Briggs v. Kansas City Southern Ry. Co.

• Citation: 925 S.W.2d 908
• Decision Date: 30 April 1996
• Docket Number: No. WD,WD
• Parties: Steven J. BRIGGS, Appellant, v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, Respondent. 49949.
• Court: Court of Appeal of Missouri (US)

Page 908

925 S.W.2d 908

Steven J. BRIGGS, Appellant, v. The KANSAS CITY SOUTHERN RAILWAY COMPANY, Respondent.

No. WD 49949.

Missouri Court of Appeals,

Western District.

April 30, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 28, 1996.

Application to Transfer Denied

Aug. 20, 1996.

Drew C. Baebler, Michael L. Nepple, St. Louis, Bauer & Baebler, for appellant.

Thomas S. Stewart, Douglas R. Dalgleish, Christopher P. Sweeney, Lathrop & Norquist, Kansas City, for respondent.

Before BRECKENRIDGE, P.J., and ULRICH and LAURA DENVIR STITH, JJ.

BRECKENRIDGE, Presiding Judge.

Steven J. Briggs brought a claim under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51 et seq., against his employer, the Kansas City Southern Railway Company, for damages arising from an injury he sustained after falling over a partially buried tie plate. The jury entered a verdict in favor of Mr. Briggs and assessed his damages at $150,000. The trial court then granted Kansas City Southern's motion for judgment notwithstanding the verdict, and, alternatively, its motion to amend the judgment.

Mr. Briggs appeals, contending that the trial court erred in entering judgment notwithstanding the verdict, in that he presented sufficient evidence to show that Kansas City Southern had notice of the tie plate, that the tie plate was a hazard, and that the railroad was negligent in failing to remove it. Mr. Briggs also contends the trial court erred in granting Kansas City Southern's alternative motion to amend and correct the judgment by allowing Kansas City Southern a $40,000 offset on the amount awarded by the jury.

The trial court's judgment notwithstanding the verdict is reversed. The trial court's grant of the alternative motion to amend the judgment is affirmed in part and reversed in part, and the case is remanded to the trial court to enter judgment in favor of Mr. Briggs for $149,550.

A motion for judgment notwithstanding the verdict challenges the submissibility of the plaintiff's case. White v. Union Pacific R. Co., 871 S.W.2d 50, 52 (Mo.App.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994). This court reviews the grant of a motion for judgment notwithstanding the verdict as a matter of law, viewing the evidence and reasonable inferences drawn therefrom in a light most favorable to the plaintiff. Crawford v. Norfolk and Western Ry. Co., 901 S.W.2d 252, 254 (Mo.App.1995). In determining whether Mr. Briggs produced sufficient evidence to make a submissible case under FELA, this court applies federal law. See Urie v. Thompson, 337 U.S. 163, 174, 69 S.Ct. 1018, 1027, 93 L.Ed. 1282 (1949).

On August 22, 1991, Mr. Briggs was employed as a conductor for Kansas City Southern. He was assigned to work at the "Dalby Pass." The Dalby Pass is a section of track which has a passing track, 6500 feet to 7000 feet long, running parallel to a main track. There is a distance of approximately nine feet between the outside rails of the two tracks. The Pass is designed to allow trains traveling in opposite directions to bypass each other. It is located in the southwest corner of Missouri, approximately four to five miles north of Neosho, Missouri.

Mr. Briggs was assigned to work with Reginald Rhue, an engineer. Their job was to assist trains which had difficulty traveling over hills. They would couple two engines onto the back of a train and then push the train south into Arkansas. At approximately 5:00 p.m., a train arrived on the main track which needed a push.

After helping to connect the engines to the train, Mr. Briggs started to perform an "air brake test." Mr. Briggs' task was to find the piston underneath the last car on the train, tell the engineer on the train to "release the brakes" and then watch the piston "go all the way in," indicating that the brakes had properly released.

Mr. Briggs walked down the side of the train in the "ballast" between the main track and the passing track, bending over to look for the piston underneath the train. Ballast is the crushed stone or rock placed around the railroad tracks, with a diameter of about two and one-half inches. It is "loose" and can roll under the feet of someone who is walking on it. After Mr. Briggs found the piston, he told the engineer to "set them up." He squatted down a few feet from the train so that he could see underneath it and then watched the piston "release and go all the way in." As he started to step back so that he could stand up, his foot "got hooked" on a tie plate and he "went down hard," hitting his tail bone on the rail of the passing track. After he fell, he saw a rusty tie plate "partially embedded" in the ballast and "sticking up." Mr. Briggs did not see the tie plate before he fell, although he had seen other tie plates in the ballast that day. At the time Mr. Briggs fell, Mr. Rhue was on the helper engine, watching Mr. Briggs. Mr. Rhue did not see what had caused Mr. Briggs to fall, but later, as the engine went past the area where Mr. Briggs had fallen, Mr. Rhue looked down and saw a tie plate with a "scuff mark" on it, partially buried in the ballast.

