Norfolk S. Ry. Co. v. Rayburn

• Decision Date: 23 April 1973
• Citation: 213 Va. 812,195 S.E.2d 860
• Parties: NORFOLK SOUTHERN RAILWAY COMPANY v. William D. RAYBURN.
• Court: Virginia Supreme Court

Page 860

195 S.E.2d 860

213 Va. 812

NORFOLK SOUTHERN RAILWAY COMPANY v. William D. RAYBURN.

Supreme Court of Virginia.

April 23, 1973.

William T. Prince, Norfolk (Gerard P. Rowe, Richmond, Williams, Worrell, Kelly & Worthington, Norfolk, on brief), for plaintiff in error.

Raymond H. Strople, Portsmouth (Dennis F. McMurran, Bernard Miller, Moody, McMurran & Miller, Portmouth, on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

HARMAN, Justice.

William D. Rayburn (Rayburn or plaintiff) brought this action under the Federal Employers' Liability Act (the Act), 45 U.S.C.A. § 51 et seq., against his employer Norfolk Southern Railway Company (Norfolk Southern or defendant), alleging that he was injured in the course of his employment as a result of defendant's negligence. The jury found for Rayburn and awarded him $125,000 in damages. We granted a writ of error to Norfolk Southern from the judgment order entered by the trial court on this verdict.

The defendant, in its twenty-five assignments of error, alleges that the verdict was excessive, that the trial court erred in admitting certain evidence and that the court erred in granting some instructions and refusing other instructions.

Since the plaintiff received a jury verdict in his favor which has the approval of the trial court, we must, under well established principles, view the evidence in the light most favorable to him. Riley v. Harris, 211 Va. 359, 177 S.E.2d 630 (1970).

Plaintiff, who was employed as a machinist at the defendant's shops in Chesapeake, was injured on July 2, 1970, while he was engaged in working on the diesel engine of one of defendant's locomotives. Plaintiff and his fellow workmen were dismantling the 'complete entire engine down to the bare crankshaft for a complete overhaul.'

Prior to the time he began working on the engine on July 1, plaintiff had visually inspected the locomotive on two occasions while it was standing on a storage track outside the shop. His inspections disclosed that the engine and running boards, which are metal walkways located on either side of the engine, were 'drenched' with oil. He reported this condition to two of his superiors and suggested that the oil should be cleaned from the locomotive before it was brought into the shop. Each of them told him 'they neither had the time or money to clean the engine.'

Plaintiff's testimony revealed that the running boards had not been cleaned when work was commenced to dismantle the engine on July 1.

On July 2, as plaintiff was attempting to loosen a 'rod bolt' on the engine, his feet which were 'on this oil went out from under (him) and (he) fell backwards' and sustained the injury to his back.

Plaintiff was treated at the emergency room at Norfolk General Hospital shortly after his injury by Dr. W. C. Pole who diagnosed his injury as a bruise or sprain of the low back. When his complaints did not subside he was admitted to the hospital on July 8 and remained there until July 24. He was subsequently readmitted to Norfolk General Hospital on August 5 and was discharged on August 22.

In February, 1971, seven months after he was injured, plaintiff consulted Dr. Hyman Stromberg, a neurological surgeon, who subsequently performed a hemalaminectomy to remove parts of the discs at the third, fourth and fifth levels on the left side of plaintiff's spine. Plaintiff was hospitalized for 18 days in connection with this operation.

Plaintiff testified he was still unable to work when his case came to trial in March, 1972. He complained of pain and stiffness in his back and numbness, pain and a twitching in his left leg. He further testified that the toes on his left foot were so sensitive 'I can hardly stand for my wife to put my sock on.' When asked to describe his condition at the time of trial, plaintiff answered:

'I have pain all the time in my lower back, and especially in my left leg. My back is not as bad as my leg. My leg and foot, especially the foot, bothers me very badly. I'm not able to sleep well at night. I am up at least three times a night. I can't walk for any distance. I can't sit for any length of time. I am hurting now terribly because I have to sit too long today in a hard chair. And I just am in misery all the time, twenty-four hours a day. I don't rest well even when I'm asleep. It is just not a restful sleep.'

