Ridings v. Norfolk Southern Ry. Co.

• Decision Date: 15 November 1994
• Citation: 894 S.W.2d 281,5 NDLRP 474
• Parties: 5 NDLR P 474 Thomas B. RIDINGS, Plaintiff-Appellee, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant-Appellant.
• Court: Tennessee Court of Appeals

Page 281

894 S.W.2d 281

5 NDLR P 474

Thomas B. RIDINGS, Plaintiff-Appellee, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant-Appellant.

Court of Appeals of Tennessee Eastern Section.

November 15, 1994.

Application for Permission to Appeal Denied

by Supreme Court Feb. 21, 1995.

Arthur G. Seymour, Jr., James E. Wagner, Knoxville, for appellant.

C. Marshall Friedman, Patrick S. O'Brien, St. Louis, MO, Donna Davis, Davis, Arnold, Haynes & Sanders, Knoxville, for appellee.

OPINION

SUSANO, Judge.

This is a suit for damages brought under the Federal Employers' Liability Act (FELA) by Thomas B. Ridings (Ridings) against his employer, Norfolk Southern Railway Company (Norfolk Southern), arising out of an injury the Plaintiff sustained at work. Norfolk Southern appeals the Judgment of the trial court awarding Ridings damages of $1,189,481.20 based upon a jury verdict in his favor.

Norfolk Southern raises the following issues:

1. Was there evidence of a connection between negligence on the part of Norfolk Southern and the cause of Ridings' injury?

2. Did the trial court err in charging the jury as to the standard of liability under FELA?

3. Did the trial court err in failing to give requested jury instructions regarding the Americans with Disabilities Act and the Age Discrimination in Employment Act?

4. Did the trial court fail to approve the verdict as the thirteenth juror?

I

Ridings injured his back while attempting to maneuver a "warehouse ladder" on the floor of the Coster Shop, the Norfolk Southern facility at which he worked. As a result of his injury, he was rendered totally and permanently disabled. It is Ridings' theory that his injury was caused by a combination of negligent acts and omissions on the part of Norfolk Southern. On the other hand, Norfolk Southern asserts that there is no material evidence that the injury sustained by Ridings was causally related to any negligent act or omission on its part. In effect, the railroad argues that even assuming that the Plaintiff proved that it was guilty of negligent acts or omissions, there was no proof of a nexus between those acts and omissions and the facts which the Plaintiff relies upon to show how his back injury occurred. On this issue, we must examine the record to see if there is material evidence of a connection. Tenn.R.App.P. 13(d).

Ridings worked for the Norfolk Southern as a carman. He performed various repairs and tests on rail cars at the railroad's Coster Shop in Knoxville, a facility constructed around 1907. In some places, the floor of the Coster Shop is concrete while other parts of the floor consist of wood blocks. Over time, the floor has become uneven and rutted, a great deal of which was the result of years' worth of molten metal from rail car repairs dripping down onto and burning the wood floor. The concrete floor has holes, depressions, and rough spots. There has been no effort to re-surface the whole floor or substantial parts of it. Portions have been patched from time-to-time as Norfolk Southern saw fit.

A cable runs along the floor of the Coster Shop and is used to move rail cars into and out of the shop. There was testimony that the cable sits flush with the floor in most places, but that in a few places, including the southern end of the shop alongside track 2, the cable is as much as "three or four and sometimes even five inches off of the ground." Ridings' expert testified that "the cable always stays taut," due to a system of weights attached to one end.

As a carman, Ridings used an apparatus called a warehouse ladder to work on the rail cars. A photograph of the ladder is attached as Appendix A to this Opinion. Ridings testified that part of his job entailed moving the ladder across the concrete and wood floor of the Coster Shop, and that the shop floor was "just a rough place to try to move something with ... wheels that small as heavy as that [ladder] is." The ladder was used to reach parts of the rail cars which could not be reached from the floor. Ridings' expert testified that he measured the ladder's wheels as being only four inches in diameter. Ridings and others testified that they had complained at safety meetings over a period of two or three years before his accident about the difficulty of moving the heavy warehouse ladders over the rough, broken floor and the cable. Ridings estimated that the ladder weighed about 200 pounds. He called as an expert witness a professor of structural engineering, who examined the ladder and the work site. The professor testified that the ladder, which "[a]ccording to specification sheets" weighs over 210 pounds, was designed for use on "nice level floor[s]" and that it was "an inappropriate use of that particular ladder" to use it on the Coster Shop's rough floor. He further testified that he had no problem with the ladder's design, only its use at the Coster Shop.

