Broussard v. Missouri Pac. R. Co.

• Decision Date: 10 October 1979
• Docket Number: No. 7117,7117
• Citation: 376 So.2d 532
• Parties: Ronney L. BROUSSARD, Plaintiff-Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 532

376 So.2d 532

Ronney L. BROUSSARD, Plaintiff-Appellee, v. MISSOURI PACIFIC RAILROAD COMPANY, Defendant-Appellant.

No. 7117.

Court of Appeal of Louisiana, Third Circuit.

Oct. 10, 1979.

Hudson, Potts & Bernstein, B. Roy Luizza, Monroe, for defendant-appellant.

David A. Sheffield, Broussard, Bolton & Halcomb, Daniel E. Broussard, Jr., Alexandria, for plaintiff-appellee.

Before GUIDRY, FORET and SWIFT, JJ.

FORET, Judge.

This is a tort suit brought pursuant to the Federal Employers' Liability Act, 45 U.S.C. Sec. 51 ¹ et seq. Plaintiff, Ronney L. Broussard, a railroad brakeman, brought suit against defendant, Missouri Pacific Railroad Company, his employer, contending defendant knowingly caused plaintiff to work while he was seriously ill. Plaintiff further alleges that because of such illness, he fell and was injured, sustaining a ruptured cervical disc with resultant disability, etc. Defendant contended that plaintiff did not have an accident, and in the alternative, plaintiff was guilty of contributory negligence.

This case was tried before a jury. In response to special interrogatories, the jury returned a verdict for the plaintiff and against the defendant in the amount of $120,000.00. The jury concluded that the plaintiff was 20% Contributorily negligent. Accordingly, it reduced ² the $120,000.00 by 20%, leaving a net award of $96,000.00. A judgment in such amount, together with interest, expert witness fees, and costs, was rendered.

Defendant filed a motion for a new trial which was heard and denied by the trial court. Defendant now prosecutes this appeal from the jury verdict.

ASSIGNMENT OF ERROR # 1

Appellant urges that one of the jurors, a Mr. Robert Smith, should have been excluded from the jury for cause ³. It is the contention of the appellant that the juror was biased, having a fixed opinion that any employee who is injured on the job is entitled to compensation. The trial judge observed and heard the entire interrogation conducted on the voir dire. He found no basis to conclude that Mr. Smith was biased or that he could not or would not perform his duty as a juror according to law.

The trial judge has broad discretion in passing upon the qualifications of jurors and his ruling on such matters should not be disturbed unless there is a clear abuse of discretion. Druilhet v. Comeaux, 317 So.2d 270 (La.App. 3 Cir. 1975); Trahan v. Odell Vinson Oil Field Contractors, Inc., 295 So.2d 224 (La.App. 3 Cir. 1974).

We are of the opinion that prospective juror Smith was indeed confused and apparently stuck to his notion that if plaintiff was injured on the job, that he is entitled to compensation. He apparently had the issue in this case confused with a case of workmen's compensation as distinguished from a tort action. We believe that the trial court erred in his refusal to excuse this juror for cause. Nevertheless, assuming some confusion may have existed on the part of Mr. Smith in understanding concepts presented to him in this litigation, there is no evidence supporting an inference that more than one juror was confused. In this case, only nine of the twelve jurors needed to concur to render a verdict. LSA-CCP Art. 1795. We find it significant that this verdict was rendered by a unanimous jury. Appellant urges that this case should be remanded to the trial court due to the alleged error committed by the trial judge in the jury selection process. We disagree. The scope of review of Louisiana courts of appeal extends to both law and facts ⁴. Therefore, errors committed in the jury selection process may be corrected on appeal ⁵.

ASSIGNMENT OF ERROR # 2

Appellant next argues that plaintiff's counsel's closing argument was improper and that the trial court erred in not instructing plaintiff's counsel and the jury concerning the alleged impropriety of this argument.

The colloquy giving rise to this assignment occurred while counsel for plaintiff was delivering his closing argument and reads in part:

" . . .

How much is it worth to suffer for twenty minutes?

How much would you take? So much a minute? A day? " (Tr., pg. 30)

Defendant's counsel lodged an objection which was sustained.

Counsel for plaintiff continued,

" . . .

Would you do it for that much each month?

. . . Would you go through, for that operation, for $6,000.00? " (Tr., pg. 831, 832)

Again, defendant's counsel's objection was sustained. Defendant then asked that instructions be given to plaintiff's counsel regarding his closing remarks to which the court replied,

"Sustained, Mr. Sheffield."

Counsel for plaintiff continued,

" . . .

How much would you be willing to take for that risk? $20,000.00? $30,000.00? (Tr., pg. 833)

Again defense counsel's objection was sustained and again the court advised plaintiff's counsel as to his argument.

