Duncan v. St. Louis-San Francisco Railway Company

• Decision Date: 15 May 1973
• Docket Number: No. 72-1399.,72-1399.
• Citation: 480 F.2d 79
• Parties: Clyde H. DUNCAN, Plaintiff-Appellee, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

480 F.2d 79 (1973)

Clyde H. DUNCAN, Plaintiff-Appellee, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Defendant-Appellant.

No. 72-1399.

United States Court of Appeals, Eighth Circuit.

Argued March 21, 1973.

Decided May 15, 1973.

Rehearing and Rehearing Denied June 20, 1973.

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John L. Davidson, Jr., Robert M. Hamlett, Greenfield, Davidson & Mandelstamm, St. Louis, Mo., for defendant-appellant; Donald E. Engle, W. W. Dalton, St. Louis, Mo., of counsel.

Mortimer A. Rosecan, St. Louis, Mo., for plaintiff-appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, and MEHAFFY and HEANEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied June 20, 1973.

HEANEY, Circuit Judge.

The defendant appeals from a jury verdict of $94,000 awarded to its employee in an action under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq.

Duncan, a locomotive engineer, employed by the St. Louis-San Francisco Railway Company (Frisco), sustained injuries when the train he was operating on a run from Memphis, Tennessee, to St. Louis, Missouri, collided with a Missouri Pacific train in Memphis on February 10, 1968. Duncan was proceeding in a northerly direction through Frisco's Memphis railroad yards on the mainline which would take the train to St. Louis. At this point, Duncan and the other crew members on the head engine observed a Missouri Pacific train, traveling in a southerly direction, approaching on the adjacent Missouri Pacific track. There are a number of switches located on Frisco's mainline which serve to divert trains onto other tracks. Many of these switches are equipped with targets which show at a distance whether the switch is in an open or closed position. However, other switches do not have targets, and their position must be determined by observing the position of the switching track itself. This latter type of switch is referred to as a "puzzle switch." Duncan's train reached one such puzzle switch and veered off the mainline track crashing into the side of the Missouri Pacific train. This occurred because the puzzle switch had been left open—i. e., set for a diverging movement and not for a through movement.

Duncan was injured in this crash. He received medical treatment and hospitalization. On July 27, 1970, he commenced this action charging that the collision and his injuries resulting therefrom were directly and proximately caused by the negligence and carelessness of Frisco. He alleged that the injuries were permanent and had curtailed his leisure activities, shortened his work life and subjected him to pain and medical expenses for the rest of his life. The case was tried to a jury, and a judgment was entered in Duncan's favor on January 19, 1972.

Frisco contends on this appeal that the trial court erred:

(1) In failing to grant its motion for judgment notwithstanding the verdict because there was insufficient evidence to support a finding of negligence on the part of Frisco.

(2) In allowing Duncan's counsel to argue that the testimony given by one of his medical witnesses was unworthy of belief.

(3) By denying Frisco's motion for a mistrial where Duncan's counsel read into the record part of the depositions of other employees of Frisco during his case-in-chief and then, on final argument, commented on the failure of Frisco to call these same persons as witnesses.

(4) By instructing the jury that Frisco's Operating Rule 104 was applicable, that the rule had been violated and that a violation of the rule was negligence per se.

(5) In instructing the jury that its verdict might include damages for loss of future earnings reduced to present value because there was no evidence to support an award of damages for future loss of earnings and no evidence or instructions regarding the manner in which the present value of such an award should be computed.

(6) In refusing to instruct the jury that any award made to Duncan would not be subject to federal income tax.

We review these contentions seriatim.

(1) Frisco's argument concerning sufficiency of the evidence is: first, that the record is devoid of any evidence to support a finding that Frisco was negligent; and, second, that Duncan's failure to observe the position of the puzzle switch was the sole cause of the accident.

