Gilliam v. Chicago & North Western Transp. Co.

• Court: Missouri Court of Appeals
• Writing for the Court: TURNAGE
• Citation: Gilliam v. Chicago & North Western Transp. Co., 859 S.W.2d 155 (Mo. App. 1993)
• Decision Date: 06 July 1993
• Docket Number: No. WD,WD
• Parties: Robert GILLIAM, Respondent, v. CHICAGO & NORTH WESTERN TRANSPORTATION CO., Appellant. 46408.

Page 155

859 S.W.2d 155

Robert GILLIAM, Respondent, v. CHICAGO & NORTH WESTERN TRANSPORTATION CO., Appellant.

No. WD 46408.

Missouri Court of Appeals Western District.

July 6, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 31, 1993.

David M. Harding, Jeffrey S. Bay, Van Osdol, Magruder, Erickson and Redmond, Kansas City, for appellant.

John T. Peak, Hubbell, Sawyer, Peak & O'Neal, Kansas City, John A. Walsh, Jr., John D. Schneider, St. Louis, for respondent.

Before SHANGLER, P.J., and TURNAGE and KENNEDY, JJ.

TURNAGE, Judge.

Robert Gilliam filed suit under the Federal Employers' Liability Act (FELA) for damages resulting from injuries he suffered while working for Chicago & North Western Transportation Co. (C & NW). The jury returned a verdict in favor of Gilliam for 1.5 million dollars and the court entered judgment thereon. On this appeal C & NW raises a number of points of error concerning the amount of damages, the instructions, and the exclusion of evidence. Affirmed.

At the time of trial Gilliam was 34 years of age and had worked for C & NW over 13 years as a switchman. On the night of December 13, 1989 Gilliam was working in the C & NW short-line yard in Des Moines, Iowa as part of a three-man crew. As a switchman, Gilliam's duty was to throw switches so that railroad cars could be placed on the proper track. On the night in question the temperature was about zero degrees and there was one to two inches of snow on the ground.

Gilliam stated that he was riding on an engine when it approached switch No. 4 and he noticed that the switch would have to be changed so that the engine could deliver cars on another track. Gilliam stated that he had thrown this switch about 45 minutes earlier with no difficulty. Gilliam stated that he approached the switch and inspected it as he was required to do and found nothing wrong. He pulled the switch handle until he felt resistance which was a usual occurrence in throwing a switch. After feeling the resistance, Gilliam stated that he repositioned his feet and pulled the switch handle with both hands. Gilliam stated that he pulled the switch handle in the manner required by the C & NW rules and denied that he had "jerked" the switch. As he pulled, the switch locked up and his body was snapped back against his own momentum. He stated that he felt a pinch or twinge between his shoulder blades at that time.

At trial, Gilliam presented an expert in railroad engineering and design who inspected switch No. 4 on which Gilliam stated he was injured. The expert testified that switch No. 4 locked up when Gilliam attempted to throw it because a rod which connected the moving parts of the switch locked against a tie. The expert said the rod was locked against the tie because the rod was not properly maintained and adjusted to keep it clear of the tie. He also said the rod locked against the tie because the rails going into and out of the switch area were not properly fitted with rail anchors to keep the rails from shifting. The shifting of the rails moved the rod attached to the rails so that it became locked against a tie. The expert further testified that the drop in temperature would cause the rails to move slightly which could account for the rod moving the last fraction of an inch to cause the rod to bind against the tie. He stated that rail anchors would have prevented the rails from moving as the temperature dropped and also would prevent their movement as a result of traffic over the rails. There was evidence that C & NW's operating rules required that the track in the area of switch No. 4 have six box anchors on the rails but actually there was only one anchor and it was not located properly to be effective.

Gilliam testified that as a result of his injury he had a "winging" of the left shoulder. He stated that he has pain every day. He is very self-conscious of his appearance because of the way his shoulder blade extends out from his body. He stated that he could not do many of the things that he used to do such as ride horses, engage in various sports, or go swimming. He cannot return to his railroad job because he cannot lift or pull with his left arm.

Gilliam presented an economist who testified that his past lost earnings totaled $65,468 and that his future lost earnings amounted to $912,426.

