*1 762-63, 2034, 2039-40, 752, B. 89 S.Ct. U.S. (1969) (allowing officer to an sum, deputies lawfully present In were “within his an individual and the area search Legg’s apartment they possessed weapons incident to control” for
immediate
objectively
good
an
reasonable
faith belief
Illinois,
85,
arrest);
Ybarra v.
Deputy Young’s
that the warrant was valid.
(1979)
93,
Clearly, Deputy it was reasonable pistol posed loaded
to conclude safety executing the
threat of those warrant, family particularly when
search Legg present, one of whom
members apartment walking on around the
insisted deputies conducted the search.
while the BROWN, Plaintiff-Appellee, Darrell E. Taking temporary possession pistol to of the unload it entailed minimal intrusion on Legg’s Fourth Amendment interests and TRANSPORTATION, INCOR- virtually danger it eliminate the served PORATED, corporation, De- posed. though Deputy evеn fendant-Appellant. steps nullify Young could have taken other posed by pistol, the threat we No. 93-1446. actually took conclude that the action he Appeals, United States Court right exceeded his lawful of access.
Fourth Circuit. 3. Argued 1993. Oct. requirement to the third and final As Decided March 1994. doctrine, plain Legg does not dis- view incriminating of the pute that the character immediately Dep-
weapon apparent once
uty Young pistol turned the over. When number, Deputy
saw the obliterated serial immediately recognized
Young
weapon further investi- was contraband. No
gation pistol necessary to discover incriminating character. *2 Lafferre,
ARGUED: Luke Andrew HUD- DLESTON, BOLEN, BEATTY, PORTER & COPEN, Huntington, Virginia, Ap- West for Thomas, pellant. HUNEGS, Lawrence A. STONE, P.A., DOLAN, KOENIG & Minne- Minnesota, apolis, Appellee. for ON Adkins, HUDDLESTON, BRIEF: Fred BOLEN, BEATTY, COPEN, PORTER & Huntington, Virginia, Appellant. West HUNEGS, STONE, Hunegs, Richard G. DOLAN, P.A., Minneapolis, KOENIG & Lewis, Minnesota; Huntington, J. Lawrence Virginia, Appellee. West NIEMEYER, Judge, jury, Circuit The case was tried Before before CHAPMAN, Judge, presented Circuit evidence was Senior at the incident, KAUFMAN, working time of the United District the east States *3 yard, end of the Judge Maryland, sitting by Russell a traffic for the District of area. Brown that he designation. testified had worked the yard of the area rail for several years frequently pushed and that locomotives OPINION through yard. rail cars the Brown stated CHAPMAN, Judge: Circuit that never a before he heard noise in the east end similar the noise which caused his brought suit Darrell E. Brown this under injuries. Employers’ Liability Federal Act the Walker, John (“FELA”), another sheet metal against § CSX his em- U.S.C. worker, produced tеstified that some is (“CSX”), noise Transportation, ployer, CSX Inc. every passes through time a car a loud, retarder. injuries for he sustained as a result a Wheeler, maintainer, signal a Charles CSX exposed to noise that he was while in shrill during many years testified that trial, work- scope employment. of his At ing yard, in the rail he had never before motions for as a matter law specific heard retarder noise in the area jury denied. After found for place. where the incident took Frank Bran- $53,000, again him Brown and awarded ham, CSX, supervisor signal a for testified law, moved for a as a matter and responsible pressured that he was for all air again the court denied the motion. CSX yard retarders at the Russell and it was his appeals the district court’s denial of its mo- opinion that the retarder at issue was obso- law, judgment as tions for a matter injury. lete at the time Brown’s below, reasons stated we reverse. expert
Brown’s medical testified that he examined Brown after the incident and I. repоrted exposed Brown that he was to a CSX, a sheet metal worker loud, experienced ring shrill noise and had a allegedly injured on June at CSX’s ears, ing in his known as tinnitus.* The Russell, Kentucky. His rail claimed doctor testified he assumed Brown’s injury was when a caused CSX locomotive condition was due to the work related inci a pushed through somе railroad cars “retard- dent and not some other factor. med “squeezer,” designed er” mechanism expert ical testified that Brown’s tinnitus was motion, producing high- slow a rail car’s likely most caused factors other than pitched, shrill noise. At the time of the exposure, age, sig such as and that a incident, repairing Brown an air vаlve portion general popula nificant adult away eight point to ten feet where ringing tion has the ear without known railroad car came into contact with cause thereof. a result of retarder. As Brown indicating Brown introduced evidence permanent hearing to have claims suffered the noise had alsо caused him mental dis- loss, (a ear), ringing in tinnitus and emo- exposure tress. He claimed that his to the tional distress. turn noise caused tinnitus which in caused brought against a FELA action him emotional distress. The emotional dis- on December States tress treatment medication United necessitated with District Court for the Southern District of him to lose from work. which caused time Virginia. alleged objected testimony Specifically, regarding West permanent he suffered “extensive and emotional because there was no distress ears, damage including, complaint, to his not limited mention a claim in of such to, hearing “high interrogatory pretrial loss” as result of a loud answers or order. present noise.” The court allowed Brown to * hearing. immediately is not a the time Tinnitus loss At have had after incident loss, hearing temporary he had trial and such loss that was of a nature. wharves, roadbed, works, boats, or other that CSX testimony it found
medical adequate equipment. notice of the emo- given had been pretrial depo- during the claim distress tional action, of a In a FELA “the test Bansal, Brown’s one of Dr. Bal sition justify proofs simply whether case witnesses, trial. one month before medical employer negli the conclusion that reason a causal con- there was Bansal testified Dr. slightest, in played any part, even the genсe tinnitus and his Brown’s between nection injury which dam producing the or death for anxiety. At the resulting nervousness Rogers Missouri Pac. ages sought.” again at close of Brown’s R.R., *4 evidence, moved, pursu- close of CSX’s (footnote omitted). (1957) How 50(a), a matter as Rule ant to ever, Ry., Supreme Brady in the by the Southern denied Both motions were of law. cautioned jury returned a verdict Court The court. $53,000. of in the amount Em- weight the evidence under the The 25, 1992, the district court September On Liability Act more than a ployers’ must be and denied CSX’s its final order entered properly the ease be scintilla before or, a matter of law judgment as
motions for
fact ...
