Montgomery v. Csx Transp., Inc.

• Decision Date: 07 January 2008
• Docket Number: No. 26411.,26411.
• Citation: 656 S.E.2d 20
• Court: South Carolina Supreme Court
• Parties: Harry MONTGOMERY, Respondent v. CSX TRANSPORTATION, INC., Petitioner.

656 S.E.2d 20

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

No. 26411.

Supreme Court of South Carolina.

Heard October 18, 2007.

Decided January 7, 2008.

Mark C. Wilby and Amy R. Snell, of Fulcher Hagler, LLP, of Augusta, GA, for Petitioner.

Robert A. McKenzie, of McDonald, McKenzie, Rubin, Miller & Lybrand, of Columbia, and W.C. Tucker, Jr., of Lucas, Petway, Tucker, and Wash, PC, of Birmingham, AL, for Respondent.

Justice WALLER:

We granted petitioner's request for a writ of certiorari to review the Court of Appeals' opinion in Montgomery v. CSX Transp., Inc., 362 S.C. 529, 608 S.E.2d 440 (Ct.App.2004). We affirm as modified.

PROCEDURAL BACKGROUND

Respondent Harry Montgomery, a railroad employee of petitioner CSX Transportation, Inc. (CSX), was injured while using a manual track wrench to tighten a bolt on a railroad track. Respondent brought a negligence action against CSX under the Federal Employers' Liability Act (FELA).¹ CSX moved for summary judgment. The evidence presented included deposition testimony of respondent and two of his CSX supervisors, as well as affidavits from two experts for respondent. After a hearing, the trial court granted CSX's motion. On appeal, the Court of Appeals reversed and remanded for trial; Judge Goolsby dissented.

FACTS

Respondent was injured on July 13, 1999. At that time, he was employed as a track inspector and had been working for CSX for over 22 years. He attained the title of foreman in 1994.

CSX owns and operates two mainline tracks north of Charleston: the "A-line" and the "S-line." The A-line is made of "welded rail," which is continuous, quarter-mile rail sections welded together. There are "connected joints" on the A-line which means that bolts are put in place temporarily to hold the quarter-mile sections together, but those are later removed by a welding process. The S-line, on the other hand, is made up of "jointed rail" which is comprised of 39-foot rail sections held together by "rail joints." In one mile, there are approximately 130 joints on each rail, with six track bolts per joint. Given that there are two rails on a track, there are about 1,560 track bolts per mile on the S-line. The upshot is that there are many more track bolts on the S-line, and comparatively very few on the A-line.

Additionally, the A-line is a higher class line which handles more active railroad traffic. About 16 trains run per day on the A-line, which includes a high-speed passenger train, while the S-line runs only six trains per day, all local freight trains.

For both the A-line and the S-line, there were two track inspectors — respondent and a man named Ussery who had worked for CSX for two years. Respondent's immediate supervisor was roadmaster James Reed; Darrell Crook was CSX's assistant division engineer and Reed's supervisor.

Respondent explained that a track inspector's "main purpose is to look for anything that's unsafe and try to make it safe." He further described his track duties as including the following: tightening and replacing track bolts, replacing broken joints and joint bars, and replacing anything else that might be broken or defective on the track. In addition, he was responsible for reporting anything "out of the ordinary that would allow a piece of track to be unsafe."

According to respondent, about a month before his injury, Crook reassigned him from working primarily on the A-line to working solely on the S-line:

Mr. Crook came up to me and Mr. Crook made a verbal agreement with me and he says that a — that S Line was in bad shape and that he knew it and I knew it and he came up to me and he made a verbal agreement with me, he says that, "If I were to get you a piece of machinery called a bolt machine and put you out on this track, would you be able to do some work to get that track a little better — in better shape?" And I agreed to, I said, "Look, Mr. Crook, I'll do the best that I can," and that's all I could have done.

A bolt machine is a machine that loosens and tightens track bolts and is used instead of a manual track wrench. Respondent explained that although he was provided with a bolt machine on the first day of his reassignment, the machine was old and it failed. It was neither fixed nor replaced. However, the other track inspector, Ussery, who had been assigned to the A-line, had been provided with a state-of-the-art Matweld Unit which was a power hydraulic system. Among other things, this unit can run power wrenches and a bolt tightening machine.

