Head v. CSX Transportation, Inc.

Smith, Judge.

In Head v. CSX Transp., 227 Ga. App. 818 (490 SE2d 497) (1997), John Head appealed the trial court’s reinstatement of the jury’s $8,000 verdict against CSX in his personal injury Federal Employers’ Liability Act (FELA) claim. Id. at 818-819. This reinstatement occurred after the original trial judge granted Head’s motion for new trial on damages only. Id.¹ We concluded that the successor trial judge was authorized to make this ruling because comparative negligence was an issue and therefore a new trial was precluded under the rationale of Beringause v. Fogleman Truck Lines, 209 Ga. App. 470, 472-473 (3) (433 SE2d 398) (1993). See also Palo v. Meisenheimer, 199 Ga. App. 24, 25 (3) (403 SE2d 881) (1991). The Supreme Court granted Head’s petition for writ of certiorari and has remanded the case to this Court for reconsideration in light of Robinson v. Star Gas, 269 Ga. 102 (498 SE2d 524) (1998) and Bridges Farms v. Blue, 267 Ga. 505 (480 SE2d 598) (1997). In Robinson, the Supreme Court disapproved cases such as Beringause and Palo insofar as they stand for the proposition that “inadequate comparative negligence damage awards are categorically precluded from review under OCGA § 51-12-12.” Robinson, supra at 104. The Supreme Court in Robinson also held, relying on Bridges, supra, that the grant of a new trial under OCGA § 51-12-12 (b) in a case involving comparative negligence issues necessitates a new trial on liability as well as damages. Robinson, supra at 105. We conclude that Robinson and Bridges do not require reversal in this case.

It is clear, in light of Robinson, that the successor trial court erred in reasoning that the existence of comparative negligence issues precluded the grant of a new trial. But a trial court’s ruling may be affirmed if it is right for any reason. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991). And we conclude that the trial court nevertheless correctly reinstated the jury’s verdict in this case. “In FELA cases, the jury’s determination of the amount of damages to be awarded is inviolate, absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial. Because questions as to the proper measure of damages in FELA cases are governed by general principles of law established by the federal courts, the revision of OCGA § 51-12-12 in 1987 did not modify the principles applicable to FELA cases. And . . . this standard is the same regardless of whether it is being applied by a trial court on motion for new trial or by the appellate court on appeal.” (Citations, punctuation and footnote omitted.) Central of Ga. R. Co. v. Carter, 212 Ga. App. 528, 530 (3) (442 SE2d 269) (1994).²

We can no longer hold that comparative negligence principles preclude the grant of a new trial. But the jury was authorized to consider the effect of Head’s contributory negligence when awarding damages. See Hickox v. Seaboard System R., 183 Ga. App. 330-331 (358 SE2d 889) (1987) (where employee contributorily negligent, damages to be diminished by jury in proportion to negligence attributable to employee). Evidence was presented that Head was attempting to “chock” a moving railroad car, despite safety precautions in his rule manual prohibiting such behavior, when an air hose broke loose and injured him.³ In light of this evidence, in addition to medical evidence concerning the extent of Head’s physical injuries, the jury’s award fell within the range of evidence presented and was not so “inadequate as to shock the judicial conscience and raise [the] irresistible inference that passion, prejudice or another improper cause invaded the trial.” (Citations and punctuation omitted.) Carter, supra at 530 (3). The original trial judge therefore abused her discretion in granting Head’s motion for new trial, and the successor judge correctly reinstated the jury’s verdict.

Judgment affirmed.

Andrews, C. J., and Senior Appellate Judge Harold R. Banke concur. Beasley, J., concurs specially. McMurray, P. J., Ruffin and Eldridge, JJ, dissent.

1 The procedural posture of this case in the trial court is somewhat unusual, as two different judges ruled on motions filed by the parties. The trial judge who heard the evidence and granted Head’s motion for new trial was removed from office. See In the Matter of: Inquiry Concerning a Judge, 265 Ga. 843 (462 SE2d 728) (1995). A successor trial judge then granted the motion for reconsideration filed by CSX, which is the subject of this appeal.

2 As noted in the previous appearance of this case, after the original trial judge granted Head’s motion for new trial, CSX moved for reconsideration on the basis of the standard for granting a new trial in FELA cases. 227 Ga. App. at 819, n. 1. That judge then entered another order stating that the jury’s verdict “ ‘is inconsistent with the preponderance of the evidence, that it would be a denial of justice to permit it to stand, and that the verdict is shockingly inadequate so as to raise an irresistible inference that an improper cause or mistake invaded the trial.’ ” Id.

3 “Chocking” involves the placement of wood under a railroad car wheel to keep the car from moving.