Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell, 

Koontz, JJ., and Whiting, Senior Justice 

NORFOLK AND WESTERN RAILWAY COMPANY 

 OPINION BY 

v. Record No. 950210 SENIOR JUSTICE HENRY H. WHITING 

 November 3, 1995 

ROBERT E. PURYEAR 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Clifford R. Weckstein, Judge 

 In this appeal, we are asked to decide whether a litigant's 

written summary of those parts of the testimony favorable to his 

case is admissible into evidence as an exhibit. We are also 

asked to determine whether the trial court improperly ruled that 

a proper foundation was laid for the admission of certain tests 

relied upon by an expert witness. 

 Robert E. Puryear worked for the Norfolk and Western Railway 

Company (N & W) for 32 years, first as a fireman and an engineer, 

and then, starting in 1975, as a foreman. While he was a fireman 

and an engineer, Puryear rode on N & W's locomotives every 

working day, and while a foreman, he rode on N & W's locomotives 

three days a week. Less than a year before his retirement from N 

& W in September 1987, Puryear was advised that he suffered from 

hearing loss. 

 Two years after retiring, Puryear filed this damage action 

against N & W under the Federal Employers' Liability Act (FELA), 

45 U.S.C. §§ 51 et seq. In this action, Puryear alleged that N & 

W violated a duty of care imposed upon it by FELA in exposing him 

to excessive noise from its locomotives, equipment, and horns, 

thereby causing his hearing loss. During a jury trial, the trial 

court admitted certain exhibits and expert testimony over N & W's 
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objection. The jury returned a verdict of $150,000 in favor of 

Puryear upon which final judgment was entered. N & W appeals, 

assigning, among other things, the admission of this evidence as 

error. 

 Puryear testified that, between 1961 and 1975, he spent 50% 

of his working time riding on General Motors EMD GP-9 

locomotives; another 10% of his working time during this period 

was spent on locomotives he described as "Alcos." From 1972 to 

1975, Puryear also made approximately 60 trips on General Motors 

EMD-F-7 locomotives. While a foreman, Puryear also rode on 

General Electric Company C-36-7 locomotives at least one day out 

of the three days each week that he rode on N & W locomotives. 

Puryear testified about the loud noise created by the engines and 

equipment on the GP-9, F-7 and Alco locomotives and the horns of 

the C-36-7 locomotives. 

 Dr. Angelo Campanella, one of Puryear's expert witnesses on 

the measurement of sound, testified about the noise levels on N & 

W's F-7, GP-9, and C-36-7 locomotives. According to Dr. 

Campanella, tests which he and other experts had performed 

indicated that the horn on the C-36-7 locomotive and the engines 

and equipment of the F-7 and GP-9 locomotives produced noise in 

excess of sound levels fixed by Federal Railroad Administration 

(FRA) regulations at the time FELA employees were exposed to such 

noise.*

 *The court ruled that the FRA noise standards fixed N & W's 
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(..continued) 

 Except for Puryear's testimony that the Alco locomotives 

made more noise than the F-7 locomotives, there was no evidence 

that any of the other types of locomotives and equipment on which 

Puryear rode during the balance of his employment exceeded FRA 

noise standards. In fact, Campanella testified that an SD-40 

locomotive of the same model on which Puryear rode 40% of the 

time from 1961 to 1975 had been tested and found not to exceed 

those standards. 

 Puryear and his experts on the cause and effect of hearing 

loss testified that his hearing loss developed during his 

employment with N & W. However, N & W's expert in the same 

field, who examined Puryear after this controversy arose and had 

also reviewed hearing tests performed upon Puryear in 1987, 1989, 

and 1994, opined that Puryear's significant hearing loss occurred 

after he retired, due to an aging phenomenon known as 

presbycusis. Thus, the evidence conflicted on the issues of the 

amount of Puryear's exposure to the allegedly excessive noise of 

some of N & W's locomotives and equipment and whether that 

exposure caused his hearing loss. 

 Against this background, we consider whether the trial court 

erred in admitting into evidence two exhibits relevant to these 

conflicts. The first exhibit was Puryear's written summary of 

duty of care and no error has been assigned to that ruling. 

Therefore, it became the law of the case. 
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his testimony on the amount of time he spent on locomotives that 

he and Dr. Campanella regarded as excessively noisy. The second 

exhibit was a chart prepared by Dr. Campanella, based on the 

information in Puryear's summary. This chart summarized Dr. 

Campanella's testimony on his calculations of Puryear's periods 

of exposure to the excessive noise of these locomotives. 

 N & W contends that these exhibits should not have been 

admitted into evidence because they summarized only those parts 

of Puryear's oral testimony favorable to his contentions and 

because, during its deliberations, the jury might have placed 

more weight on these written summaries than on their collective 

recollection of the actual testimony. Puryear responds by 

claiming that "[t]his Court has routinely approved the admission 

of summary exhibits into evidence." 

 None of the cases relied upon by Puryear deals with the 

issue of the admissibility of summaries or charts of favorable 

parts of oral testimony upon a contested issue. In Peterson v. 