With respect to the first issue, Frisco agrees that the switch was lined for a diverging movement, but contends that for it to be liable, Duncan was obligated to prove either that the switch was lined for a diverging movement by Frisco, or that the switch had been lined for a diverging movement for a period of time sufficient to charge Frisco with knowledge of its position. We disagree. Under F.E.L.A. law, the railroad employer is required to provide its employees with a reasonably safe place to work. Chicago Great Western Railway Company v. Casura, 234 F.2d 441, 447 (8th Cir. 1956). Failure to do so constitutes negligence. Moreover, this duty is a nondelegable one. Payne v. Baltimore and Ohio Railroad Company, 309 F.2d 546, 549 (6th Cir. 1962), cert. denied, 374 U.S. 827, 83 S.Ct. 1865, 10 L.Ed.2d 1051 (1963). Accordingly, Frisco cannot escape liability by passing the blame for misalignment of the switch onto the other railroads using the switch, if the presence of the condition was found to constitute an unsafe place to work. To hold otherwise would be contrary to the position taken by the Supreme Court in Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1, 11, 83 S.Ct. 1667, 1673, 10 L.Ed. 2d 709 (1963):

"* * * If recovery were denied in this case the railroads, by the simple expedient of doing each other\'s work, could tie their employees up in legal technicalities over the proper railroad to sue for injuries and perhaps remove from coverage of the Act a significant area of railroad activity. * * *"

In testing the sufficiency of the evidence, we are bound to view the evidence in the light most favorable to the prevailing party and to resolve all reasonable inferences in favor of that party. Our review of the record reveals that there is substantial evidence which supports a finding that Frisco was negligent. It is undisputed that the switch was lined for a diverging rather than a mainline movement, and that the track and puzzle switch were owned by Frisco. Duncan's theory was that the custom in this railroad yard and Rule 104¹ required that if someone used the switch, they either had to line the switch back for a mainline movement or post an authorized employee near enough to the switch to be able to line the switch for a mainline movement upon the approach of a train. Here, it is conceded that neither of these requirements was satisfied. Duncan contends that this fact, coupled with the undisputed fact that the switch did not have a target or other signal, constituted an unsafe place of work and, hence, negligence on the part of Frisco. Under his theory, this was true because he contended that it was impossible for him, as an engineer, to determine the position of the switch until it was too late to avoid the accident. His was a permissible theory, and there is substantial evidence in the record in support of it. There is also evidence which supports Frisco's position that the accident was caused by Duncan's negligence, and that theory was also submitted to the jury. The jury was correctly instructed that under F.E.L.A. law, contributory negligence on the part of the employee does not bar his claim but only serves to reduce his damages in proportion to the amount of negligence attributable to the employee. See, 45 U.S.C. § 53. The jury chose to believe Duncan's evidence and rendered a verdict in his favor. In view of the fact that there is substantial evidence to support Duncan's theory, we cannot upset the jury's verdict.

(2) During his case-in-chief, Duncan called Dr. Raymond Ritter as one of his medical witnesses. Dr. Ritter was one of a number of doctors who treated Duncan for his injuries and, in some respects, his testimony was less favorable to Duncan than was that of other medical witnesses. In the course of his testimony, Dr. Ritter admitted that a portion of his practice was comprised of examining and treating employees of Frisco, and that he was paid by the railroad for those services. In his final argument, Duncan's counsel made reference to Dr. Ritter as a railroad doctor and suggested to the jury that, as such, his testimony was not entitled to as much weight or credibility as was that of other medical witnesses called to testify by Duncan. Frisco, on this appeal, contends that these comments of Duncan's counsel violated this Court's rule prohibiting the impeachment of one's own witness. We disagree.

The Eighth Circuit cases cited by Frisco are distinguishable from this one. They dealt with impeachment of one's own witness by cross-examination and not comments during final argument. We are satisfied that the comments objected to constituted a permissible exercise of counsel's right to comment on the weight and credibility that should be attributed to a witness's testimony. Counsel is to be afforded wide latitude in his argument to the jury, and the trial court has a great deal of discretion in regulating the scope of the argument. The comments here were confined to the evidence and reasonable inferences which could be drawn therefrom, and we hold that the trial court did not abuse its discretion in permitting these comments by Duncan's counsel. See, Chapman v. Alton R. Co., 117 F.2d 669, 672 (7th Cir. 1941).

(3) Duncan's counsel read into the record parts of depositions taken of other employees of Frisco who were members of the train crew at the time of the accident. The gist of the testimony admitted was: (a) that Operating Rule 104 applied to the puzzle switch; (b) that the position of the switch could not be determined prior to reaching the "blind spot;" (c) that the attention of Duncan and the other crew members was diverted by the...