Giddens, v. The Kansas City Southern Railway Comp.

Decision Date17 October 2000
Citation29 S.W.3d 813
Parties(Mo.banc 2000) . Supreme Court of Missouri Garry V. Giddens, Respondent, v. The Kansas City Southern Railway Company, Appellant. Case Number: SC82602 Handdown Date:
CourtMissouri Supreme Court

29 S.W.3d 813 (Mo.banc 2000)
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Supreme Court of Missouri
Garry V. Giddens, Respondent,
v.
The Kansas City Southern Railway Company, Appellant.
Case Number: SC82602
Handdown Date: 10/17/2000

Appeal From: Circuit Court of Jackson County, Hon. Ronald R. Holliger

Counsel for Appellant: Harlan D. Burkhead

Counsel for Respondent: Patrick S. O'Brien and Newton G. McCoy

Opinion Summary:

Garry Giddens was injured while working for his employer, Kansas City Southern Railway Company. Despite treatment that included eight hand surgeries, Giddens was unable to return to work. He sued KCS under the Federal Employer's Liability Act. In his third trial, the court entered a $1,520,000 judgment for him. KCS appeals.

AFFIRMED.

Court en banc holds:

1. The court did not err in overruling KCS' JNOV motion. Under FELA, the employer has a duty to provide employees with a reasonably safe workplace. If the employer's negligence plays any part in the employee's injury, then a submissible case is made. The employee's contributory negligence will not bar but may diminish recovery. In the light most favorable to Giddens, there was evidence from which a jury could infer that KCS was negligent in providing an unsafe work environment and that its lack of care played at least some part in Giddens' injury. Although KCS' evidence contradicted Giddens', it was up to the jury to make the credibility determination and evidentiary inferences.

2. Occupational Safety and Health Act regulations offered as evidence of the standard of care owed by a party are competent evidence relevant to the question of negligence. The regulations were used only to support the argument that KCS breached its standard of care, not as a basis for arguing negligence per se.

3. In appealing a claim that the trial court erred in failing to find a verdict excessive, an appellant must show the verdict is excessive and some event incited the jury's bias and prejudice. KCS failed to identify any trial event that could have cause the bias and prejudice it claims. While the jury award was generous, given the evidence of past and future lost wages and extent of his injuries, it was not so grossly excessive to shock the conscience or cause the Court to believe the award was based on passion and prejudice rather than evidence.

4. KCS' constitutional arguments are rejected because they were not preserved in the brief's argument, not presented at trial, and not supported by case law or argument explaining how the state or federal constitution has been violated.

5. The law of the case precludes KCS from re-litigating the issue of the admission of Giddens' disability retirement benefits, decided on previous appeal.

The Prinicipal Opinion also states:

Although the court abused its discretion in finding that KCS failed to seasonably disclose surveillance videos, the sanction imposed did not prejudice KCS. Before the third trial, KCS obtained surveillance videotapes of Giddens, then deposed him, and then disclosed the tapes. KCS had a duty to seasonably supplement its prior interrogatory answers by informing Giddens of the videos. The videos were disclosed within two months of when they were made and seven months before trial. This is more than sufficient time to prepare. The court's sanction permitted the videotapes to be shown to the jury, and thus the jury saw the relevant evidence relating to Giddens' injuries. Although the court excluded Giddens' post-surveillance deposition, KCS could impeach Giddens with the video, his two prior depositions, and other materials.

Concurring Opinion summary:

The concurring author would hold that the trial judge was correct in determining that the railroad and its attorneys violated the duty to seasonably supplement its interrogatories with the surveillance videos. The concurring author states that the word "seasonably" should refer to the time standard for interrogatories such that KCS had an obligation to correct its answer to the interrogatory within 30 days of learning that it had the tapes Giddens had requested. If a party wished to withhold evidence, it should seek a protective order under rule 56.01(c) or order under Rule 56.01(d) as to the sequence and timing of discovery. The trial judge's resolution furthered the trial as a search for truth by permitting the video by prohibiting the "gotcha" deposition. This author concurs in the result reached by the principal opinion, and in the analyses of the other issues in the principal opinion.

