Southern Ry. Co. v. Roberts

• Decision Date: 21 December 1979
• Citation: 380 So.2d 774
• Parties: SOUTHERN RAILWAY COMPANY, a Corp. v. John H. ROBERTS et al. 78-354.
• Court: Alabama Supreme Court

Page 774

380 So.2d 774

SOUTHERN RAILWAY COMPANY, a Corp. v. John H. ROBERTS et al.

78-354.

Supreme Court of Alabama.

Dec. 21, 1979.

Rehearing Denied Feb. 29, 1980.

Charles E. Sharp and W. J. Sullivan, Jr., of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellant.

Frank O. Burge, Jr., Birmingham, for appellee John H. Roberts.

J. Ross Forman, III, Birmingham, for appellee United States Steel Corp.

SHORES, Justice.

This is an FELA case. Plaintiff/appellee John H. Roberts, an engineer for Southern Railway Company, was injured on February 23, 1975, when the train he was operating derailed near Old Fort, North Carolina. The track slopes downhill at that point and curves sharply. It was super-elevated to a height of one inch. A seven-foot section of broken rail was found at the site of the accident. Whether the rail was cause or effect of the accident was an issue at trial. Evidence introduced at trial tended to establish that the train was exceeding the speed limit at the time the accident occurred.

A formal investigation of the accident resulted in Roberts's discharge for operating the train in excess of the speed limit. His dismissal was upheld by the Railway Adjustment Board. He then filed this action against Southern Railway Company, alleging that his injuries had been caused in whole or in part by Southern's negligence. Southern filed a third-party complaint against U. S. Steel, the manufacturer of the allegedly defective rail. U. S. Steel and Southern both moved for summary judgment. U. S. Steel's motion was granted; Southern's overruled. After a trial on the merits, a jury awarded Roberts $100,000. Southern filed a motion for a new trial, which was denied. This appeal followed.

Southern contends that it is entitled to a new trial for the following reasons: 1) The jury was prejudiced by the cumulative effect of statements made by Roberts's counsel regarding Roberts's poverty and the unfair treatment he received from the railroad, the destruction of the allegedly defective rail after testing by Southern, a request that the trial judge control the courtroom, and references to plaintiff's decreased earning capacity; 2) the verdict was excessive and indicated bias, passion and prejudice against the defendant railroad on the part of the jury; 3) the trial court erred in admitting statements made by Roberts to an examining physician who later testified at trial; and 4) the trial court erred in admitting a statement made by Roberts to the secretary of his treating physician and recorded on Southern's own injury reporting form. Southern also contends that the trial court erred in overruling Southern's motion for a directed verdict because the plaintiff did not carry his burden of proving by substantial evidence that Southern was guilty of negligence, and that the trial court's action in overruling Southern's motion for summary judgment was inconsistent with its granting of U. S. Steel's motion for summary judgment because both motions were based on the same proof. For the reasons discussed herein we affirm.

What constitutes negligence for the purposes of the Federal Employers Liability Act is a federal question, and federal decisional law formulating and applying the concept governs. Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 1027, 93 L.Ed. 1282, 1295 (1949). The "slight negligence" necessary to support an FELA action is defined as a failure to exercise great care and that burden of proof is much less than the burden required to sustain recovery in ordinary negligence actions. Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969).

Where a jury verdict has been reached in an FELA case, the reviewing court's role is limited to ascertaining whether

". . . the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death. Judges are to fix their sights primarily to make that appraisal and, if that test is met, are bound to find that a case for the jury is made out whether or not the evidence allows the jury a choice of other probabilities. The statute expressly imposes liability upon the employer to pay damages for injury or death due 'in whole or in part ' to its negligence. (Emphasis added.)" Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506-507, 77 S.Ct. 443, 448-449, 1 L.Ed.2d 493, 499-500 (1957).

The congressional intent in enacting the FELA was to secure jury determinations in a larger proportion of cases than would be true of ordinary common-law actions. Boeing Company v. Shipman, supra, p. 371. Where a case under the FELA turns on controverted facts and the credibility of witnesses, the case is peculiarly one for the jury. Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572 (1947).

The Act itself provides that:

"Every common carrier by railroad while engaging in commerce between any of the several States . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." Title 45 U.S.C. § 51.

An employee's recovery is not barred by his or her own contributory negligence, but is reduced proportionately. Title 45 U.S.C. § 53.

A careful examination of the record reveals sufficient evidence of defendant's negligence for the issue to go to the jury under the above principles. Although little evidence was produced supporting plaintiff's theory that a defective rail caused the accident, he also alleged that the accident could have been caused by inadequate banking of the outside rail on the curve where the derailment occurred or, if the derailment was caused by excessive speed, that Southern pressured its employees to exceed the speed limit, and that Roberts's fellow crew members failed to warn him that he was going too fast. These contentions are supported by the following evidence: Roberts's crew members testified that it was their responsibility to warn the engineer if the train exceeded the speed limit, and to brake the train themselves if the engineer disregarded their warning. A considerable amount of expert testimony established that the train was exceeding the limit, yet the crew members testified that no one attempted to slow the train. Witnesses also...