Euton v. Norfolk & Western Ry. Co.

• Decision Date: 12 November 1996
• Docket Number: No. 69007,69007
• Citation: 936 S.W.2d 146
• Court: Missouri Court of Appeals
• Parties: Thomas R. EUTON, Respondent, v. NORFOLK & WESTERN RAILWAY COMPANY, Appellant.

Page 146

936 S.W.2d 146

Thomas R. EUTON, Respondent, v. NORFOLK & WESTERN RAILWAY COMPANY, Appellant.

No. 69007.

Missouri Court of Appeals,

Eastern District,

Division Four.

Nov. 12, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 8, 1997.

Thomas B. Weaver, Peter J. Krane, St. Louis, for appellant.

Keith A. Jensen, Mark P. Spengler, Granite City, IL, for respondent.

RHODES RUSSELL, Presiding Judge.

This is an action for personal injuries pursuant to the Federal Employer's Liability Act ("FELA"). ¹ Thomas R. Euton ("Euton") brought suit against Norfolk and Western Railway ("Railway") for injuries sustained to his back when he fell on a stairway while carrying boxes for his employer. The jury found Railway negligent and awarded Euton $300,000. Railway motioned for a judgment nothwithstanding the verdict and a new trial which the trial court denied.

On appeal, Railway contends that the trial court erred in 1) denying its motion for directed verdict; 2) submitting Euton's verdict director; and 3) denying its motion to dismiss on the basis of forum non conveniens. We affirm.

Euton worked as a janitor for Railway at its railyard in Portsmouth, Ohio. In early 1990, Railway assigned Euton and a coworker to clean out a storeroom at one of its older buildings, an assignment not part of Euton's normal job duties. To complete this assignment, Euton was required to carry boxes of materials down a flight of stairs to the storeroom's basement. The stairs were concrete with a steel lip at the end of each step.

On March 2, 1990, while carrying boxes down the flight of stairs, Euton fell injuring his shoulder, neck, ankle, and back.

Euton sought medical attention with Dr. George Schoedinger, a St. Louis physician, for his injuries. Dr. Schoedinger diagnosed Euton as having a ruptured disc in his lower back. He stated that Euton's ruptured disc was caused by the accident. In August 1991, Dr. Schoedinger performed surgery on Euton's lower disc.

Euton filed suit in St. Louis City Circuit Court in July 1992 against Railway for negligence under FELA. He alleged that Railway was negligent in three respects: 1) the stairs were slick, 2) Railway failed to provide a dolly to move the boxes, and 3) Railway failed to provide him adequate help in moving the boxes. In response, Railway filed a motion to dismiss, or alternatively, to dismiss the case under the doctrine of forum non conveniens. The trial court denied Railway's motion.

At the close of evidence at trial, Railway moved for a directed verdict which the trial court denied. The jury returned with a verdict of $300,000 in favor of Euton. Railway filed a motion for a judgment notwithstanding the verdict, or alternatively, for a new trial. The trial court denied the motion. This appeal follows.

In its first point on appeal, Railway contends that the trial court erred in denying its motion for a directed verdict because Euton failed to present legally sufficient evidence to submit a case of negligence pursuant to FELA. Specifically, Railway argues that Euton failed to present sufficient evidence to establish 1) a causal connection between its alleged negligence and Euton's injury; 2) actual or constructive knowledge on Railway's part of its alleged negligence; and 3) that the workplace was not reasonably safe.

In determining whether a plaintiff has made a submissible case, an appellate court views the evidence in the light most favorable to the jury verdict and the prevailing party is afforded the benefit of all reasonable inferences that may be drawn from the evidence. Qualls v. St. Louis Southwestern Ry. Co., 799 S.W.2d 84, 85 (Mo. banc 1990). A FELA case should be submitted to a jury if there is any evidence, however slight, to support the employer's negligence. Wilson v. Consolidated Rail Corp., 875 S.W.2d 178, 180 (Mo.App.1994). When there is no showing of employer's negligence, nor any reasonable foreseeability of harm, the FELA action may be taken from the jury. Glover v. Atchison, Topeka & Santa Fe Ry., 841 S.W.2d 211, 213 (Mo.App.1992).

In FELA suits, "Congress vested the power of decision in these actions exclusively in the jury in all but the infrequent cases where fair-minded jurors cannot honestly differ whether fault of the employer played any part in the employee's injury." Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 510, 77 S.Ct. 443, 450-51, 1 L.Ed.2d 493 (1957).

