Embree v. Norfolk & Western Ry. Co., No. 66763

CourtMissouri Court of Appeals
Writing for the CourtDOWD; CRAHAN, P.J., and CRANDALL
Citation907 S.W.2d 319
PartiesGregory K. EMBREE, Plaintiff-Appellant, v. NORFOLK & WESTERN RAILWAY COMPANY, Defendant-Respondent.
Docket NumberNo. 66763
Decision Date03 October 1995

Page 319

907 S.W.2d 319
Gregory K. EMBREE, Plaintiff-Appellant,
No. 66763.
Missouri Court of Appeals,
Eastern District,
Division Two.
Oct. 3, 1995.

Page 321

John G. Carlson, Daniel J. Cohen, Edwardsville, IL, Martha Melinda Sanderson, St. Louis, for appellant.

Stephen M. Schoenbeck, St. Louis, for respondent.

DOWD, Judge.

Employee appeals from the judgment after a jury verdict in favor of Norfolk & Western Railway (Employer) in an action pursuant to the Federal Employer's Liability Act (FELA), 45 U.S.C. § 51 et seq. We affirm.

Employee began working for employer as a trackman in 1978. A trackman is a labor intensive position with responsibilities of maintaining railway tracks and crossings. A trackman's duties include repairing "pull aparts"--imperfections in the rails caused by the shrinking of the metal under cold conditions. One method for repairing pull aparts required diesel fuel and sawdust to be combined and burned on the rail to allow expansion so that the rail may be hammered back

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into place. The diesel fuel was stored in fifty-five gallon drums and was hauled to the job site on the bed of a truck. During the process of repairing pull aparts, diesel fuel was sometimes spilled at the job site. Although Employer was aware of spilling, it had no procedure or requirement to clean the job site.

Employee alleged that on December 29, 1989, he was a member of a work crew near Orrick, Missouri. On that morning, his supervisor asked him to go to Kansas City to undergo a random drug test. Following administration of the test, the track supervisor, Henry Johnson, instructed Employee to return to Orrick. Employee said he returned to the work site at approximately 1:00 p.m. and found his crew was absent. He decided to clean the work site on what was described as a drizzly day.

After cleaning the work site, Employee attempted to retrieve some of his personal belongings from the cab area of the work truck. He was shod in good boots and the running board was corrugated so he was unconcerned that the running board appeared damp when he stepped up on it to access the cab. However, according to Employee, his foot slipped as he hoisted himself up, and he fell to the ground upon his buttocks and jammed his left hand. Employee lay prone for approximately fifteen minutes fearing he had broken his back. He noticed several nearby puddles topped with floating diesel fuel and concluded the area was slick with the spilled diesel and caused his fall. There were no witnesses to this alleged fall.

Employee eventually got to his feet. The depot telephone was locked, and Employee was unable to call for assistance or to report the incident by phone. He did manage to write a note to his foreman concerning his injury in order to comply with Employer's policy that all injuries be reported. Employee drove to Moberly Regional Medical Center. Because of the pain he allegedly was experiencing, he did not report to Employer's nearby office but drove directly to the hospital.

Once at the hospital, he phoned his wife and had her bring his phone book with supervisor Hendricks' number in it. Supervisor Hendricks sent Employer representative John Darwent to the hospital. Darwent asked Employee to submit to another drug test, and he complied. Darwent further requested Employee accompany him to the work site to demonstrate what had happened. Employee refused this request claiming to be in too much pain. At the hospital, X-rays were taken of Employee. He was advised to go home and lie flat on his back.

At trial, each party introduced medical experts to describe Employee's physical condition. Employee presented two of his treating physicians, Dr. Larry Bader, an osteopath, and Dr. Robert Silvers, a neurologist. Dr. Bader diagnosed Employee as suffering from "sacral shear." He described sacral shear as a condition of strained and pulled ligaments in the sacroiliac region that predisposes the sufferer to recurrent somatic dysfunction. He stated that Employee's sacral shear was caused by his fall and that it has and will cause Employee pain and suffering. He said that Employee's sacral shear was permanent and not susceptible to surgical treatment. In Dr. Bader's opinion, Employee could no longer be an industrial laborer. Dr. Bader further diagnosed Employee had suffered a compression fracture of the spine at L1-L2 as result of his fall. He also noted problems at the L4-L5 level.

