Ewing v. St. Louis Southwestern Ry. Co.

• Decision Date: 02 May 1989
• Docket Number: 54485,Nos. 54484,s. 54484
• Parties: Tommy EWING, (Plaintiff) Appellant/Cross-Respondent, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, a corporation, (Defendant) Respondent/Cross-Appellant.
• Court: Missouri Court of Appeals

Page 774

772 S.W.2d 774

Tommy EWING, (Plaintiff) Appellant/Cross-Respondent, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, a corporation,

(Defendant) Respondent/Cross-Appellant.

Nos. 54484, 54485.

Missouri Court of Appeals,

Eastern District,

Division Four.

May 2, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

denied May 31, 1989.

Application to Transfer Denied Aug. 1, 1989.

John P. Kujawski, Belleville, Ill., for (plaintiff) appellant/cross-respondent.

John B. Gunn, Belleville, Ill., for (defendant) respondent/cross-appellant.

SMITH, Presiding Judge.

This case reaches us on consolidated appeals by both parties. Plaintiff appeals from the trial court order granting defendant's motion for judgment notwithstanding the verdict and alternatively conditionally granting a new trial on the basis that the verdict was excessive. Defendant appeals from the trial court's failure to grant a new trial on additional grounds. We affirm the trial court's order granting judgment notwithstanding the verdict.

The action was brought under the Federal Employers' Liability Act (FELA). Plaintiff is a traveling mechanic for defendant employed in Arkansas. His job encompasses servicing equipment of the defendant in the field. He is supplied with a truck having a boom and he furnishes his own tools. On the date of his injury he was dispatched to replace a clutch in a company gang truck. The truck was located on a parking lot next to defendant's depot and the parking lot was part of the railroad's property. The parking lot was surfaced with ballast giving it a rocky surface. Plaintiff utilized cardboard to protect himself from the rocky surface, but rocks would still make it uncomfortable for plaintiff when he was lying on the ground under the truck. Replacing a clutch on a truck is a usual part of the job of a traveling mechanic and plaintiff had performed that task on prior occasions. It is also not unusual for such repairs to be made on less than ideal surfaces similar to that involved here.

When plaintiff arrived at the scene, he attempted to locate members of the right-of-way maintenance gang to assist him but the gang was apparently out of range of plaintiff's radio. Plaintiff proceeded to do the job by himself. The job is one frequently performed by a single mechanic but some mechanics prefer having a helper. That determination is up to the mechanic. In order to perform the repair it is necessary to remove the transmission of the truck in order to reach the clutch. Plaintiff used the boom to remove the transmission and replaced the clutch, all without incident. It was then necessary for him to replace the transmission and bolt it into position. To replace the transmission plaintiff had to physically push it into position while lying on the ground under the truck. This he also accomplished without any indication of injury. Plaintiff replaced the bolts and as he was aggressively tightening the final bolt his wrench slipped causing his left elbow to strike the ground forcefully. He felt immediate severe pain in his elbow and shortly thereafter, while still under the truck, began to experience pain in his lower back and legs. He completed the job and then returned to his home base and reported the incident. He did not know what caused the wrench to slip but wrenches do from time to time slip for various reasons while being utilized by experienced mechanics such as plaintiff.

Plaintiff obtained medical treatment for his elbow and back. He had broken his elbow several years earlier and the major treatment to the elbow was to repair damage from that prior break which treatment would have been necessary eventually regardless of the injury incurred while changing the clutch. Medical testimony established that he has a bulging disc in his lower back which his medical experts attributed to the accident. His experts were unable to make a prognosis of the level of difficulty he might experience in the future from the bulging disc other than that he would on occasions have pain. He lost $12,000 in wages from the accident. There was no evidence of any other special damages. He is presently employed in the same job. He has sufficient seniority that if he desired to work as a mechanic in defendant's shop in Pine Bluff he could do so, but for personal reasons he prefers to continue as a traveling mechanic. The jury assessed plaintiff's damages at $512,000 and attributed 30% of the fault to plaintiff for a total award to plaintiff of $358,400.

In Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957) the Supreme Court set forth the scope of appellate review in FELA cases as follows:

"Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee's contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death." 77 S.Ct....