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Vandaveer v. Norfolk & Western Ry. Co.

DECEMBER 31, 1966.




Appeal from the Circuit Court, Third Judicial Circuit, of Madison County, Granite City Division; the Hon. MICHAEL KINNEY, Judge, presiding. Judgment adverse to defendant reversed. EBERSPACHER, J.

Defendant, Norfolk and Western Railway Company, appeals from a $40,000 judgment entered on a jury verdict, in a case brought under the Federal Employers' Liability Act (FELA, 45 USCA, 51), assigning as error the court's denial of the post-trial motion, which prayed for judgment notwithstanding the verdict, and in the alternative a new trial.

The plaintiff, Gladys Vandaveer, was a 37-year-old married woman, who, since she was 18 years old, had been employed by The New York, Chicago and St. Louis Railroad Company (Nickel Plate) in various capacities, and who on November 30, 1961, successfully exercised her seniority to bid into and take a messenger job, which she held on January 2, 1963, the date of the occurrence out of which her injuries arose. (In October 1964 the defendant, Norfolk and Western, became the successor to the Nickel Plate by merger.)

Plaintiff's work as a messenger followed a similar daily pattern. Her duties as a messenger required the use of an automobile and she used her own car, a Volkswagon, for which she was paid a mileage allowance in addition to her hourly pay. Since March 30, 1962, on the morning of each working day, she picked up mail at the Madison, Illinois post office, and after making various deliveries, and exchanges with messengers from other railroads, drove to the Union Station in St. Louis where she delivered, exchanged, and picked up mail in the baggage room, which was located near the 20th Street entrance to the station, and then proceeded through the midway of the station to the 18th Street side of the station to the offices of the Terminal Railroad Association, where she picked up the railroad bills, and returned with them through the midway of the station to the 20th Street entrance, and thence to her parked car, and back to her employer's office in East St. Louis. Previous to March 30, 1962, her duties as a messenger took plaintiff over a different route, which included use of the 18th Street entrance of the Union Station in St. Louis, but not use of the 20th Street entrance and did not include her necessarily passing through the midway of the station.

On January 2, 1963, plaintiff made her deliveries in the customary manner and at about 11:00 a.m. drove her Volkswagon to the 20th Street side of Union Station. The parking area near the entrance, reserved for those with business at the station, was filled, and she parked at an angle on the East side of 20th Street. There were 10 to 12 other cars parked between her car and the 20th Street entrance to the station which she used. She then got out of her car, left her purse under the seat and the door of her car unlocked, proceeded through the 20th Street entranceway into the baggage room through the midway to the 18th Street side of the station, picked up a small sack containing the railroad bills and returned through the station to her car parked on 20th Street.

She opened the car door on the driver's side and put the mail and the small sack on the floor of the back seat. As she did so, one of two men spun her around and the other grabbed her arms from behind. The two men demanded her money, and allowed her to reach into her coat pocket and give them what money she had in her coat pocket; an amount between two and three dollars. One man jerked off her earrings, and one started to tear off her clothes, jerking off her coat and sweater and reaching inside her bra. At that time they were distracted by an approaching motorcycle policeman, and she was shoved down into the seat of her car, hitting her breast and side on the steering wheel. Her attackers got into their car, parked aside of hers, and fled. She had noticed the two men parked in the car next to her before she entered the station but paid no particular attention to them, since she customarily observed persons in cars parked in this area.

Plaintiff stopped the motorcycle policeman, told him what had occurred, declined his offer to accompany her to the railroad's office and returned to the railroad's office in East St. Louis, before noon. There she reported the occurrence to her superior, and at his suggestion, went to her home and stayed there the following day.

When she returned to work on January 4th, at the suggestion of the train master, she went to the office of a physician, Dr. Compton, who did some medical work for the railroad, who treated her for bruises of her arms and back, headaches, and nervousness, and released her to return to work a month later. Dr. Compton found that she was suffering from extreme nervousness and told her that if she did not improve she should have some psychiatric treatment. She returned to her employment, and continued to perform her duties until May 1, when at the suggestion of her personal physician, Dr. Smith, who had been treating her for various physical complaints for more than 4 years before her encounter with the two men, and under whose direction she had both before and after January 2nd taken tranquilizers, she took a leave of absence. She was prevented from returning to work at the expiration of her leave of absence due to recurrence of a kidney ailment and back complaint, both of which, according to her doctors, had no relationship to her experience of January 2.

In February of 1964, plaintiff was hospitalized for treatment of a peptic ulcer. Plaintiff was subsequently referred to a psychiatrist in November 1964, who caused her to be hospitalized, where she received shock therapy. At the time of trial she complained of nervousness and occasional nausea. It was the psychiatrist's, Dr. McMahon's, opinion, based upon a reasonable degree of medical certainty, that the condition with which plaintiff is afflicted is permanent, and that she cannot return to work. Both Dr. Compton and Dr. Smith were of the opinion, within a reasonable degree of medical certainty, that plaintiff's ulcer could be the result of the trauma involved when she was attacked by the two men, and Dr. Smith testified that, in his opinion, there was a causal connection between plaintiff's severe anxiety and the attack of January 2, 1963.

Plaintiff, in her amended complaint charged defendant with the following negligent acts and omissions, to wit:

"A. With knowledge, or the reasonable means of same, by exercising ordinary care that the area which Plaintiff was sent to conduct said business and park her said car and subject herself to was a decadent area, and one frequently habituated by persons of low morality and disposed to violence and crime, and who would be prone to assault and harm Plaintiff, negligently and carelessly failed to provide her a safe place to park her vehicle so that she would have safe ingress and egress to said station.