In cases or actions brought under Title 45, U.S.C., Sec. 51 et seq., the law to be applied concerning the propriety of counsel's argument to the jury is federal rather than state law. Sharkey v. Penn Central Transportation Co., 493 F.2d 685 (2 Cir. 1974); Duncan v. St. Louis-San Francisco Railway Co., 480 F.2d 79 (8th Cir. 1973), cert. denied 414 U.S. 859, 94 S.Ct. 69, 39 L.Ed.2d 109.

Under federal law, counsel has great latitude in making arguments to the jury and considerable discretion is given to the trial court to control these arguments. Commercial Credit Equipment Corp. v. L & A Contracting Co., Inc., 549 F.2d 979 (5th Cir. 1977); Schleunes v. American Casualty Co. of Reading, Pennsylvania, 528 F.2d 634 (5th Cir. 1976); Duncan, supra.

In Waldron v. Hardwick ⁶, the court held that counsel's argument suggesting to the jury a specific sum per day for plaintiff's pain and suffering did not constitute reversible error, despite the absence of a cautionary instruction, where the verdict was not excessive. In view of the cited jurisprudence, we find this assignment without merit.

ASSIGNMENT OF ERROR # 3

The third assignment of error urged by the defendant is that the trial court erred in overruling his motion for a directed verdict. Under LSA-CCP Art. 1810, the trial judge has much discretion in determining whether or not a motion for a directed verdict should be granted. We therefore find appellant's third assignment of error also without merit.

ASSIGNMENT OF ERROR # 4

Appellant next argues that the jury erred in finding negligence on the part of the defendant.

On March 17, 1977, the plaintiff, Mr. Broussard, was contacted by Mr. Tillmon V. May, an employee of Missouri Pacific Railroad. Mr. May was then the "crew caller" for the Alexandria yard. Mr. May told Mr. Broussard that he was to report to work on the morning of March 17 to act as brakeman on a train going to Monroe, Louisiana. Mr. Broussard then informed Mr. May that he was too ill to work and requested that he be allowed to remain home. He also requested that a Mr. Jeff Golliher be called to go in his place. After some discussion and a call to Mr. Golliher, Mr. May informed Mr. Broussard that he would have to make the run. Mr. Broussard, fearing retaliation for his not going to work, reported as directed by Mr. May even though he was ill. There is sufficient evidence in the record to support the jury's finding that the defendant-employer pressured plaintiff into reporting for duty on March 17, 1977. There is also sufficient testimony in the record corroborating Mr. Broussard's testimony that he was ill when he reported to work and was ill when he returned on the following day. Dr. Hubert L. Prevost examined Mr. Broussard on March 18, 1977. Dr. Prevost found that Mr. Broussard had a flu-like syndrome with chills, fever, aches, cough, sore throat, headache, and a finding of coryza, slightly nasal and pharyngeal mucosa. A blood count was also made. The count was essentially normal except that the differential count was compatible with a viral infection.

Mr. Broussard testified that he was injured while standing in the caboose of the train on which he was working. He fell backwards against the back wall of the caboose when the train moved forward. He explained that due to his weakened condition, he was unable to hold on to the hand rail and maintain his balance and was subsequently injured when he fell. There is also ample evidence in the record to support the jury's finding that Mr. Broussard acted prudently in trying to get off of work. Mr. Broussard testified that he spoke with a Mr. Ragland, who is a yard master at the Monroe office, as to the possibility of he, Mr. Broussard, getting some relief. Mr. Broussard further testified that Mr. Ragland said there was no relief available and that he should make the trip back to Alexandria.

Additionally, there is testimony by fellow employees of Broussard which corroborates his statements to the effect that he was too ill and too weak to perform his job on March 17 and 18 of 1977.

In summary, and after a review of the trial record, we find that there is ample evidence for the jury to have concluded that Mr. Broussard was too ill to report to work and that his employer, Missouri Pacific Railroad, was negligent in ordering him to work. Likewise the jury's determination that Mr. Broussard's illness directly contributed to the injuries he received on March 18, 1977, is neither untenable nor unfounded.

Federal, not state, law governs actions brought under the Federal Employers Liability Act. Dugas v. Kan City Southern Railway Lines, 473 F.2d 821 (5th Cir. 1973), cert. denied 414 U.S. 823, 94 S.Ct. 124, 38 L.Ed.2d 56; Barboza v. Texaco, Inc., 434 F.2d 121 (1st Cir. 1970). It is well established that the role of the jury is significantly greater in Federal Employers Liability Act cases than in common law negligence actions. Rogers v. Missouri-Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Eggert v. Norfolk and Western Railway Co., 538 F.2d 509 (2nd Cir. 1976); Eaton v. Long Island Railroad Co., 398 F.2d 738 (2nd Cir. 1968). We must therefore give great...