Beanland v. Chicago, Rock Island & Pacific Railroad Co.

• Decision Date: 17 May 1973
• Docket Number: No. 72-1446.,72-1446.
• Citation: 480 F.2d 109
• Parties: Henry L. BEANLAND, Appellee, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

480 F.2d 109 (1973)

Henry L. BEANLAND, Appellee, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant.

No. 72-1446.

United States Court of Appeals, Eighth Circuit.

Argued April 9, 1973.

Decided May 17, 1973.

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David R. Odegard, Kansas City, Mo., for appellant.

Jo B. Gardner, Monett, Mo., for appellee.

Before GIBSON, BRIGHT, and ROSS, Circuit Judges.

ROSS, Circuit Judge.

Chicago, Rock Island and Pacific Railroad Company (Rock Island) brought this appeal from a judgment obtained by Henry L. Beanland (Beanland) in an F. E.L.A. action. The jury returned a verdict in the amount of $275,000.00, and the district court denied a motion for a new trial, 345 F.Supp. 220. We reverse with directions to hold a new trial.

Beanland, an engineer for Rock Island, was injured on March 25, 1970, in an accident involving his train No. 74 (74) and extra train 1339 (1339), on a siding at Union, Missouri. Both trains were eastbound with 1339 preceding 74. At Union, 1339 took a siding to permit 74 to pass, but after taking the siding, failed to realign the siding switch to permit 74 to proceed on the main track. The crew of 1339 had placed warning torpedoes on the tracks west of the siding and had advised 74 by radio that 1339 was on the siding. When 74 approached the siding at 35 to 40 m. p. h. it hit the torpedoes and started to slow down. Beanland testified that as 74 continued eastward, he saw 1339 on the siding but did not notice that the siding switch was still open. He testified that he was given a "highball" signal by one of the crew members of 1339 and then increased his speed. As 74 approached within 75 feet of the switch, Beanland noticed the switch was open.¹ He threw the train into emergency braking, but being unable to stop in time, he jumped out of the side of it. 74 then rammed into the rear end of 1339 on the siding. In the collision the brakeman on 74 was killed and Beanland was injured in jumping. Beanland was later discharged by Rock Island.

Beanland commenced an action in the trial court alleging three separate causes of action: The first was under F.E.L.A. for injuries due to the negligence of Rock Island; the second was for wrongful discharge, an alleged breach of his employment contract; and the third was for conspiracy of Rock Island and its officers in wrongfully discharging Beanland. The trial court ordered that the first count be tried separately,² and this appeal is from the trial of that first count.

On this appeal, Rock Island alleges several errors in trial, including the following:

1. The court erred in allowing evidence and in giving an instruction that the plaintiff\'s distress at the brakeman\'s death and the plaintiff\'s discharge were elements of plaintiff\'s damages.

2. The court erred in failing to include a "present worth" instruction in his charge to the jury and in refusing both of defendant\'s proffered instructions, thereby resulting in an excessive verdict.

3. The court erred in its refusal to allow various witnesses of defendant to testify as to the meaning of certain railroad rules and the custom and practice of applying those rules.

I. EVIDENCE AND INSTRUCTIONS ON DISCHARGE AND DEATH OF BRAKEMAN

In the trial of this case, even though the trial court had ordered a separate trial as to Beanland's second and third counts relating to unlawful discharge, Beanland's counsel was permitted, over repeated objections, to ask several medical witnesses hypothetical questions which made certain assumptions relating to his discharge and to the death of his friend, the brakeman. The witnesses were asked to assume the following:

"The head brakeman, a close friend of plaintiff, was killed and the plaintiff was discharged by the railroad and has been physically unable to work since the injury, and has suffered from mental depression and worry about his condition, loss of job, because of his being discharged and his physical inability to work, and because of his friend\'s death in the collision."

In the instructions to the jury regarding the effect of these assumed facts on Beanland, the district court stated:

"You are therefore instructed that the plaintiff may not be awarded any damages in connection with his discharge and that the evidence concerning his depression or withdrawal symptoms regarding that discharge is to be considered only in regard to your determination of the plaintiff\'s present and future physical and mental condition but not as a separate element of damage.

