Drury v. Missouri Pacific R. Co.

• Decision Date: 29 August 1995
• Docket Number: No. 66156,66156
• Citation: 905 S.W.2d 138
• Parties: Niles DRURY, Plaintiff/Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, et al., Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 138

905 S.W.2d 138

Niles DRURY, Plaintiff/Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, et al., Defendant/Respondent.

No. 66156.

Missouri Court of Appeals,

Eastern District,

Division Four.

Aug. 29, 1995.

Daniel J. Cohen, Edwardsville, IL, for plaintiff/appellant.

Nicholas J. Lamb, St. Louis, for defendant/respondent.

SIMON, Judge.

Niles Drury, employee, appeals from a judgment in favor of Missouri Pacific Railroad Company, his employer, in his Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60, and his Safety Appliances and Equipment Act (Safety Act), 45 U.S.C. §§ 1-46, claims.

In his eleven points on appeal, employee contends the trial court erred in: (1) denying his motion for directed verdict on his Safety Act claim because the uncontradicted and unrebutted evidence indicated that his injury was due, at least in part, to a failure of two railroad cars to couple automatically upon impact; (2) giving instructions positing his negligence as the "sole cause" of his injury; (3) instructing the jury regarding his duty to mitigate his damages; (4) permitting the introduction of evidence relating to his ownership of "The Batcave" tavern and the income he derived therefrom; (5) permitting employer's counsel to read the deposition testimony of its managing agent, David Barnes; (6) instructing the jury on the issue of contributory negligence because there was no proper evidence introduced at trial which would support such a finding; (7) refusing his tendered instruction which would have advised the jury that he does not assume the risks associated with his employment; (8) permitting employer's counsel to read an unsigned and unsworn interrogatory answer provided by his attorney; (9) permitting the jury to view a large, blowup exhibit indicating his history of alcoholism; (10) refusing his tendered instruction which would have informed the jury that his entitlement to recover under the FELA was not barred by the fact that the litigated injury might be an aggravation of a pre-existing condition; and (11) refusing his tendered instruction which would have informed the jury that under the Safety Act it is irrelevant whether the coupler in question functioned properly or improperly before or after the occasion in question. We reverse and remand.

Employee worked as a switchman for employer. At some time in May or June 1990, he was working at night when he noticed two railroad cars not coupled together. He attempted to couple the two cars by pushing one of the couplers or "drawbars" attached to one of the uncoupled cars. The drawbar was rusty. Unsuccessful, he put his shoulder on the drawbar and pushed, whereupon he slipped and twisted his left ankle. After October 1990, employee no longer worked for employer. On January 10, 1991, he filed an accident report with employer concerning the incident.

Employee filed a two-count petition, alleging in Count I that he was injured while attempting to straighten a drawbar and that employer was negligent pursuant to the FELA in failing to provide him with a reasonably safe place to work and safe tools, appliances, and equipment with which to do his work, thereby causing his injuries and damages. In Count II, employee alleged that employer violated the Safety Act by furnishing employee with a railroad car that would not automatically couple upon impact, causing his injuries and damages. In its answer, employer set forth an affirmative defense to both counts, contending employee's injuries, if any, were either caused or contributed to by his own negligence or other misconduct.

Subsequently, the parties stipulated:

That [employee's] prayer for relief in the form of lost wages and/or loss of earning capacity is limited to such losses as have occurred, and/or will occur, as a result of [employee's] permanent inability to return to his previous position with the Railroad. [Employee's] proof of damages at trial will not include any evidence pertaining to his ownership of, or income from, Cahokia Sports, Inc./"Batcave." Further, [employee] does not contend, nor will he testify at trial, that he has not undergone any suggested medical care due to lack of financial resources.

Employee filed a motion in limine to exclude testimony, evidence and references to his business entity, a tavern known as the Sports Arena, Inc., d/b/a "The Batcave." The motion was denied. He also filed a motion in limine to exclude any reference to his use of alcohol, and the motion was sustained.

At trial, employee presented the testimony of Larry Gebhard and Daniel Elder, his former co-workers at the railroad. Gebhard testified that the yard where employee was injured was used partly to store obsolete rail cars. On direct, he testified as follows:

Q. [If] you're working with one of these drawbars, is it sometimes necessary for you as a trainman to physically move the drawbar.

