                            FOURTH DIVISION
                              DILLARD, C. J.,
                        DOYLE, P. J., and MERCIER, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                      June 26, 2018




In the Court of Appeals of Georgia
 A18A0314, A18A0315. HARTRY et al. v. RON JOHNSON JR. DO-011
     ENTERPRISES, INC. et al., and vice versa.        DO-012

      DOYLE, Presiding Judge.

      This appeal arises from a collision between a train, operated by Winford

Hartry, and a tractor-trailer truck, owned by Ron Johnson Jr. Enterprises (“Johnson”),

after its truck driver drove through a railroad grade crossing while the crossing’s

warning arms were down. Hartry and his wife sued Johnson and Norfolk Southern

Railway Company (“NS”),1 alleging claims of negligence, bad faith, and punitive

damages, as well as violations of the Federal Employers Liability Act (“FELA”)2

against NS. Hartry’s complaint raised several FELA violations, but he eventually


      1
      The Hartrys also included claims against Columbia National Insurance
Company, but that party was dismissed voluntarily and is not a party to this appeal.
      2
          45 USC § 51 et seq.
withdrew all but his claim that NS was responsible for maintaining the crossing gates,

which dangerously malfunctioned, resulting in NS’s failure to provide Hartry with a

reasonably safe place to work.

      NS moved for summary judgment, which the trial court granted on the basis

that Hartry’s FELA claim was precluded by regulations3 promulgated under the

Federal Railroad Safety Act (“FRSA”)4 by the Federal Railroad Authority (“FRA”).

Thereafter, the case proceeded to a jury trial in which the jury returned a verdict for

the Hartrys.

      In Case No. A18A0314, the Hartrys appeal, arguing that the trial court erred

by (1) granting summary judgment to NS after determining that his FELA claim was

precluded by FRA regulations and that no question of fact existed as to whether NS

had notice of a gate malfunction; and (2) failing to give requested jury instructions

informing the jury that Johnson had the burden of proof for its affirmative defense of

mitigation of damages. In Case No. A18A0315, Johnson appeals, arguing that the

trial court erred by (3) granting the Hartrys’ motion to exclude certain expert

testimony; (4) granting the Hartrys’ motion for a directed verdict as to Johnson’s

      3
          49 CFR § 200 et seq.
      4
          49 USC §§ 20101-20168.

                                          2
liability; and (5) prohibiting apportionment of fault to NS under OCGA § 51-12-33.

For the reasons that follow, we reverse the trial court’s grant of summary judgment

to NS and directed verdict as to Johnson.

      The record shows that on June 16, 2010, crossing gates were down at a public

railway-roadway crossing, which position normally indicates that a train is

approaching the crossing; occasionally gates will be down if a railway is performing

maintenance or if they are malfunctioning.5 As Johnson approached the railroad

crossing driving his 28-foot long truck with attached dumpster, he saw that the gates

were down but cars were driving around the gates and over the crossing. Johnson

followed suit, driving around the crossing gates into the path of an oncoming train on

which Hartry was serving as engineer. Hartry was injured as a result of the collision.

      Witnesses in the area averred that the crossing gates were down by at least 9:00

a.m. on June 15, 2010 (the day before the accident), and because they were down


      5
        To the extent that the cross-appeals implicate the jury verdict, we review the
record to determine whether there is any evidence to support the verdict. Central of
Ga. R. Co. v. Ross, 342 Ga. App. 27, 29 (1) (802 SE2d 336) (2017). To the extent that
we review the summary judgment order, “we construe the evidence most favorably
towards the nonmoving party, who is given the benefit of all reasonable doubts and
possible inferences. And because summary judgment is a matter of law, we review
the issue de novo.” (Punctuation and citations omitted.) Norfolk Southern R. v.
Zeagler, 293 Ga. 582, 583 (1) (a) (748 SE2d 846) (2013).

                                          3
without trains crossing, drivers were traversing the crossing despite the gates being

down. A delivery driver averred that he had traversed the crossing at least 15 to 20

times over the course of June 15 and 16 while the gates were down and prior to the

accident. Johnson had traversed the crossing in spite of the warning gates being down

a number of times since 4:00 p.m. on June 15 without incident.

