Anderson v. Burlington Northern R. Co., 48301

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: SIMON; STEPHAN, C.J., and LOWENSTEIN
• Citation: 700 S.W.2d 469
• Parties: Harold E. ANDERSON, Plaintiff-Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellant.
• Docket Number: No. 48301,48301
• Decision Date: 24 September 1985

Page 469

700 S.W.2d 469

Harold E. ANDERSON, Plaintiff-Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellant.

No. 48301.

Missouri Court of Appeals,

Eastern District,

Division Two.

Sept. 24, 1985.

Motion for Rehearing and/or Transfer

Denied Oct. 28, 1985.

Application to Transfer Denied

Dec. 17, 1985.

C. Marshall Friedman, Newton G. McCoy, Kenneth E. Rudd, C. Marshall Friedman, P. C., St. Louis, for plaintiff-respondent.

Edward W. Mullen, Derek E. Wood, Deacy & Deacy, Kansas City, for defendant-appellant.

SIMON, Presiding Judge.

Burlington Northern Railroad Company (railroad) appeals from a judgment in favor of Harold E. Anderson pursuant to a jury verdict of $800,000.00 in a personal injury action filed against the railroad pursuant to § 45 U.S.C. §§ 51 et seq., the Federal Employers' Liability Act. Anderson sought damages for injuries incurred when a steel shaving got into his eye as he was reaming bolt holes on a hopper car assembly line. We affirm.

This is the second appeal following retrial ordered by us in Anderson v. Burlington Northern Railroad, 651 S.W.2d 176 (Mo.App.1983) from which we borrow freely without quotation marks the following recitation of facts. Anderson was an employee of the railroad. His duties required him to ream bolt holes in the metal flooring of hopper cars. He used an air-powered reamer, the exhaust from which caused the metal shavings to be blown into his face at times. He wore safety glasses or spectacles but they did not prevent particles of metal from being blown into his eyes. The evidence was conflicting regarding the availability to Anderson, and the use by other employees, of various types of safety goggles. On May 6, 1977, while reaming a hole with the exhaust blowing in his face, Anderson felt a pain in his left eye. After finishing the last hole, he went to his foreman, obtained eye wash, and washed his eye. His eye continued to hurt over the weekend. Despite the continued eye irritation, he worked on Monday. On Tuesday when he returned to work, he was sent to a doctor who removed a piece of metal from his eye and attempted to clean the eye by drilling into it. While Anderson continued to work, he also visited the doctor because of pain. About two weeks later, on May 22, Anderson was admitted to the hospital. Surgical efforts to save his eye were unsuccessful; it was eventually removed and replaced with a prosthesis, a plastic eyeball.

The railroad raises nine points on appeal alleging that the trial court erred in the following: (1) refusing to grant a motion for directed verdict or judgment notwithstanding the verdict because Anderson failed to prove that the railroad's negligence caused his injuries; (2) denying a mistrial where the jury surmised that the failure to grant Anderson's request to excuse certain jurors was at the railroad's insistence; (3) failing to discharge the jury or declare a mistrial following a witness' testimony of the railroad's racial bias against the witness, thereby prejudicing the jury against the railroad; (4) admitting Anderson's testimony that the railroad forced his return to work the day after his medical treatment and continued to supply inadequate or ineffective safety goggles to him; (5) admitting certain incompetent medical testimony; (6) admitting testimony by an economist concerning Anderson's past and future loss of wages; (7) denying the motion for new trial or remittitur for an excessive jury verdict; (8) giving a negligence instruction based on M.A.I. 24.01; and (9) refusing to give the railroad's proffered comparative negligence instruction.

We shall set out additional facts only as needed. Railroad's first point contends Anderson failed to make a submissible case. The standard of review to be used in determining whether sufficient evidence has been presented in order to make a submissible case is well established. We must view the evidence in the light most favorable to the plaintiff and disregard defendant's contrary evidence. White v. St. Louis-San Francisco Ry., 602 S.W.2d 748, 751 (Mo.App.1980).

There is no question that Anderson sustained an injury as a result of a piece of steel being embedded in the cornea, near the center of his left eye. Railroad argues that, although Anderson established that the safety glasses issued him by the railroad had gaps which would allow debris to get behind the glasses, no evidence established that the steel particle got in Anderson's eye while he was actually working. Railroad presents other possibilities explaining how the steel particle fell in Anderson's eye. Noting that even if a man had on goggles or a face shield recommended by experts on eye protection, if he took them off and wiped his forehead because he was hot, a piece of metal could be shaken from his eyebrows, forehead, or gloves; be rubbed into the eye; and be forced in by the eyelid.