A submissible case is made under FELA where the plaintiff shows that the employer had a duty to provide him with a reasonably safe place to work, that the employer breached its duty of care, that this lack of due care played some part in causing plaintiff's injury and that his injury was reasonably foreseeable. White v. Union Pacific R. Co., 871 S.W.2d 50, 53 (Mo.App.1993).

For its first subpoint on appeal, Railway contends that Euton failed to present sufficient evidence that the workplace was not reasonably safe. Railway argues that Euton did not present any specific evidence how the stairway was defective or how providing a dolly would have made Euton's job of carrying boxes down the stairs any safer. Railway essentially argues that Euton failed to present evidence that it was negligent.

Under the provisions of FELA, an employer has the duty to provide a reasonably safe workplace. Crawford v. Norfolk and Western Ry. Co., 901 S.W.2d 252, 254 (Mo.App.1995). The term "reasonably safe workplace" means that an employer is required to remove those dangers that can be removed by the exercise of reasonable care. Qualls v. St. Louis Southwestern Ry. Co., 799 S.W.2d 84, 86 (Mo. banc 1990). An employer, however, is not insurer of its employee's safety. Id. It is the employee's burden to show that the employer was negligent. Crawford, 901 S.W.2d at 254.

With these standards in mind, we must determine whether there was any evidence, however slight, in the record from which the jury could find that Railway was negligent.

Euton testified that on the day of the accident he made 10-12 trips up and down the storeroom stairs and did not encounter any problems. He also testified that he had used these stairs approximately 1500 times during the course of his employment.

Euton did not know why he slipped and fell, but stated that the stairs were shiny and slick. He attributed the shininess of the stairs to the wear the stairs received from people walking on them over the years. Euton also testified that the stairs did not have a non-skid surface. His co-worker corroborated his testimony by stating that the stairs were shiny and steep, and that the stairs were on the slick side.

Euton also attributed his fall to the manner in which he had to carry the boxes down the stairs. He said that while carrying the box down the flight of stairs, he was unable to see where he placed his feet. Euton's co-worker also testified by deposition that they could not hold on to the handrails while descending the stairs with a box in their hands.

Euton asserted that Railway was negligent in failing to provide him a dolly to assist him in carrying the boxes down the stairs. Although there was a dolly available, and he had asked for it several times, one was not provided.

Euton additionally alleged that Railway was negligent because it failed to provide him adequate help. He testified that the task of carrying the boxes down the stairs was not part of his normal janitorial duties. Euton and his co-worker both testified that this type of work was for the maintenance-of-way department.

Despite this evidence, Railway maintains that this evidence does not support the inference that Railway was negligent.

A jury's power to engage in inferences is considerably broader in FELA actions than in common law negligence suits. Ybarra v. Burlington Northern, Inc., 689 F.2d 147, 149 (8th Cir.1982).

The United States Supreme Court has stated that under FELA, "[i]t is no answer to say that the jury's verdict involved speculation and conjecture." Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946). Given the strong federal policy for jury determinations under FELA actions, we are not free to reweigh the evidence and set aside the jury verdict simply because we feel another result would be more reasonable. See Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520 (1944).

Applying these principles to the case at hand, we find that the record demonstrates that there was sufficient evidence from which a jury could reasonably infer that Railway was negligent. Despite Railway's assertion that Euton failed to present sufficient evidence, little evidence is necessary to create a jury question of negligence. Hertzler v. Burlington Northern R. Co., 720 S.W.2d 762, 766 (Mo.App.1986).

There was evidence which showed that the stairs were worn, old, and slick. Additionally, the jury heard evidence that Euton requested, but did not receive, a dolly. A jury could reasonably infer that a dolly would have made Euton's task safer and that Railway was negligent in not providing the dolly.

In its second subpoint, Railway argues that Euton failed to establish a causal link between its alleged negligence and Euton's injury. Railway asserts that he failed to prove that any alleged defect in the stairs or any other allegedly unsafe working condition caused his injury.

Under FELA, a plaintiff must prove that employer's negligence caused his injury. Glover, 841 S.W.2d at 213. Causation under FELA, however, differs from a "normal" negligence case because if employer's negligence is the slightest cause of the injury, liability is established. Roth v. Atchison, Topeka & Santa Fe Ry., 912 S.W.2d 583 (Mo.App.1995). Recovery under FELA is appropriate even if the employee's injury was caused by the cumulative effect of a series of incidents. Stewart v. Alton and Southern Ry. Co., 849 S.W.2d,119, 125 (Mo.App.1993). Thus, there must be some evidence, even the slightest, to connect...