Respondent was responsible for the "Andrews Subdivision" of the S-line, approximately 45 to 50 miles of track. In his deposition testimony, respondent stated that although he would have preferred to work on the A-line, he felt as if his job would be in danger if he had not taken the S-line assignment from Crook. Respondent explained about the poor condition of the S-line as follows:

[The] railroad track 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, a lot of "slow orders" were placed on the S-line. In addition, respondent stated there was "talk among employees" that the S-line might have to be shut down because the "tracks were in bad shape."

Although he believed that the job assignment required more than just one man, respondent worked without a crew on the S-line. On the day of the accident, respondent went out and was tightening loose bolts and replacing missing bolts. He was supposed to go as far on the line as his workday hours would allow. After about three and a half hours of working, respondent estimated he had tightened 100 to 200 bolts. As respondent was attempting to tighten a particular bolt on a switch with the manual track wrench, the bolt "froze;" after respondent applied "a little more pressure than normal" to the bolt, it gave way which caused respondent to be thrown across the rail and injured on his right side.²

Respondent did not claim there was any defect with the manual track wrench, a tool he had used his entire career at CSX. He did state that the bolt was "bad," i.e., faulty in some way. As to whether he could have gotten help if he had called for it, respondent stated it was "very doubtful" he would have gotten any, especially given the shortage of employees at the rail yard during that time.

Respondent's roadmaster, Reed, testified in deposition that he would expect a track man to tighten up to 24 bolts in a normal day's work. He further stated that if he knew an employee would be tightening as many as 100 bolts in a day, then he would give him a bolt tightening machine for the work.³ Reed confirmed that respondent had not been charged with any violation of any rule.

Crook, the assistant division engineer, testified that he did not remember a conversation with respondent where Crook asked respondent to get the S-line in better shape with a bolt machine. Crook acknowledged, however, that the S-line "had a lot of problems that ... needed to get corrected," such as "a lot of bolts out, ... broken bars . . ., a good many weak ties and ... some surface conditions."

Respondent presented two expert affidavits. Don H. Bowden, Sr., a railroad safety consultant and former roadmaster for CSX, offered his opinions regarding reasonable work assignments and safety practices in the railroad industry. In Bowden's opinion, respondent's assignment on the S-line should not have been done by one worker alone:

Under common industry practice, this job should not be done by one man alone. [Respondent] was assigned to the monumental task of repairing the track by himself. While it is not uncommon for one man to be assigned a task in inspecting a track, it is unreasonably hazardous to require one man to not only inspect the track, but also perform the actual track maintenance himself. A prudent and reasonable railroad would assign a gang of men to do this type of job. To do otherwise, in my opinion, subjects the employee to an unsafe workplace in the railroad industry because an accident is bound to happen.

Bowden also opined it was unreasonable for CSX to provide respondent with only a manual track wrench:

The unreasonable hazards to which [respondent] was exposed by working this track by himself were greatly exacerbated and increased by CSX requiring him to replace and/or tighten the track bolts with a manual track wrench. While it is not uncommon for workers to use manual track wrenches to tighten sporadic loose bolts on a stretch of track, this particular track was in such a state of disrepair that the use of a track wrench was not only impracticable, it unreasonably increased the likelihood of injury to [respondent]. . . . In addition to the sheer volume of bolts that [respondent] needed to replace and/or tighten, the condition of the bolts and the track also made the manual track wrench an unsuitable tool for this job. This track had been neglected by CSX for a long period of time. As such, CSX should have known that the bolts were very likely to be "rusted-on," making them very difficult to remove and/or tighten. Requiring Mr. Montgomery to work with a manual wrench in these conditions unreasonably multiplied his risk of injury. Mr. Montgomery's description of the accident shows these hazards were present because he was required to use a tremendous amount of leverage on the wrench to break through the rust. For all of these reasons, a prudent and reasonable railroad would not have supplied just a track wrench to Mr. Montgomery to do this job. A prudent and reasonable railroad would have provided him with another bolt tightening machine when the first one became inoperable or would have fixed the one assigned to him.

Respondent also offered the...