"B. With knowledge, or the reasonable means of same, by exercising ordinary care that the area which Plaintiff was sent to conduct said business and park her said car and subject herself to, was a decadent area, and one frequently habituated by persons of low morality and disposed to violence and crime, and who would be prone to assault and harm Plaintiff, negligently and carelessly failed to furnish Plaintiff with a guard or any other means of protection while she carried papers and properties of the said Defendant which would lure the persons of propensities to her as aforesaid.

"C. Negligently and carelessly failed to use reasonable care to provide Plaintiff with a reasonably safe place to work."

Plaintiff presented evidence to the effect that previous to this occurrence she had felt apprehensive with reference to the parking situation but had only related this to her husband, also an employee of defendant, and a few girls on the extra board. She had never reported or complained about the parking situation to either of her superiors. At the time she bid in the messenger's job, she was advised by her superior that there was no allowance for parking. There was a parking facility inside the Union Station, with an attendant on duty. Her evidence suggests that this was not available to her, because it was limited to use by employees of the Terminal Railroad Association. The parking lot, located on the West side of 20th Street, and extending a block North and South, opposite the 20th Street entrance, was connected to Union Station by a tunnel under 20th Street. It was not available to her without payment of a parking fee. Previous to January 2, 1963, plaintiff had for 5 days each week, for at least 26 weeks, parked her car on the East side of 20th Street, next to the station; how near to the 20th Street entrance depending upon where space was available. On this particular day, it was available 10 to 12 spaces South of the 20th Street entrance. Other women messengers also parked their cars in this same area. Spaces near the entrance were restricted for use by persons having business in the station, but those spaces were filled upon plaintiff's arrival.

During the time plaintiff had been parking in this area, she had never been accosted or threatened before, and she had never seen anyone else have such experience; nor does the record show that during the entire year immediately preceding this occurrence, that any person had been accosted, attacked or robbed in this area. The police records of the City and Terminal Police Department disclosed that in the area of the station, and the parking lots east of the station, 39 Part I crimes *fn1 were committed during the year 1962. An analysis of these disclosed that they consisted of 14 thefts of accessories of the value of $5 or less from cars (one from a bicycle); 5 thefts of accessories of the value of $50 or more from automobiles; 9 automobiles were stolen (7 of which were returned within 48 hours after joy riding); and a building on the West side of 20th Street was burglarized in the night with nothing taken; and 10 arrests were made inside of the station. Of these 10 persons apprehended, 2 were charged for peace disturbance, 3 were removed for loitering, 3 were removed for trespassing, 2 were apprehended for stealing small articles from Harvey's, and 1 was found entering an office in the station building at night. There was testimony by the Chief of Police of the Terminal Railroad Association, whose office was in the station, that for 15 years previous to this occurrence, no women, to his knowledge and record, had ever been robbed or assaulted in or at the station. The records of the City revealed no crimes against the person in the area, during the year 1962. A record of plaintiff's being robbed was made by the Terminal Police Department within 45 minutes after its occurrence, and had become a permanent part of the City records within 3 hours of the occurrence.

Plaintiff testified that in the six-month period preceding this occurrence that she had "on several occasions" seen railroad detectives taking drunks and undesirables out of Union Station, and that she had observed the person taking coins from coin boxes and lockers in the station accompanied by a detective. The Chief of Police of the Terminal Railroad, who was responsible for policing the station, had 36 employees. They kept "one man on each shift in the Union Station building and one man in the train shed and subway on each shift." He testified that during 1962 there were 35 to 40 arrests, including the 10 Part I crimes shown by the city records, in the entire terminal which included the train shed, coach yard, mail facilities, Railway Express building and subway, (basement beneath the building proper), as well as the station proper.

There was testimony that approximately 7,500 people passed through the station on the day of the attack on plaintiff, and that during 1962 some 85,000 cars had been parked in the parking area on the West side of 20th Street which was operated by the Terminal Association; that the restricted parking area extending 270 feet on the East side of 20th Street, South from Market Street, was supervised by the Terminal, but that the area beyond it, in which plaintiff had parked, was not under the Terminal's control.

Despite the uncontradicted evidence that in 15 years no woman had ever been robbed or assaulted in or at the Union Station, and the uncontradicted evidence that no crimes against the person had been committed in the area during 1962; the fact remains that plaintiff was robbed and assaulted in the area. While we might not conclude from the evidence, that the area was decadent, or that the incidence and nature of the crimes previously committed in the area were of serious consequence; the criminal acts to which plaintiff was subjected, to her, were of serious consequence, and despite evidence of the area being policed, it was not sufficiently policed to protect plaintiff on this occasion.

Even though we might reach different conclusions from the evidence presented, our conclusions would not govern when reasonable men have and could conclude otherwise. Whether the jury concluded that the area was decadent, or frequently habituated by persons disposed to crime and violence, or whether the area was not a safe place to park, we are unable to determine. They obviously concluded at least one of these things, and concluded that defendant had not, therefore, furnished plaintiff a safe place to work, and concluded that the danger was one which the defendant should have foreseen. Despite defendant's evidence, the jury may have concluded that the immediate vicinity of the side of a railroad station, on a dead-end street, along a fence between the street and railway tracks, is not a safe place for a woman employee to park her automobile, or be unescorted, with items in her possession that persons might consider to be of value to them; such conclusions might come from their own knowledge and experience, coupled with the slightest of evidence to support them.

In this FELA action, federal decisional law governs in determining whether the evidence requires submission to the jury (Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 77 S Ct 443) and whether negligence and proximate cause are shown (Urie v. Thompson, 337 U.S. 163). In the Rogers ...

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