Keith v. Burlington Northern R. Co., s. 18959

Decision Date17 November 1994
Docket NumberNos. 18959,18967,s. 18959
Citation889 S.W.2d 911
PartiesMarshel KEITH, Respondent-Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, Appellant-Respondent.
CourtMissouri Court of Appeals

Thomas Strong, Jeffrey W. Bates, Clifton Smart III, Strong & Associates, P.C., Springfield, for respondent-appellant.

Glenn A. Burkart, Bruce E. Hunt, Daniel E. Miller, Mann, Walter, Burkart, Weathers & Walter, L.C., Springfield, for appellant-respondent.


Marshel Keith (Plaintiff) obtained a jury verdict of $900,000 on his claim against the Defendant Burlington Northern Railroad Company (BN) under the Federal Employers' Liability Act, 45 U.S.C.A. § 51, et seq. (1986) (FELA). The trial court entered judgment for Plaintiff in accordance with the jury verdict. BN's post-trial motions included a motion to amend the judgment in which BN requested a credit against the judgment for all Railroad Retirement Board (RRB) sickness benefits and for all "Benefit Trust Life" benefits paid to Plaintiff. The trial court sustained this motion and entered an amended judgment in the amount of $875,771.67. BN's remaining motions were overruled. The parties filed cross-appeals.

Plaintiff's sole point on appeal complains that BN was not entitled to any credits on the judgment. BN's appeal presents twenty allegations of trial court error.

Plaintiff submitted his case based upon BN's negligent failure to provide either reasonably adequate help or reasonably safe methods of work. The facts which support these theories of negligence follow.

Plaintiff worked for BN on Gang 826. On May 8, 1991, Gang 826 had the job of removing old railroad ties from Bridge 62.9. On this date the five-man gang was one man short because one person was on vacation. Larry West, foreman of the crew, asked his superior for additional help but none was supplied. In any event, West was responsible for deciding the method of work to be used and for ensuring the safety of his crew.

A truck crane stationed on the tracks adjacent to the bridge aided removal of the ties from the bridge. West and another crew member worked on the bridge removing the ties. They attached each tie to the crane's cable using tongs which were connected to the center area of each tie. Hal Choate, the crane operator, then lifted and carried the ties over to the area where Plaintiff stacked them. Each tie weighed between 450-600 pounds. Plaintiff, working alone, had the job of guiding the placement of each tie on the stack and after the tie came to rest, unhooking the tongs from it. That process was repeated until one stack was completed shortly before noon. The crew stopped for lunch before starting a second stack.

The ties were being stacked on four or five "three by twelve" boards (walkway boards which had been removed from the bridge). These boards had been placed on the right-of-way parallel to the rail line, and the ties were being stacked perpendicularly across the boards. The first stack consisted of fifteen ties, stacked five to a row and three rows high. Plaintiff intended to build a second stack in the same manner because a total of thirty ties had to be removed from the bridge.

The site that West selected for stacking the ties sloped downhill to the east and to the north (a compound slope with a grade of 17%). Therefore, the ground underneath the boards was somewhat uneven.

That afternoon Plaintiff was in the process of placing approximately the ninth tie on the second stack. He guided the tie into position, and Choate let the weight of the tie come to rest on the stack which allowed the cable to slacken. While Plaintiff was unhooking the cable, two ties from the first stack fell and fractured his left leg. At that time, Plaintiff was located midway between the two stacks with his back to the first stack. The two stacks were approximately three and a half to four feet apart. Plaintiff had to be between the stacks in order to unhook the cable since it was attached to the middle of each tie.

Plaintiff introduced evidence that the safe practice required two men to stack the ties. When two men stack the ties, they are positioned at each end of the tie to guide it in place. Only after the tie comes to rest would one man then walk to the middle and unhook the cable. The stacking is dangerous when the weight of the tie comes to rest on the stack. At that point, the added weight could cause the stack to shift and possibly fall on a nearby worker. When two men stack ties, neither of them would be in the middle of the stack until after the critical time had passed.

Plaintiff's expert witness explained why ties from the first stack fell on Plaintiff. He testified the boards were not flush against the ground due to the compound slope and 17% grade. Because the boards were on uneven ground they would sag or bend to the ground as more weight was added. The expert concluded that when the extra weight of the ninth tie was added to the second stack, there was either a sag in the underneath boards or there was a "teeter-totter" effect which caused the ties to fall.


