Dallas v. Burlington Northern, Inc., 84-07

• Decision Date: 15 October 1984
• Docket Number: No. 84-07,84-07
• Parties: Louis J. DALLAS, Plaintiff and Respondent, v. BURLINGTON NORTHERN, INC., Defendant and Appellant.
• Court: Montana Supreme Court

Page 273

689 P.2d 273

212 Mont. 514

Louis J. DALLAS, Plaintiff and Respondent, v. BURLINGTON NORTHERN, INC., Defendant and Appellant.

No. 84-07.

Supreme Court of Montana.

Submitted Sept. 27, 1984.

Decided Oct. 15, 1984.

K. Kent Koolen, argued, Billings, for appellant.

Terry Trieweiler, argued, Whitefish, for respondent.

MORRISON, Justice.

Louis Dallas brought an action in the Eighth Judicial District Court pursuant to the Federal Employers' Liability Act (FELA) seeking damages for personal injuries sustained during the course of his employment with Burlington Northern, Inc. (BN). Following jury trial a verdict was returned in favor of plaintiff in the amount of $477,000. Burlington Northern's motion for a new trial was denied. This appeal followed. We affirm.

Louis Dallas began working for BN in 1971 as a switchman and brakeman. In 1975 he was promoted to locomotive engineer.

On October 18, 1980, Dallas was operating a freight train from Glasgow, Montana to Minot, North Dakota. He stopped the train on a siding at Blair, Montana to permit a westbound train with a superior right to pass. While stopped on the siding, Dallas decided to use the rest room facilities.

The toilet compartment, located in the nose of the locomotive two feet below the floor level of the cab, was entered through a low doorway on the front wall of the cab. The stair-step into the compartment was an iron box which also served as a toolbox. The toolbox structure, two feet long by one foot high, was secured to the floor of the compartment by spot welds.

Dallas claims that as he stood with both feet on the step his weight transferred to the front causing the back to come completely loose thereby tipping the step forward. When the step tipped forward Dallas testified that he fell against the side of the locomotive injuring his left shoulder, lower neck and back and left knee.

Dallas stated that after his fall, the step was completely on its side revealing the broken spot welds. The break in the welds was confirmed by an inspection conducted by the mechanical department when the locomotive arrived at Minot, North Dakota. One of the three inspectors who tested the step in Minot, testified that, despite the broken welds, he was unable to cause the step to tip forward as described by Dallas.

There were no eye witnesses to Dallas' accident other than Dallas himself. A witness statement was taken from the locomotive fireman, James Morehouse, which indicated that Morehouse did not see Dallas fall, but heard "banging and all kinds of commotion ..." Morehouse died in an off-duty accident shortly after Dallas' accident, and his unsworn statement was received in evidence.

Following the accident, Dallas returned to Glasgow, Montana, acting as fireman instead of engineer because of soreness resulting from his fall. On October 20, 1980, a physician's assistant at the Smith Clinic in Glasgow examined Dallas for his injuries. He found tenderness along the left paravertebral muscle, diagnosed a muscle spasm and prescribed rest, heat and relaxants.

When his condition did not improve Dallas was referred to Dr. Peter Teal, an orthopedic surgeon in Billings, Montana. On November 4, 1980 Dr. Teal diagnosed an acute strain of the upper thoracic and lower cervical spine and prescribed physical therapy and muscle relaxants.

Dallas sought a second medical opinion from Dr. James Laidlaw, an orthopedic surgeon, in Kalispell, Montana. He continued under Dr. Laidlaw's treatment of physical therapy, medication and cervical traction until the latter part of 1981. Dr. Laidlaw referred Dallas to Dr. Schimpff, a neurologist, who cared for Dallas from November, 1981 to June, 1983. Dr. Schimpff's recommended course of treatment was intermittent use of anti-inflammatory agents, intermittent physical therapy, and curtailment of physical activities. Dr. Schimpff was unable to pinpoint a single basis for plaintiff's complaints, but offered three possible diagnoses: either a herniated cervical disc; a thoracic outlet syndrome; or a chronic strain.

No myelogram nor surgical procedures were performed in connection with this injury. Dallas was hospitalized for injuries sustained in a head-on automobile accident on August 18, 1982, but never was admitted to a hospital as a result of the accident which is the subject of this appeal.

