COA rules for railroad over injured conductor.

Byline: Lee Dryden

A train conductor who sued his employer after suffering frostbite during the January 2014 "polar vortex" fell short in his appeal to a Michigan Court of Appeals panel.

In Hawkins v. Norfolk Southern Railway Company (MiLW No. 08-101131, 13 pages), the panel affirmed a Wayne County Circuit Court jury's verdict in favor of the defendant. Plaintiff Zachary Hawkins argues that the trial court improperly instructed the jury on the applicable law and that the improper instructions warrant a new trial.

"Although the trial court's instructions might have been imperfect, we conclude that the instructions adequately stated the law," the panel stated.

The unpublished opinion was issued by Judges Amy Ronayne Krause, Patrick M. Meter and Cynthia Diane Stephens.

The case

On Jan. 6, 2014, Hawkins reported to a Norfolk Southern railyard to prepare for a train's departure. There was no trainmaster present, which Hawkins believed was unusual as the temperature was 14 degrees below zero, according to the COA opinion.

The railroad company typically provided hand warmers on cold nights, but Hawkins reported that he could not find any and a request to dispatch went unanswered. The defendant argued that ample supplies of hand warmers were available.

There was no dispute that the main heater in the locomotive to which Hawkins was assigned was not operational, and the defendant admitted that it violated a standard of keeping a temperature of at least 60 degrees, the COA opinion stated.

The plaintiff stated that the weather impeded his ability to clear and align track switches, and that he could not operate some of the switches without removing his gloves. He testified that he requested and received assistance with two of the switches, but he was simply "told that maintenance is currently busy and to do the best that I can" in response to a further request for help.

A Norfolk Southern representative testified that conductors are expected to be able to work independently and solve problems, and are "absolutely not" expected to use their hands to clear switches.

A mechanical supervisor verified that the main heater of the locomotive was not working, but he could not fix it onsite.

"However, there was some evidence that Hawkins and the engineer had cracked open the locomotive cab's window while they smoked cigarettes throughout the night," the opinion stated, adding that Hawkins estimated he had been outside for over five hours.

"Hawkins alleged that...