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Thomas W. Comes v. New Jersey Transit Rail Operations

May 6, 2011


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9529-06.

Per curiam.


Argued April 5, 2011

Before Judges Parrillo, Yannotti, and Roe.

Plaintiff, Thomas W. Comes, appeals the denial of his motions for a new trial on damages only and to amend the judgment by molding the jury verdict on the Locomotive Inspection Act (LIA) claim to reflect a finding of causation. We affirm.

Plaintiff, Thomas W. Comes, brought an action against his employer, defendant, New Jersey Transit Rail Operations, Inc., under the Federal Employer's Liability Act, 45 U.S.C.A. §§ 51-60 (FELA) and the Locomotive Inspection Act, 49 U.S.C.A. §§ 20701-20703 (LIA) alleging that he sustained personal injuries when he was exposed to dangerous exhaust admissions from a malfunctioning locomotive. The matter was tried before a jury over twenty two non-consecutive days from May 5 through June 11, 2009.

Plaintiff began his employment with defendant on April 7, 1999. His first position was as a "ticket collector," from which he quickly advanced to the position of assistant conductor/brakeman. By the date of the incident, on October 12, 2005, plaintiff had been promoted to the position of conductor.

As a conductor, plaintiff was charged with the safe movement of his train and its on time performance. He was responsible for everyone on the train and making any decision to evacuate passengers and crew from a train, in the event of an emergency, such as fire, fumes or smoke.

Robert G. Cole was a conductor employed by defendant. On October 12, 2005, Cole was working as the conductor of a five car passenger train, consisting of diesel locomotive No. 4191 and four passenger cars. The train was traveling in a westerly direction from Hoboken towards its final destination at Suffern station. The locomotive was in the front, so that any exhaust emissions from it moved back towards the car as the train moved forward.

Cole testified that shortly after leaving Hoboken station, as the train went through the Bergen tunnel, he noticed there was "excessive smoke" in all of the cars beyond the usual "little smell" of diesel exhaust. The exhaust fumes were such that "[y]ou could see it. You could smell it. You could taste it."

The situation improved somewhat after Cole turned the ventilation system off and opened the end doors so that the air could come into the cars. He continued to discharge passengers at scheduled stops. The remaining passengers were told that they could move to the rear cars, rather than stay in the front cars where the heaviest concentration of smoke was located.

The train arrived at Waldwick station approximately an hour after leaving Hoboken. While waiting at the Waldwick train yard, Cole and the train's engineer decided to call the control center to explain the exhaust problem and to receive instructions. Cole reported the situation to trainmaster Jose Lopez, who advised him to continue operating the train, doing the regular run by traveling on to Suffern station and then back to Hoboken, picking up and discharging passengers along the way. Cole testified that Lopez told him that a mechanic would investigate and check out the locomotive's exhaust problem when the train returned to Hoboken.

Cole and the engineer did as directed. The locomotive's exhaust fumes were not a problem on the return trip because the engineer moved from the locomotive and operated the train from the back of the rear passenger car. The locomotive was, therefore, behind the four passenger cars and any exhaust was trailing behind the train.

The train arrived at Hoboken Station at around 7:00 p.m. at which time a replacement crew boarded the train and began to prepare for the next round trip between Hoboken and Suffern. The replacement crew consisted of plaintiff, engineer Thomas F. Haas and brakeman Stephen Wassong. Cole told Wassong about the "heavy smoke condition when you're going west" and advised him that the control center was sending a mechanic to check out the locomotive. Wassong replied that no one from the control center had informed the replacement crew about any diesel exhaust problem. Wassong also testified that no mechanic was sent to check out the locomotive before it departed.

At Hoboken station, Cole prepared a report detailing the heavy exhaust problem he had encountered. Specifically, Cole wrote under the "defects" section of the report that there were "[d]iesel exhaust fumes in engine 4191 and all cars westbound." Cole did not turn in this report until he reached his final terminal at Port Morris at the end of his work shift.

The train carrying plaintiff, Haas, Wassong and a number of passengers departed Hoboken station for Suffern Station at 7:45 p.m. The train consisted of the same locomotive and four passenger cars that comprised the train on which Cole was the conductor. Haas was operating the locomotive; plaintiff was collecting tickets in the first two cars behind the locomotive, while Wassong was doing so in the rear two cars. Plaintiff testified that the train was full of commuters.

