Townley v. Norfolk & Western Ry. Co., No. 88-2882

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore WIDENER, PHILLIPS, and WILKINS; WIDENER
Citation887 F.2d 498
PartiesBasy Thomas TOWNLEY, Plaintiff-Appellant, v. NORFOLK & WESTERN RAILWAY COMPANY; Norfolk Southern Corporation, Defendants-Appellees.
Docket NumberNo. 88-2882
Decision Date19 October 1989

Page 498

887 F.2d 498
Basy Thomas TOWNLEY, Plaintiff-Appellant,
v.
NORFOLK & WESTERN RAILWAY COMPANY; Norfolk Southern
Corporation, Defendants-Appellees.
No. 88-2882.
United States Court of Appeals,
Fourth Circuit.
Argued March 9, 1989.
Decided Oct. 19, 1989.

Page 499

Roger John Greezicki (Irving Schwartzman, Savage & Schwartzman, P.A., Baltimore, Md., David T. Kennedy, Thornhill, Kennedy & Vaughan, Beckley, W.Va., on brief), for plaintiff-appellant.

Wade Thomas Watson (Sanders, Watson & White, Bluefield, W.Va., on brief), for defendants-appellees.

Before WIDENER, PHILLIPS, and WILKINS, Circuit Judges.

WIDENER, Circuit Judge:

This case comes to us on appeal from the district court's judgment on a directed verdict in favor of the defendants. The plaintiff-appellant, Basy Townley, sued Norfolk & Western under the Federal Employers' Liability Act, 45 U.S.C. Secs. 51, et seq., for injuries resulting from his work as a yard brakeman at the defendants' Bluefield, W.Va., Yard from 1948 to 1979. Townley suffers from pneumoconiosis, more commonly referred to as black lung. The district court found that Townley's claim was barred by the statute of limitations and granted a directed verdict. We agree and affirm.

On appeal, Townley contends that the district court erred in entering a directed verdict after he produced sufficient evidence to create an issue of fact for the jury on the question of the date of accrual of his cause of action. He argues that the district court applied an incorrect legal standard for determining when a cause of action accrues under FELA.

In its opinion the district court correctly recognized that, when considering a motion for a directed verdict, it must view the evidence in the light most favorable to the non-moving party. Townley v. Norfolk & Western Railway Co., 690 F.Supp. 1513 (S.D.W.Va.1988); Smith Braedon Co. v. Hadid, 825 F.2d 787, 790 (4th Cir.1987). The court then must determine whether a reasonable trier of fact could draw only one conclusion from the evidence. We also must apply these standards when reviewing a district court's entry of a directed verdict; our review is de novo. 825 F.2d at 790.

The district court found that Townley's evidence revealed that he had worked for more than thirty years in coal dust. Townley testified that he worked in and around clouds of coal dust every day, that he often was covered in coal dust and that he breathed the dust into his lungs. Townley also testified that he frequently coughed up coal dust. According to Townley, he suffered from respiratory problems for about ten years before he suffered a heart attack in 1979 and retired on disability. During this ten-year period, Townley said his personal physician treated him for diabetes, heart disease and hypertension, but his doctor never told him he had black lung. Townley further stated that his doctor possessed neither the expertise nor the equipment to make an accurate black lung diagnosis.

Townley further testified that in 1980 he read a newspaper notice encouraging railroad workers to apply for black lung benefits. Based on this notice, Townley began corresponding with G.E. Lewis, a general claims agent for N & W, in an attempt to receive the necessary information to apply for black lung benefits. Townley's first letter to Lewis was dated March 31, 1980, and stated:

Mr. Lewis,

Enclosed you will find forms which need to be completed by you in order to try and help get my Black Lung Benefits. I must return all information to the Dept of Labor within the next month or my claim will be taken off file. I will greatly appreciate your helping me by giving all information you possibly can. I have worked the past 31 years for N & W but had to retire due to shortness of breath which I had for years which lead to heart attacks and other complications. I have congestion of the lungs. After I receive information from you stating the coal dust from coal engines, coal cars etc, I will have to take examination--lungs, breathing, etc. Enclosed is an envelope addressed to me which you can send my forms back to me. I again will say I will appreciate all information you can give me. Please sign and date these forms.

Sincerely,

Basy T. Townley

Page 500

Townley wrote two more letters to Lewis in an attempt to get the necessary information, which he received on May 13, 1980. Townley did not, however, seek the required physical examination at that time. Despite this evidence, Townley claims that he was not aware that he had black lung until his condition was diagnosed on June 29,...