      NS employees also worked in the area of the crossing on two occasions during

the day on June 15 and were in the vicinity for several other hours of the day during

which other witnesses testified that the gates were staying down and signaling

without trains actually approaching during that time. The employees contended,

however, that they did not witness any malfunctions.

                                Case No. A18A0314

      1. The Hartrys and Johnson argue that the trial court erred by granting summary

judgment to NS after determining that Hartry’s FELA claims are precluded by the

FRA regulations promulgated under the FRSA and because questions of fact exist as

to whether NS had notice of the alleged gate malfunction.

      (a) Motion to dismiss the appeal. As an initial matter, NS argues that the

Hartrys’ appeal from the trial court’s grant of summary judgment as to NS should be

dismissed because the Hartrys failed to appeal the order at the time it was entered, or

                                          4
alternatively, because the Hartrys’ notice of appeal failed to indicate that they

appealed from the summary judgment order. We disagree.

         (i) Timeliness of the appeal. The Georgia Supreme Court has held that “[t]he

party against whom summary judgment was granted may appeal either after the grant

of summary judgment or after the rendition of the final judgment. Therefore, when

the losing party appeals after the rendition of the final judgment, the grant of

summary judgment is still subject to appellate review.”6

         NS, however, argues that under Uniform Superior Court Rule (“USCR”) 19.1

(C), this rule does not apply because after a case is transferred to another superior

court,

         [i]f the basis of the motion is that a party necessary to the court’s
         jurisdiction has been dismissed during or at the conclusion of the trial,
         the motion shall be made immediately and orally; any opposition shall
         be made orally. Should the motion to transfer be granted as to the
         remaining parties the claim against the party dismissed shall be severed,
         so that the order of dismissal will be final for purposes of appeal.7




         6
        Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243 (248 SE2d 641) (1978).
See also Perrett v. Sumner, 286 Ga. App. 379, 380 (1) (649 SE2d 545) (2007).
         7
             USCR 19.1 (C).

                                             5
We do not read this rule as requiring a party to appeal immediately from a grant of

summary judgment as to one party or risk losing the right to appeal, merely that a

party could appeal from such an order at that time. In fact, USCR 19.1 (I) states that

after transfer, “[t]he action thereafter shall continue in the transferee court as though

initially commenced there.” And the transferee court has the power to review, vacate,

or reissue “[a]ny interlocutory or other order theretofore entered in the action.”8 Thus,

the act of transferring the case did not require immediate appeal of the summary

judgment order.9

      (ii) Sufficiency of the notice of appeal. NS also argues that the Hartrys’ notice

of appeal precludes this Court from reaching the summary judgment order because



      8
        USCR 19.1 (I). See Edokpolor v. Grady Mem. Hosp., 302 Ga. 733, 735 n.1
(808 SE2d 653) (2017) (“[P]laintiffs could have immediately appealed the order that
granted summary judgment . . . even though [another issue] remained pending. . . .
But this entitlement did not preclude them from waiting to appeal until a final
judgment was rendered.”) (emphasis in original). See also Culwell, 242 Ga. at 243.
      9
         Compare with Jarallah v. Aetna Cas. &c., 199 Ga. App. 592, 593 (405 SE2d
510) (1991) (“Ordinarily, where a grant of summary judgment does not dispose of all
of the issues in the case, it may be reviewed on appeal from the final judgment
entered in the case as well as by direct appeal. . . . However, if the trial court does
certify that the summary judgment is final and ripe for review under OCGA § 9-11-54
(b), the time for appeal begins to run.’”) (citation and punctuation omitted). The
summary judgment order in this case did not contain language indicating that it was
“final and ripe for review,” nor was it contained in the transfer order.

                                           6
the notice contains language limiting the orders appealed to the final judgment “plus

other interlocutory orders and rulings that were not ripe for appeal until Final

Judgment was entered.” But this language actually is open ended and non-specific —

the appellants did not list orders entered on particular dates or limit orders appealed

based on the subject matter therein; therefore, we do not read it to preclude our

review of the order.10

      Accordingly, NS’s motion to dismiss the appeal is hereby denied.

      (b) Summary judgment. We now turn to the substance of the summary

judgment motion. We agree with the Hartrys and Johnson that the trial court erred by

determining that the Hartrys’ FELA claims against NS were precluded by the FRSA

as implemented by the FRA in its regulations and by determining that questions of

fact did not exist as to his claims.