discretion of the trier оf
left to the
alternative, a new trial.
in the
evidence is such that without
When the
credibility
weighing the
of the witnesses
II.
but one reasonable conclusion
there can be
mo
may grant a
The district court
verdict,
to the
the court should deter-
as
during a
matter of law
judgment as a
tion for
non-suit,
by
proceeding
mine the
directed
fully heard
рarty
has been
jury trial after
in
the
verdict or otherwise
accordance with
legally
only if
is no
suffi
“there
on an issue
applicable practice without submission to
evidentiary
for a reasonable
basis
cient
judgment notwithstanding
jury,
by
or
the
respect
party
that
found for
to have
By such direction of the trial
the verdict.
50(a).
grant
To
Fed.R.Civ.P.
that
issue.”
the result is saved from the mischance
court must examine
motion the district
the
legally
speculation over
unfounded claims.
light
in the
most favorable
the evidence
479-80,
64 S.Ct.
non-moving party and determine “wheth
the
omitted).
(1943) (citations
only
of fact could draw
trier
L.Ed. 239
Like-
er a reasonable
Townley
court,
from the evidence.”
conclusion
in
R.R. v.
one
this
Atlantic Coast
wise
(4th
Ry.,
Craven,
887 F.2d
& W.
stated
Norfolk
Cir.1989).
reviewing
court’s
a district
When
This case must be reversed because there
law,
a matter of
judgment as
denial of
upon
evidence
which
was no substantial
novo.
same standards de
applies
court
the
negligence
have
question
could
been
Id.
jury. Although
decisions
submitted
FELA,
§ 51
45 U.S.C.
one of
Section
in
under the Act
are most liberal
[FELA]
(1988),
right
Brown claims the
under which
recover,
allowing employees to
it has been
damages, provides
pertinent
in
to recover
recovery
again
time and
that
reaffirmed
part:
only upon
negli-
lies
the concurrence
by
carrier
railroad while
Every common
injury
...
gence and
as cause and effect
any
between
engaging in commerce
duty
employer
An
has a
his
in dam-
... shall be hable
several States
work,
employees
place to
but this
a safe
injury
any
suffering
while
person
ages to
Dangers
im-
duty absolute.
be
in
by
carrier
such
employed
such
he is
occupations
railroading,
plicit in such
injury
resulting
...
... for such
commerce
railroads are not
insurers of their
negligence of
part
from the
or
whole
employees.
officers, agents,
employees
any of the
Cir.1950) (citations
(4th
176, 178
185 F.2d
carrier,
any defect or
byor
reason of
such
denied,
omitted),
71 S.Ct.
cert.
negligence, in its
insufficiency,
to its
due
(1951).
