Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, May 14, 1993 TAG: 9305140120
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE:
DATELINE: LENGTH: Medium
Joseph Stover had blamed Norfolk Southern Corp. for a 1990 accident in which he suffered a neck injury while pulling a lever on a derail, a track device used to stop runaway boxcars.
Railroad lawyers had argued that Stover himself was to blame, pointing to a long history of accidents and safety violations that ultimately led to his dismissal from the railroad.
NS also questioned the seriousness of an injury that required no emergency treatment or surgery.
The verdict, which came after a four-day trial in Roanoke Circuit Court, was the latest in what railroad officials say is a trend of excessive awards against NS by city juries.
Les Hagie, a Roanoke attorney who represented the railroad, called the verdict "totally uncalled for, out of line and excessive."
"It's incomprehensible as to how the jury could have awarded this man the amount of money that it did, given the facts of the case," he said.
Because Stover was fired from the railroad, Judge Clifford Weckstein ruled he could not ask for lost wages and benefits caused by the injury.
But that didn't stop his attorney, Ralph Jackson of Portsmouth, from arguing that Stover has suffered emotional distress and personal problems because of the accident.
"It was literally the straw that broke the camel's back," said Kevin Bilms, another lawyer who represented Stover.
Jackson said that on Sept. 11, 1990, Stover was pulling the lever of a derail on a side track when he "felt a twinge in his neck."
Stover later experienced pain and numbness in his left hand. Doctors testified that he suffered from osteoarthritis and mild facial pain syndrome.
Although the injury prevents Stover from working on the railroad, he hopes to return to some type of job.
Jackson called an expert witness to testify that the railroad's failure to lubricate the derail was the cause of Stover's injury.
Hagie argued the witness was "hired to make the case," pointing to testimony from other workers who had no problems with the derail. Evidence also showed that the device was almost brand-new and had been lubricated at the time of manufacture.
Some witnesses testified that Stover had used one hand to pull the lever - a violation of safety rules that require brakemen to use both arms. Stover said he used both.
In arguing that Stover was guilty of "contributory negligence" Hagie reminded the jury that he had been fired, rehired and then fired again because of safety violations.
Stover has been cited for being under the influence of alcohol on the job, and was involved in an accident in which a train derailed, according to testimony.
Jurors were instructed not to concern themselves with Stover's dismissal, as that issue had been settled by a grievance panel.
After he was fired from the railroad, Stover became so depressed that he set his Bedford County home on fire in a suicide attempt, testimony showed. He is awaiting sentencing on an arson charge.
The $500,000 award comes at a time when more railroad injury cases are being tried before Roanoke juries.
As a railroad town, Roanoke once was viewed as an unpopular venue by plaintiffs' lawyers. But NS officials say the company's history of downsizing in the past 10 years - combined with demographic changes that have put more blue-collar workers on juries - has created a community bias against the railroad.
Since 1990, awards have ranged from $4.7 million to a signalman injured when a metal door swung shut on him to $250,000 to a clerk who fell out of his chair.
In a newspaper story earlier this week, one jury foreman interviewed said Roanoke jurors are more likely to sympathize with a little guy suing a large corporation.
"Every time you turn around you're reading about the profits that Norfolk Southern is producing," the juror said. "The jurors are saying, `It's deep pockets, so why not give it to the little guy?' "
At the start of Stover's trial, railroad lawyer Dan Brown had objected to the makeup of the 13-member jury panel - of which seven were picked to hear the case - on the grounds that no one aged 45 to 64 was represented.
But Brown withdrew his objection after Weckstein pointed out that he would have to support it with evidence that the city's process of drawing random jury pools was flawed.
by CNB