Morant v. Long Island R.R.

• Decision Date: 21 September 1995
• Docket Number: No. 1689,D,1689
• Citation: 66 F.3d 518
• Parties: Bernard MORANT, Plaintiff-Appellant, v. LONG ISLAND RAILROAD, Defendant-Appellee. ocket 94-9277.
• Court: U.S. Court of Appeals — Second Circuit

Page 518

66 F.3d 518

Bernard MORANT, Plaintiff-Appellant, v. LONG ISLAND RAILROAD, Defendant-Appellee.

No. 1689, Docket 94-9277.

United States Court of Appeals Second Circuit.

Argued June 26, 1995.

Decided Sept. 21, 1995.

Mark G. Sokoloff, New York City (Jaime Mercado, New York City, Jacob D. Fuchsberg Law Firm, New York City, of counsel), for Plaintiff-Appellant.

Franklin W. Kronenberg, Jamaica, NY (Roberta Bender, Jamaica, NY, of counsel), for Defendant-Appellee.

Before: VAN GRAAFEILAND, JACOBS and LEVAL, Circuit Judges.

JACOBS, Circuit Judge:

Plaintiff-appellant Bernard Morant suffered an on-the-job injury while cleaning the inside of a railroad car parked at a railyard siding. Morant claimed that he fell when a crew moving cars on the same track jarred the car in which Morant was working. He brought suit against his employer, defendant-appellee the Long Island Railroad ("LIRR") under the Federal Employers' Liability Act

                ("FELA"), alleging that the railroad was negligent (inter alia ) in failing to employ a warning system--the "blue signal"--that would have warned the crew not to move the car Morant was in.  Morant appeals from a final judgment entered by United States Magistrate Judge Steven Gold (E.D.N.Y.) dismissing Morant's complaint after a jury verdict in favor of the LIRR. 1  On appeal, Morant argues that the magistrate judge committed reversible error by failing to instruct the jury that the LIRR had committed negligence per se when it violated federal regulations concerning use of the blue signal.  We affirm because we conclude that the blue signal regulations do not cover the work that plaintiff was doing when he was injured
                

BACKGROUND

At the time of the incident, the LIRR employed Morant as a Car Appearance Maintainer ("CAM") in the railroad's West Side Manhattan yard near Pennsylvania Station. CAMs are charged with cleaning the passenger cars, including sweeping and mopping of the interior.

On September 4, 1989, Morant and his work partner Deborah Payne were scheduled to work the 4:30 p.m. to 11:30 p.m. shift. As Morant and Payne walked to the train they were assigned to clean, they noticed that there was a gap of between one and twelve feet between one pair of cars. After entering the end car, Morant and Payne began to clean the interior. According to Payne's testimony at trial, some 10 to 20 minutes later they "heard a big boom." At that point Morant

was on the east end and I was on the west end of the train, and when the boom went, I fell into the seat. In the meantime, Bernie was up against where the door was, and all I saw when I went down, he went back up against the door, and he fell into his seat.

Appendix ("A.") at 44. At trial, Morant argued that his injury was caused by the movement of cars on Track 26, as they were being pushed together in order to close the gap that he and Payne had noticed.

Repeatedly over the three-day trial, Morant's counsel referred to the federal regulations that require railroads to post blue signals warning of the presence of railroad workers on, under or between railroad equipment. The blue signal--usually a blue flag in daylight or a blue light at night--protects employees who might be vulnerable to the movement of the cars by warning other crews not to move trains around a work area. The federal regulations in place at the time of Morant's accident provided:

218.23 Blue signal display.

(a) Blue Signals displayed in accordance with Secs. 218.25, 218.27, or 218.29 signify that workmen are on, under, or between rolling equipment. When so displayed--

(1) The equipment may not be coupled to;

(2) The equipment may not be moved, except as provided for in Sec. 218.29;

(3) Other rolling equipment may not be placed on the same track so as to reduce or block the view of a blue signal, except as provided for in Sec. 218.29(a), (b), and (c); and

(4) Rolling equipment may not pass a displayed blue signal.

(b) Blue Signals must be displayed in accordance with Secs. 218.25, 218.27, or 218.29 by each craft or group of workmen prior to their going on, under, or between rolling equipment and may only be removed by the same craft or group that displayed them.

