Burrows v. Union Pacific R. Co.

• Decision Date: 01 May 2007
• Docket Number: No. ED 87314.,ED 87314.
• Citation: 218 S.W.3d 527
• Parties: Curtis BURROWS, Respondent, v. UNION PACIFIC RAILROAD COMPANY and National Railroad Passenger Corporation d/b/a Amtrak, Appellants.
• Court: Missouri Court of Appeals

218 S.W.3d 527

Curtis BURROWS, Respondent, v. UNION PACIFIC RAILROAD COMPANY and National Railroad Passenger Corporation d/b/a Amtrak, Appellants.

No. ED 87314.

Missouri Court of Appeals, Eastern District, Division Two.

January 23, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 6, 2007.

Application for Transfer Denied May 1, 2007.

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Richard E. Boyle, Mark R. Kurz, Michael C. Hermann, Gundlach, Lee, Eggmann, Boyle & Roessler LLC, St. Louis, MO, for appellants.

Jerome J. Schlichter, Nelson G. Wolff, Mary L. Perry, Schlichter, Bogard & Denton, St. Louis, MO, for respondents.

GARY M. GAERTNER, SR., Judge.

Appellants, Union Pacific Railroad Company (individually "Union Pacific") and National Railroad Passenger Corporation d/b/a Amtrak (individually "Amtrak") (collectively "Defendants"), appeal from the judgment of the Circuit Court of the City of St. Louis, following a jury trial, entered in favor of Respondent, Curtis Burrows ("Plaintiff"). Plaintiff brought a Federal Employers' Liability Act ("FELA") claim against his employer, Union Pacific, and a negligence claim against Amtrak to recover damages for personal injuries he sustained after he was struck by an Amtrak train. The jury found Plaintiff's total damages to be $5 million. We affirm.

On September 23, 2003, Plaintiff, who was 44 years old, and fellow Union Pacific employees were repairing a section of track near Washington, Missouri. This section of the track was part of a double "mainline track," consisting of two parallel, adjacent tracks running east-west. Union Pacific owned both tracks and, by written agreement, permitted Amtrak to operate trains on the tracks subject to Union Pacific's control over train movement and speed. While Plaintiff and his crew repaired one track ("the track under repair"), Union Pacific permitted Amtrak to operate trains on the adjacent track ("the live track").

During the repairs, Plaintiff was working with a co-worker, Tim Miesner ("Miesner"), using a tamper. A tamper is a 75 to 80 foot long machine with two fully enclosed cabs. Plaintiff worked from one cab while Miesner worked from the other. Ordinarily, Plaintiff would be able to operate the tamper from the inside of his cab, but because a button inside the tamper for releasing clamps to lift the track did not work, Plaintiff had to exit the tamper's cab, stand between the track under repair and the live track, and manually release the clamps. Union Pacific knew about this problem with the tamper about one week before September 23 because its employees had requested that it be fixed.

The tamper approached a farm crossing and if the tamper's clamps were not released from the track, the machine or the crossing would have been damaged. Thus, Plaintiff left the cab and manually released the tamper's clamps.

While Plaintiff was outside of the cab, an Amtrak employee radioed Miesner and told him that an Amtrak train was approaching and would soon be passing on the live track. Plaintiff did not receive the radio message because Union Pacific had not provided him with a radio device. Although Plaintiff was outside of the cab in an unsafe position, Miesner responded to the radio message and stated that the live track was clear of workers. Additionally, Miesner forgot to tell Plaintiff that the Amtrak train was approaching.

As the Amtrak train approached at a speed of 66 miles per hour, the engineer operating the Amtrak saw Plaintiff from approximately 2600 feet away because Plaintiff was wearing a bright yellow vest and helmet. The engineer sounded the train's horn, but Plaintiff could not hear the horn because the tamper was generating its own loud noise and vibrations and he was wearing ear plugs. In addition, because Plaintiff's back was to the oncoming train, he could not see it.

After the engineer saw Plaintiff, the Amtrak train accelerated from 66 miles per hour to 73 miles per hour. The Amtrak train struck Plaintiff at a speed of approximately 73 miles per hour. As a result, Plaintiff was thrown to the ground and suffered numerous physical injuries.

Following the accident, Plaintiff brought a FELA claim against Union Pacific and a negligence claim against Amtrak to recover damages for personal injuries he sustained after he was struck by the Amtrak train. Specifically, Plaintiff alleged that, as a result of Defendants' negligence, he suffered physical injuries to his hand, shoulder, spine, hips, and legs; as well as severe pain and suffering; psychological and emotional injury; and mental anguish and anxiety. Plaintiff sought compensatory and punitive damages.