A former officer of the company that sold the ladder to the railroad testified that this type ladder with wheels was designed to be used "on a flat, smooth, hard surface." He testified specifically that it was not designed for use on a rough surface such as the one at the Coster Shop.

On October 19, 1988, at about 11:00 PM, Ridings was working as a second-shift carman at the Coster Shop. He testified that he had just finished working on one corner of a 100 ton-type rail car when he attempted to pick up the end of the ladder to rock it and thereby maneuver it across the floor's rough surface and the raised cable along track 2:

I got down, reached down with my right hand and picked up on that bottom scaffold on the right, you know, the step, and you have to guide yourself with that handle on the rail up there, and I twisted, you know, to get it to rock and going. It didn't move. And when I really hit it hard, twisting it, that's when I felt something pop in my lower back.

Ridings testified that he then moved the warehouse ladder across the cable, but

I felt it in my lower back. I had to set the [ladder] down. I started straightening up real easy. And after I eased off a little bit, I went ahead and pulled the [ladder] over there across the tracks over there on the other side to place it, to where we could move them [rail] cars.

As a result of his injury, Ridings has undergone repeated medical treatments--including three surgeries--which have failed to alleviate his back problem.

Ridings filed suit against Norfolk Southern alleging that Norfolk Southern negligently "failed to provide reasonably safe conditions for work in that the wood and concrete floor was rough ... and would not permit the ladder wheels to roll properly," failed "to provide reasonably safe methods for work," failed "to provide reasonably safe and adequate appliances, tools and equipment in that the four inch wheels on the ladder were of improper size and made it extremely difficult for one man to roll the ladder," and finally failed "to provide sufficient manpower to perform the task assigned in that two men were needed to move the ladder." Ridings asserted that the railroad's negligence caused him to suffer "serious, painful, progressive, permanent and disabling injuries and damages" to his back, and in turn to suffer from limitations of movement and function "of the lumbosacral spine, hips, and lower extremities," as well as "traumatic arthritis." In its Answer, Norfolk Southern denied all of Ridings' allegations of negligence and averments of injury, and plead the doctrines of contributory negligence and mitigation of damages.

Ridings called as witnesses five former carmen and James H. Roberts, Jr., a former foreman from the Coster Shop, all of whom testified that the Coster Shop floor was in poor condition, especially on the southern end of track 2 where Ridings was injured. Several of the witnesses also stated that the rail car moving cable rose considerably above the floor in that area, and that the carmen had complained repeatedly prior to Ridings' accident about the difficulty of moving the warehouse ladders in the vicinity of track 2. Roberts further testified that some of the ladders had been modified by mounting much larger wheels which made the ladders "easier to move over the floor and the cables." Roberts testified that they mounted the larger wheels sometime during the period 1986-1988. The ladder being moved by the Plaintiff had not been modified at the time of the accident.

Ridings called two of his treating physicians as expert witnesses: Dr. Gilbert Hyde, an orthopedic surgeon, and Dr. John T. Purvis, a neurosurgeon. Dr. Hyde testified that in his opinion the October, 1988, accident was the cause of Ridings' injuries and necessitated his back surgeries, that the accident had left Ridings unemployable, and finally that he would need periodic medical treatment for the remainder of his life. Dr. Purvis testified that he performed surgery on Ridings' back, fusing a portion of his spine and finally recommending placement of a dorsal spinal cord stimulator as "a last ditch effort" to control Ridings' pain.

Dr. Julian Nadolsky, a vocational rehabilitation expert, also testified as a witness for the Plaintiff. Nadolsky stated that based on his interview of Ridings and a review of his medical records, Ridings "has been 100 percent disabled for employment since he last worked." Nadolsky further stated that "I think Mr. Ridings will not be capable of engaging in gainful employment as long as he has anywhere near the degree of pain that he presently has or that he had when I saw him."

Ridings also called a retired professor of economics, who testified that he weighed "certain data and certain assumptions," such as Ridings' statistical life expectancy, his pay and benefits as a railroad employee, his pay and possible benefits as a reserve non-commissioned officer, and the financial value of his services around the home. He then estimated Ridings' lost income due to his injury, arriving at a figure of $1,023,384 on the ...