Thompson v. National R. R. Passenger Corp.

• Citation: 621 F.2d 814
• Decision Date: 15 July 1980
• Docket Number: Nos. 79-1343,s. 79-1343
• Parties: Randall Brent THOMPSON et al., Plaintiffs-Appellees and Cross-Appellants, v. NATIONAL RAILROAD PASSENGER CORPORATION and Louisville and Nashville Railroad Company, Defendants-Appellants and Cross-Appellees. to 79-1350.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 814

621 F.2d 814

Randall Brent THOMPSON et al., Plaintiffs-Appellees and Cross-Appellants, v. NATIONAL RAILROAD PASSENGER CORPORATION and Louisville and Nashville Railroad Company, Defendants-Appellants and Cross-Appellees.

Nos. 79-1343 to 79-1350.

United States Court of Appeals Sixth Circuit.

Argued Feb. 7, 1980.

Decided May 21, 1980.

Rehearing and Rehearing En Banc Denied July 15, 1980.

Tyree B. Harris, Dodson, Harris, Robinson & Aden, Nashville, Tenn., Hugh C. Griffin, Lord, Bissell & Brook, Chicago, Ill., for defendants-appellants and cross-appellees in all cases.

A. B. Neil, Jr., Nashville, Tenn., for plaintiffs-appellees and cross-appellants in Nos. 79-1343 and 79-1344.

Louis Farrell, Jr., Farrell & McCoy, Nashville, Tenn., for plaintiffs-appellees and cross-appellants in all cases.

George J. Murtaugh, Jr., Coghlan, Joyce & Nillis, Chicago, Ill., for plaintiffs-appellees and cross-appellants in Nos. 79-1347 and 79-1348.

Powers McGuire, Crystal Lake, Ill., for plaintiffs-appellees and cross-appellants in Nos. 79-1349 and 79-1350.

Before KEITH, KENNEDY and BOYCE F. MARTIN, Jr., Circuit Judges.

CORNELIA G. KENNEDY, Circuit Judge.

The plaintiffs in these consolidated cases are passengers who sustained injuries in the derailment of a National Railroad Passenger Corp. (Amtrak) train in Tennessee on October 1, 1975. The train was being operated at the time by employees of the Louisville & Nashville Railroad Co. (hereinafter L & N) and the derailment occurred on track owned by L & N. Amtrak stipulated that it was liable for compensatory damages to all plaintiffs except Thompson, an employee of L & N, who was traveling on a pass issued by Amtrak which contained a limitation of liability. The cases were tried by the court without a jury. The District Judge found L & N negligent and awarded all plaintiffs compensatory damages against both defendants. He rejected plaintiffs' claims for punitive damages.

Plaintiffs appeal, arguing the evidence does show intentional conduct which requires an award of punitive damages. They argue the failure to lower the speed limit after Federal Railroad Administration (FRA) regulations were promulgated and after the FRA asked that the speed be lowered a year prior to the derailment is conduct showing a wanton disregard for the safety of the passengers. They also argue that the use of an SDP40F locomotive, a model which had been involved in several previous derailments, without testing the locomotive constituted gross, wilful, or wanton negligence.

Defendants also appeal, challenging the damage awards to five plaintiffs on several grounds. They claim all the awards are excessive, much higher than any awarded previously in Tennessee. They claim awards of separate amounts for pain and suffering, permanent injuries, and impairment to ability to enjoy life are duplicative. They assert that the award to plaintiff Barnes for impairment of earning capacity and to plaintiff Mr. Back for loss of consortium are not supported by the evidence. Finally, they argue that the limitation of liability provision in the free pass barred plaintiff Thompson from any recovery.

I. Punitive Damages

Plaintiffs claim defendants were grossly negligent in operating the train too fast around the curve where the derailment occurred. The court found that the train was going 61 miles per hour around the curve in question, that L & N had set a speed limit of 60 miles per hour for the curve sometime before the FRA regulations provided a formula for calculating speed around a curve based on the elevation of the outside rail and the degree of curvature. See 49 C.F.R. § 213.57. L & N did not recalculate its speed limits after the regulations were passed. The regulation is ambiguous because although it specifies that the minimum elevation should be used if the elevation is not uniform, it does not tell how to measure curvature or what curvature should be used if it is not uniform. The court found that under the regulations the speed limit on this curve was at least 55.47 miles per hour, possibly as high as 57 miles per hour. It was of the opinion that traveling at speeds of 5.53 miles per hour over the speed limit did not constitute gross negligence.

