Hertzler v. Burlington Northern R. Co.

• Decision Date: 25 November 1986
• Docket Number: No. 50507,50507
• Citation: 720 S.W.2d 762
• Parties: Waymon J. HERTZLER, Plaintiff-Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 762

720 S.W.2d 762

Waymon J. HERTZLER, Plaintiff-Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellant.

No. 50507.

Missouri Court of Appeals,

Eastern District,

Division Four.

Nov. 25, 1986.

Leonard P. Cervantes, St. Louis, for plaintiff-respondent.

Dennis T. Rathmann, St. Louis, for defendant-appellant.

SIMON, Judge.

This appeal arises out of an action by Waymon J. Hertzler, plaintiff, pursuant to the provisions of the Federal Employers' Liability Act (F.E.L.A.), 45 U.S.C. §§ 51-60 (1982), for injuries sustained as a result of Burlington Northern Railroad Company's, defendant, negligence. Trial was by jury in the Circuit Court of the City of St. Louis, and a verdict was returned for plaintiff in the amount of $40,000. Judgment was entered thereon.

On appeal, defendant raised six points of error. Prior to oral argument, however, defendant moved to withdraw points 3, 4, and 5 from our consideration. The motion is hereby granted. In its three remaining points, defendant claims that the trial court erred: (1) in failing to sustain defendant's motion for directed verdict at the close of evidence because the record is devoid of any proof that defendant's alleged negligence played any part in producing plaintiff's injuries; (2) in submitting the case to the jury because there was no proof of any actual connection between defendant's alleged negligence and plaintiff's injuries; and (6) in overruling defendant's objection to allegedly irrelevant testimony while sustaining plaintiff's objection to curative testimony.

To adequately consider defendant's points, we summarize the relevant evidence presented at trial. As defendant concedes, we must view the evidence and reasonable inferences therefrom in a light most favorable to the plaintiff and disregard defendant's contrary evidence. Anderson v. Burlington Northern Railroad Co., 700 S.W.2d 469, 472 (Mo.App.1985).

Plaintiff was employed by defendant as a signal maintainer. A signal maintainer inspects, repairs, and maintains signal lights for the railroad in a designated territory. In January or February of 1980 plaintiff was assigned an M-19 Fairmont Motorcar for use in his job. A motorcar is a four wheel, belt driven vehicle that weighs approximately 500 pounds. It runs on the rails and is used for transporting personnel and materials in railroad maintenance and construction work.

In 1980, it was normal for a signal maintainer to be assigned to a particular motorcar to be used exclusively by him or her. The motorcar assigned to plaintiff was hauled in a pick-up truck from Memphis, Tennessee and delivered to plaintiff in Crystal City, Missouri, his place of residence. It was a "junker" motorcar that had been abandoned and was pulled from the weeds. When plaintiff received the motorcar it was in a state of serious disrepair. The lights were missing, electrical switches were missing, and the motor had to be replaced. It had a housing for a headlight, but no light bulb was inside it.

When plaintiff received the motorcar he was instructed by Mr. Gordon Coker, his superior, to get it in condition and ready to use. Coker told plaintiff to purchase whatever was necessary to get his motorcar into operation. This was not normal operating procedure for defendant. Local purchases were only allowed in emergencies. Ordinarily, if motorcar parts are worn or need to be replaced, a requisition form provided by defendant must be filled out and the needed parts are supplied out of a storeroom in Springfield, Missouri. This procedure is prescribed in defendant's "Maintenance of Way Book of Rules;" a manual outlining policies and procedures for the care and maintenance of motorcars. The rules also mandate that every motorcar be equipped with two lights, a white headlight on the front and a red taillight on the rear.

Plaintiff was successful in repairing his motorcar. However, he was unable to locate the proper standard headlight for his vehicle. He tried to use automobile headlights, but they were too large to fit into the housing unit. Since it was common for a signal maintainer to operate a motorcar at night, it was important that plaintiff have light to see. Because nothing else was available, plaintiff was forced to purchase a tractor implement light so that he would have some sort of light to run at night. The tractor implement light was capable of shining only fifty feet down the railroad track, while the standard lamp normally furnished by defendant was capable of shining 200 feet down the track. Evidence was also presented that the Fairmont Company manufactured a light for its motorcars capable of shining the distance of 300 feet.

