Glenn v. Union Pac. R.R. Co.

Decision Date09 September 2011
Docket NumberNo. S–10–0197.,S–10–0197.
Citation2011 WY 126,262 P.3d 177
PartiesSteve B. GLENN, Appellant (Plaintiff),v.UNION PACIFIC RAILROAD COMPANY, a Delaware Corporation, Appellee (Defendant).
CourtWyoming Supreme Court

262 P.3d 177
2011 WY 126

Steve B. GLENN, Appellant (Plaintiff),
UNION PACIFIC RAILROAD COMPANY, a Delaware Corporation, Appellee (Defendant).

No. S–10–0197.

Supreme Court of Wyoming.

Sept. 9, 2011.

[262 P.3d 179]

Representing Appellant: Frederick J. Harrison, Frederick J. Harrison, PC, Rawlins, Wyoming; Robert T. Moxley, Robert T. Moxley, PC, Cheyenne, Wyoming. Argument by Mr. Harrison.Representing Appellee: Mark C. Hansen, Union Pacific Railroad Company; George E. Lemich, Lemich Law Center. Argument by Mr. Hansen.Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.BURKE, Justice.

[¶ 1] This case comes before us a second time. Previously, we reversed a grant of summary judgment in favor of Union Pacific after finding that the railroad had a duty to exercise ordinary and reasonable care in the operation of its railway.1 After remand, the jury determined that both parties, as well as two non-party actors, were negligent and awarded damages to Mr. Glenn. Mr. Glenn appeals, contending that the district court erred in refusing to admit evidence of a prior incident involving Union Pacific that was the catalyst for a change in his employer's safety procedures. We conclude that the district court abused its discretion in excluding evidence of the prior incident and that the error was prejudicial to Mr. Glenn. As a result, we reverse and remand for a new trial.

[262 P.3d 180]


[¶ 2] Mr. Glenn presents the following issues:

1. Did the trial court err in excluding evidence of a “near-miss” at the tipple that occurred two weeks before Glenn's accident, even after the Railroad “opened the door”?

2. Did the trial court err in refusing Glenn's proposed instruction about intervening and supervening cause and permitting the jury to consider the fault of two nonparty actors?

3. Should the doctrine of cumulative error be applied in this case?

Union Pacific phrases the issues in a substantially similar manner.


[¶ 3] Mr. Glenn was employed as a blaster at the Black Butte coal mine in Sweetwater County. On June 30, 2000, he went to work expecting to weigh semi-trucks as they left the mine, but when he started his shift, the mine production superintendent asked him to attend to a problem with a Union Pacific train that was waiting to be loaded. The train consisted of 102 rail cars that unloaded through dump doors in the floors of the cars. When the train arrived at Black Butte, however, the dump doors on approximately 40 of the cars were either open or unlocked. As the train could not be loaded with open dump doors, and closed but unlocked doors created a risk of derailment, the dump doors needed to be closed and securely locked before the train was loaded.

[¶ 4] The production superintendent dropped Mr. Glenn off near the tracks, where a coworker was waiting with the conductor of the train. At this point, the train was parked on the balloon track, an oval-shaped section of track situated just ahead of the tipple, which is the structure used to load coal into the train cars. The production superintendent instructed Mr. Glenn and his coworker to check the train cars by walking the length of the balloon track, also referred to as the “loop.” The conductor told Mr. Glenn and his coworker that he would cause the train to be pulled up, so that they could close the dump doors on the paved area near the tipple, which accommodated five or six train cars at a time. However, due to an incident that occurred less than two weeks earlier, Black Butte had changed its car-checking procedure to require its employees to check the cars while the train remained stationary. 2 The previous incident, which is at the heart of this appeal, occurred while Black Butte employees were engaged in the same activity of checking the train cars to see that they were properly locked before loading the Black Butte coal.

[¶ 5] At the time of the previous incident, Black Butte's safety procedures required that all cars be inspected at the tipple. An employee in the tipple would be able to observe the interior of the cars for residue that might come out when the doors were opened, and the employees closing and locking the cars would do so on the paved area around the tipple. After the cars were checked, the train would move ahead so that additional cars could be inspected at the tipple. Cleav Porter was a mine employee engaged in this inspection process. For reasons that are unclear from the record, he was underneath a Union Pacific train in the tipple area when it unexpectedly moved forward. Fortunately, Mr. Porter was not injured, but he was very upset about the close call.

