Ingle v. Illinois Cent. Gulf R. Co.

• Citation: 608 S.W.2d 76
• Decision Date: 09 September 1980
• Docket Number: No. 40300.,40300.
• Parties: Richard L. INGLE, Respondent, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Appellant.
• Court: Court of Appeal of Missouri (US)

608 S.W.2d 76

Richard L. INGLE, Respondent, v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, Appellant.

No. 40300.

Missouri Court of Appeals, Eastern District, Division Two.

January 22, 1980.

On Rehearing July 1, 1980.

Motion for Rehearing and/or Transfer Denied July 18, 1980.

Application to Transfer Denied September 9, 1980.

Greenfield, Davidson, Mandelstamm & Voorhees, Alphonso H. Voorhees, St. Louis, for appellant.

Friedman, Weitzman & Friedman, C. Marshall Friedman, St. Louis, for respondent.

On Rehearing En Banc July 1, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 1980.

PUDLOWSKI, Judge.

Respondent brought suit under the Federal Employers' Liability Act for lost wages and debilitating injuries suffered on the job against his employer, the Illinois Central Gulf, (appellant). The jury returned a verdict in respondent's favor of $550,000. The railroad appeals.

Respondent went to work for the Gulf, Mobile and Ohio (which later became part of the Illinois Central Gulf System) in the railroad yards at Montgomery, Alabama, in 1950. He started as a helper and rose to the level of carman, a member of a skilled craft which repairs the couples, trucks, wheels, doors and safety appliances on railway boxcars, hoppers and gondolas.

In 1959, the railroad's diesel repair shop at Montgomery moved to Tuscaloosa. Prior to 1959, specially trained machinists and electricians inspected the locomotives daily at Montgomery and did all necessary repair work there. When the diesel repair shop moved to Tuscaloosa, so did the machinists and electricians.

Because federal regulations required that locomotives be inspected daily, it was necessary for the appellant to inspect the locomotives being used in the Montgomery yards. However, because there were no machinists and electricians at Montgomery, the railroad pressed carmen into service to perform the inspections.

Respondent was one such carman. On Friday, November 16, 1973, a traction motor blower broke on Engine 1269. Respondent's foreman instructed him to fix it when a new blower arrived. It came from Tuscaloosa on Tuesday, November 20.

The traction motor blower lies in the high voltage cabinet of the engine about two and one-half to three feet below the engine. The high voltage cabinet is a clutter of wires, pipes, fuel pumps, valves, and has a shaft going through it which powers the traction motor blower. There is barely enough room for a man to squeeze into the cabinet. The floor of the cabinet is sometimes slippery due to the presence of an oily film.

Testimony from former machinists stated that the correct method of removing a blower requires the use of two chain block hoists and three men, a machinist, a helper and a laborer. However, respondent had never seen this method used and had no knowledge of it. The railroad had never given respondent any training on how to remove a blower; it had neither provided him with tools nor given him adequate help to do the job.

Prior to his injury, respondent had removed five or six blowers alone by lifting them up and out of the cabinet without the aid of a hoist or additional manpower. On November 20, 1973, as respondent was in a twisted and contorted position inside the cabinet, lifting the blower up and out, the blower, being top-heavy and weighing about 100 pounds, flipped over wrenching his arms. His right arm felt like it had been ripped from its socket; the pain shot between his shoulders, down his back and into his right arm. However, because the compartment was so cramped, he did not drop the blower lest he drop it on himself.

Respondent finished work that day and continued to report to work hoping his condition would improve and his pain would subside. However, his condition deteriorated and his pain got worse and worse. In February of 1974, respondent was hospitalized for a myelogram. The myelogram revealed damage to both the cervical and lumbar areas of his spine. Later in February of that year this 45 year old respondent was rehospitalized and underwent cervical disc surgery. In June he underwent lumbar disc surgery. Since his operations, respondent's right arm has so atrophied that he possesses only about 2/5 to 3/5 of the strength of his left arm. He can do no work requiring the use of his right arm. Certain activities cause his legs to bother him. He can drive a car providing it is equipped with power brakes and power steering. His pain is constant. He sleeps little. He takes Percodan, a narcotic, and wears a transcutaneous nerve stimulator. His medication and stimulator give him some relief. His condition is permanent and deteriorating.

