Cupp v. National R.R. Passenger Corp.

• Decision Date: 06 July 2004
• Docket Number: No. ED 82646.,No. ED 82635.,ED 82635.,ED 82646.
• Citation: 138 S.W.3d 766
• Parties: Steve CUPP, Plaintiff/Respondent/Cross-Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant/Appellant, and The Mart Corporation, Defendant/Respondent/Cross-Respondent.
• Court: Missouri Court of Appeals

138 S.W.3d 766

Steve CUPP, Plaintiff/Respondent/Cross-Appellant, v. NATIONAL RAILROAD PASSENGER CORPORATION, Defendant/Appellant, and The Mart Corporation, Defendant/Respondent/Cross-Respondent.

No. ED 82635.

No. ED 82646.

Missouri Court of Appeals, Eastern District, Division Two.

July 6, 2004.

Appeal from the Circuit Court, City of St. Louis, David Dowd, J Thomas E. Schwartz, Holloran & Stewart, P.C., St. Louis, MO, for plaintiff/respondent/cross-appellant.

Michael B. Hunter, Lisa A. Larkin, Williams Venker & Sanders LLC, St. Louis, MO, for appellant.

James E. Godfrey, Jr., Godfrey & Associates, St. Louis, MO, for defendant/respondent/cross-respondent.

KATHIANNE KNAUP CRANE, Judge.

Plaintiff, a railroad employee, was injured when he attempted to stop a locomotive wheel set that suddenly exited a newly installed wheel wash and rolled towards a fellow employee. He brought a FELA action against the railroad and a negligence action against the seller of the wheel wash, whose employees had been working on the wheel wash at the time of plaintiff's accident. The railroad filed a contribution action against the seller. The trial court granted the seller's motion for directed verdict with respect to both the negligence and the contribution actions, and submitted the FELA action to the jury, which returned a $200,000 verdict against the railroad. After a reduction for an offset, the trial court entered judgment against the railroad in the amount of $197,500.

Plaintiff and the railroad appeal. They each claim that the trial court erred in entering a directed verdict in the seller's favor. In addition, the railroad asserts that the trial court erred 1) in denying its motion for judgment notwithstanding the verdict on the basis of instructional error and 2) in denying its motion for new trial for the reason that prejudicial evidence was admitted. We reverse that part of the judgment granting a directed verdict in the seller's favor and remand for a new trial. We affirm the judgment against the railroad.

FACTUAL AND PROCEDURAL BACKGROUND

In accord with our standard of review when a motion for directed verdict has been granted in a defendant's favor, we recite the facts in the light most favorable to plaintiff and the railroad. In October, 2000, plaintiff, Steve Cupp, was an employee of National Railroad Passenger Corp. ("Amtrak") in the wheel shop at its Beech Grove, Indiana, facility. He had worked as a railroad machinist for Amtrak since 1986. Defendant, The Mart Corporation ("Mart") was a designer and manufacturer of custom automated parts washing systems. Amtrak had purchased a wheel wash from Mart, which had been delivered to Amtrak in approximately December, 1999.

A wheel wash washes locomotive wheels one set at a time. An exit door opens automatically when it finishes washing the wheel set, and the wheel set rolls out of the machine onto a cradle on a slight downhill grade and then onto a set of rails embedded in the shop floor. The wheel sets were supposed to stop at the end of the rails after exiting the wheel wash. Amtrak designed, built, and installed a mechanism known as a retarder, to control the speed at which the wheels exited the wheel wash.

On October 25, 2000, two Mart employees, Jack Conley, a field service technician, and Michael Erlson, project engineer, went to the Amtrak facility at Beech Grove, Indiana, arriving at noon, to service and adjust the wheel wash. At that time, the new wheel wash was still being set up and was not yet operational. The retarders had not started working, because they could not be properly adjusted until the machine was ready for wheel sets to be run through. Before Amtrak could run wheel sets through the wheel wash, the Mart employees would have to get "everything to work in sequence," and Amtrak personnel expected Mart to test run wheel sets through the wheel wash before Amtrak started using it.

On the evening of October 25, the Mart employees ran wheel sets through the wash. No Amtrak employees were working on the machine itself. The two Mart employees made adjustments to increase the speed at which the wheels were exiting the wheel wash because they were not coming off the cradle with sufficient speed to reach the rails embedded in the concrete floor.

John McCutcheon, an Amtrak employee, observed several sets of wheels come out of the wheel wash that evening and told the Mart employees that it was dangerous to eject wheels while people were working in the area. The Mart employees told Mr. McCutcheon that the retarders were not working. Mr. McCutcheon stepped on them himself and verified they were not working. On his report that day, Russell Cross, an Amtrak supervisor, noted that the wheels were exiting the wheel wash quickly and recommended adjusting the retarder and installing a signal device.

