C. J., BRANCH and REESE, JJ.
Ross was employed as a conductor by Central of Georgia
Railroad Company when, early in the morning on November 1,
2005, he fell and injured his right knee. Ross brought a suit
for damages against Central under the Federal Employer's
Liability Act ("FELA"), 45 USC § 51 et seq.
Almost ten years later, the case was tried before a jury,
which returned a verdict for Ross for $1, 033, 000 and
assigned contributory negligence of 40% to Ross, resulting in
a net verdict of $619, 800 against Central. Central appeals,
arguing that it was entitled to a judgment as a matter of law
in that there was no evidence that it was negligent and that
Ross's injury was caused solely by his own negligence.
Central also asserts that the trial court erred with regard
to certain evidentiary rulings. For the reasons that follow,
in the light most favorable to Ross as the prevailing party,
the evidence shows that at about 11:30 p.m. on October 31,
2005, Ross, a one-year employee of Central, reported to work
for a job that involved switching cars at a terminal where he
had worked more than twenty times before the incident. To
perform this work, Ross and his colleagues were often located
on a 10-foot wide gravel path or road that runs east and west
and parallel to the six tracks in the rail yard. Near the
location of Ross's work, drainage pipes run perpendicular
to and under the tracks and road. These pipes empty out into
an 11-foot wide, 42-inch deep drainage ditch located at the
southern or non-track edge of the gravel road.
and testimony showed that at the time of the incident, grass
and vegetation was overgrown on the east and west edges of
the ditch, and that the 42-inch drop at the uneven edge of
the road was not guarded by a railing, curb, or any other
type of barrier or warning. There was also testimony that the
ditch could not be seen without looking down right on top of
the ditch itself but that it could have been seen if the
vegetation had been cleared. Although there was lighting
nearby, Central admits that there were no lights directly
adjacent to the road and ditch where the incident occurred.
There was evidence that Central provided more extensive
lighting at another rail yard. Workers carried lanterns after
dark, which Central provided. Ross had seen the ditch during
daylight hours on previous occasions but never reported it as
a dangerous condition. But that night in the dark, Ross could
not see the ditch due to the vegetation, which ran many yards
in each direction away from the ditch, and consequently, he
did not know where the ditch was located while he was
working. Central had inspected the area for safety every
month for 31 years, but it had never taken any precautionary
measures to protect employees from the 42-inch drop at the
edge of the gravel path.
was injured at about 3:00 a.m., near the end of the job. As
he was holding his lantern, Ross stood on the path facing a
train that was slowly going by as part of an operation that
involved uncoupling and recoupling certain cars to the train
and switching cars to different tracks. While other employees
were working nearby, Ross was on the radio giving his
engineer instructions for the train movements and
simultaneously keeping track of how many train cars passed
until the train was in the necessary position to stop, which
he planned to communicate to the engineer. The work required
looking up and down the track at the progress of the train
and monitoring other details of the operation. As the
operation was almost over and as Ross was looking at a
distance around a curve trying to locate the last car on the
train, Ross, without looking back, took a step backwards with
his left foot and slid down into the ditch. Ross's right
foot stayed on top of the bank and his right knee was injured
as he fell.
received some treatment in a hospital emergency room the day
after the accident but did not immediately report his injury
to Central as required by company rules. He informed Central
on November 12. One month after the accident, he had
arthroscopic surgery for a torn meniscus followed by physical
therapy. By March 2006, he was approved to return to work as
a railroad conductor. Ross continued as a full-time conductor
from March 2006 through the autumn of 2006, and he was able
to do his work until October 2006, when, as is more fully
explained below, he was terminated by Central. His knee pain
continued, however, and he had an MRI and a second surgery by
a different doctor in May 2007, as well as other treatments.
Ross thereafter received another evaluation that he could
return to doing the job of a conductor. Nevertheless, despite
surgery, physical therapy, and knee injections, Ross, in
fact, could no longer perform repetitive squatting or ladder
climbing as required for his job. He continues to have pain
during heavy lifting and prolonged standing. Ross saw a third
doctor in September 2008, but he has not had any additional
time of trial, he had been working for Wal-Mart in the
pharmacy for about five years.
