Eickelman v. Illinois Cent. Gulf R. Co.

• Decision Date: 20 May 1986
• Docket Number: No. 48565,48565
• Citation: 714 S.W.2d 611
• Parties: Billy Joe EICKELMAN, Plaintiff-Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 611

714 S.W.2d 611

Billy Joe EICKELMAN, Plaintiff-Appellant, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Defendant-Respondent.

No. 48565.

Missouri Court of Appeals,

Eastern District,

Division Four.

May 20, 1986.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 19, 1986.

Application to Transfer Denied Sept. 16, 1986.

Douglas Patrick Dowd, St. Louis, for plaintiff-appellant.

Frank N. Gundlach, St. Louis, for defendant-respondent.

KELLY, Judge.

This is an appeal by plaintiff, Billy Joe Eickelman, from a jury verdict in favor of the defendant, Illinois Central Gulf Railroad Company, in a personal injury action filed against the railroad pursuant to the Federal Employer's Liability Act, 45 U.S.C. Section 51 et seq.

Plaintiff contends the trial court erred in: (1) denying plaintiff's motion for a directed verdict and a Judgment Notwithstanding the Verdict; (2) submitting the issue of contributory negligence to the jury; (3) failing to permit plaintiff's physician to detail plaintiff's medical history; (4) sustaining defendant's objection to plaintiff's closing argument regarding the Federal Employer's Liability Act; (5) overruling plaintiff's objection to defendant's reference to the issue of Burden of Proof; (6) submitting defendant's contributory negligence instruction based on M.A.I. 32.07; and (7) denying plaintiff's motion for new trial due to the wording of Instruction No. 9.

We affirm the judgment of the trial court.

Plaintiff began working for defendant in 1942. From time to time his position with the railroad changed, and eventually he became an engineer. This was his job with the railroad when the incident in question occurred. On July 15, 1981, plaintiff, 54 years old at the time of the accident, performed a regular night's work of switching railcars by moving the cars to a raised area known as "the hump." He testified that it rained hard that night between 6:00 and 8:00 p.m., followed by a drizzle which continued until he got off work at approximately 10:20 p.m. At the end of his shift, he stopped his engine on the top of "the hump." He was the last one off the engine.

Plaintiff testified that he left the hump at approximately 10:20 p.m., by way of a wooden staircase which was built by his employer about one to one and a half years prior to his injury. He also testified that he had used the stairs in question approximately once a month prior to his accident, and did not recall having any problems with them. The staircase consists of ten wooden steps leading down to a wooden platform, and then four more wooden steps which lead down to the ground.

As plaintiff descended the steps to the platform, his left foot slipped. Plaintiff also testified that prior to the slip he "probably didn't" use the handrail. At the time of the accident he injured his left knee and his calf muscle, but was nevertheless able to get down the last 6 or 7 steps by using the handrail.

Plaintiff testified he could see the platform, although there was some shadowing. After he had slipped, he looked to see what happened and saw a light covering of mud with small gravel.

Plaintiff was carrying a satchel in his left hand at the time he descended the stairs. On direct examination, plaintiff stated that the satchel contained two empty coffee bottles and his time book, but he did not think he had a flashlight. On cross-examination, however, plaintiff acknowledged having previously testified in a deposition that the satchel did contain a flashlight.

After the accident, plaintiff completed a report for the railroad indicating that his only injury was to his left knee and calf muscle. Plaintiff went to the hospital later that evening and had his left knee x-rayed and wrapped with bandages. He was on crutches after the accident, and went back to work approximately three weeks later.

Approximately eight months after the accident, plaintiff sought medical treatment for problems with his shoulder and neck. Plaintiff's evidence was that in May of 1983 he went to see a neurologist.

Defendant contended that plaintiff's neck, hernia and neurological problems were not the result of his accident, and that his complaints were attributable to pre-existing conditions.

The case was tried before a jury. At the close of all the evidence, plaintiff filed a motion for directed verdict. The trial court overruled his motion. After verdict for the defendant, plaintiff filed a motion for judgment notwithstanding the verdict in accordance with his motion for directed verdict, and in the alternative for a new trial. All such motions were overruled. Plaintiff asserts on appeal that the court erred in overruling each of said motions.

