Giddens v. Kansas City Southern Railway Company, WD55657
| Decision Date | 29 February 2000 |
| Docket Number | WD55657 |
| Parties | Garry V. Giddens, Respondent, v. Kansas City Southern Railway Company, Appellant. WD55657 Missouri Court of Appeals Western District 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Jackson County, Hon. Ronald R. Holliger
Counsel for Appellant: Harlan D. Burkhead
Counsel for Respondent: Patrick S. O'Brien
Opinion Summary: Defendant-Appellant, Kansas City Southern Railway Company (KCS), appeals the trial court's judgment based on a jury verdict awarding $1,520,000 to Plaintiff-Respondent, Gary Giddens. The jury found that Mr. Giddens suffered personal injuries during the course of his employment with KCS for which KCS is responsible under the Federal Employer's Liability Act (FELA). KCS asserts the trial court erred in: (1) denying its motion for directed verdict and for judgment notwithstanding the verdict because Mr. Giddens failed to make a submissible case to the jury; (2) sanctioning KCS by prohibiting it from using certain deposition testimony to impeach Mr. Giddens; (3) admitting OSHA regulations without a proper foundation, and misleading the jury into believing this was a negligence per se case; (4) failing to find the verdict was against the weight of the evidence because the damages were grossly excessive, there was no competent and substantial evidence to support the damage award, and the jury failed to reduce damages based on Mr. Giddens' duty to mitigate damages by seeking gainful employment; (5) violating due process by failing to instruct the jury to separately set out the percentage of comparative fault it assigned to plaintiff and defendant; and (6) refusing to permit evidence of Mr. Giddens' receipt of a disability pension as evidence of his lack of motivation to find gainful employment.
Division Two holds: The trial court did not err in denying KCS' motions for directed verdict and for JNOV. Under FELA, an employer has a duty to provide its employees with a reasonably safe place to work. If an employee is injured at work, to recover under FELA they simply needs to show that they were injured because of an unsafe condition that could have been reasonably removed by the employer, and that the employer's negligence played any part, even the slightest, in producing the employee's injury. Viewing the evidence in a light most favorable to Mr. Giddens, there was sufficient evidence from which the jury could reasonably infer that KCS was negligent in providing an unsafe work environment, and that its lack of care played at least some part in Mr. Giddens' injury.
The trial court did not err in concluding KCS failed to seasonably supplement discovery and in imposing a discovery sanction by barring introduction of Mr. Giddens' videotaped deposition at trial. Here, KCS had already deposed Mr. Giddens twice, and had already questioned him at two trials, before it ordered video surveillance of Mr. Giddens. After receiving the videotapes, KCS then requested another deposition of Mr. Giddens without first informing him about the existence of the videotapes. Because the videotapes were a "statement" of Mr. Giddens, they were discoverable, and KCS was under a duty to seasonably supplement its previous answers to interrogatories concerning its knowledge of videotapes of Mr. Giddens. KCS asserts that because it did supplement its interrogatories after Mr. Giddens' deposition, some seven months prior to trial, its supplementation was seasonable. It was within the court's discretion to determine whether the supplementation was seasonable, however, and our Supreme Court has held that there is no right to withhold discovery of a party's statement until after a deposition of the party. In the unusual circumstances of this case, it was not an abuse of discretion for the trial court to decide that the failure to produce the videotapes prior to Mr. Giddens' supplemental deposition gave KCS an unfair disadvantage in that it precluded Mr. Giddens from adequately preparing for the deposition. Moreover, the court's decision to exclude the deposition rather than the videotape effectively put KCS and Mr. Giddens in the same position they would have been if the videotape had been produced before the deposition. It also permitted the jury to hear and see relevant evidence relating to the extent of Mr. Giddens' physical injuries. The trial court's exclusion of the deposition was not error.
The trial court did not err in permitting Mr. Giddens' counsel to read and display to the jury certain OSHA regulations. OSHA regulations offered as evidence of the standard of care owed by a party are competent evidence relevant to the question of negligence. Moreover, rules and regulations promulgated pursuant to federal statutes may be judicially noticed and considered as evidence. The record shows Mr. Giddens used the OSHA regulations only to support the argument that KCS breached a standard of care it owed to its employees by violating the regulations. For this purpose, the regulations were competent evidence which could be considered by the jury, along with other evidence, bearing upon the question of KCS' negligence.
