Hale v. Burlington N. & Santa Fe Ry. Co., SD 34483 and SD 34494.

• Citation: 524 S.W.3d 603
• Decision Date: 31 July 2017
• Docket Number: No. SD 34483 and SD 34494.,SD 34483 and SD 34494.
• Court: Court of Appeal of Missouri (US)
• Parties: Amber HALE, f/k/a Amber Koester, Appellant-Cross Respondent, v. BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY, Respondent-Cross Appellant.

524 S.W.3d 603

Amber HALE, f/k/a Amber Koester, Appellant-Cross Respondent,
v.
BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY, Respondent-Cross Appellant.

No. SD 34483 and SD 34494.

Missouri Court of Appeals, Southern District, Division Two.

FILED: July 31, 2017

Douglas L. Healey & Penny Speake, Springfield, MO, for appellant-cross respondent.

Laurel E. Stevenson, Springfield, MO, for respondent-cross appellant.

DANIEL E. SCOTT, J.

We address, again, the matter of improper not-in-MAI jury instructions.¹

Background

Amber Hale was driving alone at night on a familiar road when she struck the side of a train's lead engine at a marked crossing less than a mile from her home. Hale sued, the railroad ("BNSF") obtained summary judgment, Hale appealed, and we reversed and remanded, finding genuine issues of material fact that precluded summary judgment. See Hale v. Wait , 364 S.W.3d 720, 721, 723 (Mo.App. 2012).²

At jury trial thereafter, it was established that Hale could have seen the train when she was 300 feet from the crossing, but did not look until she was five feet from the crossing and left no skid marks before striking the locomotive's side. She testified that she had no warning because the crossing lights and bells did not activate and the train crew did not properly sound the horn. BNSF offered a wealth of testimony and documentary evidence to the contrary. In closing argument, Hale's counsel told jurors the case boiled down to

524 S.W.3d 605

whether they believed BNSF's witnesses or Hale. The jury found Hale 100% at fault and judgment was entered accordingly.

Hale's appeal challenges not-in-MAI Instruction 9, a one-sentence submission given at BNSF's request, over Hale's objection, telling jurors that BNSF's train crew "had a right to assume that a vehicle approaching a crossing would stop before going upon the crossing."

BNSF's Arguments for Instruction 9

BNSF overcame the trial court's initial skepticism and obtained Instruction 9 through arguments like these:

[BNSF'S COUNSEL³ ]: It's been well settled law now for over 60 years, not only in Missouri but around the country that train crews have a right to assume that motorists approaching a crossing will stop.

* * *

So, the law has established an assumption which also exists, by the way, for motor vehicles, that the motorist will abide by the law.

* * *

Just like if a motorist is approaching a green light, they don't have to assume that a vehicle approaching the red light is going to run the red.

BNSF further assured the court that this instruction, although not in MAI, was necessary in every case like this because "it is a well settled law" and BNSF was "entitled" to it for that reason.

Finally, BNSF urged the court that this not-in-MAI submission was "necessary" to combat one of Hale's trial theories:

[BNSF'S COUNSEL]: And so, to the extent that the plaintiff is going to argue that the train crew had the obligation to abandoned [sic] that signal for an emergency horn sequence then [Instruction 9] to the jury on the law that the train crew had the right to assume that any vehicle approaching that crossing would stop is relevant and necessary. (Our emphasis.)

Instruction 9 Was Error

None of BNSF's assertions justified Instruction 9, which violated MAI principles and Missouri Court Rule 70.02 in multiple respects.

To fully appreciate these violations, one must understand MAI as "more than a collection of approved instructions." 2 Missouri Practice, Litigation Guide § 15.2 ("Missouri Practice"). MAI's holistic approach, borne of much research and great effort, focused on simplicity to radically improve jury instruction in our courts. The old regime of argumentative mini-essays on the law was replaced by one where jurors get rather sparse directions to be fleshed out by counsel in closing argument. No longer could an instruction be given just because it stated a legal rule, principle, presumption, or inference, even if it did so fairly and accurately. Instead, MAI contemplated instructions only of specified types, particularly worded and arranged to focus juror attention on dispositive issues without parties seeking to gain an edge by submitting instructions in a particular way.⁴

Thus MAI effectively banned hundreds of previously-acceptable instructions. See Motsinger v. Queen City Casket Co. , 408 S.W.2d 857, 860 (Mo. 1966) ; MAI "1963

524 S.W.3d 606

Report to Missouri Supreme Court" XLIV. Now the only categories of MAI instructions in simple cases like this are:

1. Explanatory instructions to tell jurors how a case is tried and explain key legal concepts common to all cases, such as the burden of proof (MAI chapters 2 & 3).

2. Definitions of important legal terms used in the instructions (chapters 11-16).

3. Verdict-directing, converse, and affirmative-defense instructions; these tell the jury what ultimate facts it must find to return verdicts and, if appropriate, to apportion fault (chapters 17-33, 37-39).

4. Damage instructions (chapters 4-10).

5. Withdrawal or limiting instructions, if applicable (chapter 34).⁵

Instruction 9 fit no such category. Worse, it transgressed MAI's prohibition against submitting "rules of law, presumptions, inferences and the like," none of which "has any place in a jury instruction" because those are to be argued by the lawyers, not instructed upon by the court. MAI Why and How LXXV-LXXVI. It particularly violated the principle that a court should not comment on the evidence. See Pisoni, 468 S.W.3d at 928. Generally, "singling out specific facts for comment in a jury instruction is impermissible. Such instruction diverts attention away from other relevant evidence and threatens [an opponent's] right to have a jury decide factual issues." State v. Erwin, 848 S.W.2d 476, 483 n.4 (Mo. banc 1993).

Furthermore, applicable MAIs advised this jury of each party's respective legal obligations,⁶ precluding "any other instructions on the same subject." Rule 70.02(b). Yet Instruction 9 violated this...