Dickerson v. St. Louis Southwestern Ry. Co.

• Decision Date: 05 June 1984
• Docket Number: No. 46998,46998
• Parties: Robert Wayne DICKERSON, Plaintiff-Respondent, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 165

674 S.W.2d 165

Robert Wayne DICKERSON, Plaintiff-Respondent, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Defendant-Appellant.

No. 46998.

Missouri Court of Appeals,

Eastern District,

Division One.

June 5, 1984.

Motion For Rehearing and/or Transfer to

Supreme Court Denied July 12, 1984.

Application to Transfer Denied

Sept. 11, 1984.

Gerald D. Morris, Paul N. Venker, St. Louis, John J. Corrigan, Gen. Sol., San Francisco, Cal., for Southern Pacific Transportation Company.

Robert F. Ritter, Kevin M. Cushing, Paul C. Hetterman, St. Louis, for plaintiff-respondent.

SNYDER, Judge.

Plaintiff-respondent Robert Wayne Dickerson obtained a jury verdict and judgment for $1,000,000 against defendant-appellant St. Louis Southwestern Railway Company. Respondent was injured when he fell from a railroad car and landed on his buttocks and low back on the ballast rock below. He sued the railroad for his injuries pursuant to 45 U.S.C.A. Section 51 et seq., commonly known as the Federal Employer's Liability Act (FELA). The railroad appeals. The judgment is affirmed.

Appellant contends the trial court erred: (1) in overruling its objections to respondent's reference in opening statement to, and evidence of, the "blue flag rule;" (2) in refusing to submit appellant's tendered present value instruction; (3) in denying appellant's motion for new trial because of respondent's allegedly improper argument regarding the computation of damages; (4) in submitting a modified form of MAI 8.02, the damage instruction; (5) in submitting MAI 8.02 as the damage instruction because MAI 8.02 allows the jury to speculate as to damages; (6) in submitting MAI 8.02 because MAI 8.02 deprived appellant of equal protection under the law; (7) in refusing to submit appellant's Instruction H, which would have instructed the jury not to speculate as to damages; (8) in submitting MAI 24.01 as the verdict directing instruction; (9) in denying appellant's motion for a mistrial when the jury allegedly saw respondent's wife help him up from a supine position on a courtroom bench; (10) in overruling appellant's objection to testimony about appellant's depression; (11) in overruling appellant's objection to respondent's closing argument which allegedly improperly injected the issue of punitive damages; and (12) in overruling appellant's motion for a new trial because the jury's verdict was allegedly excessive.

Respondent Robert Dickerson at the time of trial was a thirty-four year old man with a wife and two young sons. Before the accident in question, he enjoyed a normal relationship with his wife, who described her husband as a relatively happy man. In addition respondent had also enjoyed such family activities as camping, hiking, fishing, and watching his sons play baseball.

In 1972, at the age of 24, respondent began working as a railroad policeman for appellant. A railroad policeman performs basically the same function for the railroad as a municipal police officer performs for his city or county. In particular, railroad policemen inspect railroad cars for possible theft, vandalism, damage, or burglary. Appellant employed respondent at the Valley Junction railroad yard in East St. Louis, Illinois.

On December 11, 1978 at 7:35 p.m. a train known as CRBY 6014 rolled into Valley Junction. The train had two engines and one hundred cars. Respondent hopped onto the forty-third car from the rear in order to inspect its cargo of Cadillac automobiles. As he was climbing from the first, or A, level to the second, or B, level of the railroad car, he slipped and fell to the ground, landing on his back on the ballast rock below. Respondent maintains that the train moved while he was attempting to climb from one level to the next.

Respondent injured his lower back as a result of the fall. Respondent has been hospitalized several times and undergone several operations on his back since his fall, but he is nonetheless in constant pain and cannot lie down, sit or stand for extended periods of time. Respondent can no longer enjoy the outdoor activities in which he used to participate with his family, such as hiking, camping, fishing, water skiing, working around his farm and going to ball games. His personal relationship with his wife has deteriorated. Respondent, although once a happy man, is now irritable, depressed and unhappy.

In addition, respondent's evidence showed that he was totally and permanently disabled. Appellant produced the testimony of one physician who indicated that appellant could perform a sedentary job, but this physician could not name any one specific job for which respondent was suited.

