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IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

WALTER J. BIDDLE, SR., Plaintiff/Appellee, vs. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant/Appellant.

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Shelby Circuit No. 37195 T.D.

Appeal No. 02A01-9605-CV-00122

FILED
November 19, 1997 Cecil Crowson, Jr.
Appellate C ourt Clerk

APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY AT MEMPHIS, TENNESSEE

THE HONORABLE D'ARMY BAILEY, JUDGE

For the Plaintiff/Appellee: Patrick S. O'Brien C. Marshall Friedman St. Louis, Missouri Eugene A. Laurenzi Memphis, Tennessee

For the Defendant/Appellant: Everett B. Gibson Ralph T. Gibson Memphis, Tennessee

AFFIRMED

HOLLY KIRBY LILLARD, J.

CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

DAVID R. FARMER, J.

OPINION This case involves a claim of negligence under the Federal Employers' Liability Act. The plaintiff railroad employee suffered foot and ankle injuries from walking on oversized ballast over an extended period of time. The jury found the railroad fifty percent negligent and the employee fifty percent negligent. In response to a post-trial motion, the trial court struck the jury's finding that the employee was negligent. We affirm. Plaintiff/Appellee Walter J. Biddle, Sr. ("Biddle"), was an employee of Defendant/Appellant Norfolk Southern Railway Company ("Norfolk Southern"). From the mid-1980's to 1991 or 1992, Biddle worked about seventy-five percent of the time in the forwarding yard of the DeButts Yard in Chattanooga, Tennessee. His job as a carman required him to walk between the tracks and examine the railway cars. The ground in the forwarding yard is covered with a mixture of rocks called "ballast." Biddle was required to walk on this ballast while he conducted railroad car inspections. Railroad standards in effect in 1987 required that the ballast used in walkways and yards consist of rocks three quarters of an inch in diameter. This ballast is known as number five ballast. During the years in which Biddle worked in the forwarding year, however, the ballast in the yard was generally larger in size. Some of the rocks in the DeButts forwarding yard were two-and-one-half to three inches in diameter. Over the years, several workers complained about the size of the ballast in the forwarding yard, but the situation was not remedied. Late in 1987, Biddle began having problems with his feet. His podiatrist diagnosed him as having neuromas, painful enlargements of the nerve sheath around a nerve. His podiatrist performed surgery on his left foot early in 1988 and later performed the same procedure on his right foot. Subsequently, in late 1989, Biddle again sought medical advice for pain in his feet. In addition, he was suffering from pain in his ankles. For the first time, Biddle's doctor began to question Biddle about his working conditions, and Biddle described his job and the ballast. Shortly thereafter, in December of 1989, Biddle filed an accident report for twisting his ankle. In January of 1991, Biddle filed this lawsuit, pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C.A.

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