Norfolk and Western Ry. Co. v. Puryear, 950210

• Decision Date: 03 November 1995
• Docket Number: No. 950210,950210
• Citation: 250 Va. 559,463 S.E.2d 442
• Court: Virginia Supreme Court
• Parties: NORFOLK AND WESTERN RAILWAY COMPANY v. Robert E. PURYEAR. Record

Page 442

463 S.E.2d 442

250 Va. 559

NORFOLK AND WESTERN RAILWAY COMPANY v. Robert E. PURYEAR.

Record No. 950210.

Supreme Court of Virginia.

Nov. 3, 1995.

Frank K. Friedman, Roanoke, (Daniel S. Brown; Kevin P. Oddo; Woods, Rogers & Hazlegrove, on briefs), for appellant.

C. Richard Cranwell, Roanoke, (H. Keith Moore; Mark K. Cathey; Cranwell & Moore, on brief), for appellee.

Present: CARRICO, C.J., COMPTON, STEPHENSON, LACY, HASSELL and KOONTZ, JJ., and WHITING, Senior Justice.

WHITING, Senior Justice.

In this appeal, we are asked to decide whether a litigant's written summary of those parts of the testimony favorable to his case is admissible into evidence as an exhibit. We are also asked to determine whether the trial court improperly ruled that a proper foundation was laid for the admission of certain tests relied upon by an expert witness.

Robert E. Puryear worked for the Norfolk and Western Railway Company (N & W) for 32 years, first as a fireman and an engineer, and then, starting in 1975, as a foreman. While he was a fireman and an engineer, Puryear rode on N & W's locomotives every working day, and while a foreman, he rode on N & W's locomotives three days a week. Less than a year before his retirement from N & W in September 1987, Puryear was advised that he suffered from hearing loss.

Two years after retiring, Puryear filed this damage action against N & W under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51 et seq. In this action, Puryear alleged that N & W violated a duty of care imposed upon it by FELA in exposing him to excessive noise from its locomotives, equipment, and horns, thereby causing his hearing loss. During a jury trial, the trial court admitted certain exhibits and expert testimony over N & W's objection. The jury returned a verdict of $150,000 in favor of Puryear upon which final judgment was entered. N & W appeals, assigning, among other things, the admission of this evidence as error.

Puryear testified that, between 1961 and 1975, he spent 50% of his working time riding on General Motors EMD GP-9 locomotives; another 10% of his working time during this period was spent on locomotives he described as "Alcos." From 1972 to 1975, Puryear also made approximately 60 trips on General Motors EMD-F-7 locomotives. While a foreman, Puryear also rode on General Electric Company C-36-7 locomotives at least one day out of the three days each week that he rode on N & W locomotives. Puryear testified about the loud noise created by the engines and equipment on the GP-9, F-7 and Alco locomotives and the horns of the C-36-7 locomotives.

Dr. Angelo Campanella, one of Puryear's expert witnesses on the measurement of sound, testified about the noise levels on N & W's F-7, GP-9, and C-36-7 locomotives. According to Dr. Campanella, tests which he and other experts had performed indicated that the horn on the C-36-7 locomotive and the engines and equipment of the F-7 and GP-9 locomotives produced noise in excess of sound levels fixed by Federal Railroad Administration (FRA) regulations at the time FELA employees were exposed to such noise. ^*

Except for Puryear's testimony that the Alco locomotives made more noise than the F-7 locomotives, there was no evidence that any of the other types of locomotives and equipment on which Puryear rode during the balance of his employment exceeded FRA noise standards. In fact, Campanella testified that an SD-40 locomotive of the same model on which Puryear rode 40% of the time from 1961 to 1975 had been tested and found not to exceed those standards.

Puryear and his experts on the cause and effect of hearing loss testified that his hearing loss developed during his employment with N & W. However, N & W's expert in the same field, who examined Puryear after this controversy arose and had also reviewed hearing tests performed upon Puryear in 1987, 1989, and 1994, opined that Puryear's significant hearing loss occurred after he retired, due to an aging phenomenon known as presbycusis. Thus, the evidence conflicted on the issues of the amount of Puryear's exposure to the allegedly excessive noise of some of N & W's locomotives and equipment and whether that exposure caused his hearing loss.

Against this background, we consider whether the trial court erred in admitting into evidence two exhibits relevant to these conflicts. The first exhibit was Puryear's written summary of his testimony on the amount of time he spent on locomotives that he and Dr. Campanella regarded as excessively noisy. The second exhibit was a chart prepared by Dr. Campanella, based on the information in Puryear's summary. This chart summarized Dr. Campanella's testimony on his calculations of Puryear's periods of exposure to the excessive noise of these locomotives.

N & W contends that these exhibits should not have been admitted into evidence because they summarized only those parts of Puryear's oral testimony favorable to his contentions and because, during its deliberations, the jury might have placed more weight on these written summaries than on their collective recollection of the actual testimony. Puryear responds by claiming that "[t]his Court has routinely approved the admission of summary exhibits into evidence."

None of the cases relied upon by Puryear deals with the issue of the admissibility of summaries or charts of favorable parts of oral testimony upon a contested issue. In Peterson v. Neme, 222 Va. 477, 281 S.E.2d 869 (1981), we specifically stated that "the only question presented by this assignment of error is whether the plaintiff's lay opinion [of her injuries and disabilities] and the supporting exhibit [summarizing part of the plaintiff's oral testimony] were admissible to prove causal connection between her injuries and her capacity to work." Id. at 483, 281 S.E.2d at 872. Thus, we were not deciding...