Appellant also produced evidence which tended to show that respondent had injured his back before the fall from the railroad car, but respondent testified that he was in good health prior to the accident and shortly before his fall had completed a training course for appellant in Oakland, California which involved rigorous physical exercise. He earned a grade of A in this course and graduated with honors.

Respondent predicated his theory that appellant negligently failed to provide reasonably safe conditions or methods of work on three grounds. First, appellant was negligent for failing to give railroad policemen the protection of its "blue flag" rule. According to the evidence, whenever a workman is working on a train, he places a blue flag or signal at each end of the train and removes it when he is finished. The train may not move until the blue flag is removed and only the workman who put the blue flag down may remove it. The blue flag rule did not apply to railroad policemen because, according to the railroad, requiring the policemen to put down a blue flag would hamper their ability to apprehend thieves and vandals on the trains.

Second, respondent alleged that appellant was negligent in forbidding radio communications between the train crew and the railroad policemen. Respondent testified that, although he was equipped with a radio so that he could listen to transmissions between the railyard operator and the conductor and engineer, the railroad forbade him to notify the conductor or engineer that he was on the train. Appellant produced testimony that, although communication between railroad police officers and the train's crew was not required, there was no rule forbidding such communication.

Third, respondent maintained that there was insufficient clearance between the treads of the ladder which led from one level of the railroad car to the next and the side of the car. The clearance was between two and two and a half inches wide and according to respondent did not provide enough toe room for a worker climbing the ladder. Appellant relied on the federal government's minimum standards, which the steps met, as evidence of no negligence.

After hearing the evidence, the jury awarded respondent $1,000,000.

Appellant first contends that the trial court erred in allowing evidence regarding the blue flag rule because respondent did not plead the blue flag rule as a theory of recovery, thereby surprising appellant at trial. The contention has no merit.

Respondent's first amended petition alleges that appellant "failed to provide reasonably safe methods of work." The pattern instruction for FELA cases, MAI 24.01, sets forth the employer's failure to provide reasonably safe methods of work as one dereliction from which the jury may infer the employer's negligence. Thus, respondent pleaded the ultimate fact in issue and the pleading thus states one basis for liability. See Fish v. Fish, 307 S.W.2d 46, 51 (Mo.App.1957). That appellant did not give its policemen the protection of the blue flag rule is arguably a failure to provide a reasonably safe method of work.

Although respondent pleaded an ultimate fact, the allegation is a broad generalization. Appellant could have learned more detailed facts by filing a motion for a more definite statement. As a matter of fact, the railroad itself pleaded as an affirmative defense that "Plaintiff inspected the cars of the train without being certain that the train was blue flagged."

The legal file contains a minute entry indicating that appellant filed a motion for more definite statement which was overruled; neither the motion nor the trial court's ruling, however, has been made a part of the record on appeal. Nor has appellant contended the trial court erred in overruling the motion.

This court is confined to the record as presented to it, see Williams v. Clean Coverall Supply Co., Inc., 613 S.W.2d 659, 664 (Mo.App.1980), and will not speculate as to the contents of motions not filed as part of the record. Any contention, if there ever was one, that appellant was entitled to a more definite statement, has been waived. See State ex rel. State Highway Commission v. City of St. Louis, 575 S.W.2d 712, 724[17, 18] (Mo.App.1978). Any indefiniteness in the amended petition was cured by the jury's verdict. See Moschale v. Mock, 591 S.W.2d 415, 418[4, 5] (Mo.App.1979).

Appellant next asserts the trial court erred in refusing to submit to the jury a present value instruction. ¹ The Missouri Supreme Court has held that "... a present value instruction was not appropriate under MAI." Bair v. St. Louis--Francisco Ry. Co., 647 S.W.2d 507, 510 (Mo. banc 1983); but cf. Chesapeake & Ohio Railway Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117 (1916) (on writ of error to the Court of Appeals of Kentucky, the U.S. Supreme Court reversed and remanded the case because of the trial court's refusal to give a requested present value instruction). The point is denied.

Appellant's third contention is that the trial court erred in denying appellant a new trial when respondent's counsel argued to the jury that respondent's future wage loss could be calculated by increasing respondent's salary by 5% per year and by multiplying respondent's annual salary by the number of his employable years. After the remarks by resp...