The next afternoon, October 26, 2000, the Mart employees were still working on the wheel wash. No Amtrak employees were involved in running the wheel wash. Amtrak supervisor Willie Spears had assigned Amtrak employee Dwayne Willis to bring the wheels to the wheel wash with a forklift so the Mart employees could run them through. Mr. Willis put a wheel set in the wash and then parked the forklift at the end of the track to wait for the wheels. The wheel set quickly exited the wheel wash and struck the forklift, causing the forklift to move eight inches to a foot when it was struck. The Mart employees were in the area when the wheels hit the forklift.

Plaintiff and other Amtrak employees on the 3:00 p.m. shift had reported to a crew meeting at a picnic table, directly east of the wheel wash, and witnessed the impact with the forklift. One employee called back to the group that was still at the table, "Somebody going to get hurt." Mr. Willis told his Amtrak supervisors, "Hey, you all need to do something about this machine. Because if these wheels come out like this, somebody's going to get hurt." He added, "You ought to shut it down."

After this incident, Mr. Willis's supervisor had him load wheel sets into the wheel wash two or three additional times and, on one or two more occasions, Mr. Willis parked the forklift at the end of the tracks, where it was again struck by the wheel sets. Meanwhile, plaintiff was in a second meeting in a different building. Plaintiff then returned to the wheel shop to work on the pull-off press. Mr. Willis loaded a wheel set in the wheel wash and then took the forklift outside to dump some scrap wheels. The next set of wheels came out and went down the rails, pushing away the wood chocks placed by Mart employees on the rails to stop the wheels from rolling off the end of the rail. Plaintiff heard a man yell, "Run away." He looked up and saw that his Amtrak supervisor, Mr. Spears, was in the path of the rolling wheel set that had just come out of the wheel wash. Plaintiff yelled to Mr. Spears, but Mr. Spears froze and did not move out of the way. Plaintiff grabbed the wheel set to stop it from striking Mr. Spears, injuring himself.

Plaintiff filed a petition in the Circuit Court of the City of St. Louis seeking damages from Amtrak pursuant to 45 U.S.C. section 51, the Federal Employers Liability Act (FELA), and damages from Mart for the negligence of its employees. Amtrak filed a cross-claim against Mart for contribution. The case was tried before a jury. Mart filed a motion for directed verdict at the close of plaintiff's case, on the grounds that Amtrak retained control of the premises and Mart owed no duty to plaintiff. The trial court granted the motion and entered a directed verdict in Mart's favor. The jury returned a verdict in plaintiff's favor against Amtrak in the amount of $200,000. The court entered judgment in the amount of $197,500, after a reduction for an offset.

DISCUSSION

I. Directed Verdict

Plaintiff and Amtrak each assert that the trial court erred in sustaining Mart's motion for directed verdict on plaintiff's petition and Amtrak's cross-claim. Plaintiff sought damages from Mart for its employees' negligence in allowing the wheel set to suddenly exit the wheel washer and failing to warn those working in the area. Amtrak sought contribution from Mart to the extent of any judgment against it for Mart's employees' negligence in the operation of the wheel wash and failure to warn those working in the area. Neither plaintiff nor Amtrak alleged that Mart was liable based on an employment relationship or control of the premises.

Mart moved for a directed verdict on the grounds that plaintiff was an Amtrak employee; Mart's employees were business invitees; Amtrak designed, furnished and maintained the wheel washing machine; Amtrak had control of the premises, of Mart's employees, and its own employees at the time of the accident; and no evidence demonstrated that Amtrak relinquished control of the premises or its employees to Mart. In its memorandum in support of its motion, Mart argued that these facts failed to show a relationship between plaintiff and Mart that was actionable. Plaintiff and Amtrak filed memoranda opposing the motion. The trial court granted the motion on the stated grounds that Amtrak had not relinquished control of the premises, that Amtrak could not and did not escape its duty of providing a safe workplace, and Mart owed no duty to plaintiff.

We review the entry of a directed verdict in a defendant's favor to determine if the plaintiff made a submissible case. Rustici v. Weidemeyer, 673 S.W.2d 762, 765 (Mo. banc 1984). We view the evidence and reasonable inferences in the light most favorable to the plaintiff, and we disregard the contrary evidence and inferences. Cabinet Distributors. Inc. v. Redmond, 965 S.W.2d 309, 312 (Mo.App.1998). "We will reverse a verdict directed against a plaintiff unless the facts and inferences weigh so strongly against the plaintiff that there is no room for reasonable minds to differ." Id.

In "`any action for negligence, the plaintiff must establish that ...