The proper headlight on a motorcar is between 4 1/2 to 5 inches in diameter and is customarily directed to shine on the rails so that the operator can keep a lookout for any obstructions on the rails. The light is mounted in a housing unit approximately two and one-half feet above the rail. The housing unit is mounted on a clamp type swivel so that the light can be adjusted up or down or right or left. The unit, however, can only be adjusted from outside the motorcar by using a handle attached to the housing unit.

In January or February of 1980, shortly after purchasing the tractor implement lamp, plaintiff filled out a requisition for a proper light for his motorcar and turned it into his supervisor, Mr. Fred Walker. This was done pursuant to the "Maintenance of Way Book of Rules." Mr. Walker, in turn, sent the requisition for the light to the Springfield storeroom. Walker testified that it normally took thirty to sixty days before the requested part would be delivered.

On the evening of April 9, 1980, plaintiff was summoned to work on an emergency job by defendant. As a signal maintainer, it was not unusual for him to receive a phone call to work at night after completing his normal 8 a.m. to 4 p.m. shift. Plaintiff was instructed to repair a malfunctioning signal in his territory near Rush Island, Missouri. Plaintiff got his motorcar and proceeded toward Rush Island. Plaintiff had still not received the proper standard headlight that he had ordered for his motorcar, although he had made several inquiries as to when he could expect to receive it. At approximately 8:20 p.m., plaintiff's motorcar struck a piece of wire that had been stretched over the track and derailed. Plaintiff, attempting to jump clear of the motorcar, injured his right hand by striking it forcefully against the motorcar. The injury required emergency medical treatment and surgery, and ultimately resulted in disability to his right hand.

On the night of the accident it was dark but clear. The rails were dry and plaintiff did not notice any mechanical problems with the motorcar. The brakes on the motorcar were in good working condition. Gary Grimes, a special agent with defendant, investigated the accident. He was not able to determine who placed the wire across the track.

The wire that plaintiff struck was a No. 8 iron-clad wire with a black jacket on it; it is the same wire commonly used in defendant's Signal Department to string power lines. The diameter of No. 8 wire is about the same size or just smaller than the diameter of a pencil.

At trial, plaintiff testified that at the time of the accident he was traveling approximately 25 miles per hour. The motorcar was not equipped with a speedometer to measure exactly how fast it was going. According to plaintiff, it is a matter of judgment and common sense as to how fast to operate a motorcar.

Plaintiff estimated that his motorcar would "stop within 100 feet" at 30 miles per hour. Gordon Coker, a signal supervisor for defendant who was familiar with the M-19 motorcar, testified that it would take 150 to 200 feet to stop the motorcar when traveling at 30 miles per hour. David Hooker, a signal gang supervisor for defendant, testified that it would take 175 feet to stop a motorcar traveling 30 miles per hour, and it would take 100 feet to stop when traveling 20 miles per hour.

Plaintiff testified that in the past he had experienced trouble running at night because vandals placed spikes, rocks, and creepers on the rail. Defendant's counsel stated during his opening statement that one of the greatest dangers facing motorcar operators is the possibility of being derailed by something placed on the tracks by vandals. However, neither plaintiff nor his supervisors had ever encountered or had knowledge of an incident in which vandals strung wire across the track. Plaintiff stated that he was approximately five to ten feet away from the wire when he first saw the wire. He testified that it was a very short time in between the collision and the time he identified the object in front of him as a wire.

During the course of the trial, plaintiff testified, without objection, that his attorney asked him to obtain two headlights pursuant to the litigation; a standard headlight normally provided by defendant for use in its M-19 motorcar, and a headlight that Fairmont (the manufacturer of the motorcar) supplies with its vehicle. Plaintiff was asked how long it took him to receive the standard light. Defendant objected on the grounds of relevancy, in that, the light was obtained after the accident. The objection was overruled and plaintiff was allowed to testify that he received the standard light within 24 hours. Plaintiff was then asked how long it took him to receive the Fairmont light. Plaintiff testified, without objection, that he received the light within eleven days.

Defendant attempted to have Lloyd Williams, defendant's employee who was assigned plaintiff's motorcar in 1982, testify as to his purchase of a headlight from an auto parts store in Imperial, Missouri. Plaintiff's counsel objected on the grounds of relevancy. The trial court sustained the objection. Defense counsel made an offer of proof stating that Mr. Williams would have testified that he was able to purchase a light that fit...