track,
571,
Thompson, (1949). However, 93 L.Ed. obsolescence of retarder. placed the record reveals the retarders liability In order to show under throughout the Russell the vital serve FELA, prove that Brown must he was slowing they function of ears once have been injured employment, scope while his moving released from a locomotive. Walker employment furtherance testified at trial that all retarders create business, transportation interstate exposed some metal of the caused, negligent, negligenсe and CSX’s retarder comes in contact with the metal injury part, compensa least in for which generation wheels of rail cars. The of some Chesapeake sought. tion is Sowards v. & O. *5 noise is routine is not of and indicative CSX’s (4th Cir.1978) 713, Ry., (citing 714 580 F.2d negligence. Supreme As the Court has stat 51). § 45 U.S.C. ed, employers railroad are not insurers record, From it that is clear Brown employees. their Inman v. Baltimore & O. scope of employment was within the his R.R., 242, 243, 361 80 4 U.S. S.Ct. injured, he was and that work was in his (1959). Thus, L.Ed.2d 198 before Brown Thus, CSX’s it furtherance of business. is may FELA, prove recover under the he must only necessary for us to the issues of address injured by he extraordinary that was an alleged negligence whether and рroduced negli noise a result of CSX’s negligence injury. a cause of was Brown’s gence. Brown that testified he had worked negligence, prove In order to years east end for several and had Brown must demonstrate that CSX had a never before heard noise like the one which duty provide workplace to Brown with a safe injury. Additionally, caused tes Wheeler causing duty and CSX that breached Brown’s loud, that tified he had never heard a shrill injuries. Robert v. See Consolidated Rail produced specific noise in that area (1st Cir.1987). 3, Corp., 832 6 F.2d Reason yard. rail While CSX have known that foreseeability able of harm an essential loud noises were created whеn rail cars ingredient negligence. FELA Gallick v. retarders, passed through presented Brown R.R., Baltimore 372 & O. 83 had, no evidence that the retarder (1963). 659, 665, 9 S.Ct. See past, produced excessive noises. (under Robert, FELA, also F.2d at 6 832 foreseeability There was no evidence of “[pjlaintiffs required prove still are to tradi sudden, that CSX was notice that a on negligence: tional law common elements of mega-decibel might noise come forth. No causation”). duty, breach, foreseeability, and presented that retarder evidence It is uncontested that had a non CSX repair. defective or in need of From the delegable to duty with a safe Brown record, by Brown the noise described place to work. Shenker v. Baltimore & O. extraordinary, there is no that and evidence R.R., 1, 1667, 7, 1671, 10 any problems was on notice of "withthe CSX (1963); Chesapeake Ry. L.Ed.2d & 709 O. injury. specific prior retarder to Brown’s Thomas, (4th 783, Cir.1952), F.2d 198 786 Although duty under a to make CSX was denied, 387, cert. 73 97 continuing (1953). inspections reasonable under its duty inspect L.Ed. 709 This includes duty rail its em- ing make the safe for workplace taking pre reasonable showing ployees, Brown had the burden of protect employees possible cautions to care, Ry., that with could Chesapeake harm. O. 622 the exercise due Cazad & Cir.1980). (4th F.2d 75 defect in have discovered a the retarder 250 injuries. аlleged that Brown’s Peyton v. caused St. Louis the situation. remedied Cir.1992). (8th inspec- a duty had to make Ry., F.2d reasonable
S.W. tions, that an no of a defect in was no evidence presented there Brown noise, and inspection caused the of the retarder would have dis- the retarder which by an inspection capable cаusing how the loud proffer closed defect made prove a defect. are left to failed to that have We would revealed jury. reasonably Brown did incident was foreseeable CSX. speculate and so CSX, using how reasonable not demonstrate care, that the retarder could have discovered IV. suddenly a loud noise not heard
might emit prior problem of a notice before. Absent hold even under the re- We that showing in- or a that an the retarder with FELA, has not met laxed standards defect, we spection would have revealed proving Be- his burden duty find CSX breached negli- not cause we conclude CSX was place to work. safe provide Brown unnecessary gent, it is for us to examine has sat convinced We not issue of causation. we reverse foreseeability require the reasonable isfied motions the district court’s denial of CSX’s if it may not be held hable ment. CSX remand as a matter law and way knowing that the haz no reasonable case with instructions еnter ard, injury, Brown’s existed. which caused for the defendant. . 833; Long v Peyton, F.2d Gallose REVERSED. Cir.1989). (2d R.R., F.2d Island *6 argued has CSX should have because loud noises are foreseen accident KAUFMAN, FRANK District A. passes through a car produced whenever Judge, dissenting: always some noise results retarder. While certainly free question While not retarder, through passes a train doubt, I conclude there was suffi- notice, prior either actual or construc had no complaints by other em- cient evidence tive, unusually loud noises in the east end ployees of similar loud noise from retarders any extraordinary yard, Russell case, before the occurrence that CSX produced by the noises retarder issue. attempts had to knew of same and made prior neither notice of Because level, retarder reduce that the extraordinary nor notice that noise incidents question up not to In the standard. retarder, we hold that a defect existed evidence, ap- of such the district court reasonably not the incident was foreseeable propriately issue of submitted by CSX. negligence, including component of rea- conclude, failed To we hold that Brown foreseeability, sonable correct First, prove he failed denying post-trial interim and motions re- prove the was defective. The retarder as a matter of law. yard purpose for a tarder was in I would affirm the be- slowing properly purpose its served respectfully low and dissent. pushed were into rail cars the cars Second, yard or connected. to be unloaded obligated to
CSX was not workers and Walker hearing protection. acknowledged' guards that ear
each not traffic
feasible workers areas oncoming need hear workers Third,
trains to CSX had no avoid accidents.
notice of a in the retarder and was not defect capable
aware that of sud- the retarder was
denly extraordinary producing an one-time