Bender v. Burlington-Northern R. Co.

• Decision Date: 16 May 1983
• Docket Number: No. 12608,BURLINGTON-NORTHERN,12608
• Parties: Paul T. BENDER, Plaintiff-Respondent, v.RAILROAD COMPANY, a Corporation, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 194

654 S.W.2d 194

Paul T. BENDER, Plaintiff-Respondent, v. BURLINGTON-NORTHERN RAILROAD COMPANY, a Corporation Defendant-Appellant.

No. 12608.

Missouri Court of Appeals,

Southern District,

Division Two.

May 16, 1983.

Motion for Rehearing or to Transfer

Denied June 27, 1983.

Application to Transfer Denied

Aug. 16, 1983.

Eric A. Cunningham, Jr., St. Louis, C. Wallace Walter, Bruce E. Hunt, Mann, Walter, Burkart, Weathers & Walter, Springfield, for defendant-appellant.

Thomas Strong, John Wooddell, Strong & Placzek, P.C., Springfield, for plaintiff-respondent.

MAUS, Presiding Judge.

On September 6, 1978, in the course of his employment by the defendant railroad, the plaintiff was using an air powered hammerdrill to drill holes in concrete bridge piers. After completing that work on one pier, the plaintiff placed the hammerdrill on the deck of the bridge above him, preparatory to moving to a different pier. The air hose came loose from the hammerdrill and struck the plaintiff in his right eye. He suffered a severe injury to that eye. Under an appropriate instruction, a verdict for the plaintiff was authorized upon a finding that the defendant failed to provide reasonably safe appliances. See MAI 24.01. The jury returned a verdict for the plaintiff in the amount of $750,000.

Upon appeal, the defendant makes no contention based upon the nature of the appliances provided or the manner in which the injury occurred. A more detailed statement of the facts of the occurrence is not required. In addition to the issue of excessiveness, the defendant presents eight points of alleged trial error which will be first considered.

The first point is that the trial court erred in sustaining the plaintiff's motion in limine to exclude reference to other reportable injuries to the plaintiff, consisting of a mashed toe, a cut lip and an insect bite. The body of the motion stated it was based upon Senter v. Ferguson, 486 S.W.2d 644 (Mo.App.1972). In that case the defendant's cross-examination of the plaintiff concerning irrelevant prior injuries and health conditions was held to be reversible error.

Upon cross-examination, the defendant had the plaintiff's fellow employee read the defendant's General Safety Rules 650 and 651. These rules emphasized the duty of the defendant's employees to place safety ahead of other considerations. On redirect, the fellow employee was asked how the plaintiff observed the safety rules in comparison with his fellow employees. Without objection, the witness replied that the plaintiff, like everyone else, tried to take as much care as he could. The defendant also cites other references, made without objection, to the plaintiff's compliance with safety rules. The defendant now complains the sustained motion in limine erroneously deprived it of the right to cross-examine the plaintiff concerning the prior accidents to refute the plaintiff's safety consciousness. One response of the plaintiff to this argument is that error has not been preserved because the defendant made no offer of proof.

There is a dearth of authority in this state concerning the appropriateness, scope and effect of orders sustaining motions in limine. Annot., Motions to Exclude Prejudicial Evidence, 63 A.L.R.3d 311 (1975). It has been suggested that such an order should be constructed to bar the forbidden subject during the trial unless its propriety or admissibility is established outside the hearing of the jury. 63 A.L.R.3d 311, supra at p. 327-28. The courts of this state have not determined if a party subject to such an order must make an offer of proof as a foundation for complaint upon appeal. Compare Gaston v. Hunter, 121 Ariz. 33, 588 P.2d 326 (1978); State v. Church of Nazarene of Logansport, 268 Ind. 523, 377 N.E.2d 607 (1978); Norman v. State, 523 S.W.2d 669 (Tex.Cr.App.1975). It is established in this state that with certain exceptions, a party may not complain of the exclusion of evidence when he has made no offer of proof. Elliott v. Richter, 496 S.W.2d 860 (Mo.1973); Brooks v. Travelers Insurance Company, 515 S.W.2d 821 (Mo.App.1974). This is not true when it is obvious an offer of proof would have been futile. Miller v. KAMO Electric Cooperative, Inc., 351 S.W.2d 38 (Mo.App.1962).

