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NOVEMBER 6, 1998
Record No. 972657





Prentis Smiley, Jr., Judge
Present: Carrico C.J., Compton, Lacy, Hassell, Keenan, Kinser,
JJ., and Whiting, Senior Justice

This is an appeal of an action under the
Federal Employers’ Liability Act, 45 U.S.C. Sects.  51 et
(1981) (FELA).

Michael J. Downer filed this FELA action
against Amoco Oil Company (Amoco) and his employer, CSX
Transportation, Inc. (CSX), alleging that he was injured when
those parties negligently exposed him to noxious chemicals at
Amoco’s Yorktown Refinery. Downer settled his claim against Amoco
upon its payment of $5,000 in exchange for Downer’s covenant not
to sue and the consequent dismissal of Amoco as a party

Subsequently, a jury rendered a verdict of
$5,000 in Downer’s favor against CSX. CSX moved to reduce the
verdict by the amount paid by Amoco in settlement of Downer’s
claim against it in accordance with Code Sect. 8.01-35.1(A)(1).
The trial court sustained CSX’s motion, reduced the amount of the
verdict by $5,000, and entered judgment against CSX for costs
only. Downer appeals and CSX assigns cross-error.

Consistent with well-settled appellate
principles, we state the evidence of liability in the light most
favorable to Downer, who has received a verdict in his favor. In
the summer and fall of 1991, Amoco employees loaded a liquid
solution of sodium hydroxide into tank cars parked on the
railroad tracks at its Yorktown refinery. Sodium hydroxide is a
noxious chemical that can become airborne on hot, windy days.
Amoco placed drip pans under the tank cars to contain any sodium
hydroxide spills.

On July 9th, 1991, a hot, windy day, Downer was
engaged in switching operations at the Yorktown refinery and was
required to be near the drip pans. At that time, Downer became
short of breath, spit up mucus, experienced a burning sensation
in his eyes, and suffered an injury to his upper respiratory
tract by inhaling fumes from the nearby sodium hydroxide. Downer
was taken to a hospital, treated for two days, and released to
his home for recuperation. Three weeks later, complaining of pain
and breathing problems, Downer was hospitalized for an additional
eight days. Downer testified that during this hospitalization, he
suffered additional stress when a priest administered the last
rites to him.

After returning to work at the end of August,
Downer was again engaged in switching operations near the drip
pans at Amoco’s Yorktown refinery on September 10th, another hot,
windy day. On that date, he again inhaled the fumes from the
airborne sodium hydroxide and suffered the recurrence of some of
his earlier symptoms. He was treated as an outpatient at a
hospital and did not return to work until November 20, 1991.

Upon his return to work, Downer, asserting his
right to do so under CSX’s collective bargaining agreement, asked
to resume his work in the Yorktown area. However, CSX advised him
that he could not do so because Amoco did not want him working at
its refinery. Downer was shown Amoco’s letter stating that:

[i]t is Amoco Oil Company’s desire that Mr.
Downer not be permitted any further access of Amoco’s Yorktown
Refinery location. Such request is being made as there now exists
an adversarial relationship between Amoco Oil Company and Mr.
Downer, with his seeking damages against Amoco for the alleged
injurious exposure on Amoco’s property. Secondly, although Amoco
disputes Mr. Downer’s allegations that he suffered adverse
reactions to his exposure to a toxic substance at the Yorktown
Refinery, we certainly do not wish in any way to contribute to
any illness or injury to Mr. Downer as a result of his being
hypersensitive to any purported elements found on the Amoco

Because of CSX’s acquiescence in Amoco’s
decision not to allow Downer to enter its Yorktown refinery
property and because Downer could not work in the Yorktown area
without entering Amoco’s property, CSX assigned him to work on a
route beginning and ending in Richmond. This transfer was against
Downer’s wishes because it required him to commute each working
day between his assignment in Richmond and his home in the
Yorktown area. Additionally, Downer allegedly suffered
humiliation because junior men were working the job he wanted
"and it’s not like I did anything wrong [at Amoco's
refinery], but I was being punished for it."

First, Downer argues that by acquiescing in
Amoco’s decision, CSX increased his damages. On brief, Downer
acknowledges that the court permitted an instruction regarding
Downer’s inconvenience and humiliation Nevertheless, he complains
that the court erroneously refused to permit him to argue his
claims for damages arising from the inconvenience and humiliation
he suffered as a result of Amoco’s refusal to permit him to work
at its Yorktown refinery.