49 C.F.R. Sec. 218.23 (1989) (emphasis added). The regulations define "workmen" as

railroad employees assigned to inspect, test, repair, or service railroad rolling equipment, or their components including brake systems. Train and yard crews are excluded except when assigned to perform such work on railroad rolling equipment that is not part of the train or yard movement they have been called to operate.

Note: "Servicing" does not include supplying cabooses, locomotives, or passenger cars with items such as ice, drinking water, tools, sanitary supplies, stationery, or flagging equipment.

49 C.F.R. Sec. 218.5 (1988) (emphasis added). The regulations are further amplified as follows:

This subpart prescribes minimum requirements for the protection of railroad employees engaged in the inspection, testing, repair, and servicing of rolling equipment whose activities require them to work on, under, or between such equipment and subjects them to the danger of personal injury posed by any movement of such equipment.

49 C.F.R. Sec. 218.21 (1989) (emphasis added).

Morant presented unrebutted testimony that the LIRR does not apply the blue signal regulations to CAMs, A. at 80, and that CAMs were not permitted to put up blue signals. A. at 101. During the charge conference, Morant's counsel argued that the blue signal rules, properly construed, apply to CAMs, and that the court should instruct the jury that the LIRR's failure to post blue signals for CAMs constituted negligence per se. In the alternative, Morant's counsel asked that the regulations themselves be received in evidence without any jury instructions, and that he be allowed to reference the regulations in summation. A. at 260-63. The court rejected these requests, finding that the LIRR's conduct did not violate the blue signal regulations because they do not apply to CAMs. The magistrate judge forbade counsel from making any reference to the regulations in closing arguments:

My ruling is that the regulation does not apply. I make the ruling for several reasons.

First of all, it seems to me from the natural language of the underlying regulation, which refers to workers who in effect test, repair or service, that by its very terms, the regulation does not cover cleaning. Used in this context, the word "service," which is the only one that could even arguably cover cleaning, seems to me to be service in the sense of repair, like an automobile service station, and not in the most generic sense to cover cleaning.

In addition, we have had testimony that indicates it has long been the practice of the Long Island Rail Road, a heavily regulated entity, not to apply this regulation to people who clean cars, such as the plaintiff, and I see no amendment to the rules or no violation of the citation by the promulgating authorities, which would indicate that the promulgating authority interprets the rules to cover individuals like plaintiff, who the Long Island Rail Road has openly and notoriously for some period of time held it does not cover.

A. at 319-20. In considering the applicability of these regulations to CAMs, the magistrate judge also considered the following clarification contained in a memorandum issued by the Federal Railroad Administration Office of Safety in December 1991--more than two years after Morant's injury:

Certain servicing activities can be carried out without exposure to injury. Examples of such activities would be bleeding of the airbrake system on cars, oiling journal boxes on cars, interior passenger coach cleaning not requiring use of ladders, washing the exterior of passenger equipment either mechanically or manually.... Similarly, certain supplying activities such as supplying locomotives and cabooses with ice, water, fuses, stationery and paper toweling can be carried out without exposure to injury. These and like activities when effectively confined to the specific non-hazardous work function and when not combined with work which poses an obvious hazard, would not require blue signal protection.

A. at 426 (emphasis added).

After summation and charge, the jury was given a set of interrogatories, the first of which read:

In regard to the incident which Mr. Morant claims took place on September 4, 1989, has the plaintiff, Mr. Morant, established by a preponderance of the evidence that the defendant Long Island Rail Road was negligent?

A. at 413. After a day of deliberation the jury answered "no" to this interrogatory.

The magistrate judge then dismissed the complaint. This appeal followed.

DISCUSSION

In argument before the magistrate judge during the charge conference, Morant sought the benefit of the blue signal regulations in one of two alternative ways: a per se negligence charge, or the opportunity by counsel to argue the import of the regulations after the jury was supplied with a copy of them. ²

We can dispose first of plaintiff's second choice, which was a double-barreled application: to give the regulations to the jury and to allow closing arguments concerning them. Extensive testimony on blue signal practice had already been adduced. In that circumstance, it cannot be said that the court abused its...