      “[FELA] is a federal statute that gives a railroad employee the right to sue his

employer in state or federal court for injury or death resulting in whole or in part from

the railroad company’s negligence [wherein] a plaintiff must ‘prove the traditional


      10
         Compare with Southwest Health & Wellness v. Work, 282 Ga. App. 619, 622
(1) (a) (639 SE2d 570) (2006) (holding that the appellants’ designation within the
notice of appeal as an order entered on a specific date regarding a specific issue
precluded this Court’s review of other orders entered in the case).

                                           7
common law elements of negligence: duty, breach, foreseeability, and causation.’”11

FELA “should be ‘liberally construed’ in favor of injured railroad employees in order

to further its ‘remedial goal’ and ‘humanitarian purposes.’”12

      Generally speaking,

      [u]nder FELA, [a railroad company] has a duty to use reasonable care in
      furnishing its employees with a safe place to work. This duty requires
      the railroad to exercise the care that a reasonable and prudent person
      would exercise under the same circumstances. The carrier is required to
      take precautions commensurate with danger inherent in the situation and
      to exercise ordinary care proportionate to the consequences that might
      be reasonably anticipated from neglect. And what particular action a
      railroad should take to address a given workplace hazard is a question
      of whether the railroad breached the standard of care, which is a
      question for the jury.13


      (ii) FELA claim preclusion. Before the trial court, Hartry argued that NS had

a duty under FELA to maintain the grade crossing, and its failure to do so resulted in

his injuries. NS argued that its duty was controlled by 49 CFR § 234.107 promulgated



      11
           (Punctuation omitted.) Zeagler, 293 Ga. at 586 (2).
      12
        Id. at 596 (2) (e), quoting Consolidated Rail Corp. v. Gottshall, 512 U. S.
532, 542-543 (II) (A) (114 SCt 2396, 129 LE2d 427) (1994).
      13
           (Citations and punctuation omitted.) Ross, 342 Ga. App. at 29-30 (1).

                                           8
by the FRA under the FRSA, which laid out the actions to be taken after a railway

received a “credible report” of a crossing malfunction and that because there was no

“credible report” of a crossing malfunction as defined under that regulation, Hartry’s

FELA claim was precluded. NS is correct that many state and federal courts

previously had determined that claims brought pursuant to FELA were precluded by

FRA regulations promulgated under FRSA.14 Indeed, our prior precedent held that a

FELA “claim would be precluded if [a railway] established that a FRSA regulation

or set of regulations ‘”substantially subsume[d]” the subject matter’ of the FELA

claim.”15

      In POM Wonderful LLC v. Coca-Cola Co.,16 the United States Supreme Court

addressed the issue of claim preclusion in the face of two federal statutory schemes,

noting that multiple tests had been employed by courts across the country to



      14
         See Zeagler, 293 Ga. at 598 (3) (b). See, e.g., Norris v. Central of Ga. R., 280
Ga. App. 792, 794-795 (1) (635 SE2d 179) (2006); Waymire v Norfolk &c., 218 F3d
773 (7th Cir. 2000), applying CSX Transp. v. Easterwood, 507 U. S. 658 (113 SCt
1732, 123 LE2d 387) (1993). But see 49 USC § 20106 (b) (2010) (clarifying that
state law claims for railway accidents are not preempted as long as the state law is not
“incompatible” with federal regulations).
      15
           Zeagler, 293 Ga. at 598 (3) (b). See also Norris, 280 Ga. App. at 794-795 (1).
      16
           ___ U. S. ___, ___ (II) (A) (134 SCt 2228, 2236, 189 LE2d 141) (2014).

                                             9
determine such a question.17 The Court explained that when a court determines

whether a claim under one federal statute is precluded18 from proceedings by another

federal statute, a court should apply a two-part inquiry. First, a court must look to the

express language of the statutory provisions and determine if Congress expressly

intended preclusion.19 If no express provision is found, courts must apply “traditional

rules of statutory interpretation” to determine if one statute precludes a claim raised

under another statute.20 The Court explained that if two statutes complement each

other, then claims under one statute would not be precluded by the existence of

regulations under another and to hold otherwise would vitiate Congressional intent.21




