This section contains the nature of the case and procedural background.

D, a nineteen-year-old, was employed by NWRC as a section laborer. D reported for work at 7:00 a.m. at the NWRC's section office, approximately 50 miles from his home. D's section was called in to work at a derailment that had occurred. D and his fellow workers were transported to the derailment site in a truck owned by NWRC. The section crew began the work of removing debris and repairing the track that was damaged by the derailment. The derailment was deemed an emergency under the NWRC's contract with its union employees. Much of the work of removing the derailed train and the damaged track was performed by heavy equipment. The work performed by D and his co-workers was heavy manual labor, which included lifting railroad ties and shoveling coal. The work was continuous, except for intermittent periods when the workers were required to step back out of the way of the heavy equipment. The work continued long past D's normal 3:30 p.m. quitting time. At around 10:00 p.m. that night, D told his foreman, VanHoose, that he was tired and wanted to go home. VanHoose told D that he could not go home, but told him to speak with Bill Rowe, the road master in charge. D continued working. At approximately 1:00 a.m. the next day, D was given his first chance to eat since lunch the previous day. D ate and sat down to rest, but was approached by Rowe and told to return to work. Several times during the night, he told his foreman that he was tired and wanted to go home, and each time he was told he should ask Rowe. D testified that he did not speak with Rowe for fear of being fired. D and Rowe were involved in a work-related dispute several months before, which resulted in D being laid off for a week. At 5:00 a.m. D ate breakfast and again resumed work. D finally spoke with Rowe, telling him that he was too tired to continue working. Rowe told LeMaster that if he wouldn't work, he should get his bucket and go home. D asked for a ride to his car. An employee of NWRC drove D to his car while D fell asleep with a lit cigarette in his hand. Upon arriving, D got into his car and began the 50-mile trip to his house. D decided to stop at the derailment site to speak with Rowe and determine if he had been fired. When he arrived at the derailment site, D threw his hard hat at Rowe, told him to find someone else to work, and then asked if he was fired. Rowe told D that he was not fired and to 'just go on home.' They then shook hands, and D left in his car. On the way home, D claims that he fell asleep at the wheel and the accident with the Ps resulted. D has no memory of the details. A witness to the accident, Jude, testified that D was travelling about 75 miles per hour and that D turned his head and looked at him when he passed, and that D appeared normal and his eyes were open. D was attempting to pass Ps' vehicle when the right front end of D's car struck the left rear end of Ps' car, causing the accident. It took approximately a minute for D to regain consciousness. D told Jude that he was 'all right except I must have fallen asleep.' The section crew, of which D was a member, had worked throughout the night without rest breaks. Some of the men did slip away and go to sleep. One member of the section crew blacked out, fell over an embankment, and slept for approximately an hour. D worked approximately 27 hours before Rowe gave him permission to quit work. The section crew worked for 37 hours on the derailment. The appellee railroad company offered to drive all members of the crew, other than D, to their homes, rather than taking them back to their vehicles. Ps allege that NWRC 'illegally, willfully, wantonly, negligently, and with a conscious disregard for the rights and safety of others, ordered, forced and required . . . . D to work for . . . . 32 hours straight without rest, and then to leave the . . . . place of employment without providing either rest or transportation home when it knew or should have known that its employee constituted a menace to the health and safety of the public.' At the close of the Ps' case, NWRC moved for a directed verdict on the issue of liability. The trial court agreed that the elements of duty and proximate cause had not been established and granted the NWRC's motion. Ps appealed.

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