed hard on the track on his right knee, side, and elbow. Montgomery explained:

Okay. WhenI — when I started to tighten this — this bolt, after I seen that that bolt — that particular bolt was loose, I got my wrench andI — I — I positioned myself and I, you know, went about trying to tighten it. So I give it a few turns and at one point the — the wrench, the bolt actually froze, so I went about giving it some — andI — as I looked, the bolt was not — it was not tightening. So when I get to — when I went and put my wrench back on there and I tried to tighten it some more, the

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