Opinion Author: PER CURIAM1

Opinion Vote: AFFIRMED. Limbaugh and Covington, JJ., concur; Wolff, J., concurs in separate opinion

filed; White and Benton, JJ., concur in opinion of Wolff, J. Price, C.J., and Holstein, J., not participating.

Opinion:

In 1989 Garry V. Giddens was injured while working for his employer, Kansas City Southern Railway Company (KCS). The injury occurred when a chain attached to a crane broke causing a track assembly to fall on Giddens' hand. Treatment for the hand injury included eight surgeries. Despite the treatment, Giddens was unable to return to work. He then filed suit against KCS under the Federal Employer's Liability Act (FELA). In this third trial of the suit, the trial court entered a $1,520,000 judgment for Giddens.2 KCS appeals the judgment, asserting six claims of error. Finding that the trial court committed no prejudicial error, the judgment is affirmed.

Considered in the light most favorable to the verdict, the evidence at trial showed: In 1989, Giddens was a foreman for KCS' maintenance-of-way department, which constructs and maintains the railroad's roadbeds and right-of-way. In May 1989, heavy rains in Louisiana caused "wash-outs," i.e., areas where the ballast under the ties and the rail are washed away, leaving the rail and ties suspended without roadbed support. Wash-out repair was not within Giddens' general duties, but KCS assigned him and his crew to wash-out repair.

On May 18, 1989, Giddens' supervisor, Larry Dobson, instructed him to begin repair work at milepost 612 and told him that a KCS locomotive crane would be there. Giddens and his crew were told to use the chains located on the crane to lift the tracks out of the way while cross-tie supports were inserted underneath the tracks.

On May 19, Giddens and his crew began to repair the wash-out damage at milepost 612. Giddens had never before performed wash-out repair by using a crane. At the work site, a division engineer instructed Giddens to use a backhoe to move all of the old fill and mud in the surrounding area underneath the suspended track. This would build a foundation more quickly than would stacking the cross-tie support. The engineer said that, if the old mud did not completely refill the hole under the tracks, Giddens and his crew could "shim" the landfill by taking ties and building a box structure on top of the fill.

Giddens and his crew climbed up the sides of the mud-filled foundation in order to build up a mini-crib on top of the mud. As Giddens inserted a tie underneath the track, he placed his left hand on top of the tie to steady himself. While his hand was on top of the tie, the chain from the crane holding the track assembly broke, causing the suspended track to drop and pin Giddens' left hand between the tracks and the tie at the top of the crib. After approximately three to five minutes, those at the scene were able to attach the chain back to the crane and lift the track off Giddens' left hand.

Giddens received hospital emergency treatment and was subsequently treated by a hand specialist. He suffered crush-type fractures of the middle, ring, and small fingers of his left hand. Several reconstructive surgeries were performed on his left hand to repair the damage. While Giddens was receiving the initial treatment for his hand injury, he was not permitted to return to work. He remained on KCS' payroll through its wage continuation program.

Giddens' injury was sufficiently severe that he was not released to return to work for KCS until June 1990. In December 1990, Giddens left work for vacation and additional tendon surgery. He returned to work in May 1991. In December 1991, Giddens again took a vacation and underwent additional surgery. Two months later, Giddens attempted to return to work, but a KCS physician disqualified him from work because of safety concerns regarding his ability to lift heavy objects. Subsequent surgeries followed. In the summer of 1992, Giddens attempted to return to work again, but failed a KCS field test. At this time, Giddens was notified that he would be taken off the wage continuation program as of October 1992.3

Giddens filed this suit in November 1992. He filed interrogatories and a request for production asking for the names of persons who had obtained written statements from Giddens, including a video or motion picture of him, and for copies of those statements and videotapes. No videotapes were taken at that time.

Before the third trial, KCS hired an investigator to watch Giddens. The investigator made videotapes of his surveillance in April 1997. These were sent to counsel for KCS on May 16 and June 3. The videotapes showed Giddens performing various activities, including raking leaves, sweeping and clearing natural debris, breaking tree branches and sticks, carrying tree limbs, gathering trash, and mowing the lawn with a push mower. In some parts of these videotapes, Giddens appeared to be using his injured hand to hold or push items.

