Yost v. Union R. Co.

• Decision Date: 30 November 1988
• Citation: 380 Pa.Super. 236,551 A.2d 317
• Parties: Brian YOST v. UNION RAILROAD COMPANY, Appellant. Brian YOST v. CONSOLIDATION COAL COMPANY and Twin Rivers Towing Company v. UNION RAILROAD COMPANY, Appellant. Brian YOST, Appellant, v. UNION RAILROAD COMPANY. Brian YOST, Appellant, v. CONSOLIDATION COAL COMPANY and Twin Rivers Towing Company v. UNION RAILROAD COMPANY.
• Court: Pennsylvania Superior Court

Page 317

551 A.2d 317

380 Pa.Super. 236

Brian YOST v. UNION RAILROAD COMPANY, Appellant.

Brian YOST v. CONSOLIDATION COAL COMPANY and Twin Rivers Towing Company v. UNION RAILROAD COMPANY, Appellant.

Brian YOST, Appellant, v. UNION RAILROAD COMPANY.

Brian YOST, Appellant, v. CONSOLIDATION COAL COMPANY and Twin Rivers Towing Company v. UNION RAILROAD COMPANY.

Superior Court of Pennsylvania.

Argued Aug. 30, 1988.

Filed Nov. 30, 1988.

Gerald C. Paris, Pittsburgh, for appellant (at 01367PGH87) and appellee (at 00184PGH88).

Arthur Cutruzzula, Pittsburgh, for appellant (at 00184PGH88) and appellee (at 01367PGH87).

Before CIRILLO, President Judge, and ROWLEY and TAMILIA, JJ.

TAMILIA, Judge:

These are consolidated appeals filed by two of three parties in this personal injury action. The first appeal at No. 01367 is by defendant Union Railroad Company (hereinafter "Union Railroad") from a judgment entered, after a molded verdict and adjustment for payments made by Union Railroad, in the amount of $120,196.62 in favor of the plaintiff Brian Yost (hereinafter Yost). The second appeal at No. 00184 is by Yost from an Order vacating a portion of the judgment in the amount of $20,483.85, which had been previously awarded for delay damages under Pa.R.C.P. 238.

On the night of November 30, 1983, during the course of his employment as a bargeman for Union Railroad, Yost injured his ankle when he slipped and fell on a piece of coal while traversing a narrow gunwale of a barge. As a result of this incident, Yost brought an action under the Jones Act, 46 U.S.C.App. § 688, against Consolidation Coal Company (hereinafter "Consolidation"), the owner of the barge, and Twin Rivers Towing Company (hereinafter "Twin Rivers"), a subsidiary of Consolidation and the charterer of the barge upon which he was injured. The cases were consolidated for trial, which resulted in the jury finding Union Railroad 100 per cent negligent with no negligence attributable to Yost, Consolidation or Twin Rivers. The trial court molded the verdict by awarding Yost $20,483.85 for Rule 238 delay damages and awarding Union Railroad $1,904.88 as an offset for payments it had made under the Longshoreman and Harbor Workers' Compensation Act (hereinafter "LHWCA"), 33 U.S.C. § 901 et seq.; the trial court adjusted Union Railroad's requested offset downward by 40 per cent for attorney's fees incurred because of the LHWCA claim. The trial court denied Union Railroad's post-trial motions and judgment for Yost was entered on September 16, 1987 for $120,196.62 from which Union Railroad timely appealed. By a subsequent Order, dated January 5, 1988, accompanying its Opinion disposing of Union Railroad's post-trial motions, the trial court struck its earlier award of delay damages in the amount of $20,483.85. Yost appealed this Order in a timely manner.

The first issue presented by Union Railroad concerns the jury's failure to apportion any degree of negligence to Yost, arguing the verdict is contrary to the weight of the evidence and seeking a new trial on this ground.

It is the jury's responsibility as the finder of fact to determine the facts and we will not overturn their findings absent a showing that the verdict is capricious, against the weight of the evidence and resulted in a miscarriage of justice. Gajkowski v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 515 Pa. 516, 530 A.2d 853 (1987). In determining whether a verdict is against the weight of the evidence, we must consider all of the evidence, and only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice should a new trial be granted. Burch v. Sears, Roebuck and Company, 320 Pa.Super. 444, 467 A.2d 615 (1983); Weaver v. Firestone Tire and Rubber Company, 267 Pa.Super. 548, 407 A.2d 45 (1979). A refusal to grant a new trial on weight of the evidence grounds will not be reversed absent an abuse of discretion. Burch, supra; Yandrick v. Radic, 291 Pa.Super. 75, 435 A.2d 226 (1981).

