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02/24/95 CSX TRANSPORTATION v. GEORGE E. DANSBY

February 24, 1995

CSX TRANSPORTATION, INC.
v.
GEORGE E. DANSBY



Appeal from Lowndes Circuit Court. (CV-91-11). H. Edward McFerrin, Trial Judge.

Almon, Shores, Houston, and Ingram, JJ., concur. Maddox, J., concurs specially in part and concurs in the result in part.

On Application for Rehearing

PER CURIAM.

This Court's order of affirmance entered on August 19, 1994, without opinion, is withdrawn, and the following is substituted therefor.

George E. Dansby, a retired employee of CSX Transportation, Inc. ("CSX"), sued CSX for damages under the Federal Employer's Liability Act ("FELA"), alleging negligence. *fn1 Dansby alleged that he had sustained a hearing loss due to exposure to air horns and locomotive noise during his employment as a locomotive engineer with CSX. The jury returned a verdict in favor of Dansby for $105,000 in compensatory damages. The trial court denied CSX's motion for a judgment notwithstanding the verdict or for a new trial and entered a judgment on the verdict. CSX appeals.

A jury's verdict is presumed correct and will not be disturbed unless it is plainly erroneous or manifestly unjust. Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160, 162 (Ala. 1988). A judgment based upon a jury verdict and sustained by the denial of a motion for a new trial will not be reversed unless it is plainly and palpably wrong. Ashbee v. Brock, 510 So. 2d 214 (Ala. 1987). Because the jury returned a verdict for Dansby, any disputed questions of fact must be resolved in his favor, and we must presume that the jury drew from the facts any reasonable inferences necessary to support its verdict. State Farm Auto. Ins. Co. v. Morris, 612 So. 2d 440, 443 (Ala. 1993). In short, in reviewing a judgment based upon a jury verdict, this Court must review the record in a light most favorable to the appellee. Continental Cas. Ins. Co. v. McDonald, 567 So. 2d 1208, 1211 (Ala. 1990).

Congress enacted the FELA in 1906 to establish "a tort remedy for railroad workers injured on the job." Lancaster v. Norfolk & Western Ry., 773 F.2d 807, 812 (7th Cir. 1985), cert. denied, 480 U.S. 945, 107 S. Ct. 1602, 94 L. Ed. 2d 788 (1987). It was enacted in response to the special needs of railroad workers, Sinkler v. Missouri Pacific R.R., 356 U.S. 326, 329, 78 S. Ct. 758, 761-62, 2 L. Ed. 2d 799 (1958), and it is construed liberally for their protection. To prevail on an FELA negligence claim, the plaintiff must prove the traditional common law elements of negligence: duty, breach of that duty, foreseeability, and causation. Adams v. CSX Transportation, Inc., 899 F.2d 536 (6th Cir. 1990). Pursuant to the FELA, a railroad company has the duty to provide its employees with a reasonably safe work environment; it must use reasonable care in fulfilling this duty. Shenker v. Baltimore & Ohio R.R., 374 U.S. 1, 7, 83 S. Ct. 1667, 10 L. Ed. 2d 709 (1963); Carlew v. Burlington Northern R.R., 514 So. 2d 899, 901 (Ala. 1987). When a railroad company learns of unsafe conditions, it must take reasonable steps to protect its employees; otherwise, it will be held liable for injuries resulting from the unsafe conditions. Gallose v. Long Island R.R., 878 F.2d 80 (2d Cir. 1989).

Viewed in a light most favorable to Dansby, Continental Cas. Ins., supra, the record suggests the following facts:

Dansby began working with Louisville & Nashville Railroad ("L & N"), which later merged into CSX, in 1944. He worked as a railroad fireman and later as an engineer. Dansby usually operated trains on runs between Montgomery and Mobile and would sometimes conduct runs from Montgomery to Pensacola, Florida.

In the 1950s, the Federal Government began to require that trains be equipped with air horns intended to prevent railroad crossing accidents. Federal regulations require that the air horns be capable of producing 96 decibels at 100 feet. The horns were mounted near the cabs of the trains. L & N regulations required that Dansby sound the horn at intervals of 20 to 25 seconds at each railroad crossing. Dansby's usual route included 109 railroad crossings at which he was required to sound the horn. CSX provided no warnings or safety devices concerning ear protection until 1987, almost a year after Dansby's retirement in December 1986.

In early 1989, Dansby's wife became severely ill, and for approximately three months Dansby assisted her while she was bedridden. During this time, Dansby stated, he noticed that he had sustained a hearing loss. Dansby said:

"I had to wait on her hand and foot for a number of months ... [and] she was unable to do anything. That's when I realized that I wasn't hearing things like 'Honey, come here.' I wasn't hearing things and I had to walk in and ask her what she said."

He further testified as to how his hearing loss had affected him:

"Maybe [my wife and I] go out to eat once in a while any background noise [sic] and I see somebody I knew I would say we know that guy. 'Who is that?' I say, 'What did you say?' And about half the time she would say, 'Forget it. Ain't worth it.' You know that don't -that's bad. I mean it leaves both of us feeling not the way we should feel toward each other.

"....

"... The only way I can go turkey hunting is [to] get one of [my grandchildren] to go with me and tell me which way he gobbled from. ... I don't drive into town anymore. I do go to get a haircut and drive my pick-up there. I have got big mirrors where I can see out of the back. ... You can't hear a car beside you.... You see them morning birds over there, you know, it's singing and you can't hear the blooming things. I guess what I'm trying to say is when you can't hear I'm not a whole man anymore and I resent that."

In June 1989 Dansby attended a railroad workers' convention, where he learned that other workers had suffered hearing loss while employed by CSX. Dansby filed this action against CSX on January 31, 1991.

Part of Dansby's evidence was testimony from Curtis Smith, Ph.D., an audiologist. After comparing Federal workplace noise guidelines and relating them to his evaluation of Dansby's working conditions, Dr. Smith testified that Dansby had been overexposed to noise on every shift he had worked for approximately 37 years. Dr. Smith also concluded that Dansby's exposure to the noise of train air horns was sufficient to cause his hearing loss. Dansby also attempted to show that CSX knew of the hearing damage its workers were sustaining from locomotive noise; he produced a 1981 letter from a CSX vice president wherein it was stated:

"Mr. Mark Badders, Industrial Hygienist, recently rode over the SCL and L & N properties and reported the noise levels extremely high on all locomotives. You will recall Dr. Mead has recommended ear protection be provided to our engine service ...


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