A. Yes, it is.

* * * * * *

Q. Now, if the drawbar is lubricated, how hard is it to move it if it's lubricated.

A. Not very hard at all.

Q. And if the drawbar hasn't been maintained and doesn't have lubrication and it's rusty, what's it like to move.

A. They can become extremely hard to move.

Gebhard further testified that when employee came to work the day of the incident he was not limping but that he was when he was leaving work. Gebhard stated that after that day employee had a harder time getting around. Finally, Gebhard testified that devices used to align drawbars were not readily available.

Elder testified that he observed employee walking normally when he came to work that day and that he was limping when he left. He testified that employee was injured while switching cars and that the cars are supposed to couple automatically upon impact.

Employee also testified that railroad cars will couple automatically if the drawbars are aligned and working properly. Further, employee testified that he bought his tavern in 1985 and that its profits were $825 in 1988, $380 in 1989, $5,266 in 1990, $710 in 1991, and $11,152 in 1992. On cross-examination, he testified that the tavern was open 14 hours per day every day, that he had one employee, and that the tavern's gross receipts totaled $50,000 in 1991 and $48,422 in 1992. During its evidence, employer offered the testimony of Martin Gruettemeyer, a certified public accountant who did compilation work for employee's tavern. He testified that from August to December 1993 the tavern's gross receipts amounted to $45,726.

Employer also read the following deposition testimony of David Barnes, a supervisor for employer, as questioned by employer's counsel:

Q. Just a few questions, Mr. Barnes. In the conversation you had with Mr. Drury in the Collinsville Holiday Inn in August 1990, am I to understand that he told you that whatever injury he had--whatever injury he had supposedly sustained previously, that he told you it was his own fault.

A. That is correct.

Q. And did you understand, therefore, that one of the reasons he claimed he didn't fill out a personal injury report was because it was his own fault.

A. Yes, sir.

Q. And in that conversation that you had with Mr. Drury in August of 1990, am I to understand that he made no mention whatsoever of any problem with ballast or his foot slipping on ballast.

A. Absolutely none.

Q. Am I also to understand that he made no mention of an ankle injury in that conversation.

A. That is correct, sir.

Q. And the reason for the meeting with Mr. Drury in August of 1990 was because in some period prior to that he had had increased absenteeism from the workplace; is that correct.

A. Yes, sir.

Q. And as far as you can recall, that period of increased absenteeism would have been earlier than May or June of 1990; is that correct.

A. Yes, sir.

Q. And in the conversation at the Collinsville Holiday Inn, did Mr. Drury ever mention anything that was supposedly wrong with this drawbar other than that he had somehow hurt himself while working with a drawbar.

A. No, sir.

Q. Did he mention rust or stored cars or anything along those lines.

A. No, sir.

Q. To your knowledge, Mr. Barnes, were there rules in effect governing employees such as Mr. Drury in the summer of 1990 regarding obtaining additional assistance to do a job if the employee thought there might be some difficulty or danger associated with it.

A. Yes, sir.

Q. And if Mr. Drury described himself as a footboard yardmaster, would he have had, at the time of his alleged injury, would he have had employees that were his subordinates which he could have requested or even ordered to assist him.

A. Yes, sir.

Subsequently, employee read the following testimony from the same deposition of Mr. Barnes:

Q. Do you recall approximately how many persons attended this meeting.

A. I think there were approximately 12.

Q. Were you the only management official in attendance.

A. No, sir. Art Smith out of recruit management system assisted me throughout most of the meeting. However, he had to catch an airplane at about 4:00 in the afternoon and when Mr. Drury came in, it was only Mr. Drury and myself.

Q. At the time of the conversation that you previously mentioned.

A. Yes, sir.

Q. Do you have a verbatim recollection of that conversation.

A. No, sir.

* * * * * *

Q. As we sit here today, can you tell me the names of any of the other employees who you met with that day regarding their absenteeism.

A. I would have to look at that list again and I could--I could tell you some of them. I can't from memory, no sir.

Following the close of evidence, employee objected to the submission of instructions numbered 6, 8, 9 and 14, which was overruled. These instructions provided:

No. 6

You must find [employee] contributorily negligent if you believe:

First, [employee] either failed to request the assistance of a co-worker to move the drawbar, or failed to use a pry bar to assist in moving the drawbar, or failed to use a strap to assist in moving the drawbar, or failed to use...