Defendants denied liability in their answer to Plaintiff's petition. As an affirmative defense, Defendants alleged that Plaintiff was contributorily negligent.

Prior to trial, Union Pacific "admitted liability for the negligence of its employee, Miesner, in failing to warn Plaintiff of the approach of the Amtrak train and admitted liability for any injuries of Plaintiff which were proximately caused by the occurrence of September 23, 2003."

The case was tried before a jury. On the third day of trial Amtrak withdrew its affirmative defense of contributory negligence. At the close of Plaintiff's case, Amtrak moved for a directed verdict to remove the issue of punitive damages, which the trial court granted. On the last day of trial, Amtrak admitted "liability for any injuries of Plaintiff which were proximately caused by the occurrence of September 23, 2003." At the close of all the evidence, Defendants moved to "strike all the evidence that has been introduced into this case concerning the liability issues." The trial court denied Defendants' motion and instructed the jury on negligence.

Thereafter, the jury returned a verdict against Defendants and found Plaintiff's total damages to be $5 million. The trial court then entered a judgment pursuant to the jury's verdict. Subsequently, Defendants filed a motion for a new trial or, in the alternative, a motion for remittitur, which the trial court denied. This appeal by Defendants followed.

Our review of a trial court's ruling denying a motion for a new trial is for abuse of discretion. Kehr v. Knapp, 136 S.W.3d 118, 122 (Mo.App. E.D.2004). We also review a trial court's ruling denying a motion for remittitur for abuse of discretion. LaRose v. Washington University, 154 S.W.3d 365, 370 (Mo.App. E.D.2004). Under the abuse of discretion standard, we will only reverse the trial court's decision if there is a substantial or glaring injustice. Kehr, 136 S.W.3d at 122. A trial court abuses its discretion when its ruling shocks the sense of justice, shows a lack of consideration, and is obviously against the logic of the circumstances. Payne v. Cornhusker Motor Lines, Inc., 177 S.W.3d 820, 836 (Mo.App. E.D.2005). A trial court does not abuse its discretion if reasonable persons could differ on the propriety of the court's decision. Kehr, 136 S.W.3d at 122-23.

In their first point on appeal, Defendants argue that the trial court erred in denying their motion for a new trial because it admitted evidence concerning Defendants' negligence when "liability was unequivocally admitted by Defendants." Defendants maintain that because they admitted liability, evidence concerning their negligence was irrelevant.

Our review of a trial court's ruling regarding the admissibility of evidence is for abuse of discretion. Payne, 177 S.W.3d at 836. It is within the trial court's discretion to determine whether evidence is relevant, and we will not reverse its decision absent an abuse of that discretion. Uxa ex rel. Uxa v. Marconi, 128 S.W.3d 121, 130 (Mo.App. E.D.2003). Evidence is relevant if it tends to prove or disprove a fact in issue or corroborates other evidence in the case. Id.

Even when a defendant makes an unqualified admission of liability, a plaintiff has the right to introduce evidence relevant to the issue of liability. Ruppel v. Clayes, 230 Mo.App. 699, 72 S.W.2d 833, 835 (St.L.1934). A defendant "cannot deprive a plaintiff of the right to present to the jury, in his own way, competent and relevant evidence to show all the circumstances attending to the accident." Id. To allow a defendant to substitute a "naked admission" for a full picture of the events may rob the evidence of much of its fair and legitimate weight. Id. at 836.

In this case, Union Pacific made a general admission of liability prior to trial. Amtrak made a general admission of liability on the last day of trial. Defendants contend that because of their admissions of liability, the trial court should not have admitted testimony concerning the project on which Plaintiff was working, the machinery involved on the project, the specific facts of the accident, Union Pacific's safety program, the speed of the train, the site of the accident, the train schedule, general safety rules, train braking, train warning devices, and the stopping capabilities of locomotives. (collectively "evidence pertaining to Defendants' negligence").

But Amtrak did not withdraw its contributory negligence affirmative defense or admit liability until after evidence pertaining to Defendants' negligence was introduced. Thus, at the time evidence pertaining to Defendants' negligence was introduced, it was relevant to prove that Amtrak had been negligent or to disprove that Plaintiff had been contributorily negligent. Furthermore, under Ruppel, Plaintiff was entitled to introduce competent and relevant evidence showing the circumstances of the accident in this case. Therefore, the trial court did not abuse its discretion in admitting evidence concerning Defendants' negligence when liability was admitted by Defendants. Point denied.

In their second point on appeal, Defendants maintain the trial court erred in denying Defendants' motion for a new trial and motions for a mistrial because Plain...