While the train was passing through the Bergen tunnel, plaintiff and Wassong noticed fumes and smoke in the passenger cars. Plaintiff radioed Haas and explained the situation. Haas confirmed that plaintiff radioed him, complaining that something was wrong with the train and that he and the passengers were becoming sick. Because Haas could not understand exactly what plaintiff was saying over the radio, he told plaintiff that he would speak with him at the next stop, which was Secaucus station.

Plaintiff testified that, before the train arrived at Secaucus station, he radioed and telephoned the control center "to let them know that this is really bad and the fumes are coming through the cars." According to plaintiff, the personnel at the control center, including trainmaster Lopez and the main line dispatcher, told him to keep the train moving.

At Secaucus station, plaintiff exited the train and walked forward on the platform toward the locomotive to speak with Haas. At that time, the locomotive's "engine revved" and he was engulfed in a "big cloud of smoke" that was forcibly expelled from the locomotive. Plaintiff testified that he ran back into the train without speaking to Haas face to face. Wassong, who had observed plaintiff engulfed in smoke, did not observe plaintiff run back to the train and, instead, assumed that he had continued walking to meet with Haas.

In contrast, Haas testified that he and plaintiff met and spoke together on the platform at Secaucus station. Plaintiff told Haas that he was feeling ill because "the train smelled" and he "wasn't sure if he would be able to complete the trip." Haas noticed diesel exhaust fumes at Secaucus station, but did not see fumes "floating" toward plaintiff "because by the time I got off [the locomotive] he was almost up to me."

When he reentered the train, plaintiff contacted the trainmaster and his supervisor, complaining about the exhaust situation. According to plaintiff, he was told to "keep the train moving."

Upon departing from Secaucus station, plaintiff noticed that the door on the passenger car "right behind the engine was actually jammed" open. He was fighting to close the door for quite a while in order to prevent the locomotive's exhaust fumes from affecting the passengers. He eventually closed and locked the door.

After the train left Secaucus station, Wassong noticed that smoke and fumes were present in the passenger cars and the air was foggy. He and plaintiff then shut off the ventilation system in the cars because exhaust fumes were being introduced into the cars from the system. Plaintiff and Wassong also began moving passengers from the two cars behind the locomotive to the rear two cars. The air in the rear cars appeared to improve for awhile, but, according to Wassong, the exhaust started to come into those cars from the bottom of the train.

Plaintiff contacted the control center again, complaining about the exhaust fumes, but was told to continue the trip. According to plaintiff, by the time the train reached Ridgewood station, he was feeling dizzy, lightheaded and weak; his eyes were burning and he had trouble breathing. He contacted the trainmaster and the main line dispatcher and told them that he was shutting the train down. He evacuated most of the passengers at Ridgewood station and was directed to travel on the train to Waldwick station.

Local police and fire units were summoned to Waldwick station, where plaintiff was placed in an ambulance and taken to a hospital. Wassong, too, was later taken to a hospital. Because there was smoke in the passenger cars, fire department personnel tested the air in the cars and detected dangerous levels of carbon monoxide.

Plaintiff was examined and released from the hospital that same day with a diagnosis of "diesel fumes exposure." Wassong also was examined and released from the hospital after a short time. Neither Haas nor any of the passengers on the train reported an injury in conjunction with this incident.

On the day after the incident, October 13, 2005, defendant removed locomotive number 4191 from service and subjected it to inspection and testing. The "results were negative and no excessive smoke condition was noted." The locomotive was returned to service on October 16, 2005. One day later, another train crew was exposed to excessive diesel fumes, as the locomotive had another problem with abnormal smoke conditions.

Further testing of the locomotive revealed defects that had produced the abnormal smoking.

At trial, plaintiff presented evidence that plaintiff was exposed to enough carbon monoxide to cause damage to his brain and that the injury to his individual brain cells would be permanent. Other evidence showed that plaintiff had "significant...inhalation exposure to toxic carbon monoxide...causing permanent brain injury making it unable for him to work."

On September 27, 2007, the United States Railroad Retirement Board issued a decision finding that plaintiff was permanently and totally disabled as a result of his inhalation of diesel exhaust fumes on October 12, 2005. Plaintiff was awarded disability benefits by the Board.