Neme, 222 Va. 477, 281 S.E.2d 869 (1981), we specifically stated 

that "the only question presented by this assignment of error is 

whether the plaintiff's lay opinion [of her injuries and 

disabilities] and the supporting exhibit [summarizing part of the 

plaintiff's oral testimony] were admissible to prove causal 

connection between her injuries and her capacity to work." Id.

at 483, 281 S.E.2d at 872. Thus, we were not deciding whether 

the plaintiff's summary of her testimony was admissible as an 
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exhibit. In Marefield Meadows, Inc. v. Lorenz, 245 Va. 255, 264, 

427 S.E.2d 363, 368 (1993), and Avocet Development Corp. v. 

McLean Bank, 234 Va. 658, 667, 364 S.E.2d 757, 762 (1988), we 

approved the introduction of exhibits that summarized voluminous 

documentary evidence that was not in dispute. 

 And, contrary to Puryear's reading of Scott v. Greater 

Richmond Transit Co., 241 Va. 300, 305, 402 S.E.2d 214, 218 

(1991), and Horne v. Milgrim, 226 Va. 133, 138, 306 S.E.2d 893, 

895 (1983), we indicated in those cases that written exhibits 

repeating oral testimony given at trial, either by a witness or 

by the reading of depositions, should not be introduced into 

evidence as exhibits because of the danger that the summarized 

oral testimony may receive more emphasis than other oral 

testimony. Indeed, we further indicated in Scott that the reason 

a written version of the oral testimony in that case should not 

be made an exhibit was because a jury can take exhibits into the 

jury room pursuant to Code § 8.01-381. 241 Va. at 305, 402 

S.E.2d at 218. 

 Puryear claims that these exhibits were not argumentive, but 

were merely illustrative aids. However, his counsel's argument 

belies this claim. His counsel argued that Puryear had no duty 

to make N & W's case for it and agreed that if Puryear could 

introduce these written summaries into evidence as exhibits, N & 

W could likewise introduce an exhibit emphasizing the periods of 

time that Puryear rode on locomotives which did not exceed the 
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FRA noise standards. Thus, if we adopted Puryear's contention, 

jury trials could become a battle of charts and summaries of oral 

testimony, shifting the jury's attention away from traditional 

considerations of each witness's credibility and the jury's 

obligation to decide the case based upon its collective 

recollection of all the evidence. 

 Although these summaries of Puryear's oral testimony might 

have been used as aids in the presentation of his case, we 

conclude that they were clearly inadmissible into evidence as 

exhibits. This is because, when admitted into evidence and taken 

into the jury room, the summaries of this testimony could have 

been reviewed during the jury deliberations and thus would have 

impermissibly emphasized Puryear's version of the facts to the 

prejudice of N & W. 

 And, contrary to Puryear's contention, the admissibility of 

such summaries is not subject to the discretion of the trial 

court. A "trial court has no discretion to admit clearly 

inadmissible evidence because 'admissibility of evidence depends 

not upon the discretion of the court but upon sound legal 

principles.'" Coe v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 

820, 823 (1986)(quoting Crowson v. Swan, 164 Va. 82, 92, 178 S.E. 

898, 903 (1935)). Thus, we hold that the trial court erred in 

admitting the written summaries into evidence. 

 Because of the error in admitting the written summaries of 

testimony, we will reverse the trial court's judgment and remand 
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the case for a new trial. Since the evidence may not be the same 

at the new trial, we will not decide whether a proper foundation 

was laid for the admission of some of the tests relied upon by 

Dr. Campanella in forming his opinion of the excessive noise 

levels to which Puryear was exposed. 

Reversed and remanded. 

JUSTICE KOONTZ, dissenting. 

 I concur with the majority's decision that the written 

summaries of those parts of the testimony favorable to Puryear's 

case were erroneously admitted into evidence as exhibits. 

Specifically, I agree that the adoption of the practice of 

admitting summaries of oral testimony would result in a battle of 

charts and summaries of oral testimony, shifting the jury's 

attention away from traditional considerations of each witness's 

credibility and the jury's obligation to decide a case based upon 

its collective recollection of all the evidence. In my view, 

however, the error in this case was harmless. See Code 

§ 8.01-678. 

 N & W contends that "the admission of [Puryear's] exhibits, 

and their use in the jury room, prejudiced [N & W] and unfairly 

elevated the credibility and persuasiveness of oral testimony 

offered by [Puryear's] witnesses." The sole question of fact 

relevant to this evidence was whether Puryear's hearing loss and 

tinnitus were attributable to his exposure to excessive noise on 

his job at N & W. While the exhibits erroneously admitted may 
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have emphasized the evidence showing this to be the case, the 

record as a whole nonetheless supports the jury's verdict 

attributing Puryear's hearing loss and tinnitus to conditions of 

his employment. Accordingly, I do not see that N & W was 

prejudiced by the erroneous admission of the exhibits and would 

hold that error to be harmless, substantial justice for the 

parties having been achieved. 

 Furthermore, because I find no error in the second issue 

raised by N & W, I would affirm the jury's verdict and award. 

Accordingly, I respectfully dissent.