# FILED

Novemb er 19, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTION AT JACKSON

WALTER J. BIDDLE, SR., ) ) Plaintiff/Appellee, ) Shelby Circuit No. 37195 T.D. ) vs. ) ) NORFOLK SOUTHERN RAILWAY ) Appeal No. 02A01-9605-CV-00122 COMPANY, ) ) Defend ant/Appe

llant. )

APPEAL FROM THE CI RCUIT COURT OF SHEL BY COUNTY AT MEMPHIS, TENNESSEE

THE HONORABLE D ’ARMY BAIL EY, JUDGE For the Plaintiff/Appellee : For the Defendant/Appellant : Patrick S. O’Brien Everett B. Gibson C. Marshall Friedman Ralph T. Gibson St. Louis, Missouri Memphis, Tennessee Euge ne A. La uren zi Memphis, Tennessee

AFFI RMED

HOL LY KI RBY LI LL ARD , J.

CONCUR:

W. FRANK CR

AWFORD, P. J., W.S.

DAV ID R. F ARM ER, J.OPINION

This case involves a

claim of negligence under the Federal Employers’ Liability Act. The plaintiff railroad employee suffered foot and a nkle injuries from

walking on oversized ballast over

an extended period of time. The jury found the railroad f ifty percent negligent and the employee fiftypercent negligent. In response to a post-trial motion, the trial court struck the jury’s finding that the emplo yee wasnegligen t. We af firm. Plaintiff/Appellee Walter J. Biddle, Sr. (“Biddle”), was an employee of Defendant/Appellant Norfolk Southern Railway Company (“Norfolk Southern”). From the mid-1980's to 1991 or 1992, Biddle worked about seventy-five percent of the time in the forwarding yard of the D eButts Yard in Chattanoo ga, Tennessee. H is jo b as a carman required him to walk between the tracks and examine the railw ay cars . The ground in the forwarding yard is covered with a mixture of rocks called “ballas t.” Biddle

was required to walk on this ballast while he conducted railroad car inspections. Railroad standards in effec t in 1987 required that the ballast used in walkways and yards consist of rocks three quar ters of an inch i n di ameter. This ballast is known as number five ballast. During the years in which Biddle worked in the forwarding year, however, the ballast in the yard was generally larger in size. Some of the rocks in the DeButts fo rwardin g yard we

re two-a nd-one- half to thr

ee inche s in diameter. Over the years, several workers complained a bout the size of

the ballast in the forwarding yard, but the situation was not remedied. Late in 1987, Bid

dle bega n having p

roblems w ith his fee

t. His podiatrist diagnosed him as having neuroma s, painful enlargements of the nerve sheath ar ound a nerve. His podiatrist performed surgery on his lef

t foot ea rly in 1988 and late

r perfo rmed the sa me procedure on his right f oot. Subsequently, in late 1989, Biddle again sought medical advice for pain in his feet. In addition, he

was suffering from pain in his ankles. For the first time, Biddle’s doctor began to q

uestion Bid

dle about his working conditions, and Biddle described his job and the ballast. Sho rtly thereaf ter, in December

of 1989, Biddle filed an accident report for twisti ng his ankle. In Jan

uary of 1 991, Biddle filed this lawsuit, pursuant to the Federal Employers’ Liability Act (“FELA”), 45 U.S.C.A. §§ 51 through 60

(1986), s eeking da

mages fo r injurie s caused

by walkin g on the ov ersize d ballast. At trial, Biddle testified about his duties as a carman: Q: Take us down and tell us what you do. You have coupled the air hose. What do you do now

when you inspect one of thes e cars?2

A: Once I’ve coupled the air hose and looke d up under both sides, up underne athto check the couplers and the running gears and all that stuff, I come up and I’m right on top of the

knuckles . Check the knuckle s, couple rs, bumpe r casting s, carr

y irons, seal step s, walk

ladders , walk boa

rds, and r etainer valves, anything t

hat pert ains to my job that might be mechanically defective. And then I walk around, start walking down the side o f the ca

r, make a visual insp ecti on of the wheels, the brake shoes, truck springs, and the other

wheel. A

nd the outs ide, the p ortion of the car as I walk along side the car. And do the same thing when I get to the other end. He testified about the difficulty of performing his duties and watching his step at the same time: Q: When you’re walking down the middle of t hat walkw ay trying