A jury trial commenced on May 5, 2009. On June 11, 2009, the jury returned its verdict. In rejecting the LIA claim, the jury found that defendant's locomotive was defective or malfunctioning. There was no finding as to whether the defect or malfunction caused plaintiff's injuries. In contrast, on the FELA claim, the jury found that defendant had failed to provide plaintiff with a safe work place and that such failure was a cause of plaintiff's injuries. The jury did not award plaintiff any damages for pain and suffering or for future medical expenses under the FELA claim, but did award him $251,340 for past loss wages and $749,075 for future lost wages, for a total award of $1,000,415. Because the jury attributed to plaintiff fifty percent of the total negligence underlying his injuries, the jury's award was reduced to $500,207.50, pursuant to the FELA's comparative negligence provision. 45 U.S.C.A. § 53.

On June 25, 2009, a judgment in accordance with the jury's verdict was entered.

On June 30, 2009, plaintiff filed a motion to amend the judgment by molding the verdict so as to establish causation on the LIA claim. Plaintiff also sought a new trial on damages only.

On August 25, 2009, the trial court entered an order denying the motion in an oral decision containing the court's statements of reasons for the denial. This appeal followed.


Plaintiff contends the trial court erred in denying his motion to amend the judgment when it refused to mold the verdict so as to establish causation on the LIA claim, despite the jury's failure to find such causation. We disagree.

Motions for reconsideration seeking to alter or amend a judgment or order are governed by R. 4:49-2 which sets time limitations for making such motions and which requires specificity concerning the basis for the motion. Motions brought under R. 4:49-2 are within the sound discretion of the trial court, which is to exercise that discretion in the interest of justice. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).

Here, the trial court prepared two verdict sheets, a yellow one for the LIA claim and a green one for the FELA claim. The jury was instructed to address the LIA verdict sheet first and, if the jurors rendered a verdict in plaintiff's favor under the LIA, they were to stop deliberations and return their verdict without addressing the FELA verdict sheet.

The parties agreed that all eight jurors would deliberate, and the jury was instructed that at least seven jurors had to agree on a question before it constituted a verdict on that question. Specifically, the court charged that "[w]henever at least seven jurors have agreed to an answer, that question has been decided and you may move on to consider the remaining questions in the case[], if it is appropriate to do so."

The LIA verdict sheet asked three questions: (1) whether the locomotive was defective, (2) whether the defect caused plaintiff's alleged injuries, and (3) what damages would fairly compensate plaintiff for those injuries. On the third day of deliberations, the jury advised the court that it had answered the first question on the LIA verdict sheet in the affirmative, finding unanimously (8 yes, 0 no) that the locomotive was defective. The jury also advised that it had answered the second question, concerning causation, "yes, five, no, three," asking the court "do we go on to the green [FELA verdict] sheet."

The court inquired of the jury's foreman whether the five-three vote on the second question was a tentative or final vote, and the foreman said that it was "leaning towards a final vote." The court then instructed that the jury should continue deliberations on the second question "because I'm hearing it's a five-three vote but not necessarily a final vote."

The court charged that, if the jury answered the second question "yes, and it has to be seven to one or eight-zero," then the jurors should go to the third question on the LIA verdict sheet, which concerned damages. However, "[i]f the vote is not eight to zero or seven to one, then you're going to go the green [FELA verdict] sheet" and address the questions there. The court repeated this instruction two more times.

Plaintiff objected to this instruction and asked the court to instruct the jury not to deliberate on the FELA claim until the second LIA question had been properly answered. The court declined to do so, saying that the jury did not indicate that it was deadlocked on the second LIA question and that it would be best to see the results of the jury.

At this juncture, plaintiff's counsel sought relief through an interlocutory appeal, contesting the trial court's refusal to order the jury to deliberate to completion of the LIA claim. Leave to appeal was denied.

Later that day, the jury made an inquiry of the court concerning the first question of the FELA verdict sheet, thus indicating that they were then addressing the FELA claim. The court answered the inquiry and excused the jury for the day.

The next day, the jurors told the court that they had been unable to reach a verdict. The Court then gave an Allen*fn1 charge in an effort to persuade the jury to reach a verdict. The court also gave the jury a supplemental instruction on proximate causation and instructed that, if necessary, the jurors should start again with the LIA verdict sheet and then go on to address the FELA verdict sheet. The jurors resumed deliberations, but later informed the court they could not reach a unanimous verdict on either matter. The court informed the jurors that they were not required to reach a unanimous verdict and thereafter excused them for the day.

The next day, the court reinstructed the jury that "[w]henever at least 7 jurors have agreed to any answer that question has been decided and you may move on to consider the remaining questions in the case if it is appropriate to do so." The court directed the jury to resume deliberations, telling them to "[p]lease start with the yellow ...

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