Norton v. Norfolk Southern Ry. Co.

Decision Date05 June 2000
Docket NumberNo. 3183.,3183.
Citation341 S.C. 165,533 S.E.2d 608
CourtSouth Carolina Court of Appeals
PartiesLester W. NORTON, Respondent, v. NORFOLK SOUTHERN RAILWAY COMPANY, Appellant.

Daniel B. White and Keith D. Munson, both of Gibbes, Gallivan, White & Boyd, of Greenville, for appellant.

Walton G. Bondurant, Jr., Randall E. Appleton and David S. Schnitzer, all of Miller & Bondurant, of Portsmouth, VA; and John David Whisenhunt, of Whisenhunt & Whisenhunt, of Florence, for respondent. HEARN, Chief Judge:

In this negligence action initiated under the Federal Employers' Liability Act (FELA)1 Norfolk Southern Railway Company (Norfolk) appeals the trial judge's grant of a new trial following a jury verdict in its favor. We affirm.


While working as a carman2 for Norfolk, Lester Norton fell when his foot became caught in a welding box, injuring his left knee. Coworker James Wilson, who witnessed Norton's fall in the tool shed, testified the box was empty and should have been placed in the trash instead of wedged under a shelf ledge. Wilson further stated the box was not visible until Norton's foot became caught in it, although the shed has sufficient lighting. In the days after the fall, Norton did not complain of pain and continued to work.

Approximately two weeks after the fall, Norton was going down the stairs at his home when he suddenly experienced severe pain in the same knee. Norton consulted a doctor who aspirated the knee and injected it with cortisone. This procedure was repeated a short time later but Norton's knee remained swollen. Norton subsequently had arthroscopic surgery on his knee. Dr. James McCarthy testified Norton had a torn meniscus and early chondromalacia resulting from his fall on the job. According to McCarthy, Norton is no longer able to perform his duties as a carman due to his knee problems. McCarthy further stated Norton's condition is not only permanent but will get progressively worse.

Trial testimony indicated the Norfolk company handbook provides employees must keep the premises under their control neat and clean. Additionally, the railroad had placed various signs around the coach shop which state "Downtime is clean-up time." Although the shed is left unlocked during the day, only carmen have access to it. Tom Reid, a Norfolk supervisor, testified if he had seen the box under the shelf, he would not have required anyone to pick it up because empty boxes were frequently used for transporting tools from the shed to the jobsite. He stated empty boxes were stored in the shed for that purpose. Norton himself corroborated the use of empty boxes for carrying nuts and bolts.

The jury found Norfolk was not negligent. Norton moved for a new trial "according to the doctrine of the thirteenth juror" acknowledging there was evidence indicating boxes were typically stored in the shed but arguing the jury "ignored the evidence presented on behalf of the plaintiff and the court's instruction on the issue of negligence." Norton further contended the "verdict returned is contrary to the preponderance of the evidence presented at trial and is not supported by the factual testimony elicited by the parties at trial." The trial judge agreed and granted Norton's motion for a new trial. Norfolk appeals.


Norfolk argues the trial judge incorrectly applied the South Carolina "thirteenth juror" standard in granting the motion for a new trial as opposed to the federal rules governing the grant of a new trial, and, regardless which standard is applied, the trial judge erred in granting the motion.

A FELA action brought in state court is controlled by federal substantive law and state procedural law. See Jennings v. Illinois Cent. R.R. Co., 993 S.W.2d 66, 70 (Tenn. Ct.App.1999)

; Pryor v. National R.R. Passenger Corp., 301 Ill.App.3d 628, 234 Ill.Dec. 897, 703 N.E.2d 997, 1000 (1998); Hassell v. Missouri Pac. R.R. Co., 880 S.W.2d 39, 44 (Tex. App.1994). However, a form of local practice may not defeat a federal right. Brown v. Western Ry. of Ala., 338 U.S. 294, 296, 70 S.Ct. 105, 106, 94 L.Ed. 100 (1949). This is especially true when a state procedural rule infringes upon the 7th Amendment right to a jury trial. See Dice v. Akron, Canton & Youngstown R.R. Co., 342 U.S. 359, 363, 72 S.Ct. 312, 315, 96 L.Ed. 398 (1952).3

A motion for a new trial is a procedural rule. Rule 59(a), SCRCP, provides in pertinent part:

Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the State; ....

Our supreme court has endorsed the continuing viability of the "thirteenth juror" doctrine in this state on several occasions. Folkens v. Hunt, 300 S.C. 251, 254, 387 S.E.2d 265, 267 (1990). In Folkens, the court explained the thirteenth juror doctrine is a "vehicle by which the trial court may grant a new trial absolute when [the court] finds that the evidence does not justify the verdict. This ruling has also been termed granting a new trial upon the facts." Id. (citing S.C. State Highway Dept. v. Townsend, 265 S.C. 253, 217 S.E.2d 778 (1975)).

However, because the motion in this case forced the trial judge to weigh the evidence, the question is one governed by federal law.4 "It is firmly established that questions of sufficiency of evidence for the jury in cases arising under [FELA] in state courts are to be determined by federal rules." C.C. Marvel, Annotation, Applicability of State Practice and Procedure in Federal Employers' Liability Act Actions Brought in State Courts, 79 A.L.R.2d 553 (1961). Thus, there is no question that South Carolina's "thirteenth juror" doctrine would not be applicable.