Dr. Silvers testified that Employee's fall caused him to suffer a lumbar spinal injury--a probable lumbar sprain and a possible disc protrusion. In his opinion, Employee would have continuing pain and it would be inadvisable for him to engage in heavy industrial work. He also diagnosed a degenerative disc disease that "likely" was accentuated or exaggerated by the fall. Dr. Silvers was unfamiliar with the term "sacral shear."

Employer presented the deposition of Dr. Robert Tatkow, who had examined Employee at Employer's request. In Dr. Tatkow's opinion, Employee had suffered a sprain to his back, a nonpermanent injury with minimal recovery time. He also diagnosed degenerative disc disease at L4-L5 and developmental anomalies of the lumbar that were causally unrelated to Employee's alleged fall.

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Dr. Tatkow was asked if he was familiar with the condition of sacral shear. Dr. Tatkow responded he was not and that his review of medical literature yielded no discussion of this alleged condition.

Dr. John Fries, a radiologist, testified for Employer based on his examination of Employee's X-rays and medical reports. He diagnosed an abnormality at the L5 but could not determine whether it was caused by aging, trauma or a combination of aging and trauma. He disagreed with Dr. Bader's opinion that Employee had suffered a compression fracture. He further stated that the medical texts do not recognize the condition of sacral shear.

Additional evidence presented or elicited by Employer was as follows. In May of 1989, Employee was informed that he had tested positive for marijuana during a recent physical. Employer informed Employee that its policy forbade persons dependent on prohibited drugs from working. Employee's services were terminated until he rid his system of the drug. Arrangements were provided for submitting to additional tests to determine whether his system was clear. Failure to submit would expose Employee to permanent dismissal.

Employee submitted to the follow-up drug test. Employer sent and Employee received a letter dated June 2, 1989, to Employee that read:

You recently gave another urine sample for drug screening. This recent sample tested negative and you will be returned to service. I remind you, however, that the use of prohibitive drugs is contrary to company policy. You are therefore instructed to keep your system free of such substance. During the first three years following the return to work, you may from time to time be required by me to report to a medical facility for further testing in order to determine that you are no longer using marijuana or other prohibitive drugs. Should a further test be positive, you will be subject to dismissal. (Emphasis added).

On December 29, 1989, the day of Employee's alleged accident, Employer requested he report to Kansas City, Missouri, to submit to a drug test. Supervisor Henry Johnson accompanied Employee to Kansas City. Johnson testified that Employee appeared nervous and moved his legs a lot. The first urine sample provided by Employee was rejected because it was cool. Plaintiff provided a second urine sample. This sample as well as the urine sample given by Employee at Moberly Hospital following his alleged accident tested positive for marijuana.

It was further revealed that Employee's crew had not repaired pull aparts for a week prior to the alleged fall and that those repairs occurred approximately one-half mile from the site of Employee's alleged injury. Furthermore, the truck Employee allegedly slipped on had not stored diesel since the last repair. Supervisor Hendricks went to the work site a couple of hours after Employee informed him of the alleged fall. He found no diesel fuel on the truck running board or on the ground in the vicinity. He even ran his finger along the running board. It was not slick like oil nor did it give off the distinctive odor of diesel. Supervisor Hendricks also testified that he specifically asked Employee during their telephone conversation shortly after the alleged fall whether the running board or door handle were wet, dirty or greasy. Employee responded, "there wasn't anything that he would know that would cause him to slip."

Employee's first point on appeal asserts the trial court erred in "prohibiting" him from introducing into evidence the depositions of supervisors Johnson and Hendricks. During his case-in-chief, Employee attempted to read into the record the entire depositions of Johnson and Hendricks. In opposition to Employer's objection, Employee contended that those depositions were admissible as admissions against interest and under Rule 57.07(a)(2) which allows the depositions of officers, directors and managing agents to be admitted for any purpose. Both Johnson and Hendricks were available to testify, and the court ruled that Employee may read into the record during his case-in-chief only those portions of the deposition that were against interest. The remaining portions could be used in cross-examining the

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witnesses. Employee chose not to introduce any portion during his case-in-chief, nor did he make an offer of proof of those portions he desired to introduce.

The argument contained in Employee's brief limits his complaint to those portions of the depositions that rebutted Employer's opening argument that Employee had no reason to return to his work site following his Kansas City drug test. Johnson's deposition included Johnson's admission that he...

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