to inspec t these cars, are you looking where y ou’re pu tting your feet, or where are you looking when you’re d oing this? A: In t he daytime, you migh t glance down eve

ry once in awhile. But basica lly you’re trying to se

e all this r unning ge ar here , all these wheels and things on the side of these cars here. * * * Q: Mr. Biddle, you said that you feel that condition is an unsafe condition. Why do you feel tha

t that ball ast rock -- or that rock with the majority of being over two inches is an unsafe condition out in the forwarding yard? A: Well, it’s not a very stable footing. Like if you step on this rock here, your foot is going to tilt. And there’s no way you can go along and look a t w here you’re walking and pick

out the place you want to step in every step and do your job. No way. Biddle testifie d that, pr

ior to his foot prob lems, he e njoyed hunting in

the woods, which also required walking on uneven surfaces. Other witnesses testified about the difficul ty of watching one’s footing while inspecting the

cars. Avery Buckne r, a carman , testifie d, “Well , ordinar ily on the in spection s, you’re not real ly looking where you’re walking, you assume that - - your inspections are with the trains, and your footing, if it’s unlevel, you slide.” Another carman, Merlin Wilson, testified, “Usually we’re pretty well loaded with equip ment: radios, lanterns if it’s at night, sometimes a crowbar, or whatever , and we’re inspecting cars if we’re walking, an inbound cut, and you c an’t concentrate on where you’r e walking a nd inspec t at the sa

me time.” A witness for

Norfolk S outhern, Charlie H iggins, a senior gene ral foreman, admitted that a carman could not look at the ground the entire time h e wa s inspecting a car, but added t hat “by th e same token, you c an’t l ook at the car and not watch were [sic] you’re going.” Biddle introduced into evidence at trial parts of the depositions of Dr. Dennis Luke Bizzoco, Biddle’s treating podiatrist, and Dr. Alan Odom, theorthopedic surgeon who treated Biddle for his ankle problems . Both

testified that Biddle’s job duties, involving repeat edly walk ing on the b allast,1 On redirect examination of Dr. Bizzoco during his deposition, Dr. Bizzoc o testified as

follows: Q: Doctor, does the fact that Mr. Biddle hunts as a hobby, does that change your diagnosisas to the c ausation of his foo t and ankl e proble ms? A: No, because I look at what’s done most and I make a decreasing concern. . . . I always go to what you do the most of, because the foot is the terminal structure of weight-bearing. So the question is: what do you bear weight on more than anything else. That’s number one. 3 caused h is i njuries. Dr. Bizz oco ack nowledge d that wal

king over uneven te rrain wh ile hunting

could have been a problem for

Biddle. However, he stated that Biddle ’s primar

y functio ns were

the caus e of his injuries and that the fact that Biddle hunted as a hobby did not change his opinion that Biddle’s injuries we re caus ed by his jo b duties, w alking on t

he balla st. 1 In addition, Dr. Bizzoco testified that he did not suspect that Biddle’s work was the cause of his foot problems until late 1989. Dr. Odom state d that wal king on any uneven terrain, not just ballast, could have put stress on Biddle’s ankle. In charging the jury, the trial court, over Biddle’s objection, instructe d the jury that it could consider whether Biddle was contributorily negligent. The jury found that both Norfolk Southern and Biddle we

re fifty percen t neglige nt. The jur

y determ ined that Biddle had suffer

ed $125,0 00 in damages

. Because

Biddle wa s fifty pe

rcent ne gligent, th

e trial c ourt rule d Norfolk Southe rn was liable for half that amount, $62,500. Subsequently, Biddle

filed a motion to alter the judgment, arguing that there was no evidence from which the jury could find Biddle contributorily negligent. The trial court granted the motion, explaini ng: I think that there is insufficient evidence here on which the jury c ould h ave found contributory negligence. And I refer to the refere nce in the Mumma v. Redding case