      17
          See id. at __ (II) (A) (134 SCt at 2236-2237) (declining to apply the
“irreconcilable conflict,” standard and also declining to simply apply the more
specific law over the provisions of the more general law). See also Zeagler, 293 Ga.
at 598-599 (3) (b) (applying neither the “substantially subsumes” approach nor the
“intolerable conflict approach”).
      18
         Over the years, courts have conflated the concepts of preemption and
preclusion. The distinction was clarified by Justice Nahmias in Zeagler, 293 Ga. at
598 (3) (a).
      19
           Pom Wonderful, ___ U. S. at ___ (II) (B) (134 SCt at 2237).
      20
           See id. at ___ (II) (A) (134 SCt at 2236).
      21
           See id. at ___ (II) (B) (134 SCt at 2238).

                                           10
       Since the U.S. Supreme Court’s decision in Pom Wonderful, many courts have

diverged from prior precedent and held that employees bringing claims under FELA

are not necessarily precluded in the event that the subject matter of the claims is also

regulated under FRSA.22 And although it was decided prior to Pom Wonderful, the

Georgia Supreme Court in Norfolk Southern R. v. Zeagler, resolved a similar

preclusion argument in much the same way as the U.S. Supreme Court, holding that

the regulations at issue did not cover employee safety training, and therefore, the

employee’s failure-to-train claim under FELA was not precluded by the regulations.23

       Turning to the FRA regulations, the scope of this portion of the FRSA states

that

       [t]his part prescribes minimum (1) [m]aintenance, inspection, and testing
       standards for highway-rail grade crossing warning systems; (2)
       [s]tandards for the reporting of failures of highway-rail grade crossing


       22
         See, e.g., Fair v. BNSF R. Co., 238 Cal. App. 4th 269, 286-289 (189 CalR3d
150) (2015) (“If Congress had concluded that FELA suits would interfere with the
operation of FRSA, it could have enacted a provision addressing the issue during
these statutes’ 45 years of co-existence.”). See also Madden v. Antonov, 156 FSupp.
3d 1011 (DC Neb 2015); Henderson v. Amtrak, 87 FSupp. 3d 610, 620-621 (II) (B)
(SDNY 2015); Hananburgh v. Metro-North Commuter R., 2015 US Dist LEXIS
34008 (SDNY 2015); Cottles v. Norfolk Southern R. Co., 224 So. 3d 572 (Ala. 2017);
Noice v BNSF R. Co., 383 P3d 761, 766-771 (D), (E) (NM 2016).
       23
            Zeagler, 293 Ga. at 598-601 (3) (b) & (3) (c).

                                            11
      warning systems and for the actions that railroads must take when such
      systems malfunction; . . . (4) [r]equirements that certain railroads
      establish systems for receiving toll-free telephone calls reporting various
      unsafe conditions at highway-rail grade crossings and pathway grade
      crossings, and for taking certain actions in response to those calls; and
      (5) [r]equirements for reporting to, and periodically updating
      information contained in, the U.S. DOT National Highway-Rail
      Crossing Inventory for highway-rail and pathway crossings.24


This section goes on to state that “[t]his part does not restrict a railroad from adopting

and enforcing additional or more stringent requirements not inconsistent with this

part.”25 The regulations contain a number of subsections related to reports of signal

failures,26 accidents,27 and plans of action28 responses that railroads are required to

take in response to certain issues,29 like false activation of signals,30 maintenance



      24
           (Emphasis supplied.) 49 CFR § 234.1 (a).
      25
           49 CFR § 234.1 (b).
      26
           49 CFR § 234.9.
      27
           49 CFR § 234.7.
      28
           49 CFR § 234.11.
      29
           49 CFR §§ 234.101 to 234.109.
      30
           49 CFR § 234.107.

                                           12
standards for various parts of the signals,31 and certain signal inspections and tests.32

The particular section at issue in this case deals with false activations of warning

systems at grade crossings. It reads:

      Upon receipt of a credible report33 of a false activation, a railroad having
      maintenance responsibility for the highway-rail grade crossing warning
      system shall promptly initiate efforts to warn highway users and railroad
      employees at the crossing by taking the following actions:


      (a) Prior to a train’s arrival at the crossing, notify the train crew of the
      report of false activation and notify any other railroads operating over
      the crossing;


      (b) Notify the law enforcement agency having jurisdiction over the
      crossing . . . or railroad police capable of responding and controlling
      vehicular traffic; and




      31
           49 CFR §§ 234.201 to 234.245.
      32
           49 CFR §§ 234.247 to 234.273.
      33
        “Credible report of warning system malfunction or credible report of warning
system malfunction at a highway-rail grade crossing means a report that contains
specific information regarding a malfunction of a highway-rail grade crossing
warning system at an identified highway- rail grade crossing, supplied by a railroad
employee, law enforcement officer, highway traffic official, or other employee of a
public agency acting in an official capacity.” 49 CFR § 234.5.

