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Stilwell v. General Railway Services12/7/2004
PUBLISHED
Plaintiff appeals from the trial court's granting of a directed verdict on 10 February 2003 and a denial of a new trial motion on 5 September 2003. The action arose out of an injury to plaintiff's neck and subsequent surgery caused by an accident while plaintiff was working as a brakeman on a rail car operated by the U.S. Army between Leland, North Carolina, and Military Ocean Terminal at Sunny Point, a distance of approximately 30 miles. The railroad hauled munitions and military equipment for the Army and on occasion serviced some of the private industries located along the route, such as Archer, Daniels and Midland. On the date of the accident, 22 October 1997, the rail line was carrying chloride, acid or hydrogen peroxide for this company.
Defendant successfully bid on a contract issued by the United States Department of Transportation (DOT) to refurbish a caboose in use on this train on that date. While refurbishing this caboose, defendant substituted boat seats with no neck support instead of the high-backed chairs called for in the original specifications.
In October 1994, DOT issued a contract to defendant to refurbish this caboose. The contract stated in pertinent part:
The caboose will be used by the Military for special service in Southport, North Carolina. All brakes and valves will be reconditioned or replaced if needed to meet the FRA and the Association of American Railroads (AAR) Interchanged rules.
Couplers (both ends of caboose) shall be of type to be compatible for freight service. G. Interior will be stripped out entirely and replaced as shown by the attached sheet. H. ...extra equipment to be installed and supplied by the contractor.... (2) caboose side chairs of cushion captain style.
During the renovation of this caboose, defendant provided boat-type chairs with no neck support instead of the captain's-type high-backed railroad chairs called for in specifications. Mr. Rich Copeland, defendant's former vice president, testified that a DOT employee had permitted this modification as his company could not locate chairs of the type specified. Mr. Copeland acknowledged that the type of chair provided would not be safe for normal use on interchange, but thought the caboose was to be used as a mobile office despite the contract language.
Plaintiff is a Department of Defense civil servant and had been working on this train line since 1994. As brakeman he would ride in the caboose, sitting in one of the chairs positioned to observe the train, monitoring for sparks to prevent fires, open doors and any other irregularity.
Plaintiff first used the chair in June 1996 at which time he reported the chair as unsafe. At safety meetings plaintiff continued to call attention to the unsafe chair. At trial plaintiff testified that he felt at risk when using the chair and admitted that under Sunny Point's safety rules he should not have performed any unsafe act. While promising to fix the problem and replace the chair, plaintiff's supervisor directed plaintiff to continue using the chair despite his objections, stating that plaintiff could either "like it, lump it or quit."
On 22 October 1997, while on a run from Leland to the Archer, Daniels facility, plaintiff's neck was injured when the slack went out of his train and he suffered a severe jolt. Upon the train's return to Sunny Point, plaintiff complained of neck pain and was taken to the hospital. He eventually had a three-level fusion operation by Dr. Melin, who testified that the jolt on that date was the likely cause of the injury and resulting surgery.
After the accident plaintiff filed suit alleging claims agai
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