Without question, Norton requested a new trial pursuant to the "thirteenth juror" doctrine. However, the trial judge's order granting a new trial does not mention that doctrine. Specifically, the order states:

The Court finds as a matter of fact that the verdict returned herein is contrary to the fair preponderance of the evidence presented at trial and is not supported by the factual testimony at trial. The verdict indicates the jury failed to properly consider and follow the instructions of the court in its deliberations.
Although the order does not indicate whether the trial judge invoked the thirteenth juror doctrine or the applicable federal standard for a new trial, we note that Norfolk argued the applicability of the federal standard in its memorandum in opposition to Norton's motion for a new trial and Norton admitted the issue was controlled by federal law in his memorandum. Thus, since the trial judge did not mention the thirteenth juror doctrine in his order, we may fairly assume that he relied on the applicable federal standard in granting a new trial.

Moreover, even if the trial judge did rely on the thirteenth juror doctrine in granting a new trial, reversal is not warranted. Because we are permitted to affirm on any ground appearing in the record and because we fail to discern any significant difference between the analysis employed by a trial judge under the thirteenth juror doctrine and under the applicable federal doctrine, as discussed infra, we decline to reverse the trial judge on the ground that he employed the wrong standard in granting Norton a new trial.

Under federal law, the test to be applied in determining whether to grant a new trial is whether the verdict is against the weight of the evidence, that the damages are excessive, or that the trial was for other reasons unfair to the moving party. Walden v. Illinois Cent. Gulf R.R., 975 F.2d 361, 365 (7th Cir.1992) (quotations and citations omitted). "A trial judge can grant a motion for a new trial if he believes the verdict is contrary to the weight of the evidence." Robin v. Wilson Bros. Drilling, 719 F.2d 96, 98 (5th Cir.1983). In fact, the trial judge has discretion to order a new trial when he or she believes the verdict to be against the clear weight of the evidence, even if the verdict is supported by substantial evidence. Gill v. Rollins Protective Servs. Co., 836 F.2d 194, 197-98 (4th Cir.1987).

Thus, we do not find the federal standard substantively different from our state "thirteenth juror" standard as far as the trial judge's discretion whether to grant a new trial is concerned. Moreover, both the federal appellate courts and our appellate courts apply highly deferential standards of review on appeals from such decisions. It is here, however, on appellate review, that the federal law and our state law diverge somewhat.

In South Carolina, the appellate court reviews the grant or denial of a new trial motion for an abuse of discretion and will not reverse the trial court's decision unless it is controlled by an error of law or is not supported by the evidence. Duncan v. Hampton County Sch. Dist. No. 2, 335 S.C. 535, 547, 517 S.E.2d 449, 455 (Ct.App.1999). Our supreme court has also noted that when reviewing the grant or denial of a new trial, the appellate court will not weigh the conflicting evidence, but if there were no conflicts in the evidence, then the court could reverse an order granting a new trial as an error of law amounting to an abuse of discretion. South Carolina State Highway Dep't v. Clarkson, 267 S.C. 121, 127, 226 S.E.2d 696, 697-98 (1976). Thus, when there is a conflict in the evidence, the trial judge's decision is sacrosanct.

Facially, federal law appears to employ a similar standard. In federal court, the trial judge "is free to weigh the evidence in considering th[e] motion," and "appellate review of the trial court's action is limited to consideration of whether the lower court abused its broad discretion." Gill, 836 F.2d at 197-98; see also Walden, 975 F.2d at 365

(noting that grant or denial of a new trial motion is not...

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4 cases
  • Montgomery v. CSX Transp., Inc.
    • United States
    • South Carolina Court of Appeals
    • December 6, 2004
    ...plaintiff can be sustained upon evidence which would not be sufficient in the ordinary negligence action. Norton v. Norfolk S. Ry. Co., 341 S.C. 165, 533 S.E.2d 608 (Ct.App.2000),rev'd on other grounds,350 S.C. 473, 567 S.E.2d 851 (2002) (citing W. Page Keeton et al., Prosser & Keeton on To......
  • Montgomery v. Csx Transp., Inc.
    • United States
    • South Carolina Supreme Court
    • January 7, 2008
    ...plaintiff can be sustained upon evidence which would not be sufficient in the ordinary negligence action. Norton v. Norfolk S. Ry. Co., 341 S.C. 165, 533 S.E.2d 608 (Ct.App.2000), rev'd on other grounds, 350 S.C. 473, 567 S.E.2d 851 (2002) (citing W. Page Keeton et al., Prosser & Keeton on ......
  • Rogers v. Norfolk Southern Corp.
    • United States
    • South Carolina Court of Appeals
    • October 2, 2000
    ...plaintiff can be sustained upon evidence which would not be sufficient in the ordinary negligence action. Norton v. Norfolk Southern Ry. Co., 341 S.C. 165, 533 S.E.2d 608 (2000) (quoting W. Page Keeton et al., Prosser & Keaton on Torts § 80, at 579) (alterations in original). Rogers does no......
  • Norton v. Norfolk Southern Ry. Co.
    • United States
    • South Carolina Supreme Court
    • July 22, 2002
    ...for New Trial is not in the record on appeal, but is referred to in the Court of Appeals' decision. Norton v. Norfolk Southern Railway Company, 341 S.C. 165, 533 S.E.2d 608 (Ct.App.2000). 3. In its opinion, the Court of Appeals noted that the parties stipulated at oral argument that federal......

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