Flanigan v. Burlington Northern Inc.

Decision Date16 October 1980
Docket NumberNo. 79-1703,79-1703
Citation632 F.2d 880
PartiesEdward L. FLANIGAN, Appellee, v. BURLINGTON NORTHERN INC., a corporation, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Karl D. Dexheimer, Belleville, Ill., for appellant.

Frederic A. Bremseth, Minneapolis, Minn. (argued), John C. Boylan, and Russell A. Ingebritson, Minneapolis, Minn., and Rene E. Lusser, Lusser, Hughes & Lusser, St. Louis, Mo., on brief, for appellee.

Before LAY, Chief Judge, and HENLEY and McMILLIAN, Circuit Judges.

LAY, Chief Judge.

The Burlington Northern, Inc. (BN) appeals from a judgment entered on a jury verdict awarded for injuries to one of its employees incurred during the course of his employment. The action was brought under the Federal Employers' Liability Act (FELA), 53 Stat. 1404, 45 U.S.C. §§ 51-60 (1976).

Edward L. Flanigan was an inspector-carman for the Burlington Northern. BN had a safety rule which required an employee working on the track to place a blue flag on the end of the train or a blue light if it was dark. Its purpose was to prevent the train from being moved. When Flanigan was injured he was hooking up the air brake hoses on cars located on track 11. He had not put out a blue flag on track 11. It was dark and the engineer could not see anyone working on the train, nor could plaintiff see the cars being moved onto track 11. No warning whistle was sounded when the cars were sent onto the track. The train knocked Flanigan to the ground. He managed to kick his right leg out of the way but his left leg slipped on some loose coal and was run over by the train. It was necessary to amputate his left leg several inches above the knee.

At about the time Flanigan became a carman he viewed a slide presentation explaining the blue flag rule. He also indicated that he had some knowledge of the blue flag rule when he answered several questions concerning it on a 1969 job application to BN.

The evidence showed, however, that the blue flag rule was seldom utilized and enforced. Flanigan had been told by more experienced employees that blue flags were not used in the yard. He was never supplied any blue flags nor was he told where he could get them. Flanigan testified that he had seen a blue flag used only once and that was on the "rip track" where repairs are made on defective cars. Another carman, who had worked on the yards for five years, testified that it was not a practice to use blue flags and that he had never seen a carman use a blue flag.

The jury awarded Flanigan a verdict of $500,000. After entry of judgment on the verdict the railroad appealed.

On appeal the railroad urges diverse errors allegedly occurring at trial. The most salient concern on appeal relates to the trial court's failure to instruct on the nontaxability of the damage award. Subsequent to the entry of judgment pending this appeal, the Supreme Court held in a wrongful death case brought under the FELA that it was prejudicial error for a trial court to fail to instruct that any award under the FELA was not subject to income tax. Norfolk & Western Railway v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980). We discuss the issues raised seriatim.

Sole Proximate Cause.

The railroad first argues that Flanigan cannot recover because his conduct as a matter of law was the sole proximate cause of his injuries. The railroad relies on two blue flag rule cases. Perry v. Missouri-Kansas-Texas Railroad, 340 Mo. 1052, 104 S.W.2d 332 (1937); Kamer v. Missouri-Kansas-Texas Railroad, 326 Mo. 792, 32 S.W.2d 1075 (1930). Contrary to defendant's argument these decisions support the submission to the jury of the issue of proximate cause. In both cases the Supreme Court of Missouri held that the issue of proximate cause was properly submitted to the jury and affirmed the verdicts. The court in Perry specifically stated:

In view of the evidence set out, supra, as to the observance of the blue light rule, in defendant's yards when an employee was doing the character of work plaintiff was attempting to do when injured, we cannot say, as a matter of law, that plaintiff's failure to put up the blue light was the sole proximate cause of his injury.

Perry v. Missouri-Kansas-Texas Railroad, 340 Mo. 1052, 104 S.W.2d 332, 339 (1937) (emphasis added).

Flanigan, as did the plaintiffs in Kamer and Perry, offered evidence that the blue flag rule was not followed. Where the evidence shows that it was the custom of the railroad not to enforce a safety rule, the jury was entitled to consider the issue of proximate cause. As succinctly observed by the Fifth Circuit:

The question as to the violation of the appellant's safety rule by the appellee was properly in this case. But whether it was a cause of the injury, and if so whether the sole or a contributing cause, and if the latter, the extent of the contribution were properly treated as questions for the jury.

Illinois Central Railroad v. Andre, 267 F.2d 372, 374 (5th Cir. 1959).