. . . where the cour t observe s, accor

ding to th e langua ge cited, that the record was utterly baring [sic] even of a suggestion that the plaintiff

could hav e acted

otherwis e than he did, short of stopping work entirely. And since this whole matter revolves around th is man wal

king down t

his track on this ballast and the claim that well, he should have been watching where he wa s walking, and referring to the testimony of Mr. Biddle, he

said, “Ba sically yo

u’re try in g to se e all the r

unning ge ar, all th

ese wheels and things on the side of these cars here.” . . . I just don’t see how you can penalize an employee

who is atte

mpting to do

his job conscientiously, inspecting a car and he’s walking down the track, and say, “Well, he’s not looking enough,” and then it ge ts to be some highly speculative matter. I mean, obviously the man can’t do his job inspecting a car, which means that he’ s got to move. It’ s not like he’s just4

inspecting the hinges where he can walk fro m one point

to the other, stop and then look. But appar

ently his job involved the process of inspecting going down the line of cars, no t just

at points where he could move and stop. So, obviously, he could not then look always at where he was stepping. The trial court amended the jury verdict to award the full amount of damages, $125,000, to Biddle. Norfolk Southern now appeals the trial court’s amendment of the jury verdict, contending that the court erred in striking the jury’s finding that Biddle was fifty per cent re sponsible

for his injuries. Norfolk Southern asserts that Biddle was contributorily negligent in three respect s: (1) his failure to notify the railroad of his condition, precluding management from reassigning him to another job that would allow him to recover; (2) his hobby, hunting, which requires hi m to walk on uneven ground, aggravating his condition; and (3) his failure to follow company safety rules requiring him to watch w

here he was going

at all time s. Because the plain

tiff’s po st-judgme

nt motion wa s in essence a request for a judgment notwithst a nding the verdict, we review de novo the trial court’s grant of this motion. Smelser v. Norfolk Southern Railway , 105 F.3d 299, 306 (6th Cir. 1997). “A JNOV is proper when th e evidence permits on

ly one reasonable conclusion as to the verdict.” Pierce v. Southern P ac. Trans. Co. , 823 F.2d 1366, 1369 (9th Cir. 1987) (citing Peterson v. Kennedy , 771 F.2d 1244, 1252 (9th Cir. 1985)). This standard requires us to consider whether the def endant has not prove

n an elem ent of its

case. Smelser , 105 F.3d at306. The cour t must exam

ine only the defendant’s evidence and dra w all infere nces in itsfavor, a

nd then de

termine w

hether t he defe ndant h as presented more than a scintilla of evidence to support its claim of contributory negligence. Id. This lawsuit wa s filed un der FELA . Under FE LA, unlike

Tenness ee’s comparative fault doctrine, the finding that a plaintiff is partia lly respo nsible fo

r his injur ies, eve n if over fifty per cent,

me rely mitig ates his damages. 45 U.S.C.A. § 53 (1986) (“[T]he fact that the employee may have been guilty of c ontributo

ry neglig ence sha

ll not bar a recovery, but the damages shall be diminished by th e jury i n proportion to the amount of negligence attributable to such employee. . . .”). Assumption of the ris k is not a de fense under FELA. 45 U.S.C.A. § 54 (1986) (“[S]uch employee shallnot be hel d to have assumed the risks of h is employme

nt in any c ase whe

re such injury or d

eath resultedin whole or in part from the negligenceof any of the officers, agents, or employee s of such carrier . . . .”); see also Birchem v. Burlington Nor thern R.R. , 812 F.2d 1047, 1049 (8th Cir. 1987).5

In its oral r

uling on Bidd

le’s motio n, the tria

l cou rt cited Mumma v. Reading Co. , 247 F. Supp. 252 (E.D. Penn. 1965), a FELA case. In Mumma , the plaintiff railroad employee was injured in two accidents, only one of which is pertinent here. The first occurred while the plaintiff, Mumma,

wa s inspecti ng engines being refueled by another employee. Id. at 254. The fuel had overflowed onto the icy walkway that Mumma used when conducting his inspections. Mumma slipped on the walkway and was i njured. T he jury f ound that M

umma was gui lty of con

tributory fault, a nd his damages were pr

oportiona tely red uced. Mumma filed

a post-tr ial motion t

o modify the judgmen

t. The trial court stated that there was not even a sugg estion in the r ecord that Mumma “could have acted otherwise than he did, short of stopping work entirely.” Id. at 254. The trial court found that, at most, Mumma could have been guilty of assumption of the risk, a defen se that is u navaila ble in FELA actions. Id. at 254-55. Accordingly, the court str uck the ju ry’s ass essment o f fault a gainst Mumma and entered judgment in Mumma’s favor for th e full amount of damages. Id. at 260-61. In another