                                           13
(c) Provide for alternative means of actively warning highway users of
approaching trains, consistent with the following requirements (see
Appendix B for a summary chart of alternative means of warning).


(1) (i) If an appropriately equipped flagger is providing warning for each
direction of highway traffic, trains may proceed through the crossing at
normal speed.


(ii) If at least one uniformed law enforcement officer (including a
railroad police officer) provides warning to highway traffic at the
crossing, trains may proceed through the crossing at normal speed.


(2) If there is not an appropriately equipped flagger providing warning
for each direction of highway traffic, or if there is not at least one
uniformed law enforcement officer providing warning, trains with the
locomotive or cab car leading, may proceed with caution through the
crossing at a speed not exceeding 15 miles per hour. Normal speed may
be resumed after the locomotive has passed through the crossing. In the
case of a shoving move, a crewmember shall be on the ground to flag the
train through the crossing.


(3) In lieu of complying with paragraphs (c) (1) or (2) of this section, a
railroad may temporarily take the warning system out of service if the
railroad complies with all requirements of § 234.105, ‘Activation
failure.’




                                   14
      (d) A locomotive’s audible warning device shall be activated in
      accordance with railroad rules regarding the approach to a grade
      crossing.34


      Applying the two-part test set forth in Pom Wonderful, Hartry’s FELA claim

is not precluded by these FRA regulations.35 The plain language of the regulation

directs a railway to take certain action in the event that it receives a credible report

about a false activation — a minimum requirement as specifically stated in 49 CFR

§ 234.1 (b). It does not limit railway liability to its employee in the event that a

railway was or should have been aware of a malfunction, which is what Hartry claims

occurred in this case.

               FELA has been liberally construed to further Congress’ remedial
      goal of holding railroads responsible for the physical dangers to which
      their employees are exposed. As the Supreme Court explained in
      Gottshall: . . . when considering § 51, when Congress enacted FELA in
      1908, its attention was focused primarily upon injuries and death
      resulting from accidents on interstate railroads. Cognizant of the
      physical dangers of railroading that resulted in the death or maiming of
      thousands of workers every year, Congress crafted a federal remedy that



      34
           49 CFR § 234.107.
      35
           See Zeagler, 293 Ga. at 599 (3) (b).

                                           15
      shifted part of the human overhead of doing business from employees
      to their employers.36


      NS urges this Court to find that the regulation precludes FELA claims based

on failure to maintain a signal crossing because by enacting FRSA, Congress

intended uniformity among the states. NS maintains that if such FELA claims are

allowed in this area, railroads will face different applications of the law throughout

the country. The Georgia Supreme Court in Zeagler37 found this same argument

unpersuasive, as did the U.S. Supreme Court in Pom Wonderful, which instructed

courts instead to interpret the meaning of the two federal statutes rather than striving

for uniformity by finding one statute precluded.38 Although touching different acts,

as the Court explained in Pom Wonderful,



      36
         (Punctuation and citations omitted.) Wheeler v. CSX Transp., Inc., No.
3:14CV2689 at *14-15 (2017 U. S. Dist. LEXIS 114059) (ND Ohio 2017), quoting
Gottshall, 512 U. S. at 543 (II) (A); Urie v. Thompson, 337 U. S. 163, 181 (II) (69
SCt 1018, 93 LEd 1282) (1949); citing Wilkerson v. McCarthy, 336 U. S. 53, 68, (69
SCt 413, 93 LEd 497) (1949) (Douglas, J., concurring) (“[FELA] ‘was designed to
put on the railroad industry some of the cost for the legs, eyes, arms, and lives which
it consumed in its operations’”); Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 58
(63 SCt 444, 87 LEd 610) (1943).
      37
           293 Ga. at 600 (3) (B).
      38
           See Pom Wonderful, __ U. S. at ___ (II) (C) (134 SCt at 2239-2240).