[¶ 6] As a result of this incident, the mine issued a letter on June 27, 2000 changing the inspection procedure. The letter, which was authored by the same production superintendent who had instructed Mr. Glenn to check the cars by walking the loop, provided as follows:

In light of the recent incident in checking the train, the following process will be followed when checking and closing rail car doors.

The train[ ] will not be checked when it is moving. Instead, as the train is backing in, cars with open doors will be noted.

Then the train will be parked and the brakes will be set. The crew will then get

[262 P.3d 181]

off the train while Black Butte personnel close doors and check the units for loading. When all checks have been made and all doors are closed the train crew can start loading.

Until we can come up with a process to check trains that insures that we will not compromise the safety of our people while checking the cars, we will follow this procedure.

Your help on this matter is greatly appreciated.

[¶ 7] In accordance with Black Butte's new car-checking procedure and the production superintendent's instructions, Mr. Glenn and his coworker informed the train conductor that they would be checking the cars by walking the loop. Mr. Glenn had never before closed dump doors. His coworker showed him what to do. Using a pry bar, the two first opened the doors and then swung them closed again to engage the locking mechanism. After opening and closing several dump doors, Mr. Glenn and his coworker discovered that some of the rail cars contained coking coal, which was subsequently determined to have been left in the train after it was unloaded at a facility owned by FMC Astaris in Don, Idaho. When Mr. Glenn opened the unlocked doors of one of the cars, a substantial amount of coking coal fell out and trapped his leg so that, as he fell backward, his right leg was broken.

[¶ 8] Mr. Glenn filed suit claiming that his injury was caused by Union Pacific's negligence. Union Pacific denied negligence and asserted that Mr. Glenn, Black Butte, and FMC Astaris were at fault for the accident. Prior to trial, Union Pacific filed a motion in limine seeking to prevent the jury from hearing any evidence regarding the Cleav Porter incident. Union Pacific asserted in its written motion that the evidence was irrelevant and that, even if the evidence was determined to be relevant, it should still be excluded because the probative value of the evidence was outweighed by the danger of unfair prejudice. Mr. Glenn resisted the motion and asserted in his written response that the evidence was relevant, in part, because the incident was “a primary reason that Steve Glenn came to be where he was, doing what he was doing, when he was injured.”

[¶ 9] The district court considered Union Pacific's motion at a hearing held on June 23, 2009. At the hearing, Union Pacific argued that evidence of the prior incident was not “in any way relevant to the Glenn incident.” Union Pacific contended that Mr. Glenn was offering the evidence “to show that the railroad is negligent, they don't pay any attention to their rules, for a number of different reasons.” The district court agreed that the evidence could not be admitted to prove that Union Pacific was negligent, but stated that the evidence could be admitted if Union Pacific argued that Black Butte should not have allowed its employees to inspect incoming trains on the balloon track. In a written order memorializing the ruling made at the hearing, the court granted Union Pacific's motion in limine to exclude “Any argument, evidence, or reference to a purported ‘near miss' regarding Cleav Porter which occurred prior to Mr. Glenn's accident.” In accordance with the district court's ruling, the letter changing Black Butte's car-checking procedure was redacted to eliminate the first sentence referring to the “recent incident in checking the train” before the letter was admitted into evidence.

[¶ 10] In their Joint Statement, the parties stipulated that the balloon track at Black Butte was not a safe workplace for Mr. Glenn to close, latch, and lock the coal car doors. At several junctures during trial, Mr. Glenn attempted to introduce evidence of the prior incident in response to argument and testimony that the balloon track was not a safe area in which to check the train cars. Each attempt to do so, however, was rebuffed by the district court, which held that the evidence was irrelevant and prejudicial to Union Pacific.

[¶ 11] A jury verdict was ultimately entered in Mr. Glenn's favor. However, in the ensuing judgment, the total damage award was significantly reduced by the percentage of fault attributed to other actors. The jury apportioned 70% of the fault to non-party Black Butte, 20% to Union Pacific, 5% to non-party FMC Astaris, and 5% to Mr. Glenn. Mr. Glenn appeals, claiming that the

[262 P.3d 182]

district court's refusal to admit evidence of the prior incident was prejudicial error. He also contends the district court erred in allowing Astaris to be listed as an actor on the verdict form, and in refusing to give the jury an “intervening cause” instruction.

[¶ 12] We review a trial court's evidentiary decisions for an abuse of discretion. Rulings on the admission of evidence are placed within the sound discretion of the trial...

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