BN's first point complains of improper closing argument from Plaintiff's counsel. BN alleges the trial court erroneously denied its request for a mistrial and its alternative request that the jury be instructed to disregard Plaintiff's argument concerning "foreseeability" because the argument was misleading and misstated the law.

In evaluating BN's assertion, we are mindful that "[d]etermining the prejudicial effect of final argument is a matter within the discretion of the trial court, and the trial court's judgment on that matter will not be disturbed unless there was an abuse of discretion." Hoover's Dairy v. Mid-America Dairymen, 700 S.W.2d 426, 434 (Mo. banc 1985). Wide discretion is given to a trial judge and, absent abuse, the judge's decision will stand. Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 870 (Mo. banc 1993). Furthermore, "the law indulges a liberal attitude toward argument, particularly where the comment complained of is fair retort or responds to prior argument of opposing counsel." Lewis v. Bucyrus-Erie, Inc., 622 S.W.2d 920, 926 (Mo. banc 1981).

Plaintiff justifies his remarks by taking the position that his rebuttal argument was a proper retaliatory response to BN's earlier misstatement of the law on foreseeability. Plaintiff correctly urges that we must review his challenged comments on foreseeability in light of the entire record and not in isolation. See Lewis, 622 S.W.2d at 926.

Understanding the parties' arguments first requires a brief discussion of the type of foreseeability necessary for establishing liability in a FELA case. Both parties cite Gallick v. Baltimore & O.R.R., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963), for the rule that reasonable foreseeability of harm is an essential ingredient in a FELA negligence case. Id. at 117, 83 S.Ct. at 665. Thus, "[i]n this context, FELA negligence exists if the employer knew or should have known its standard of conduct was inadequate to protect its employee from injury." Hertzler v. Burlington N. R.R., 720 S.W.2d 762, 766 (Mo.App.1986). Furthermore, "[i]t is knowledge or anticipation of the possibility of harm to plaintiff, not of the exact nature of the injury, that is determinative." Stewart v. Alton & S. Ry., 849 S.W.2d 119, 125 (Mo.App.1993).

These cases demonstrate that the foreseeability requirement is satisfied if some injury, rather than plaintiff's precise injury, were reasonably foreseeable. Therefore, as both parties agree, there are two kinds of foreseeability--general and specific. The failure to prove general foreseeability is fatal to recovery in a FELA case, while the failure to prove specific foreseeability is not.

This view is consistent with the requirement of MAI 24.01 (1992 Revision) (the applicable FELA verdict director) when the element of foreseeability is disputed. In that instance the Notes on Use, Note 2, specifies that the following paragraph shall be submitted, "Second, conditions for work were not reasonably safe and defendant knew or by using ordinary care could have known of such conditions and that they were not reasonably safe, and."

Before delving into the closing arguments, one significant circumstance must be noted. At the instruction conference, Plaintiff first tendered a verdict director patterned after MAI 24.01. This instruction contained the foreseeability element for submission to the jury as required by the Notes on Use under MAI 24.01. Although BN's counsel made only a general objection to this instruction, the trial court refused the instruction and marked it as "Court A." Plaintiff tendered another verdict director, marked as Instruction 7, which was submitted to the jury over BN's specific objections. The two instructions were identical in nature except that Instruction 7 omitted the foreseeability element. None of BN's objections went to that omission.

The argument about which BN complains follows:

We get a verdict, you see, we get a verdict if you believe adequate help, methods of work, third, such negligence resulted in whole or in part in injury to Plaintiff Marshel Keith. This means even if you believe Marshel Keith was somewhat negligent, we still get a verdict, even if you believe that this was unforeseeable, we still get a verdict. You know, I heard said once that if a lawyer can say something three times, it is just as good as if it were the law. And from the opening statement to the final argument, Mr. Hunt has talked about this wasn't foreseeable. He couldn't foresee it, West, Gillen, Choate, no one foresaw it. Folks, you can read these instructions until you go blind and you will find no requirement that Keith, or West, or anyone had to foresee this coming. There is no element in the case that says that. This...

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