FELA case, Wilson v. Burlington Northern, Inc. , 670 F.2d 780 (8th Cir. 1982), the plaintiff

was injured w

hile assis ting other

employee s in railr

oad car maintena nce dutie s. At tria

l, the jury was g iven an in struction on contri butory fa ult by the p laintif

f, and the jury s ubseque

ntly returned a verdict in favor of the employer. Id. at 782. The plaintiff appealed, claiming that there

was no evidence that he contributed to his injuries. The defendant ar gued that the plaintiff’s actions in assisting other employees were t he empl oyee’s c

hoice, a nd that, th

erefor e, it was n ot error

to instruct the jury regarding contributory negligence. Id. at 783. The Eighth Circuit reversed, finding that the contributory negligence instructionwas error. The Court stated: “Under the cir cumstances present here, Wilson’s decision to help . . . w as not a matter of free choice nor wa s it in any way unreasonable. He was simply doing his job and assisting other employees in need of help - as the railroad fully expected him to do.” Id. In this case , Norfolk

Southern a sserts tha

t Biddle wa s contrib utorily negligent by not watching w here he stepped at all times. However, like the trial cour t, we do not see how Biddl e could have ac ted other

wise, “short of stopping w ork entirely.” Mumma , 247 F.Supp. at 254. Biddle’s work

required him to walk alongside the railroad cars, on the ballast, visually inspecting the cars. If his eyes had stayed fixed on the ba llast, he could not have performed his duties.6

Likewise, he could n ot stand in one plac e and insp ect the c ars. The evid e nce on thi s issue is insufficient to support a finding of contributory negligence. Norfolk Southern a

lso asser ts that Bidd

le was co ntributor

ily neglige

nt b ecause hi s hobby, hunting, required him to walk on uneven ground, aggravating his injuries. In orde r to suppor

t a finding that Biddle

was cont ributoril y neglige nt, Norfo lk Souther

n mu st s how not only Biddle’s negligence, but also that this negligence proximate ly cause d his injuri es. See Wilson , 670 F.2d 780, 784 (8th Cir. 1982) (“ [S]ince there wa s no evide

nce that Wilson’s o wn neglig ence co ntributed to .

. . his injuries, the district court erred by permitting the jury to consider the iss ue.”) When asked whether Biddle’s hunting could have caused his problems, Dr. Bizzoco, Biddle’s treating podiatris t, stated that the fact that Biddle hunted as a hobby did not change his diagnosis as to causation. Dr. Odom, who performed the surgery on Biddle’s ankle, testified only that any kind of uneven surface could have co ntributed

to Bid dle’s ank le pain. T his evide nce is ins ufficie

nt to suppor

t Norfolk Southern’s allegat ion that Biddle’s hunting worsened his condition. Therefore, the evidence of Biddle’s hobby is insufficient to support a finding of contributory negligence. Norfolk Southern a

lso allege s that Biddl e was contributorily negligent because he continued to work in the same job for over sixteen months even after

he was diagnosed with neuromas, without telling Norfolk Southern that the size of the ballas t was aggravating his condition. Dr. Bizzoco, stated that after he performed the initial surgery on Biddle’s feet, the patient recuperated norma lly. Sixteen months late

r, in November, 1989, Biddle re turned to Dr. Bizz oco, comp laining of pain in his ankle and foot. Dr. Bizzoco testified that only then did they begin “to talk about the type o f surface that he walked on and whatnot.” This was the first time that the doctor informed Biddle that he felt that Biddle’s work activities were causally related to his problems. The doctor stated: “ [W]e went over all of the facts, that it’s an uneven surfac e. You know, I nev er thought of that. [The ballast] is an uneven surface and it’s irregular a nd it does n ot support weight.”At trial, B iddle testified, “I never did think anything about this neuroma being work related or have [sic] anything to do with any sort of

uneven surfaces or

whateve r. I didn’ t even kno w what a n euroma w as.” It is apparent from this testimony that neither Biddle nor his doctor knew that walking on ballast was the

cause of Biddle’s problems until he returned to Dr. Bizzoco with new complaints after his recovery from the first surgery was complete. Therefore , Biddle’s f ailure d uring this t

ime perio d to report to Norfolk Southern that the cause of his foot and ankle problems was work -related ca nnot be7

considered contributory negligence. The decision

of the tri al court

is affir med. Costs a

re asse ssed aga

inst the Appellant, for which execution may issue, if necessary.

HOLLY KIRBY LILLARD, J. CONCUR:

W. FRAN K CRAWF ORD, P.J., W.S.

DAVID R. FARMER, J.