Fred Johnson, Ross's expert witness on economic damages,
testified regarding Ross's wage-related damages from the
date of injury to trial and from the trial going forward. For
damages prior to trial, Johnson took Ross's earnings from
the time of the injury in 2005 and, based on a similar
Central employee, determined what Ross could have made
working for Central though the date of trial, less what Ross
actually made working for other employers, including
Wal-Mart, and less any earned income credit he received on
his taxes. Using this calculation, Johnson determined that
Ross had lost income of $158, 992 in the almost ten years
since the injury.
future income loss, Johnson calculated the net-present value
of the difference between the after-tax income that Ross
would have been receiving at the time of trial if he still
worked for Central (so-called "railroad wages") and
the aftertax income that Ross was receiving in his job at
Wal-Mart, with both values extended over Ross's remaining
work-life expectancy of approximately 15 years. Using this
calculation, Johnson determined Ross's future income loss
to be $236, 416. Johnson also calculated Ross's future
loss of benefits from Central as $233, 859. The total of
these three calculations is $629, 267. Other damage evidence
not relevant to this appeal also was presented.
trial and thereafter, Central argued in motions for directed
verdict, for judgment notwithstanding the verdict, and for
new trial, that it was entitled to a judgment as a matter of
law on the ground that Ross failed to show any negligence on
the part of Central. The trial court denied the motions. In
denying Central's motion for new trial, the trial court
found that some evidence was presented to show that Central
"did not maintain a safe working place in the area of
the ditch and should have known that this vegetation-covered
ditch next to a walking path was a potential hazard" and
that there was some evidence "that there was inadequate
lighting at the location."
its first enumeration, Central argues that the trial court
erred in these rulings by not entering judgment in favor of
Central as a matter of law. On appeal of these rulings, this
Court must determine whether there is any evidence to support
the jury's verdict. See Ga. Power Co. v. Irvin,
267 Ga. 760, 762 (1) (482 S.E.2d 362) (1997).
FELA, Central has "a duty to use reasonable care in
furnishing its employees with a safe place to work."
Norfolk Southern R. Co. v. Zeagler, 293 Ga. 582, 587
(2) (a) (748 S.E.2d 846) (2013) (citations
omitted). This duty requires the railroad "to
exercise the care that a reasonable and prudent person would
exercise under the same circumstances." Id. at
588 (2) (a) (citations and punctuation omitted)."The
carrier is required to take precautions commensurate with
danger inherent in the situation and to exercise ordinary
care proportionate to the consequences that might be
reasonably anticipated from neglect." Hepner v.
Southern R. Co., 182 Ga.App. 346, 347 (356 S.E.2d 30)
(1987) (citations omitted). And "what particular action
a railroad should take to address a given workplace hazard is
a question of whether the railroad breached the standard of
care, " which is a question for the jury.
Zeigler, 293 Ga. at 586, 589.
jury must also decide issues of causation, and under FELA,
the normal rules of causation are relaxed:
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.
Rogers v. Missouri Pacific R. Co., 352 U.S. 500,
506-507 (77 S.Ct. 443, 1 L.Ed.2d 493) (1957); see also
Zeagler, 293 Ga. at 587 (2).
there was some evidence from which a jury could conclude that
Central breached its duty to keep the workplace safe and some
evidence that the breach caused Ross's injury. The large,
deep ditch was immediately adjacent to the work area, it was
partially obscured by weeds and vegetation, it was not marked
in any way as a hazardous area, it was not protected by a
chain or rail of any sort, and the area was not well lit.
Thus, some evidence was presented that Central failed to keep
the workplace safe, and at least slight evidence was
presented to show that Central's failure caused
Ross's fall. See generally Hepner, 182 Ga.App.
at 348, n. 1 ("Under [FELA], an employee could be
negligent 99.99 percent and the employer only 00.01 percent
negligent and the employee would still ...