The trial court did not err in failing to find that the jury verdict was excessive. KCS fails to identify any trial event that could have incited any bias and prejudice of the jury resulting in an excessive verdict. In addition, KCS fails to show the size of the verdict is so grossly excessive as to shock the conscience because it is glaringly unwarranted.
The trial court did not err in directing the jury to record its damage determinations in accordance with MAI 8.02. Although KCS asserts the use of MAI 8.02 is unconstitutional, a party wishing to argue that an applicable MAI is unconstitutional must preserve that objection at trial. Nowhere does KCS cite what provisions of the Missouri constitution are violated by MAI 8.02 or how MAI 8.02 violates these provisions. Further, KCS' argument to this Court concerning due process and equal protection violations were not the same arguments presented to the trial court below. In order for the issue of constitutional validity to be preserved for review, it must be raised at the first opportunity. Because these claims were not raised below, they may not be reviewed here. Moreover, the claim of a supremacy clause violation is without merit.
The trial court did not err in refusing to admit evidence of Mr. Giddens' Railroad Retirement Disability Benefits. Evidence of a plaintiff's receipt of disability pension benefits is inadmissible at trial under the collateral source doctrine. Although an exception to the collateral source rule has been recognized in those cases where a plaintiff injects his financial condition into a case, here the law of the case precludes reexamination of the issue since this Court in a prior appeal of this case has already held that Mr. Giddens did not suggest financial distress and that the collateral source rule exception did not apply.
Defendant-Appellant, Kansas City Southern Railway Company (KCS), appeals the trial court's judgment based on a jury verdict awarding $1,520,000 to Plaintiff-Respondent, Gary Giddens. The jury found that Mr. Giddens suffered personal injuries during the course of his employment with KCS for which KCS is responsible under the Federal Employer's Liability Act (FELA), 45 U.S.C.A. section 51 et seq. KCS asserts the trial court erred in: (1) denying its motion for directed verdict and for judgment notwithstanding the verdict because Mr. Giddens failed to make a submissible case to the jury; (2) sanctioning KCS by prohibiting it from using certain deposition testimony to impeach Mr. Giddens; (3) admitting OSHA regulations without a proper foundation, and misleading the jury into believing this was a negligence per se case; (4) failing to find the verdict was against the weight of the evidence because the damages were grossly excessive, there was no competent and substantial evidence to support the damage award, and the jury failed to reduce damages based on Mr. Giddens' duty to mitigate damages by seeking gainful employment; (5) violating due process by failing to instruct the jury to separately set out the percentage of comparative fault it assigned to plaintiff and defendant; and (6) refusing to permit evidence of Mr. Giddens' receipt of a disability pension as evidence of his lack of motivation to find gainful employment. Because we find the allegations of error to be without merit, the judgment is affirmed.
Considered in the light most favorable to the verdict, the evidence at trial showed:
In 1989, Mr. Giddens was employed as a foreman for KCS' maintenance-of-way department, which constructs and maintains the railroad's roadbeds and right-of-way. In May 1989, there were heavy rains in Louisiana which caused "wash-outs," that is, areas where the ballast under the ties and the rail are washed away, leaving the rail and ties suspended without roadbed support. Even though wash-out repair was not within Mr. Giddens' general duties, KCS assigned him and his crew of three to four employees to wash-out repair because of its urgent need to return the railroad roadbeds to operable status.
Wash-out repair is generally performed by taking cross-ties and stacking them in twos in opposite directions underneath the suspended railway track. The ties are stacked until they are level with the track and able to support the track. The box-type structure of ties is called a "pigpen" or a "crib." Once the structure is completed, a railcar loaded with ballast is placed above the structure. The railcar then dumps the ballast in the crib to establish a new roadbed.
On May 18, 1989, Mr. Giddens and other KCS workers assessed the damage to a particular area of roadbed where Mr. Giddens and his crew were to begin repairs. Mr. Giddens testified that his supervisor, Larry Dobson, instructed him to begin repair work with his crew at mile post 612...
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