The transcript discloses that although the
court had earlier instructed Downer not to assert these claims in
his final arguments to the jury, he did so briefly and the court
overruled CSX’s objection thereto. Under these circumstances, we
conclude that Downer was not prejudiced by the court’s earlier
ruling, even if erroneous, a matter we need not decide. Hence, we
reject this contention.

Next, Downer argues that the court erred in
refusing to set aside the $5,000 verdict as inadequate and award
a new trial on the issue of damages. Downer suggests that
[r]easonable people could conclude that $5,000 was not
reasonable compensation for a person who had $1,400 in undisputed
lost wages, required two hospitalizations for a total of ten
days, required two visits to the emergency room, experienced
intense pain and suffering, was confined to his home for at least
a month and whose condition was so affected that he was out of
work for seventeen weeks.

(Emphasis added.)

Downer postulates a principle contrary to our
well established precedent. We have repeatedly held that a jury’s
award of damages may not be set aside by a trial court as
inadequate or excessive unless the damages are so excessive or so
small as to shock the conscience and to create the impression
that the jury has been influenced by passion or prejudice or has
in some way misconceived or misinterpreted the facts or the law
which should guide them to a just conclusion. E.g., Poulston
v. Rock
, 251 Va. 254, 258, 467 S.E.2d 479, 481 (1996)
(excessive verdict); Johnson v. Smith, 241 Va. 396, 400,
403 S.E.2d 685, 687 (1991) (inadequate verdict).

These principles presuppose that a trial court
will not set aside a verdict either as inadequate or as excessive
merely because the court may have awarded a larger or smaller sum
had it been the trier of fact. See Reel v. Ramirez,
243 Va. 463, 467-68, 416 S.E.2d 226, 228 (1992)(allegedly
excessive and inadequate successive verdicts); Raisovich v.
, 214 Va. 485, 489, 201 S.E.2d 606, 609 (1974)
(allegedly inadequate jury award); Edmiston v. Kupsenel,
205 Va. 198, 202, 135 S.E.2d 777, 780 (l964) (allegedly excessive

Hence, in deciding whether the jury’s award is
inadequate, the test is whether reasonable people could not
conclude that the $5,000 award was reasonable compensation in
this case. See Bradner v. Mitchell, 234 Va. 483,
487, 362 S.E.2d 718, 720 (1987)(stating that if "no rational
fact-finder" could disregard uncontroverted and complete
evidence of special damages, such damages must be considered
fixed constituent part of verdict in determining inadequacy of
jury award); Dinwiddie v. Hamilton, 201 Va. 348, 354, 11
S.E.2d 275, 279 (1959) (reversing order setting verdict aside
because adequacy of earlier jury award "was a question on
which reasonable minds could differ").

We apply those principles here. And, since
Downer attacks the sufficiency of the verdict, we view the
evidence of damages in the light most favorable to the validity
of the verdict. Mutual Ben. Health & Acc. Ass’n v. Hite,
184 Va. 614, 617, 35 S.E.2d 743, 744 (1945)

There are several considerations supporting the
quantum of the jury’s award. Downer does not claim a permanent
injury or disability. Since his doctors considered some of his
complaints to be out of proportion to what they could find
physically wrong with him, the complaints were thus characterized
by the doctors as the result of psychological stress. Downer
recognizes that such complaints are subjective. The weight to be
given such complaints is dependent on the jury’s assessment of
the plaintiff’s credibility.

Additionally, the jury was instructed without
objection that it could reduce the amount of Downer’s recovery
"in proportion to the relative negligence of the plaintiff
and defendant."
[2]Given these considerations, we think that reasonable
persons could conclude the award was adequate.