"You are further instructed that the evidence concerning the plaintiff\'s reaction to the death of Gary Schlesner brakeman was admitted for substantially the same limited purpose. In other words, you are instructed that the plaintiff may not recover any damages for any depression or withdrawal symptoms which you may find have resulted from the death of the brakeman but you may, however, consider that evidence as one of the many facts and circumstances in evidence which will assist you in determining the plaintiff\'s present and future physical and mental condition but not as a separate element of damage."

Rock Island argues that the trial court erred in allowing plaintiff to hypothesize the death of the brakeman, his own discharge and his mental distress therefrom, to each of his medical witnesses, since neither of the factors were proper elements of damages for mental anguish under the circumstances of this case. Rock Island further contends that the instruction given by the trial court set forth above permitted the jury to consider the death and discharge in determining damages for plaintiff's future physical and mental condition. Beanland contends that the damages flowing from the discharge were proper considerations as it was an intentional act of Rock Island which clearly put the blame on Beanland for the death of the brakeman, and furthermore since the testimony of the medical witnesses related the mental injury and worry to the physical trauma, damages for such mental anguish were proper herein.

We must agree with Rock Island that the challenged hypothetical question clearly brought before the jury, on several occasions, an improper consideration of the effect of the discharge and the death of the brakeman which could have influenced their decision as to the amount of the verdict. And it would also appear that the instruction given by the trial court did little, if anything, to cure the improper questioning. Although the instruction was ambiguous, it could have been interpreted by the jurors to permit them to consider the mental anguish, resulting to the plaintiff from the discharge of Beanland and the death of the brakeman, in assessing damages.

The evidence of Beanland's mental suffering related not only to the direct injuries received in the accident but also to the effect of the discharge and the death of the brakeman. For example, the testimony of Dr. Moseley included the following questions and answers:

"Q. And how about his worry, mental anguish, depressed feeling? A. Well, hopefully this is not a permanent problem, but it has certainly been a significant portion of his total medical care up to date. When you have no job, no income, and hurt as much as this man is hurt, you get a reactive depression that can be quite severe. In fact, it is a disabling problem.

Q. Loss of his friend in the accident also related to that? A. This is contributing to it." App. at 111. (Emphasis added.)

Once the trial court removed the discharge issue from the trial of this case, evidence relating thereto should have been excluded, not only as it related to damages suffered by the plaintiff, but also as it related to the defense of contributory negligence. See Kelly v. New York, New Haven & Hartford R. R., 138 F.Supp. 82, 83-84 (D.Mass. 1956), in which District Judge (later Chief Judge of the First Circuit) Bailey Aldrich reached the same conclusion. Cf. Anderson v. Louisiana & Arkansas Ry., 457 F.2d 784, 785 (5th Cir. 1972). Damages resulting from intentional acts, such as the discharge, have no place in a personal injury F.E.L.A. action which deals exclusively with negligence. 45 U.S.C. § 51. In fact, an action for wrongful discharge would appropriately be in contract and not cognizable at all under 45 U.S.C. § 51.

The related question of mental suffering of Beanland resulting from the death of the brakeman must be separately considered. The Supreme Court has stated that "reasonable foreseeability of harm is an essential ingredient of Federal Employers' Liability Act negligence." Gallick v. Baltimore & Ohio R. R., 372 U.S. 108, 117, 83 S.Ct. 659, 665, 9 L.Ed.2d 618 (1963).

Certain general indicia of the foreseeability of a plaintiff suffering mental anguish when a third person is the one against whom the particular negligence is directed are set forth in D'Ambra v. United States, 354 F.Supp. 810, 819 (D. R.I.1973), a federal tort claims act case wherein the Court stated:

"`In determining, in such a case, whether defendant should reasonably foresee the injury to plaintiff, or, in other terminology, whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following:

(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.

(2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.

(3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.\'" See also W. Prosser, Law of Torts § 55 at 354 (3d ed. 1964).

This question has been analyzed by Prosser in this way:

"It would be an entirely unreasonable burden on all human activity if the defendant who has endangered one man were to be compelled to pay for the lacerated

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