                                          16
      the application of a federal statute such as [FELA] by judges and juries
      in courts throughout the country may give rise to some variation in
      outcome, [but] this is the means Congress chose to enforce a national
      policy to ensure [the protection of railroad workers]. It is quite different
      from the disuniformity that would arise from the multitude of state laws,
      state regulations, state administrative agency rulings, and state-court
      decisions that are partially forbidden by [FRSA]’s pre-emption
      provision.39


Another court approached it by comparing

      (1) the effect on FRSA of allowing FELA claims to continue with (2)
      the effect on FELA of giving FRSA a preclusive effect. Allowing FELA
      claims to continue is a mixed bag from the perspective of FRSA — it
      will further safety but at some expense to uniformity. On the other hand,
      the purpose of FELA is solely to promote the safety of railroad workers,
      and allowing FRSA to preclude FELA claims would work unmitigated
      harm on that purpose, by leaving injured workers with no recourse
      against their employer and insulating broad categories of potentially
      negligent conduct from any accountability.40




      39
        Id. See also Wheeler, No. 3:14CV2689 at *33 (2017 U.S. Dist. LEXIS
114059) (applying Pom Wonderful analysis to a FELA claim that the railway argued
was precluded by the Federal Locomotive Inspection Act); Henderson, 87 FSupp. 3d
at 620-621 (II) (B).
      40
       Madden, 156 FSupp. 3d at 1021 (III) (A). See also Wheeler, No.
3:14CV2689 at *25 (2017 U.S. Dist. LEXIS 114059).

                                          17
In the case of FELA claims, although outcomes may differ based on the inherent facts

of each case, the national standard governed by that cause of action will prevent the

issue NS fears.41

      (ii) Fact Questions. NS also argues that even if we determine that FRSA did

not preclude Hartry’s FELA claim, summary judgment was still proper because there

was no evidence to create a question of fact as to whether NS had actual knowledge

of the malfunction, if any. The trial court’s ruling in this regard is both a

misapplication of the law based on its determination that the actual knowledge

standard of the FRA regulation created the only duty for which NS could be liable

and an impermissible determination of a question of fact based on competing

testimony in the record regarding whether the crossing arms were malfunctioning and

for what length of time.42

               Under FELA, a railroad has a duty to use reasonable care in
      furnishing its employees with a safe place to work. . . . A railroad’s duty
      to provide a safe workplace for its employees requires it to exercise the
      care that a reasonable and prudent person would exercise under the same
      circumstances. . . . Whether the railroad breached that duty in a given


      41
           See Zeagler, 293 Ga. at 600 (3) (B).
      42
           See Zeagler, 293 Ga. at 587 n.4.

                                          18
      case by failing to act with the degree of care required in a specific
      situation is a separate question.43


“The other three elements — foreseeability, breach, and causation — are questions

of fact to be decided by a jury, assuming that there is evidence in the record creating

a genuine issue for trial.”44 Here, the evidence shows that the truck driver testified

that he went over the crossing while the malfunctioning gate was down at least 4

times prior to the accident, and another driver averred that he traversed the crossing

between 15 and 20 times prior to the accident while the gate was down. Additionally,

other witnesses testified that the gates had been down since the day before the

accident, even though no trains were traversing the crossing. Although NS employees

working at the crossing testified that the warning gates were not malfunctioning, this

testimony simply created a question of fact for a jury to resolve based on the

credibility of the witnesses.45 It is not the case, as NS urges, that the NS employee’s



      43
           (Citations and punctuation omitted.) Id. at 587-588 (2) (a).
      44
         (Emphasis omitted.) Id. at 586 (2). See also Ga. Southern &c. v. Peters, 284
Ga. App. 139, 145 (2) (643 SE2d 786) (2007) (“Although the meaning of reasonable
foreseeability under FELA ‘remains somewhat elusive and abstract,’ it equates with
‘notice, either actual or constructive.’”).
      45
           See Zeagler, 293 Ga. at 596-597 (2) (e).

                                            19
testimony is “direct evidence” that trumps the testimony of other witnesses. Thus, as

the evidence stood prior to the grant of summary judgment, there was a question of

fact as to whether NS breached its duty to provide Hartry with a reasonably safe

working environment, including protecting him from collisions at grade crossings.46

      2. The Hartrys also argue that the trial court erred by failing to give their

requested jury instruction on burden of proof as to Johnson’s affirmative defense of

mitigation of damages.