Code Sect. 8.01-383 vests discretion in a trial
court in deciding whether a verdict should be set aside on the
grounds of excessiveness or inadequacy. Johnson, 241 Va.
at 400, 403 S.E.2d at 687. Thus, the ultimate test on appeal to
this Court is whether the trial court abused its discretion in
ruling on motions to set aside verdicts as inadequate or
excessive. Id. We cannot say that the trial court abused
its discretion in refusing to set aside the verdict as

In his final assignment of error, Downer
maintains that the court’s "offset" of Amoco’s
settlement payment against the $5,000 verdict against CSX was
void as a violation of the following provision of 45 U.S.C. Sect.
55: Any contract, rule, regulation, or device whatsoever, the
purpose or intent of which shall be to enable any common carrier
to exempt itself from any liability created by this act shall to
that extent be void. Provided, that in any action brought against
such common carrier under or by virtue of any of the provisions
of this act, such common carrier may set off therein any sum it
has contributed or paid to any insurance, relief benefit, or
indemnity that it may have paid to the injured employee
. . . on account of the injury . . . for
which said action was brought.

According to Downer, CSX used the provisions of
Code Sect. 8.01-35.1(A)(1) as a "device" proscribed by
45 U.S.C. Sect. 55 to enable CSX "to exempt itself from any
liability." However, as CSX points out, counterclaims in
FELA actions have been held not to be proscribed
"devices" to exempt railroads from liability. Nordgren
v. Burlington Northern R. Co.
, 101 F.3d 1246, 1250-51 (8th
Cir. 1996); Sprague v. Boston and Maine Corp., 769 F.2d 26
(1st Cir. 1985) Cavanaugh v. Western Maryland Ry. Co., 729
F.2d 289 (4th Cir.), cert. denied, 469 U.S. 872 (1984).
Nor are the assertions of the defense of releases obtained by
railroads or other joint tortfeasors from FELA plaintiffs
considered as such proscribed "devices." See Callen
v. Pennsylvania R.R.
, 332 U.S. 625, 630-31 (1948)(release
obtained by railroad); Panichella v. Pennsylvania R.R.,
268 F.2d 72, 75-76 (3rd Cir. 1959), cert. denied, 361 U.S.
932 (1960)(tortfeasors other than the railroad). In Panichella,
the court noted that "[t]he railroad merely brought the fact
of the release to the attention of the court in order to have the
law operate thereon." Id. Here, CSX merely brought
the fact of the release and the relevant provisions of the
Viriginia Code to the attention of the court in order to have
Sect. 8.01-35.1(A)(1) operate thereon.

In deciding whether CSX has used a proscribed
"device," we see no significant difference between the
assertion of a counterclaim, a release of another joint
tortfeasor, and a motion to reduce a verdict. Instead, we think
that, because of Downer’s release of Amoco, CSX simply invoked a
statutory right designed to avoid double recoveries in cases of
this kind. Thus, we find no merit in this argument.

Downer also contends that 45 U.S.C. Sect. 55
evidences a congressional intent to preempt "state action to
the contrary" as exemplified in Code ?8.01-35.1(A)(1).
Courts will not, however, find a Congressional intent to preempt
state action in the absence of "clear and manifest
purpose" to do so. CSX Trans., Inc. v. Easterwood,
507 U.S. 658, 664 (1993)(quoting Rice v. Santa Fe Elevator
, 331 U.S. 218, 230 (1947)). We fail to detect any such
purpose in the Act. Instead, we think that the application of the
Act is limited to devices created by railroads to exempt
themselves from liability. Here, CSX’s right arose under Code
Sect. 8.01-35.1(A)(1) because of Downer’s settlement with Amoco,
not because of something CSX did to exempt itself from liability.
Hence we reject this contention.

In sum, we find no error in the trial court’s
denial of Downer’s motion for a new trial.

CSX asserts assignments of cross-error, which,
if sustained, would require a reversal of the judgment and entry
of a final judgment in favor of CSX. We have considered these
assignments of cross-error and find no merit in them.

Accordingly, the judgment of the trial court
will be





[1] Downer’s release
of Amoco did not release CSX. Code Sect. 8.01-35.1 provides in
pertinent part:

A. When a release or a covenant not to sue is
given in good faith to one of two or more persons liable in tort
for the same injury . . . :

1. It shall not discharge any of the other
tort-feasors from liability for the injury . . . ; but
any amount recovered against the other tort-feasors or any one of
them shall be reduced by any amount stipulated by the covenant or
the release, or in the amount of the consideration paid for it,
whichever is greater.

[2] The instruction
was in conformity with the FELA comparative negligence rule. 45
U.S.C. Sect. 53.

[3] At CSX’s request, we have not considered those
assignments of cross-error which would be material only if we
remanded the case for a new trial.

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