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

• Decision Date: 08 September 1992
• Docket Number: No. WD,WD
• Court: Missouri Court of Appeals
• 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.

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 crouched or awkward position, this is simply not borne out by the record. Co-employee Romero was crouched, as was the common practice in lifting this type of object. Glover lifted his end of the metal patch while on level ground next to the boxcar. Unfortunately, he injured his back.

The following language from Nance v. Atchison, T. & S.F. Ry. Co., 360 Mo. 980, 232 S.W.2d 547, 554 (1950), is instructive:

Under the Federal act defendant was not an insurer of its employees' safety. Proof of injury without proof of negligence is not enough; and proof that such negligence caused the injury is necessary. Ellis v. Union Pac. R.R. Co., 329 U.S. 649, 652-3 [67 S.Ct. 598, 600, 91 L.Ed. 572] (1947); Brady v. Southern Ry. Co., 320 U.S. 476, 484 [64 S.Ct. 232, 236, 88 L.Ed. 239] (1943); Lavender v. Illinois Cent. R.R. Co., 358 Mo. 1160, 219 S.W.2d 353 (1949); Larsen v. Chicago & N.W.R. Co., 171 F.2d 841, 844 (7th Cir.1948).

In Eckenrode v. Pennsylvania R. Co., 335 U.S. 329, 330 [69 S.Ct. 91, 92, 93 L.Ed. 41] (1948), verdict for plaintiff was set aside and judgment was entered for defendant. The court said: "There is a single question presented to us: Was there any evidence in the record upon which the jury could have found negligence on the part of the respondent which contributed, in whole or in part, to Eckenrode's death? Upon consideration of the record, the court is of the opinion that there is no evidence, nor any inference which reasonably may be drawn from the evidence, when viewed in a light most favorable to petitioner, which can sustain a recovery for her." (Italics ours.)

In the case at bar, there is a lack of employer negligence, "even in the slightest part" producing the plaintiff's injury, which was required for submissibility under FELA. Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957); Qualls v. St. Louis Southwestern Ry. Co., 799 S.W.2d 84, 86 (Mo. banc 1990). Where there is no such showing, nor any "reasonable foreseeability of harm" present, the matter may be taken from the...