Dunn v. St. Louis-San Francisco Ry. Co.

• Decision Date: 08 June 1981
• Docket Number: LOUIS-SAN,No. 62428,62428
• Citation: 621 S.W.2d 245
• Parties: Ronald E. DUNN, Respondent, v. ST.FRANCISCO RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

Page 245

621 S.W.2d 245

Ronald E. DUNN, Respondent, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant.

No. 62428.

Supreme Court of Missouri, En Banc.

June 8, 1981.

Rehearing Denied July 14, 1981.

Burlington Northern Railroad, Inc. Law Department, St. Louis, Gerald D. Morris, St. Louis, for appellant.

C. Marshall Friedman, St. Louis, for respondent.

WELBORN, Special Judge.

Action for damages, under Federal Employers' Liability Act (F.E.L.A.), 45 U.S.C. § 51 et seq., for injuries sustained by Ronald E. Dunn while working as an apprentice carman for defendant, St. Louis-San Francisco Railway Company (Frisco). Jury returned verdict for plaintiff for $275,000 damages. The Missouri Court of Appeals, Eastern District, reversed the judgment and remanded for a new trial. Dissenting judges in that court certified the case to this Court. Rule 83.01.

Plaintiff was employed by defendant in Fort Smith, Arkansas as an apprentice carman and had completed one and one-half years of a four-year apprenticeship. A carman rebuilds and repairs boxcars, tankcars and flatcars. In the course of his job, a carman repairs wheels, gears, brakes and removes the wooden lining from the interiors of boxcars.

Boxcars are lined with tongue and groove boards or plywood sheets, nailed to stringers in the ends of the boxcars. A stringer is a four by four wooden board, sometimes oak and more frequently a softer wood, pine or fir. Its length is equal to the width of a boxcar. Stringers are bolted horizontally to the steel exteriors of the boxcars.

In Frisco's operation, the boxcar lining is removed, or "pulled", on K-1 track at its facility in Fort Smith. As cars from various railroads enter the train yard, an inspector routes them to designated tracks for appropriate repairs. The lead carman marks lining to be pulled from the cars assigned to K-1 track.

At the time of plaintiff's injury, a carman was given two tools to pull lining, a crowbar and a five to six foot long lining car, weighing twenty-five pounds and having a foot at one end. These tools ordinarily performed adequately to pinch, pry or pull. However, removal of the lining of cars for the Atchison, Topeka & Santa Fe Railroad often presented a problem. The end lining of the Santa Fe cars was built of two plywood sheets one inch thick, four feet wide and ten feet long, with thirteen inch strips between, and was attached with a large number of heavy screwnails. Often, two men working together could not remove the lining from Sante Fe cars. Lining bars had been bent in the removal process. The employees had complained for years about the problems and hazards of removing this type of lining. The carmen complained at their periodic safety meetings of the inadequacy of the tools furnished, but no other tools were provided by Frisco for Santa Fe cars. The employees had to "strain their guts" to pull this lining off, using their back, legs and arms. Sometimes the carmen would ask a laborer to run the forklift to assist in the pulling of lining. A clamp and chain were attached to the plywood lining and the power of the hydraulic system of the forklift pulled it. However, the forklift was not always available, and the carmen's supervisors discouraged its use. Defendant's evidence was that some supervisors considered the use of a forklift for this purpose dangerous.

On the date of his injury, Wednesday, October 23, 1974, plaintiff had removed the lining from four boxcars before he and journeyman carman Gary Marshall began work on a Santa Fe car. When he realized it was the heavy lining, plaintiff asked his supervisor, lead carman Leo Moss, for a forklift. However, Moss told him to use the lining bar. Plaintiff inserted his lining bar three feet from the floor, placed one foot on the floor and the other foot on the end wall, in a crouched position, and pulled. He then felt a sharp, shooting pain in his lower back. He tried to stand up, but was unable to rise to a straight, upright position. He told Gary he was hurt, rested ten minutes, then returned to pulling the lining. Thinking the pain would abate, he worked Thursday and Friday on a different assignment, checking and adjusting air brakes on the cars. Plaintiff did not report the injury to his supervisors or seek medical assistance on the job because he feared reprisal for reporting an on-the-job injury. There was evidence other employees, including supervisors, knew that he had been injured. After bedrest during the weekend, plaintiff reported for work on Monday. He could not work due to pain, was hospitalized, and eventually a ruptured disc was repaired surgically.