Dallas presented evidence that he was only able to work about 70% of the time without aggravating his symptoms. He claimed a loss of future earning capacity equivalent to a 30% reduction in his full-time wages. An economist testified that Dallas' past wage loss was approximately $62,000 and his loss of future earning capacity was $415,000.

The trial court granted a partial summary judgment in favor of Dallas finding that BN had violated the Federal Boiler Inspection Act. The issues of causation and damages were submitted to the jury. A verdict was returned which awarded $477,000, a figure which equals the sum of past lost wages and loss of future earning capacity as reflected in the economic projection of plaintiff's expert.

Burlington Northern presents the following issues on appeal:

1. Whether the trial court erred in granting Dallas' motion for partial summary judgment on the violation of the Federal Boiler Inspection Act?

2. Whether the medical testimony offered by Dallas' physicians was sufficiently certain to be admitted and sufficiently probative to carry plaintiff's burden of proof on the medical issues?

3. Whether the trial court erred in refusing to instruct the jury regarding the effect of income taxes on the damages claimed by Dallas and awarded by the jury?

4. Whether the trial court erred in permitting Dallas to present testimony of a previously unidentified rebuttal witness?

5. Whether the verdict was excessive as a matter of law?

Summary judgment is not a substitute for trial and can only be granted when the record discloses no genuine issue of material fact entitling the moving party to a judgment as a matter of law. Hansen v Transamerica Inc. Co. (1978), 175 Mont. 273, 573 P.2d 663.

Here the evidence clearly shows that the welds were broken. There is a conflict in the evidence respecting whether the breaking of the welds would cause the step to tip thereby causing the accident in question. The question becomes whether the Federal Boiler Inspection Act is violated as a matter of law given this factual record. The Act provides in relevant part that:

"It shall be unlawful for any carrier to use or permit to be used in its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb, and unless said locomotive, its boiler, tender, and all parts and appurtenances thereof have been inspected from time to time in accordance with the provisions of sections 28 to 30 and 32 of this title and are able to withstand such test or tests as may be prescribed in the rules and regulations as may be hereinafter provided for." 45 U.S.C. section 23.

Plaintiff's action was instituted under the Federal Employers' Liability Act, (FELA), 45 U.S.C. section 51, which provides in relevant part that:

"Every common carrier by railroad while engaging in commerce between any of the several States and Territories ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines ... or other equipment."

The United States Supreme Court discussed absolute liability features of section 23 and its interrelation with section 51, in Lilly v. Grand Trunk Western R. Co. (1943), 317 U.S. 481, 485-86, 63 S.Ct. 347, 351, 87 L.Ed. 411. The Supreme Court said:

"Negligence is not the basis for liability under the Act. Instead, it 'imposes upon the carrier an absolute and continuing duty to maintain the locomotive, and all parts and appurtenances thereof, in proper condition, and safe to operate ... without unnecessary peril to life or limb.' (citations omitted.) Any employee engaged in interstate commerce who is injured by reason of a violation of the Act may bring his action under the Federal Employer's Liability Act, charging the violation of the Boiler Inspection Act (citations omitted.) The Act, like the Safety Appliance Act, is to be liberally construed in light of its prime purpose, the protection of employees and others by requiring the use of safe equipment." (Emphasis added.)

We must engage liberal construction in favor of protecting the employees. We construe the carrier's obligation under the Act to be dual. The carrier must maintain locomotive parts and appurtenances in proper condition and must maintain the locomotive in such a condition as to prevent unnecessary peril to life or limb. The railroad in this case was obligated under the Act to perform both duties and its failure in either regard rendered it in violation. Here the undisputed facts show that the spot welds were broken; therefore parts and appurtenances were not in proper condition. The trial court was entitled to find a violation of the Act from the existence of broken spot welds without more.

The trial court properly left the question of causation to the jury. The jury was correctly instructed that BN violated the Act but before the jury could find for the plaintiff they must find that the defective welds caused an accident injuring Dallas. We find the trial court properly interpreted and applied the federal law.

BN contends that plaintiff's medical evidence was not sufficiently certain to be admissible. BN further argues...