Since the accident Rayburn had been unable to perform the maintenance work on his home and car as he did prior to his injury nor was he able to engage in many activities in which he engaged before his injury.

Rayburn's loss of wages between July 2, 1970, and the time of trial amounted to approximately $14,000.

Dr. Stromberg, who performed surgery on the plaintiff, described the operation and plaintiff's subsequent treatment in the hospital. Dr. Stromberg also saw Rayburn as an outpatient after his discharge from the hospital. Rayburn was last seen by Dr. Stromberg in October, 1971, approximately six months after the operation. At the time Dr. Stromberg's prognosis, as shown by his records, was: 'After today's examination I do not feel that Mr. Rayburn will ever return to work. How much of his problem is physical and how much is emotional is again difficult to say. I think that the best thing that can happen to him is a rapid settlement of his present litigation.' When last seen by Dr. Stromberg, in addition to the scar on his back, Rayburn was suffering from a 'foot drop,' a loss of dorsiflexion of the foot, which affected his gait when walking and the normal 'ankle jerk' was absent in his left foot. Dr. Stromberg, in his testimony, indicated that this foot drop had become more pronounced between his last examination of Rayburn and the date of his testimony approximately five months later. When asked whether Rayburn's injuries were of a permanent nature, Dr. Stromberg stated: 'A sufficient length of time has elapsed for him to have a return of function if he (is) going to regain it.'

In its brief and at oral argument defendant claims that the trial cour erred in instructing the jury. Defendant places particular emphasis on Instruction 4 granted by the court which reads as follows:

'The court instructs the jury that if you believe from the evidence that the defendant violated one of its own safety rules, then it was guilty of negligence.'

The plaintiff had introduced defendant's safety rule 23(B) which provided:

'When it is necessary to make repairs to engines, boilers, tanks, and tank cars, such parts shall be cleaned before mechanics are required to work on same. This will also apply to cars undergoing general repairs.'

The printed rules were prefaced by a 'General Notice' which required all employees to 'obey the rules' and all supervisors to 'insist upon obedience' to the rules. All employees were required to 'correct, when practicable, or report to their immediate supervisor for correction any unsafe conditions or practices observed during the performances of their work.'

Defendant argues here that evidence of the violation of a safety rule is not negligence per se but is only evidence of negligence which may be considered, along with the other evidence, by the jury in determining whether defendant was negligent. We agree with this contention. Thomas v. Conemaugh B.L.R.R., 133 F.Supp. 533, 540--541 (W.D.Pa., 1955); Healy v. Pennsylvania R.R. Co., 184 F.2d 209, 212, fn. 6 (3rd Cir., 1950). But we find no reversible error in granting Instruction 4 because this ground for objection was not raised before the trial court. We will not consider error unless proper and timely objection is taken and the grounds of objection are stated with reasonable certainty. Saunders v. Commonwealth, 211 Va. 399, 177 S.E.2d 637 (1970); Rule 5:7, Rules of Court.

Norfolk Southern argues that the court erred in refusing Instruction M which read as follows:

'The Court instructs the jury that it was the duty of the plaintiff, in the exercise of reasonable care, to make use of his experience and the knowledge of his surroundings and the work being done so as to avoid unnecessarily exposing himself to danger, and it was his further duty to use his faculties in the exercise of reasonable care for his own safety and to observe the conditions which existed. If he failed in his duty in any of these respects in the slightest way, then he was guilty of negligence.'

The defense of assumption of risk under the Act was abolished in 1939 by amendment to 45 U.S.C.A. § 54 if the injury of death was caused, in whole or in part, by the negligence of the carrier. Bly v. Southern Ry. Co., 183 Va. 162, 168, 31 S.E.2d 564, 567 (1944). Contributory negligence is not a defense under the Act but damages shall be...