The appellant's first assignment of error is that the trial court abused its discretion in overruling the railroad's motion to dismiss on the ground of forum non conveniens and the trial in St. Louis resulted in substantial prejudice to appellant.

In determining this point we must review certain standards applicable to the trial court's action. "Judicial discretion is abused when a trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable men can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Anderson v. Robertson, Mo.App., 402 S.W.2d 589 3-4." Shirrell v. Missouri Edison Co., 535 S.W.2d 446, 448 (Mo. banc 1976), quoting James v. Turilli, 473 S.W.2d 757, 763 (Mo.App.1971).

Further, our courts have said that the doctrine of forum non conveniens is to be applied only with caution; and unless the balance of equities is strongly in favor of not forcing these defendants to trial in Missouri, plaintiff's choice of Missouri as the forum for this litigation should not be disturbed. State ex rel. Farmland Indus., Inc. v. Elliott, 560 S.W.2d 60, 63 (Mo.App.1977) citing Loftus v. Lee, 308 S.W.2d 654 (Mo. 1958); Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); J. F. Pritchard & Co. v. Dow Chemical of Canada, Ltd., 462 F.2d 998, 1000 (8th Cir. 1972).

The facts gleaned from the three volumes of transcript disclosed that appellant is a Delaware Corporation with its principal office in Chicago. It is actively engaged in the railroad business in the City of St. Louis and the State of Missouri. It maintains offices and employees throughout the Metropolitan St. Louis area. Additionally, the appellant's trial attorney has a St. Louis office. Moreover, the trial of the case did not present the difficulties predicted by his client in its motion. It appears that respondent and appellant produced those witnesses deemed important without difficulty. The respondent produced at trial the two examining doctors and all of the medical records from the Montgomery, Alabama hospital. Further, the appellant's trial attorney and claims manager were present when the two treating physicians were deposed in Montgomery, Alabama. We also note that the appellant did not obtain a medical examination of respondent by a doctor of its own choosing and presented no medical evidence.

Considering the factors as enumerated by our Supreme Court in State ex rel. Chicago R.I. & P.R. v. Riederer, 454 S.W.2d 36, 39 (Mo. banc 1970) 1 and the facts enumerated above this court cannot find an imbalance of equities or that the trial court's action was arbitrary or unreasonable and therefore we find that the trial court did not abuse its discretion in denying appellant's motion to dismiss for forum non conveniens. Appellant's first assignment of error is denied.

Appellant's second contention is that the trial court erred in excluding a witness for the appellant, Mr. Wilkinson, from the courtroom. The appellant contends that the exclusion was prejudicial toward the appellant and its employees. Mr. Wilkinson had previously testified for the appellant. Respondent called Mr. Stabler, an employee of the appellant, to the stand to rebut Mr. Wilkinson. Before Mr. Stabler testified, respondent's counsel requested that Mr. Wilkinson be excluded from the courtroom as Wilkinson was Stabler's foreman and would have a tendency to inhibit Stabler's testimony. The court granted counsel's request.

Appellant argues that it was prejudiced in two ways. First, the loud general announcement from the bench in the presence of the jury to exclude Wilkinson aroused suspicion of Wilkinson in the minds of the jury. Second, Wilkinson, who was the most knowledgeable technical representative of the appellant, had assisted defense counsel throughout the trial. By excluding Wilkinson, defense counsel was impaired in conducting his defense. To bolster its argument the appellant argues the purpose of sequestering a witness is to prevent a prospective witness from being taught from a previous witness's testimony.

It is well settled that under Rules 78.07 and 78.09 to preserve an issue for appellate review of any ruling of the trial court, the objecting party must make definite objections either at the trial or in the motion for a new trial. Beyer v. Pick, 428 S.W.2d 1, 3 (Mo.App.1968). The appellant at the time of the exclusion of Wilkinson objected by stating, "I certainly object," and "I will object to excluding Mr. Wilkinson." In addition the appellant in its post-trial motions stated that, "the court erred in sustaining the request of plaintiff's attorney that the witness James Wilkinson, after he had testified be excluded from the courtroom during the testimony of plaintiff's rebuttal witness, and the court erred in overruling defendant's objection to such exclusion even though the court was assured by defendant's counsel that the witness was not going to be called again to testify. The court further erred by announcing in the presence of the jury the witness Wilkinson's exclusion from the courtroom." These objections are neither definite nor...