On July 3, KCS conducted a supplemental deposition of Giddens. The existence of the videotapes had not been disclosed to Giddens. At the deposition, counsel for KCS again questioned Giddens concerning the physical limitations associated with his injured hand - this time specifically addressing the types of activities captured on the video surveillance. KCS asserts...

To continue reading

Request your trial
121 cases
  • Thompson v. Brown & Williamson Tobacco Corp.
    • United States
    • Court of Appeal of Missouri (US)
    • August 22, 2006
    ...submitted unless each and every fact essential to liability is predicated upon legal and substantial evidence. Giddens v. Kansas City Southern Railway Co., 29 S.W.3d 813, 818 (Mo. banc 2000). In determining whether the evidence was sufficient to support the jury's verdict, the evidence is v......
  • Csx Transp., Inc. v. Gardner, 49A02-0610-CV-917.
    • United States
    • Court of Appeals of Indiana
    • September 18, 2007
    ...of the RRA disability benefits, court was "wholly unpersuaded" that Eichel and Green were not binding); Giddens v. Kansas City S. Ry. Co., 29 S.W.3d 813, 824 (Mo.2000) (per curiam), cert. denied, 532 U.S. 990, 121 S.Ct. 1644, 149 L.Ed.2d 502 (2001) (holding that Eichel forecloses the railro......
  • Buemi v. Kerckhoff
    • United States
    • United States State Supreme Court of Missouri
    • October 4, 2011
    ...rule is nearly identical to Missouri's.” 3 Richter v. Union Pac. R. Co., 265 S.W.3d 294, 299 (Mo.App.2008). Accord Giddens v. Kansas City So. Ry. Co., 29 S.W.3d 813, 820 (Mo. banc 2000). Differences in interpretation and dissimilarity of application of rules regarding certification for inte......
  • Sanders v. Ahmed
    • United States
    • United States State Supreme Court of Missouri
    • April 3, 2012
    ...of all reasonable inferences and disregarding evidence and inferences that conflict with that verdict. Giddens v. Kansas City S. Ry. Co., 29 S.W.3d 813, 818 (Mo. banc 2000). A court may reverse the jury's verdict for insufficient evidence only when there is a complete absence of probative f......
  • Request a trial to view additional results
3 books & journal articles
  • Notices for Production
    • United States
    • James Publishing Practical Law Books Archive Guerrilla Discovery - 2014 Contents
    • August 5, 2014
    ...videotapes; see Young v. Knickerbocker Arena , 722 N.Y.S.2d 596 (N.Y.A.D. 3 Dept. 2001) and Giddens v. Kansas City Southern Ry. Co., 29 S.W.3d 813 (Mo. 2000). And with respect to videotapes, “out takes” may also be included. See Tai Tran v. New Rochelle Hospital Medical Center, 756 N.Y.S.2d......
  • Notices for production
    • United States
    • James Publishing Practical Law Books Guerrilla Discovery
    • April 1, 2022
    ...videotapes; see Young v. Knickerbocker Arena , 722 N.Y.S.2d 596 (N.Y.A.D. 3 Dept. 2001) and Giddens v. Kansas City Southern Ry. Co. , 29 S.W.3d 813 (Mo. 2000). And with respect to videotapes, “out takes” may also be included. See Tai Tran v. New Rochelle Hospital Medical Center , 756 N.Y.S.......
  • Notices for Production
    • United States
    • James Publishing Practical Law Books Archive Guerrilla Discovery - 2015 Contents
    • August 5, 2015
    ...videotapes; see Young v. Knickerbocker Arena , 722 N.Y.S.2d 596 (N.Y.A.D. 3 Dept. 2001) and Giddens v. Kansas City Southern Ry. Co., 29 S.W.3d 813 (Mo. 2000). And with respect to videotapes, “out takes” may also be included. See Tai Tran v. New Rochelle Hospital Medical Center, 756 N.Y.S.2d......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT