Johnson v. Chesapeake & Ohio Railway Co. , 6 Mich. App. 611 ( 1967 )

6 Mich. App. 611 (1967) 150 N.W.2d 178

JOHNSON
v.
CHESAPEAKE & OHIO RAILWAY COMPANY.

Docket No. 1,942.

Michigan Court of Appeals.

Decided May 9, 1967.

van Benschoten & van Benschoten (Harvey E. van Benschoten, of counsel), for plaintiff.

Robert A. Straub (Weadock & Montgomery, of counsel), for defendant.

BURNS, J.

This action was brought under the Federal employers' liability act, section 1, 35 Stat 65 (1908), 45 USC, § 51, for injuries to the plaintiff inflicted in the course of his employment with the Chesapeake & Ohio Railway Company when plaintiff was struck by an automobile driven by the defendant Bryan.

The jury returned a verdict for the defendant Bryan of no cause of action which was not appealed, and a verdict for the plaintiff against the defendant railway company. The defendant railway company moved for a judgment notwithstanding the verdict or, in the alternative, a new trial, which was denied.

In reviewing this case, we examine the testimony and facts, which were conflicting, in a light most favorable to the plaintiff. Beattie v. Elgin, J. & E.R. Co. (CA 7, 1954), 217 F2d 863.

The plaintiff, a track laborer, was called to assist with the repair of broken track at about 7:15 p.m. on December 31, 1960. The track labor gang was transported in a company truck to a grade crossing of highway US-10 in Mt. Morris. The plaintiff testified that after he arrived at the crossing he was instructed by his foreman to accompany him in a search for the broken track. When the 2 men went out on the highway crossing it was dark and there were no lights, flashers or bells of any kind functioning at the crossing. The foreman gave no order to set up a barricade, nor were any flagmen assigned to warn traffic. In short, no safety precautions were taken. The foreman discovered the break and sent plaintiff back to the truck after a lag wrench. As he returned to the truck to get the wrench he was struck by an automobile driven by the defendant Bryan.

The appellant has raised 6 issues as grounds for appeal; however, the first 3 issues may be summarized as follows: Was there competent evidence upon which the jury could find the defendant railway company negligent and was the negligence a proximate cause of plaintiff's injuries under the Federal employers' liability act?

The plaintiff's theory rests upon the proposition that the railway company had an obligation to provide the plaintiff with a safe place to work. Under the Federal law, which is controlling in this type of case, his theory is valid. See Beattie v. Elgin, J. & E.R. Co., supra. Therefore, the answers to the above questions must depend upon the sufficiency of the evidence submitted to the jury. In Rogers v. Missouri P.R. Co. (1957), 352 U.S. 500, 506 (77 S. Ct. 443, 1 L ed 2d 493), Mr. Justice Brennan, speaking for the United States Supreme Court, stated:

"Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence."

The jury's determination that the railway company is liable is supported by the record. The trial court did not err in denying the defendant's motion for judgment notwithstanding the verdict.

Appellant also claims the trial court erred by reading to the jury section 60 of the Federal employers' liability act, as the section involves a criminal penalty. The pertinent portion of section 60 reads as follows:

"Any contract, rule, regulation, or device whatsoever, the purpose, intent, or effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of an employee, shall be void, and whoever, by threat, intimidation, order, rule, contract, regulation, or device whatsoever, shall attempt to prevent any person from furnishing voluntarily such information to a person in interest, or whoever discharges or otherwise disciplines or attempts to discipline any employee for furnishing voluntarily such information to a person in interest, shall, upon conviction thereof, be punished by a fine of not more than $1,000 or imprisoned for not more than one year, or by both such fine and imprisonment, for each offense: Provided, That nothing herein contained shall be construed to void any contract, rule, or regulation with respect to any information contained in the files of the carrier, or other privileged or confidential reports."

Under the circumstances as hereafter noted, we cannot say that the trial court erred in reading the section to the jury.

James Smith, plaintiff's foreman, testified on behalf of defendant railway company. On cross-examination his direct testimony was substantially impeached through a written statement given by him to the railway company shortly after the accident.

In the closing argument plaintiff's attorney, in reference thereto, said:

"I don't think that anybody is particularly making anything out of that, it could have been said either way by Mr. Smith. And so far as Mr. Smith is concerned, don't be too hard on him, he has to work for this railroad and he has to stick out the balance of his working life with them."

The defense attorney replied that the employees were protected by a union contract. The plaintiff's attorney picked up the gauntlet and on rebuttal mentioned the Newvine incident^[*] and that the law provided a penalty for the violation of said act. At this juncture the defense attorney objected as follows:

"I object, if the court please. That's not the law at all as Mr. van Benschoten well knows."

Plaintiff's attorney then made a formal request to the court to read the aforementioned section quoted above. It is plaintiff's attorney's contention that once the defense challenged his statement to the jury as to the law involved, it became imperative to have the matter clarified for the jury. It is unfortunate that this aspect was brought into the case, but under the circumstances we do not feel it was error — certainly not reversible error.

Appellant's fifth claim of error was that the trial court erred in instructing that the plaintiff had sustained his burden of proof if the evidence justified with reason that any negligence of the railway company played any part, even the slightest, in producing the injury for which damages were sought. The instruction was almost a direct quote from the Rogers Case, supra, and must be considered the law.

Lastly, defendant claims the trial court committed error by its refusal to instruct the jury that there had been no evidence submitted as to future damages. We cannot agree. There was testimony by doctors that the pains suffered by the plaintiff might be continuous and that he would have to learn to live with them. The plaintiff testified that although he had returned to work, he was under a restriction "not to lift over 35 pounds" and his fellow employees had to help him. He could not fully perform farm work which he had been doing in the past, in addition to his regular job as repairman. There was sufficient evidence for the jury to consider future damages.

Judgment affirmed. Costs to appellee.

McGREGOR, P.J., and NEWBLATT, J., concurred.

NOTES

[*] During cross-examination of Jerry Newvine, an employee and witness for the railroad, it was brought out that he refused to talk to plaintiff's attorney prior to the trial and that this refusal was because he had been advised by the railway company not to discuss the matter with anyone.