We deal first with plaintiff's argument that the trial court erred in failing to grant plaintiff's motion for a directed verdict and in failing to enter judgment for plaintiff. "A verdict may be directed for a plaintiff only in those rare cases where there are no genuine fact issues which should be submitted to the jury." Parker v. Pine, 617 S.W.2d 536, 541 (Mo.App.1981), citing Twellman v. Lindell Trust Co., 534 S.W.2d 83, 88 (Mo.App.1976).

A directed verdict is seldom proper where proof is dependent upon oral testimony. Moore v. Smith, 657 S.W.2d 664, 667 (Mo.App.1983); Parker v. Pine, 617 S.W.2d 536, 541 (Mo.App.1981). In the instant case, plaintiff's case rests almost entirely upon his own oral testimony. There was no other evidence to show the condition of the staircase in question except the photographs of the staircase which were taken two years after the accident. Plaintiff's testimony was impeached and contradicted in several respects. Plaintiff's direct testimony and his testimony in his deposition differ as to whether he had a flashlight with him on the night of the accident. This point is crucial to determine if defendant failed to furnish plaintiff with a reasonably safe place to work. If the lighting on the staircase was not sufficient, one would assume the plaintiff would have used his flashlight to descend the stairs.

Additionally, plaintiff testified that he didn't grasp the handrail prior to his slip to avoid the possibility of a splinter. However, he also testified that immediately after he slipped, he did grab the handrail to enable him to get down the stairs. This point is also crucial because the jury may well have concluded that had the plaintiff used the handrail prior to his slip, plaintiff may not have been injured.

In the case at bar, there are genuine fact issues which should be submitted to the jury. "Plaintiff is not entitled to a directed verdict regardless of whether or not such oral evidence is controverted, because the credibility of witnesses and the weight to be accorded their testimony are for the jury and plaintiff must shoulder the risk of nonpersuasion." (footnote omitted) M.F.A. Cooperative Ass'n. of Manfield v. Murray, 365 S.W.2d 279, 287 (Mo.App.1963). We hold that the trial court's refusal to direct a verdict on the issue of defendant's negligence was not error. For the above reasons, we also hold that the trial court's failure to grant plaintiff's motion for judgment notwithstanding the verdict was not error.

In his second point, plaintiff contends that the trial court erred in refusing to direct a verdict on the issue of plaintiff's contributory negligence. This court has previously held that a defendant is entitled to have the issue of contributory negligence submitted to the jury if the pleadings and evidence support it. Brazell v. St. Louis Southwestern Ry. Co., 632 S.W.2d 277, 281 (Mo.App.1982). In Hannah v. Mallinckrodt, Inc., 633 S.W.2d 723, 726 (Mo. banc 1982), the court held that:

The general rule is that even where there is evidence of knowledge on the part of the employee of the danger of his place of work, or of the machinery with which he is provided, the question whether his acts and conduct in the light of such knowledge constitute contributory negligence is the question of fact for the jury, unless the evidence is such that all reasonable men would conclude that he was guilty of negligence which contributed to the casualty. Id. at 726.

In the instant case, considering the evidence in the light most favorable to the defendant, we cannot find that reasonable minds could only conclude that defendant failed to provide a reasonably safe stairway. Plaintiff's own testimony established that he probably didn't hold onto the handrail provided for his safety. The jury could have reasonably found that the plaintiff did not use reasonable care for his own safety if he was aware that it had rained and the stairs would be slippery.

Plaintiff's witness, Mr. Bartanion, a member of the crew on plaintiff's engine, testified that he didn't slip or fall that night, and that the lighting on the stairs was adequate. It is apparent that the condition of the stairs was not so unsafe as to threaten immediate and almost certain injury, or Mr. Bartanion would not have successfully descended the steps moments before plaintiff's accident. Under the circumstances we have here, whether plaintiff was contributorily negligent was an issue for the jury. This point is denied.

Plaintiff next contends that the trial court erred in failing to permit plaintiff's physician, Dr. Schreiber, to detail plaintiff's history.

It should be noted at the outset that the trial court is vested with substantial discretion in controlling and ruling on the admissibility of evidence. Bellistri v. City of St. Louis, 671 S.W.2d 405, 406 (Mo.App.1984). A thorough review of the record reveals that no abuse of that discretion occurred and we rule this point against plaintiff.

Plaintiff argues that his medical history was admissible into evidence because it was reasonably pertinent to diagnosis and treatment. In support of his position, plaintiff cites Breeding v. Dodson Trailer Repair, 679 S.W.2d 281 (Mo. banc 1984). However, plaintiff's reliance on Breeding is misdirected. In Breeding...