At the time of the accident, Yost was employed as a bargeman at Union Railroad's Duquesne Coal Dock, a transfer facility for raw materials. At that facility, barges loaded with coal and other raw materials arrive for unloading to railroad cars for further transportation of the materials to customers. Upon arrival, the loaded barges are placed in the loaded fleet to await transfer by a small tugboat for a large machine known as a continuous unloader, which uses revolving buckets to scoop the materials out of the barge. Once the unloading process is finished the barge is returned via the tugboat to an empty fleet to await pickup by the owner of the barge.

As a bargeman, Yost worked with the captain or pilot of the tugboat and one other bargeman to tie loaded barges to the tug, move them into place and tie them for access to the continuous unloader, and after unloading retie the empty barges to the tug in order to move them to the empty fleet. The bargeman has to board the barges several times during the course of this process to perform his job. The barge in question was a standard 175 feet long with 25 by 10 foot deck areas at either end and a gunwale, measuring 26 1/2 inches wide, running the entire length of the barge on both sides. Spaced along the gunwales at the quarter marks and on the end of the decks are steel timberheads, which are approximately 12 inches in diameter and 16 inches high. The timberheads are directly in the center of the gunwales and are used to tie off the steel cables and ropes which hold the barge in place. Bargemen, such as Yost, use the gunwales as a working surface and walk along them during the course of their jobs. The gunwales have no toeboards or railings and when a barge is empty it rides approximately ten feet out of the water.

At approximately 8:30 p.m. on the cold evening of November 30, 1983, after completing the task of unhooking the now empty barge, Yost fell while returning along one of the gunwales to the tugboat, which was perpendicular to the barge and "faced up" against it. As he was walking back along the gunwale, Yost placed his left foot over the first quarter timberhead, unfortunately coming down on hidden coal debris lying next to the timberhead, causing Yost to slip and fall, and injuring his ankle. The lighting in the area where the fall occurred was such that it cast shadows on the work area. Although Yost testified he did not look at the exact place on which he placed his foot when the fall occurred, he also testified he felt it would not have been safe for him to watch every step he made, but that he was certainly being more careful than if he were just walking down the street. Additionally, testimony indicated no one was hired or had the duty to clean the gunwales or keep them clear of debris, even though spillage was known to occur.

We will not find contributory negligence as a matter of law unless it is clear there is no room for fair and reasonable disagreement as to its existence. Eder v. Lansberry, 459 Pa. 621, 331 A.2d 165 (1975); Skalos v. Higgins, 303 Pa.Super. 107, 449 A.2d 601 (1982); Marinelli v. Montour Railroad Company, 278 Pa.Super. 403, 420 A.2d 603 (1980). We find the jury's verdict that Yost was not contributorily negligent does not shock our sense of justice under the evidence presented and find no abuse of discretion in the trial court's refusing to grant a new trial. It is within the jury's province to determine the reasonableness of each party's actions and to reconcile conflicting statements. Seewagen v. Vanderkluet, 338 Pa.Super. 534, 488 A.2d 21 (1985). We will not disturb the jury's finding on this issue.

Next, Union Railroad claims the trial court erred in admitting certain evidence it terms irrelevant and compounded this error by excluding other evidence offered to rebut it. The fundamental consideration in determining the admissibility of evidence is whether the proffered evidence is relevant to the fact sought to be proved. Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022 (1983). Evidence is relevant if it tends to make a fact at issue more or less probable. Lewis v. Coffing Hoist Division, Duff-Norton Company, Inc., 515 Pa. 334, 528 A.2d 590 (1987); Martin, supra; Carroll v. Kimmel, 362 Pa.Super. 432, 524 A.2d 954 (1987). Absent an abuse of discretion rulings on the admission of evidence will not be reversed. Majdic v. Cincinnati Machine Company, 370 Pa.Super. 611, 537 A.2d 334 (1988); Burch v. Sears, Roebuck and Company, 320 Pa.Super. 444, 467 A.2d 615 (1983).

First, Union Railroad claims testimony by Warren Orr, an employee of Consolidation and former employee of Twin Rivers, concerning the conditions at the Duquesne Coal Dock and how coal was spilled on the gunwales at times other than the night of the accident, was irrelevant. Additionally, Union Railroad claims Orr's testimony concerning how coal is unloaded at places other than the Duquesne Coal Dock was equally irrelevant and inadmissible. We disagree. Orr's testimony established he was a river boat captain familiar with Union Railroad's Duquesne Coal Dock facility. The testimony went to the issue of whether Union Railroad was negligent in failing to maintain the gunwales in a safe condition and whether its methods of operation caused spillage on the gunwales. His testimony regarding other facilities also had bearing on this issue by showing that other facilities avoided the spillage problem by using a different scooping technique. The witness was not testifying about disconnected acts of negligence but, instead, to his observations of Union Railroad's unloading methods. Such testimony is probative of Union Railroad's culpability in its unloading procedures on the night in question.

Second, Union Railroad claims the court erred in refusing admission of what it terms "rebuttal" evidence, in the form of its alleged good safety record at the Duquesne Coal Dock. In connection with this ruling,...