A tie plate is a piece of metal eight and one-half inches in width and eleven inches in length, weighing approximately fifteen pounds. It is fastened above a wooden tie and distributes the weight of heavy loads from the rail to the tie. At the time of the accident, Kansas City Southern had almost ten million tie plates on its tracks, with approximately 6500 tie plates per mile. Both Mr. Rhue and Mr. Briggs testified that a tie plate in a roadbed can pose a hazard, because it is easy to trip over. Mr. Briggs stated that it was not unusual to see a discarded tie plate in the ballast. Mr. Rhue testified that there is often debris in many areas of the track, including tie plates, and "if we had to stop and pick up every tie plate we saw out there, we'd never get anywhere on the railroad."

The track at the Dalby Pass was regularly inspected by railroad personnel. A three-man maintenance crew was responsible for inspecting the section a minimum of twice a week and making minor repairs. They would look for any debris in the area of the ballast where railroad employees had to walk. A "roadmaster" would also travel over the Dalby Pass a minimum of twice a week. It was his duty to "line up the maintenance work." If the maintenance crew or the roadmaster saw a tie plate, they were to remove it.

David W. Brookings, the vice-president and chief engineer for Kansas City Southern, testified for the defense. His responsibilities included overseeing the design, construction and maintenance of the railroad tracks and the ballast. He was aware that conductors had to walk in the ballast between the passing track and the main track at the Dalby Pass. He was also aware that in the course of their duties, conductors had to "stoop and look under" a train to check the air cylinders or other equipment. He admitted that a discarded tie plate in the ballast could be a "trip hazard."

Kansas City Southern had not received any complaints about the tie plate before the incident. Mr. Brookings did not know how the tie plate had gotten into the ballast, but suggested that tie plates can fall off rail cars or can become loose and vibrate off a tie. He explained that if a tie plate came loose from a tie, it could move several feet from the rail, "over a period of time." He also testified that it was "not uncommon to have individual tie plates or anchors or spikes laying around the road." He did not feel that a single tie plate lying in the ballast was a "major concern," but if it was reported to the railroad, it would be removed.

Mr. Briggs filed a FELA claim against Kansas City Southern for injuries he sustained as a result of the accident. The jury returned a general verdict in favor of Mr. Briggs in the amount of $150,000. The trial court then entered judgment for Mr. Briggs per the verdict.

Kansas City Southern filed a motion for judgment notwithstanding the verdict and, alternatively, a motion to amend and correct the judgment. The motion for judgment notwithstanding the verdict alleged that Mr. Briggs failed to make a submissible case because he did not present any evidence that 1) Kansas City Southern had notice of the tie plate; 2) the tie plate was a hazardous condition; or 3) Kansas City Southern failed to take reasonable steps to remove the tie plate. The motion to amend the judgment alleged that Mr. Briggs had signed a release agreement with Kansas City Southern for $40,000 which prevented him from recovering any future lost wages, and that he had received a $450 payment from the railroad for "living expenses." Therefore, Kansas City Southern alleged that the verdict should be offset $40,450.

The trial court granted the motion for judgment notwithstanding the verdict "for the reasons contained in the suggestions filed by counsel with the post-trial motions." The court also granted Kansas City Southern's alternative motion to reduce the judgment by $40,450.

Mr. Briggs' first point alleges that the trial court erred by granting Kansas City Southern's motion for judgment notwithstanding the verdict on the basis that he failed to produce sufficient evidence from which the jury could reasonably infer that Kansas City Southern knew or should have known of the presence of the tie plate. Mr. Briggs contends that he presented evidence to support the inference that the "tie plate had been in the ballast a sufficient period of time" so as to impart constructive notice of its presence to Kansas City Southern. His second point contends the trial court erred in entering judgment notwithstanding the verdict on the basis that there was insufficient evidence to show that the presence of the tie plate in the ballast created a hazardous condition and that Kansas City Southern was negligent in failing to remove the tie plate. Because the two points pertain to the submissibility of his FELA...