The plaintiff's motion was tendered and sustained upon the basis that evidence of the plaintiff's prior physical injuries would be immaterial to the injury to his eye. Generally, evidence of prior accidents of the plaintiff, even though demonstrating negligence on his part, would be inadmissible upon the issue of his contributory negligence in this case. McComb v. Vaughn, 358 Mo. 951, 218 S.W.2d 548 (1949). Also see Brownridge v. Leslie, 450 S.W.2d 214 (Mo.1970); Wehrkamp v. Watkins Motor Lines, Inc., 436 S.W.2d 698 (Mo.1969). For the purpose of this point it may be assumed the defendant's injection of the safety rules and the plaintiff's response thereto made his prior acts of negligence admissible. However, that basis for admissibility was not before the trial court when the motion was granted. At no time was there an offer of proof to demonstrate the prior accidents would in fact refute the plaintiff's safety consciousness. The trial court did not exclude evidence of the prior accidents when that evidence was relevant. In such a context, the defendant was required to make an offer demonstrating the relevancy of the evidence it contends was erroneously excluded. Sampson v. Missouri Pacific R. Co., 560 S.W.2d 573 (Mo.banc 1978); Compton v. Williams Bros. Pipeline Company, 499 S.W.2d 795 (Mo.1973).

The defendant's next two points arise from the voir dire of the jury panel by the plaintiff. These points must be reviewed under well established rules. "The purpose of the examination by defendant of the panel on their voir dire is to develop, not only facts which might form the basis of a challenge for cause, but also such facts as might be useful to him in intelligently determining his peremptory challenges." State v. Granberry, 484 S.W.2d 295, 299 (Mo.banc 1972). "Great liberality is allowed in inquiring into attitudes and experiences of the jury panel." State v. Coleman, 553 S.W.2d 885, 887 (Mo.App.1977). "[W]e recognize the broad discretion vested in the trial court for determining the propriety of questions during voir dire. Absent an abuse thereof, we should not interfere." State v. Garrett, 627 S.W.2d 635, 642 (Mo.banc 1982).

After a member of the panel responded that he had been a juror in a criminal case, plaintiff's counsel made a comment that included a statement, "[t]he state has to prove something beyond a reasonable doubt, sometimes to a moral certainty." The defendant immediately moved for a mistrial. Following a bench conference, plaintiff's counsel was permitted to ask the panel if any preconceived idea would prevent them from following a law, which might be given to the jury at the conclusion of the trial, that says the plaintiff's burden is something different than proving the defendant's liability beyond a reasonable doubt.

In contending the trial court erred in not sustaining the motion for mistrial, the defendant relies upon State v. Hines, 567 S.W.2d 740 (Mo.App.1978). In that case the defendant's counsel was permitted to inquire if any panelist disagreed with the proposition that the state had the burden to prove guilt beyond a reasonable doubt. Thereafter, the trial court refused to permit the defendant to explain to the panel the burden of proof in a civil case and ask if the panel had the ability to apply a different standard in the criminal case. The appellate court first noted the explanation of the burden of proof is a matter of instruction for the court. It concluded the refusal did not prejudice the defendant and was not an abuse of the trial court's discretion. State v. Hines, supra. This court does not construe that case as an affirmative condemnation of the action of the trial court in this case. Permitting a limited inquiry concerning the difference between the burden of proof in civil and criminal cases has been approved. State v. Cummings, 607 S.W.2d 685 (Mo.1980).

The plaintiff did not attempt to improperly instruct the jury by defining the term of reasonable doubt. State v. Beatty, 617 S.W.2d 87 (Mo.App.1981); State v. Hurst, 612 S.W.2d 846 (Mo.App.1981). Nor did he seek an impermissible commitment to a course of action by the panel. State v. Thompson, 610 S.W.2d 629 (Mo.1981); Wright v. Chicago, Burlington & Quincy Railroad Co., 392 S.W.2d 401 (Mo.1965). It has been said, "[t]he correct procedure is for counsel to ask the members of the panel whether, if the court later instructs them in a specified manner, they have any opinion or conscientious scruples such as would prevent them from returning a verdict accordingly." Duensing v. Huscher, 431 S.W.2d 169, 172 (Mo.1968). Also see Bruemmer v. Becker, 492 S.W.2d 781 (Mo.1973). The limited inquiry permitted in this case was not an abuse of discretion. State v. Cummings, supra.

Plaintiff's counsel also inquired of the panel if anyone had relatives or close friends blind in one or both eyes or who had suffered an injury that rendered them blind or nearly blind. The defendant's ensuing motion for a mistrial was denied. The defendant contends this was reversible error because the inquiry injected the subject of blindness into the case. The defendant further argues the inquiry improperly inferred the plaintiff was blind. It is unquestioned that the plaintiff did suffer a serious impairment in his right eye. The inquiry does not mention the extent of the plaintiff's impairment. A panelist's relationship with one who was blind or nearly blind could have created a preconceived attitude affecting the evaluation of the plaintiff's injury. Such a relationship would certainly be useful to a party in determining peremptory challenges. Permitting the question was not an abuse of discretion. State v. Coleman, supra.

The defendant's next point is...