      Although Johnson elicited a number of pieces of evidence from the doctors and

Hartry that he was cleared to return to work much sooner than he did, after our review

of the testimony and argument presented by Johnson, we agree that Johnson did not

elicit testimony or argue that Hartry had a duty to mitigate his damages, but instead,

attacked the veracity of Hartry’s claims that his psychological and physical injuries

were caused by the accident. Moreover, the court did not charge the jury that Hartry




      46
           See id. at 591-592 (2) (a). See also Strickland v. Norfolk Southern R., 692
F3d 1151, 1154 (I) (11th Cir. 2012) (reviewing a FELA case and explaining that
“[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge, whether
. . . ruling on a motion for summary judgment or for a directed verdict.”).

                                         20
had a duty to mitigate his damages in the first place.47 Accordingly, it was not error

for the trial court to decline to charge the jury on this issue.48 That said, we

acknowledge on retrial that the evidence may be different, thereby supporting such

a charge.

      3. NS’s Motion to Strike Reply Brief is hereby denied as moot.

                                 Case No. A18A0315

      4. Johnson argues in its conditional cross-appeal that the trial court erred by (1)

directing a verdict as to his liability and (2) by prohibiting apportionment of fault to

NS under OCGA § 51-12-33. Based on our conclusion in Division 1, supra, we

reverse these orders.49


      47
         See Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508, 512 (6)
(359 SE2d 351) (1987), quoting Nat. Health Svcs. v. Townsend, 130 Ga. App. 700,
703 (3) (204 SE2d 299) (1974).
      48
        See Williams, 183 Ga. App. at 512 (6) (holding that because there was no
testimony that disregarding a doctor’s order caused portions of the plaintiff’s
damages, the trial court did not err by denying the request to charge on mitigation of
damages). Compare with Jones v. Sperau, 275 Ga. 213, 214 (2) (563 SE2d 863)
(2002).
      49
          See Head v. CSX Transp., 271 Ga. 670, 673 (4) (524 SE2d 215) (1999)
(explaining that if “comparative negligence is an issue at trial, liability and damages
are so inextricably joined that a new trial on damages only is impermissible. Because
the grant of a new trial in a comparative negligence case must encompass issues of
liability as well as damages, . . . [the plaintiff] is entitled to a new trial as to all

                                          21
      [If] a judgment is entire and indivisible, it can not be affirmed in part
      and reversed in part, but the whole must be set aside if there is reversible
      error therein. But where a judgment appealed from can be segregated,
      so that the correct portions can be separated from the erroneous, the
      court will not set aside the entire judgment, but only that portion which
      is erroneous.50


      5. Finally, Johnson argues that the trial court erred by granting the Hartrys’

motions to exclude the expert testimony of Dr. Torrence Welch and David Nelson.

The trial court did not issue detailed written orders excluding these experts, but our

review of the record reveals no abuse of discretion on the part of the trial court by

excluding the testimony of Welch51 and Nelson.52


issues”) (punctuation omitted). Compare with Martin v. Six Flags Over Ga. II, 301
Ga. 323, 338-341 (III) (801 SE2d 24) (2017).
      50
       (Punctuation omitted.) Martin, 301 Ga. at 338 (III), quoting Chicago Bldg.
& Mfg. Co. v. Butler, 139 Ga. 816, 819 (1) (78 SE 244) (1913).
      51
         See, e.g., Bowers v. Norfolk Southern Corp., 537 FSupp2d 1343, 1377 (MD
Ga. 2007) (“In the context of litigation, therefore, biomechanical engineers typically
are found to be qualified to render an opinion as to the forces generated in a particular
accident and the general types of injuries those forces may generate. However,
biomechanical engineers ordinarily are not permitted to give opinions about the
‘precise cause of a specific injury.’”) (citations omitted).
      52
         See id. at 1371-1372 (“Expert testimony may be admitted into evidence
under Rule 702 only if ‘the expert is qualified to testify competently regarding the
matters he intends to address. . . .’”) (punctuation omitted).

                                           22
Judgment reversed. Dillard, C. J., and Mercier, J., concur.




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