Testimony by Anderson established that the safety glasses issued to him and worn by him at the time of his injury were essentially spectacles, horn-rimmed glasses with perforated plastic side shields. He testified metal shavings, blown by the exhaust from the reamer, would get in his clothes, hair, face, eyebrows, in the vicinity of the eyes, and in the eyes of other workers on numerous occasions through the gaps at the top and bottom of the eyeglass frame, at the brow, around the cheeks and adjacent to the nose. Several other men, employed similarly to Anderson, had complained about getting shavings in their eyes while wearing the safety glasses. Anderson also testified that while working he felt a pain in his eye. Ample evidence was before the jury on this matter for it to conclude that the railroad's negligence in furnishing inadequate eye protection caused Anderson's injuries, despite the railroad's alternative explanations for causation on how the injury occurred. Point denied.

The railroad's second point alleges error in the denial of its motion to discharge the jury. During the voir dire of the jury panel, one of the male jurors, Mr. Webbe, informed the court he was allowed only one week's paid absence from his employment for jury duty. Despite his willingness to contribute the second week as a civic obligation, he was concerned over the possibility of the trial going into a third week. Out of the hearing of the jury the court advised the attorneys that if they believed Webbe's ability to concentrate on the case could be affected, the court would release him if both agreed. Anderson's counsel approved. The railroad's counsel, mindful that few men were on the panel and, more importantly, that Webbe used both air electric drills and reamers requiring him to wear eye protection in his employment, refused his consent to excuse Webbe.

The proceedings returned to the hearing of the jury and Anderson's counsel inquired of Webbe whether there was "a problem inasfar as you are concerned." Webbe again repeated that he would get paid only for five days. Anderson's counsel thereupon moved "that the juror be dismissed, we have extra jurors down here," notwithstanding the preceding bench conference where the railroad's counsel had refused his consent to excuse Webbe. Immediately thereafter, the railroad's counsel approached the bench and, out of the hearing of the jury, moved to discharge the jury panel stating Anderson's attorney was guilty of a deliberate attempt to prejudice the jury against the railroad. The motion was denied. The railroad argues the actions of Anderson's counsel curried favor with the jury, especially with Webbe, by revealing that Webbe was retained at the railroad's insistence, despite Anderson's willingness to excuse him.

Neither Webbe nor the panel was ever advised in any manner that the railroad objected to or opposed Webbe's being excused. Earlier during the course of the voir dire examination, the trial court had determined not to excuse another venireman because of job problems. In the eyes of the jury, the trial court, not the attorneys, made the final determination not to excuse Webbe. The court exercised its discretion in the manner requested by the railroad by denying Anderson's motion to excuse Webbe. The railroad's determined efforts to have Webbe retained on the panel were successful. Regardless of railroad's characterization of the remark made by Anderson's counsel, the record fails to support that either Webbe or the entire jury panel perceived that it was at the railroad's insistence that Webbe was not excused, thereby engendering their prejudice against the railroad. The trial court is vested with broad discretion in the control of counsel's conduct during voir dire and his ruling thereon will not be disturbed unless the facts indicate a manifest abuse of discretion, Missey v. Kwan, 595 S.W.2d 460, 462 (Mo.App.1980), because the trial court is in a better position to gauge the effect on the jury panel of the matter claimed to be prejudicial, see Smith v. Aldridge, 356 S.W.2d 532, 536 (Mo.App.1962). The trial did not exceed two weeks, so Webbe incurred no undue hardship by his jury service; therefore, we find no prejudice to the railroad and no abuse of discretion by the trial court. The incident certainly does not warrant reversal. Everett v. Bishop, 680 S.W.2d 779, 781 (Mo.App.1984).

In the same point railroad also complains of the actions of Anderson's attorney concerning Mr. Winkelman, a juror, who had advised the court near the end of the trial he would lose his job if the trial went into a third week. On the final Thursday of the second week, the court requested the jury to determine whether it wished to complete the case on Saturday or Monday. The jury voted for Monday whereupon the court advised them, since Winkelman "would lose his job if he had to come back Monday," their selection of Monday would require that the alternate juror be substituted. A recount produced the same result. The court then requested to know whether the substitution for Winkelman could be...