We hold that violation of the blue flag rule did not per se result in the employee being the sole proximate cause of his injuries. See Boop v. Baltimore & Ohio Railroad, 118 Ohio App. 171, 193 N.E.2d 714 (1963). 1Inadmissible Evidence.

The railroad objected to the line of testimony concerning the present and possible expanded use of two-way radios in the yard. It urges the admission of such testimony is reversible error for several reasons: (1) an employer is not required to supply employees with the latest equipment provided those in use are reasonably safe and suitable; (2) the railroad is not required to provide alternative safety measures when blue flags are available; (3) the railroad is not negligent if the alternative safety device would not have assisted in preventing the injury; and (4) evidence inferring that Flanigan would have heard any instructions over a radio that would have notified him of the danger is speculative.

The railroad also sought to introduce a slide presentation explaining the blue flag rule, which plaintiff viewed prior to his injury. The district court sustained an objection to it on the grounds that it was inflammatory, and inaudible.

The admissibility of evidence in FELA cases is ordinarily left to the discretion of the trial court and the court will not be reversed unless it abused its discretion. See, e. g., Lavender v. Kurn, 327 U.S. 645, 654, 66 S.Ct. 740, 744, 90 L.Ed. 916 (1946); Chicago & North Western Railway v. Green, 164 F.2d 55, 62 (8th Cir. 1947); Cardwell v. Chesapeake & Ohio Railway, 504 F.2d 444, 448 (6th Cir. 1974); Cf. Simpson v. Norwesco, Inc., 583 F.2d 1007, 1013 (8th Cir. 1978) (non-FELA case). The testimony concerning two-way radios was limited in scope. The plaintiff did not testify that he should have had a radio other carmen did say it might be helpful. The district court did not abuse its discretion in allowing this testimony into evidence. Similarly, once the blue flag rule was in evidence and the evidence showed that the plaintiff had viewed the slides, it was not abuse of discretion to rule out the evidence.

Special Interrogatories.

The railroad argues the lower court committed error in failing to submit special interrogatories pursuant to Fed.R.Civ.P. 49(b) as requested. It has been observed: "The decision whether to use a general verdict accompanied by special interrogatories, as authorized by Rule 49(b), is similarly committed to the unreviewable discretion of the trial judge." 9 Wright & Miller, Federal Practice and Procedure: Civil § 2511, at 522 (1971). See, e. g., Thomson v. Anderson, 138 F.2d 272, 277 (8th Cir. 1943); Turchio v. D/S A/S Den Norske Africa, 509 F.2d 101, 104 (2d Cir. 1974); Elston v. Morgan, 440 F.2d 47, 49 (7th Cir. 1971); Zaiko v. District of Columbia, 427 F.2d 606, 609 (D.C.Cir. 1970). We find no error here.

Excessive Verdict.

The railroad argues that the jury verdict of $500,000 was excessive. If the verdict is to be overturned because of its size, it must be so large as to shock the judicial conscience. See, e. g., Scoville v. Missouri Pacific Railroad, 458 F.2d 639, 647 (8th Cir. 1972); Chicago, Rock Island & Pacific Railroad v. Melcher, 333 F.2d 996, 1001 (8th Cir. 1964). This court has stated:

(E)xcessiveness of a verdict is basically, and should be, a matter for the trial court which has had the benefit of hearing the testimony and of observing the demeanor of the witnesses and which knows the community and its standards; that this is a responsibility which, for better working of the judicial process and for other seemingly obvious reasons, is best placed upon its shoulders; and that we shall continue to consider review, as we have said before, not routinely and in every case, but only in those rare situations where we are pressed to conclude that there is "plain injustice" or a "monstrous" or "shocking" result.

Soloman Dehydrating Co. v. Guyton, 294 F.2d 439, 447-48 (8th Cir.), cert. denied, 368 U.S. 929, 82 S.Ct. 366, 7 L.Ed.2d 192 (1961).

The evidence showed that since the amputation of his left leg, Flanigan has had severe and constant phantom pains, rash, infection, and misalignment of the hip. He also suffers from lower back pains, frequent falls, and excessive sweating. He can no longer garden, swim, hunt, dance or do maintenance work on his house. In view of the severity of plaintiff's injuries and the fact that he continues to have medical problems the verdict is not excessive.


1. Plaintiff's Instructions.

The railroad argues that it was error to give plaintiff's instruction on loss of earning capacity since there was no evidence to sustain it. The evidence demonstrates that plaintiff suffered permanent injuries that prevent him from working. Illinois Central Railroad v. Staples, 272 F.2d 829, 833 (8th Cir. 1959); Quilter v. Elgin, Joliet & Eastern Railway, 409 F.2d 338, 340 (7th Cir. 1969). The instruction was...

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