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67 practice notes
  • Monarch v. Southern Pacific Transp. Co., No. A081178
    • United States
    • California Court of Appeals
    • March 25, 1999
    ...of injury and cause. (Albert v. Maine Cent. R. Co. (1st Cir.1990) 905 F.2d 541, 544; Townley v. Norfolk & Western Ry. Co. (4th Cir.1989) 887 F.2d 498, 501; Williams v. Southern Pacific Transp. Co. (S.D.Miss.1992) 813 F.Supp. 1227, 1231.) Constructive rather than actual knowledge of the fact......
  • Childs v. Haussecker, Nos. 97-0231
    • United States
    • Supreme Court of Texas
    • September 24, 1998
    ...'knew, or reasonably could have known, of his injury or damage and the cause thereof' "); but see, e.g., Townley v. Norfolk & W. R.R. Co., 887 F.2d 498, 501 (4th Cir.1989)(holding that plaintiff's suspicions about his injury and its cause warranted summary judgment for 11 See, e.g., Knaps v......
  • Anderson v. BNSF Ry., No. DA 14–0253.
    • United States
    • Montana United States State Supreme Court of Montana
    • August 12, 2015
    ...909 F.2d 1092, 1095 (7th Cir.1990) ; Albert v. Maine Cent. R.R. Co., 905 F.2d 541, 544 (1st Cir.1990) ; Townley v. Norfolk & W. Ry. Co., 887 F.2d 498, 501 (4th Cir.1989) ; Kichline v. Consol. Rail Corp., 800 F.2d 356, 359 (3d Cir.1986) ; Dubose v. Kansas City S. Ry. Co., 729 F.2d 1026, 1030......
  • Anderson v. BNSF Ry., Corp., DA 14-0253
    • United States
    • Montana United States State Supreme Court of Montana
    • August 12, 2015
    ...909 F.2d 1092, 1095 (7th Cir. 1990); Albert v. Maine Cent. R.R. Co., 905 F.2d 541, 544 (1st Cir. 1990); Townley v. Norfolk & W. Ry. Co., 887 F.2d 498, 501 (4th Cir. 1989); Kichline v. Consol. Rail Corp., 800 F.2d 356, 359 (3d Cir. 1986); Dubose v. Kansas City S. Ry. Co., 729 F.2d 1026, 1030......
  • Request a trial to view additional results
67 cases
  • Monarch v. Southern Pacific Transp. Co., No. A081178
    • United States
    • California Court of Appeals
    • March 25, 1999
    ...of injury and cause. (Albert v. Maine Cent. R. Co. (1st Cir.1990) 905 F.2d 541, 544; Townley v. Norfolk & Western Ry. Co. (4th Cir.1989) 887 F.2d 498, 501; Williams v. Southern Pacific Transp. Co. (S.D.Miss.1992) 813 F.Supp. 1227, 1231.) Constructive rather than actual knowledge of the fact......
  • Childs v. Haussecker, Nos. 97-0231
    • United States
    • Supreme Court of Texas
    • September 24, 1998
    ...'knew, or reasonably could have known, of his injury or damage and the cause thereof' "); but see, e.g., Townley v. Norfolk & W. R.R. Co., 887 F.2d 498, 501 (4th Cir.1989)(holding that plaintiff's suspicions about his injury and its cause warranted summary judgment for 11 See, e.g., Knaps v......
  • Anderson v. BNSF Ry., No. DA 14–0253.
    • United States
    • Montana United States State Supreme Court of Montana
    • August 12, 2015
    ...909 F.2d 1092, 1095 (7th Cir.1990) ; Albert v. Maine Cent. R.R. Co., 905 F.2d 541, 544 (1st Cir.1990) ; Townley v. Norfolk & W. Ry. Co., 887 F.2d 498, 501 (4th Cir.1989) ; Kichline v. Consol. Rail Corp., 800 F.2d 356, 359 (3d Cir.1986) ; Dubose v. Kansas City S. Ry. Co., 729 F.2d 1026, 1030......
  • Anderson v. BNSF Ry., Corp., DA 14-0253
    • United States
    • Montana United States State Supreme Court of Montana
    • August 12, 2015
    ...909 F.2d 1092, 1095 (7th Cir. 1990); Albert v. Maine Cent. R.R. Co., 905 F.2d 541, 544 (1st Cir. 1990); Townley v. Norfolk & W. Ry. Co., 887 F.2d 498, 501 (4th Cir. 1989); Kichline v. Consol. Rail Corp., 800 F.2d 356, 359 (3d Cir. 1986); Dubose v. Kansas City S. Ry. Co., 729 F.2d 1026, 1030......
  • Request a trial to view additional results

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