Gilliam was treated by a number of doctors in Des Moines and after he moved to Kansas City he consulted Dr. Bernard Abrams, a neurologist. Dr. Abrams testified that when Gilliam attempted to throw the switch and it locked up that Gilliam suffered an injury to the long thoracic nerve which resulted in paralysis of the serratus anterior muscle. Dr. Abrams explained that the long thoracic nerve supplies impulses to the serratus muscle and as a result of the injury the nerve was no longer able to tell the muscles to contract. The serratus anterior muscle holds the scapula to the chest wall. When the scapula or shoulder blade is winged the scapula extends out from the back causing it to have the appearance of a wing. Dr. Abrams stated that Gilliam was unable to lift his left arm above the horizontal. He stated that the condition was permanent and that there is no viable surgical procedure which would correct the winging of Gilliam's left shoulder blade. He testified that Gilliam has suffered pain since the accident and will continue to suffer pain from now on. He said the cause of pain is a stretching of the muscles as a result of the winging of the shoulder. Dr. Abrams further testified that Gilliam had undergone therapy for his shoulder but that he had reached the maximum result from this therapy. He stated that the conditions that he described were permanent.

At the time of trial Gilliam was working at a minimum wage job which did not require any pulling or lifting with the left hand.

C & NW first complains of an incident which involved the jury when it retired to deliberate. The court informed the attorneys that one member of the jury would have to leave at 4:30 p.m. It was then 3:30 p.m. on Friday afternoon and the court said that it did not know if the jury could reach a verdict in an hour, but to avoid calling the jury back on Monday, an alternate juror would be sent to the jury room. The court inquired if the attorneys had any objection and both sides objected. Thereupon, the court sent one of two alternate jurors to the jury room with the original 12 with instructions that he was to simply sit and observe and was not to say anything.

At 4:30 p.m., the jury sent word that the juror who had to leave at 4:30 was ready to leave. The court had the jury return to the courtroom. The court ascertained that a verdict had not been reached and was assured by the foreman that the alternate juror had not participated in the deliberations. Thereupon, the court stated out of the hearing of the jury that he was going to substitute the alternate for the juror who had to leave and inquired if there were any objections. Gilliam's attorney objected but the attorney for C & NW stated "no objection." The alternate juror was substituted and the jury thereafter returned a verdict.

C & NW contends that the court erred in allowing the alternate juror to be present in the jury room while deliberations took place and further erred in excusing a juror and substituting an alternate after the deliberations had proceeded for an hour. In its motion for new trial C & NW only complained of excusing a juror and substituting an alternate. The complaint that the court sent the alternate to the jury room is not preserved for review because it was not mentioned in the motion for new trial. State ex rel. Missouri Hwy. & Transp. Comm'n v. Jim Lynch Toyota, Inc., 830 S.W.2d 481, 488[13, 14] (Mo.App.1992). C & NW requests that this court review that matter for plain error but this court does not find that the matter rises to the level of manifest injustice or a miscarriage of justice which would warrant invocation of the plain error rule. Rule 84.13(c).

As to the complaint that the court substituted an alternate for a regular juror the attorney for C & NW stated that he had no objection. This not only constituted a failure to object but amounted to a positive acquiescence in the action of the court in substituting the alternate for the regular juror. As stated in Sansone v. Londe, 753 S.W.2d 339, 342 (Mo.App.1988), "A party may not even tacitly, much less expressly, acquiesce in the procedure proposed by the trial court and complain for the first time after an adverse result." Having expressed its acquiescence in the court's action, C & NW may not now complain that the court took the action in which it acquiesced.

C & NW next contends that the court erred in failing to give its instruction which it says submitted a failure by Gilliam to mitigate his damages. ¹ Contrary to this contention, the instruction submitted contributory negligence in plain terms for failure to seek rehabilitative or work hardening treatment or to seek employment after the accident. The court gave a contributory negligence instruction in the form of MAI 32.07 which submitted that Gilliam failed to properly throw the switch or failed to properly inspect it.

The offered instruction is not a proper contributory negligence instruction because it is not in the form of MAI to submit contributory negligence in a FELA case. Nor does the offered instruction correctly submit the issue of mitigation of damages. C & NW confuses contributory negligence with mitigation of damages. In Evinger v. Thompson, 364 Mo. 658, 265 S.W.2d 726, 735 (1954), the court stated that the law places on a plaintiff " 'the duty to act as an ordinarily prudent man to minimize avoidable consequences,' as to earnings." (quoting Phegley v. Graham, 358 Mo. 551, 215 S.W.2d 499, 505 (1948)). In Stipp v. Tsutomi Karasawa, 318 S.W.2d 172, 175 (Mo.1958), the court held that one who suffers injury is bound to exercise reasonable care in...