Appellant's first assignment of error is based upon the trial court's overruling of objections to deposition testimony of plaintiff's witness, Jerry Daniels, to the effect that appellant needlessly removed good lining from boxcars and replaced it with poor lining. Appellant contends that such evidence was beyond the scope of the pleadings, immaterial and irrelevant, and " * * * caused defendant to be place in a bad light, in short, appear crooked, in the eyes of the jury on a false issue which was neither pleaded nor relevant to the case." (This was the assignment of error which was the basis for the reversal by a divided court of appeals.)

In his opening statement to the jury, counsel for plaintiff stated that Frisco removed and replaced linings on boxcars for other railroads for which "billings were substantial." When plaintiff's counsel stated that on numerous occasions lining was unnecessarily removed, defense counsel objected that the decision as to what lining should be pulled was not an issue. Defense counsel responded, out of the hearing of the jury, that unnecessary work was done because Frisco wanted to increase their billing to other railroads and that plaintiff was injured while engaging in such work. Defense counsel restated his position that the decision as to what lining should be pulled was not related to any issue of negligence. The trial court overruled the objection " * * * at this time, * * * subject to specific objections in the course of the evidence."

Plaintiff's counsel then continued his opening statement, reiterating that lining was removed unnecessarily and stating, without further objection, that lining was replaced with "material * * * not as good as the materials they tore out and they only tore it out for billing purposes, to bill other railroads to increase the billing for the Frisco."

In his opening statement, counsel for defendant stated that Whirlpool, a shipper at Fort Smith, required boxcars to be in good shape on the inside for their products and Frisco had to put cars in shape so that Whirlpool would accept them, and it was necessary for Frisco to remove "rotten feed or something like that behind the plywood (lining) * * *." Counsel also stated that " * * * when the cars are upgraded, it's correct, billing was done."

Plaintiff's case opened with the reading of a deposition of Gary Lee Marshall, a Frisco carman. When the questioning on the deposition came to the subject of billing by Frisco of other railroads for replacement of boxcar lining at the Fort Smith yards, an objection by defense counsel to such testimony was sustained. Marshall who was working with plaintiff at the time of his injury testified to the circumstances of that occurrence. His testimony included the statement: "The lining in these cars are (sic) pulled for several reasons. They are either broken, decayed, or feed and debris behind the lining. And in order to raise the car from one class to another for higher class loading, this work has to be done. And that's the reason for pulling this lining."

Plaintiff then read the deposition testimony of Daniels, also a carman employed by Frisco at Fort Smith. Objection to his deposition testimony regarding Frisco's billing other roads for pulling linings was sustained. Also excluded was an early question and answer in which the witness expressed the opinion that Frisco would pull lining on foreign cars that was in better condition than that with which it was replaced.

Daniels did testify about the problems encountered in removing plywood lining from Santa Fe cars and possible alternative methods, involving the use of machinery, which had been suggested by carmen to their supervisors, on such work.

After direct, cross, redirect, recross, redirect, recross, redirect and recross-examination, the examination returned to redirect examination and got into billing by Frisco on lining pulled from foreign cars which the witness did not think needed to be replaced. Defense counsel's objection was that the examination " * * * touches the subject * * * that this carman did not think that the work done was necessary to be done in some instances and that the work was done to build up billing by the Frisco against other railroads * * * (T)his is not an issue in this case, does not touch the issue of negligence * * * and is not material or relevant to the issue of railroad negligence * * *."

The court sustained the objections to the reading of the redirect and plaintiff's counsel then stated that he wished to read the recross. Defense counsel again objected, stating that his objection was the same as that made to the redirect. He reiterated that the matters involved were "not an issue * * * pertaining to negligence." When the trial court indicated that it would permit reading of portions of the recross, defense counsel stated: "Can it be stipulated that my general objection as to whether or not this is an issue of negligence goes to all these questions which the Court permitted to be read?"

Plaintiff's counsel then read the following from the recross-examination:

"Q Are you saying that the supervisors requested or told you fellows to do work that did not need to be done?

"A Yes.

"Q What have you seen? Now, be very specific about what you have seen.

"A I've seen new end lining taken out and a poor grade put in.

"Q...