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

MICHAEL J. DOWNER
                                             OPINION BY
v.    Record No. 972657           SENIOR JUSTICE HENRY H. WHITING
                                          NOVEMBER 6, 1998
CSX TRANSPORTATION, INC.


                FROM THE CIRCUIT COURT OF YORK COUNTY
                      Prentis Smiley, Jr., Judge

       This is an appeal of an action under the Federal Employers'

Liability Act, 45 U.S.C. §§ 51 et seq. (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 defendant. 1



1
    Downer's release of Amoco did not release CSX. Code § 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.
     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 § 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


                                 2
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 property.

       Because of CSX's acquiescence in Amoco's decision not

to allow Downer to enter its Yorktown refinery property and


                                  3
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




                                 4
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



                                   5
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. Giddings, 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 verdict).

     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)




                                 6
     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 § 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 inadequate.


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

                                   7
     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. § 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

§ 8.01-35.1(A)(1) as a "device" proscribed by 45 U.S.C. § 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.


                                 8
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 § 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. § 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 Corp., 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


                                 9
right arose under Code § 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. 3

     Accordingly, the judgment of the trial court will be

                                                          Affirmed.




     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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