Glover v. Atchison, Topeka, & Santa Fe Ry. Co., WD

• Court: Court of Appeal of Missouri (US)
• Citation: 841 S.W.2d 211
• Decision Date: 08 September 1992
• Docket Number: No. WD,WD
• Parties: Gerald GLOVER, Appellant, v. The ATCHISON, TOPEKA, & SANTA FE RAILWAY COMPANY, Respondent. 45815.

Page 211

841 S.W.2d 211 Gerald GLOVER, Appellant,
v.
The ATCHISON, TOPEKA, & SANTA FE RAILWAY COMPANY, Respondent. No. WD 45815. Missouri Court of Appeals,
Western District. Sept. 8, 1992.
Motion for Rehearing and/or Transfer to
Supreme Court Denied
Oct. 27, 1992.
Application to Transfer Denied
Dec. 18, 1992.

Page 212

Melinda Sanderson, Fairview Heights, Ill., for appellant.

Thomas S. Stewart, Douglas R. Dalgleish, Kansas City, for respondent.

Before LOWENSTEIN, C.J., and BERREY and ULRICH, JJ.

LOWENSTEIN, Chief Judge.

This appeal is taken by the plaintiff, Glover, from the granting of motion for judgment notwithstanding the verdict (j.n.o.v.) in favor of the defendant employer, the railway, in a Federal Employers' Liability Act (FELA) action. 45 U.S.C. § 51 (1986).

The evidence showed Glover, a carmen welder hurt his back while lifting a metal plate along with another Santa Fe employee. A jury returned a $75,000 verdict. In sustaining the j.n.o.v. motion the court noted an absence of negligence as required under the federal act.

The plaintiff and Romero were going to install a "patch," a metal plate, to a boxcar. The patch was to be welded to the car which was up on a tripod. The patch is about 63 inches long and weighs about 94 pounds. Romero was down on one knee with an end of the patch sitting on his knee--Glover came over and raised the other end six to eight inches and then dropped the patch. Romero was getting "ready to go underneath the car" with his end, when, Glover, who "was still on the outside" sustained the back injury in question. Replacing and installing the patches was a regular part of the job. The employer had a work rule, never offered in evidence, which encouraged workers to lift heavy objects "with your legs." The case was submitted on the company not providing "safe conditions and safe methods."

Glover here contends there was sufficient evidence for the negligence submission, despite the trial court's concern the lifting here was performed "the same way over the course of years without incident" and did not establish the element of foreseeability.

This appeal concerns whether a judgment notwithstanding the verdict entered for a defendant was done in error. The contention presented is whether the plaintiff proved a submissible case of negligence in a FELA case. This is the equivalent to a directed verdict at the close of evidence. Rhodes v. Marsh, 807 S.W.2d 222, 223 (Mo.App.1991). This court's view of the evidence is that most favorable to the verdict. Marti v. Economy Fire & Casualty Co., 761 S.W.2d 254, 255 (Mo.App.1988). Such a judgment is proper only if reasonable minds could not differ. Wion v. Carl I. Brown & Company, 808 S.W.2d 950, 952-53 (Mo.App.1991). Review then is as a matter of law, Rhodes, 807 S.W.2d at 222.

As a matter of law the granting of the judgment notwithstanding the verdict was correct. On the issue of negligence there is not the slightest bit of evidence, or inferences from the evidence, Zibung v. Union Pac. R.R. Co., 776 S.W.2d 4, 5 (Mo. banc 1989), to satisfy this necessary element of a FELA action. Despite Glover's arguments to the trial court, and in his brief on appeal about him being in a

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crouched or awkward position, this is simply not borne out by the record. Co-employee Romero was...