Plaintiffs argue that defendants, by failing to recalculate their speed limits on the curves and maintain them, although Amtrak was asked by the FRA in September 1974 to check if its speeds were within permissible limits, constitutes wilful negligence. Defendants respond by arguing there was no evidence of prior accidents or incidents on that particular curve and that shortly before the accident, an FRA investigator and an L & N engineer traveled over the curve in a high-rail car looking for trouble spots and at that time the FRA investigator did not criticize their speed limit of 60 miles per hour. They deny that the FRA asked Amtrak to recompute speed limits on each of its thousands of curves.

Amtrak admitted it did not calculate the maximum permissible speed on the curve in question nor did it make any measurements on the curve, except such as were made by L & N.

Indeed, its retired Chief Mechanical Officer, Mr. Beischer, by deposition, stated that Amtrak did not have the personnel to make actual inspections of all the track over which Amtrak operated; Amtrak was dependent upon the railroads for this.

Mr. Vaughn, Division Engineer of Birmingham Division, L & N, by deposition, stated that prior to October 1975 he rode in a high-rail car with an FRA investigator who said he was investigating the curve in question on behalf of Amtrak. They rode over the curve, making a visual inspection. Mr. Vaughn did not know how fast they were going. The FRA investigator made no comments with respect to the curve in question.

The District Court found that defendants' speed limit was the result of a negligent miscalculation, not of gross or wanton misconduct. Rule 52(a), Fed.R.Civ.Pro., directs that findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. This Court will not overturn findings of fact by the trial judge unless it is left with a definite and firm conviction that a mistake was made. See J. A. Jones Construction Co. v. Englert Engineering Co., 438 F.2d 3, 5 (6th Cir. 1971). The evidence here fully justifies the District Judge's findings. Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639, 355 S.W.2d 436 (Tenn.1962), dismissed, 371 U.S. 21, 83 S.Ct. 120, 9 L.Ed.2d 96 (1962), cited by the District Court, is indistinguishable from the present case. There, a jury awarded compensatory and punitive damages to the plaintiff for wrongful death caused by a plane crash. The award of punitive damages was set aside. The common carrier was found to be negligent in operating with only one Automatic Direction Finder which it knew was faulty rather than with two that most planes had. However, the Tennessee Supreme Court held that there was no evidence of negligence so gross or wanton as to raise a presumption of conscious indifference to the consequences. Similarly, traveling too fast is negligence, but it does not show conscious indifference to the consequences.

Plaintiffs also point to the use of a SDP40F locomotive as evidence of a conscious indifference to the consequences. Although the District Court did not discuss this in its opinion, we have carefully reviewed all of the evidence on this issue.

Carroll Ashby, Chief Operating Officer of the Division of the L & N in which the train was located, was not aware of any articles which had talked about the hazards of the SDP40F. Mr. Beischer, retired Chief Mechanical Officer of Amtrak, admitted that prior to the accident there were a number of derailments drawn by the SDP40F. In several of the cases, the track was the cause of the derailment. He recalled that the Seaboard Coastline Operating Department claimed that the locomotive was at fault, and meetings were held and tests were run, but nothing was found to substantiate the claim.

The SDP40F was not a radical departure from previous designs. Amtrak was assured by General Motors (the manufacturer) that the locomotive had been subject to considerable design development from actual testing. Amtrak received 150 of these locomotives from June 1973 until late 1974 or early 1975.

During 1974, there were 34 Amtrak derailments. About six of those were pulled by the SDP40F, but at least two involved collisions with motor vehicles. About 75-80% of their trains, according to Mr. Beischer, were being pulled by the SDP40F, although only one-sixth of the derailments were drawn by the SDP40F. In 1975, there were 28 derailments, three were pulled by the SDP40F, one of which was the accident in question. Electromotive Division (of General Motors) also made tests on the locomotive March 8 and April, 1974. Mr. Beischer did not find anything in their report to indicate the locomotive was unsafe. Electromotive also conducted tests in Pennsylvania in July 1974. The SDP40F was found to exert less lateral force than exerted by the 85-foot freight train or the 3-axle freight locomotive, but greater lateral force than exerted by the 2-axle freight locomotive. In September 1974, an FRA representative suggested that before an instrumented test site was dismantled Amtrak test its SDP40F and compare it to the E 8 type locomotive. This was done, but it did not show any undue or unusual forces generated by the locomotive. Further testing on the ride was done on the Seaboard Coastline in October 1974, but nothing indicated that the SDP40F was unsafe. After the accident, an SDP40F (but not the one involved in the accident) was tested on an instrumented rail and compared to two other kinds of engines. Again, Mr. Beischer did not find the results indicating any undue lateral forces from the SDP40F.

Mr. Wiggens, Vice-President of Operations for L & N, also testified by...