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04/07/95 CSX TRANSPORTATION v. FORREST M. MAYNARD

April 7, 1995

CSX TRANSPORTATION, INC.
v.
FORREST M. MAYNARD



Appeal from Jefferson Circuit Court. (CV-91-8027). William J. Wynn, TRIAL JUDGE.

As Corrected April 28, 1995. Application for Rehearing Overruled August 4, 1995, . Released for Publication January 23, 1996.

Maddox, Shores, Kennedy, Cook, and Butts, JJ., concur.

The opinion of the court was delivered by: Maddox

MADDOX, JUSTICE.

This is a Federal Employers Liability Act ("FELA") case. The plaintiff Forrest Maynard sued CSX Transportation, Inc., alleging that he had suffered a hearing loss by being exposed at his workplace to machines that emitted noises that exceeded OSHA noise standards. The case was tried before a jury, which returned a verdict in favor of Maynard for $325,000 in compensatory damages. The trial court denied CSX's motion for a new trial or a remittitur and entered a judgment on the verdict. CSX appeals. We affirm.

Maynard has been employed as a welder with CSX since October 18, 1981. He claims that CSX did not provide hearing protection or require hearing testing for its employees until 1990. On September 24, 1990, Maynard was tested by a CSX hearing consultant in a van at a CSX work site. Shortly thereafter, on October 3, 1990, Maynard received a letter from CSX informing him that the test revealed that he might have difficulty hearing and recommending an annual hearing examination; CSX did not mention in the letter any possible causes of Maynard's hearing impairment. On December 30, 1990, CSX employees were given a company questionnaire concerning possible hearing loss. The employees' answers to the questionnaire had to be sworn to and notarized. Maynard and his wife completed the questionnaire and returned it as instructed. On March 3, 1991, CSX gave Maynard another hearing test. After this test, he received a letter informing him that he had a problem hearing and understanding even loud conversations. Once again, the possible causes of the hearing problem were not mentioned. In the letter, CSX again recommended an annual hearing exam. Thereafter, Maynard received from CSX a letter concerning his hearing loss, dated April 19, 1991; that letter included an offer to pay Maynard for his hearing loss. After receiving this letter, Maynard contacted an attorney. He later filed this FELA action, in October 1991.

I.

We first address the scope of our review. The United States Supreme Court defined the scope of judicial review of jury verdicts in FELA cases in Lavender v. Kurn, 327 U.S. 645, 653, 90 L. Ed. 916, 66 S. Ct. 740 (1946):

"Only when there is a complete absence of probative facts to support the Conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury's verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its Conclusion. And the appellate court's function is exhausted when the evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another Conclusion is more reasonable."

See also Lindsey v. Louisville & N.R.R., 775 F.2d 1322, 1325 (5th Cir. 1985), CSX Transportation, Inc. v. Bryant, 589 So. 2d 706 (Ala. 1991).

II.

CSX argues that Maynard did not present sufficient evidence, specifically medical testimony, that CSX had negligently caused him to suffer hearing loss. This Court set forth the standard for establishing liability in FELA cases in Carlew v. Burlington N.R.R., 514 So. 2d 899 (Ala. 1987):

"In order to establish liability under the FELA, the employee must submit sufficient evidence from which the jury could reasonably infer that the employer was negligent. Additionally, there must be sufficient evidence from which the jury could reasonably infer that the employer's negligence was the cause of the claimed injury or death. ...


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