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Foote v. Erie Lackawanna Railway Co.

Decided: June 7, 1976.

GEORGE A. FOOTE, PLAINTIFF-RESPONDENT,
v.
ERIE LACKAWANNA RAILWAY COMPANY, DEFENDANT-APPELLANT



Halpern, Crane and Michels. The opinion of the court was delivered by Michels, J.A.D.

Michels

[142 NJSuper Page 197] Plaintiff, a yardmaster employed by defendant, instituted this action under the Federal Employers' Liability Act (F.E.L.A.), 45 U.S.C.A. ยง 51 et seq. , to recover damages for personal injuries sustained during the course of his employment at the "Hoboken Float Bridge" in Jersey City, New Jersey. Following a lengthy trial a jury answered special interrogatories finding defendant negligent, and assessed plaintiff's damage at $179,000. The jury also found 25% of this damage attributable to plaintiff's contributory negligence and after making the necessary computation awarded plaintiff damages in the sum of $134,250. Defendant's

motions for a judgment notwithstanding the verdict or alternatively for a new trial on the ground of plaintiff's alleged improper summation were denied by the trial court. This appeal followed.

The facts are not in substantial dispute. On March 24, 1971 plaintiff was employed at defendant's Jersey City facility directing the movement of railroad freight cars from the railroad yard onto a car float destined for shipment across the Hudson River to New York. A car float is a long, narrow barge-type vessel with two sets of parallel tracks laid on its deck. One set of tracks runs down the starboard side and the other down the port side of the float. The float must be loaded in such a manner as to maintain a proper balance of the float. As the float is loaded on one side, it tends to list towards that side. The float could roll over under such conditions and, in fact, on occasion a float has rolled over, dumping its cargo into the river. The procedure to follow in loading the float, therefore, is to place only one-half of the number of cars that a float is to transport on the float initially. This is done by placing half of those cars on one side of the float and then an equal number on the opposite site of the float. This maintains the balance of the float. The remaining cars to be transported are then placed on the float in a similar fashion.

The float is connected to the yard at the Jersey City facility by a structure known as a float bridge. This structure contains two sets of tracks which can be aligned with the tracks on the float on the one end and with the tracks in the yard on the other end. The float bridge is built on pontoons so that it can rise and fall with the tide, just as the car float does.

On the morning of the accident plaintiff had ordered the conductor and brakeman operating a switching engine to load a car float. Three or four railroad cars had been placed on the tracks on one side of the float. The engine with the balance of the railroad cars had been backed off the float

bridge. As the train was moving in a westerly direction in order to clear the cross-over switches which permit the movement of the trains from the tracks in the yard to the tracks on float bridges, one of the railroad cars derailed. The derailment occurred at a point which blocked both sets of tracks on the float bridge to which the float being loaded was attached. Thus, no other railroad cars could be placed on the opposite side of the float to balance the three or four cars already on the float, and there was no way to remove the cars that were already on the float. As a result the car float was listing, and plaintiff thought that the float would turn over. The derailed car had to be rerailed as quickly as possible so that the float could be balanced to eliminate the risk of the float rolling over.

Plaintiff determined that "quite a bit of blocking" would be needed to rerail the derailed car and immediately called the Croxton Yard for defendant's wrecking truck and crew. The wrecking truck and crew work out of the Croxton Yard and are the only wrecking truck and crew maintained by defendant for the entire New York Division which extends from Jersey City to Mahwah, New Jersey, and includes the 28th Street Yard in New York. Plaintiff was advised that the wrecking crew was at Dock 8, about 2 1/2 blocks away. He then ordered an inspector to go to Dock 8 to get the wrecking truck and crew. However, the wrecking truck and crew had already left the area and were not available to help. Plaintiff immediately called John Elser, the yardmaster of the next railroad yard, to help rerail the car. Elser arrived with his yard crew and together with plaintiff attempted to rerail the railroad car. Although plaintiff and Elser were not required to do physical labor such as rerailing derailed cars, they as well as all employees were expected by defendant to pitch in and help when a derailment occurred creating an emergency situation such as confronted plaintiff during the loading of the float car. Moreover, the rules of defendant's Operating Department specifically provide that "In case of

danger to the company's property, employees must unite to protect it." As a result of the emergency created by the derailment, plaintiff pitched in and assisted Elser and his crew in rerailing the car. Plaintiff carried one of the 20 or 25 pound blocks to be used to get the wheels of the derailed car back on the track from the work car to the derailed car which was a distance of about 50 feet. He carried the block on his shoulder and then bent over and shoved the block off his shoulder in order to place it under the derailed car. Plaintiff felt something snap in his back and was unable to straighten up. As a result of this accident, plaintiff sustained serious personal injuries and subsequently instituted this action to recover damages under the Federal Employers' Liability Act. He charged that defendant failed to provide him with a reasonably safe place to work in that defendant did not furnish him with a wrecking crew and equipment readily available to assist in rerailing the railroad car following the derailment.

Defendant contends on this appeal that (1) its motion for judgment notwithstanding the verdict should have been granted because there was insufficient proof submitted by plaintiff to allow the case to go to the jury on the issue of negligence; (2) alternatively, its motion for a new trial should have been granted by reason of the inflammatory and improper summation of plaintiff's counsel, and (3) a new trial should have been granted because the trial court erred in permitting testimony as to plaintiff's gross earnings and in prohibiting cross-examination of plaintiff's expert with respect to plaintiff's tax liability. Defendant's attorney informed us at oral argument that in the event we did not reverse the judgment for the reasons set forth in its first two contentions, defendant abandons its claim that a new trial should be granted by reason of the claimed trial error concerning plaintiff's gross earnings and tax liability thereon.

Defendant claims that plaintiff failed to present sufficient evidence of either negligence or causation to create a jury question under the ...


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