McGee v. Burlington Northern, Inc.

• Decision Date: 07 December 1977
• Docket Number: No. 13462,13462
• Citation: 571 P.2d 784,174 Mont. 466,34 St.Rep. 1304
• Parties: Donald R. McGEE, Plaintiff and Respondent, v. BURLINGTON NORTHERN INC., a Corporation, Defendant and Appellant.
• Court: Montana Supreme Court

Page 784

571 P.2d 784

174 Mont. 466

Donald R. McGEE, Plaintiff and Respondent, v. BURLINGTON NORTHERN INC., a Corporation, Defendant and Appellant.

No. 13462.

Supreme Court of Montana.

Submitted Oct. 7, 1977.

Decided Nov. 15, 1977.

Rehearing Denied Dec. 7, 1977.

Gough, Shanahan, Johnson & Waterman, Helena, Cordell Johnson (argued), Helena, for appellant.

Hoyt & Bottomly, John C. Hoyt (argued), Great Falls, for respondent.

HARRISON, Justice.

This is the second appeal to this Court of an action for damages initiated by Donald R. McGee against Burlington Northern, Inc., as a result of injuries sustained in an accident occurring on November 4, 1971. The first jury trial resulted in a verdict for plaintiff McGee in the amount of $525,000. That verdict was appealed by defendant and this Court held defendant was negligent as a matter of law, but remanded the case for retrial on the issues of damages and contributory negligence. McGee v. Burlington Northern, Inc., 167 Mont. 485, 540 P.2d 298 (1975). Plaintiff's petition for rehearing was denied by this Court on September 12, 1975. Plaintiff's subsequent petition to the United States Supreme Court for a writ of certiorari was denied. McGee v. Burlington Northern, Inc., 423 U.S. 1074, 96 S.Ct. 857, 47 L.Ed.2d 83 (1976).

Retrial of the cause before a jury began April 27, 1976 in the District Court, Cascade County. Following trial, the jury returned a verdict for plaintiff in the amount of $618,000. Judgment was entered. Defendant's motion for a new trial was denied. Defendant appeals from the judgment.

The facts developed at retrial are:

On the evening of November 4, 1971, plaintiff was a member of the train crew engaged in yard switching at the station of Omak, Washington. Plaintiff was the "swingman" in charge of carrying out the orders contained in the switching list. The remainder of the crew was composed of a conductor, an engineer, a flagman responsible for stopping and making fast those cars which were switched onto a different track, and a head brakeman, who operated the switching mechanisms.

Just prior to the accident, the switch engine was on the main line, facing east. A boxcar was coupled in front of the engine, and a chip car coupled directly to the front of the boxcar. Plaintiff determined that to successfully accomplish the switch, it would be necessary to "kick" the chip car upgrade, along the main line. The switch would then be thrown, such that the engine and the boxcar could proceed off the main line and onto the passing track.

It was dark, and switching was being accomplished by way of railroad lantern signals. Plaintiff first gave a "kick" sign to the engineer. As the engine moved forward, plaintiff attempted to pull the lever which would release the coupling mechanism and, when the engine stopped, send the chip car up the main line. The pin in the coupling mechanism did not pull, so the engine was stopped. Plaintiff then applied some different pressures and was eventually successful in pulling the pin. The pin, however, did not remain in the "up" position. During the second attempt to "kick" the car, plaintiff was forced to run alongside the car while holding the lever in the "up" position. The car was "kicked" along the main line to a point where the flagman "chopped" the wheels to prevent it from rolling back down the grade. The engine and boxcar were positioned such that the front wheels of the boxcar were directly over the switch points. Plaintiff testified he was unaware of this fact.

There is a conflict in the evidence as to what signal plaintiff then gave to the engineer. Plaintiff testified he gave "a little backup sign." The engineer testified that the next signal he received was a "come ahead" sign. According to plaintiff, he then told the head brakeman the engine and boxcar were to be moved onto the passing track, and the brakeman acknowledged verbally. The brakeman failed to recall the exchange, but was aware the engine and boxcar were to move onto the passing track. He could not throw the switch, however, because of the positioning of the front wheels of the boxcar.

In any event, plaintiff began walking east along the south side of the main line and called to the flagman, "We are going to pull the pass." The flagman raised and lowered his lantern in acknowledgement. Plaintiff, interpreting this according to railroad signal movements as a "come ahead" signal, relayed it to the engineer. The flagman was, at that time, walking down the passing track, out of the sight of the engineer.

After relaying the signal, plaintiff was standing along the south side of the main line, facing east, away from the oncoming train movement, and was studying the switch list by the light of his lantern. As he became aware the boxcar was passing him, he was struck from behind by a steel door handle protruding from the side of the boxcar. Plaintiff was forced to the ground and sustained serious injuries to his back, neck and left knee as a result. There were no direct witnesses to the accident itself. Plaintiff has been unable to work since the accident.

Retrial was before the District Court of Cascade County, the Hon. Nat Allen presiding. Defendant admitted liability on the case and the trial proceeded on the issues of damages under the Federal Employers' Liability Act (FELA) and the Federal Safety Appliance Act (FSAA), and contributory negligence.

Following deliberation, the jury returned a verdict for plaintiff in the amount of $618,000 and judgment was entered thereon. The District Court denied defendant's subsequent motion for a new trial. This appeal followed.

The issues presented for review are:

1. Did counsel for plaintiff in final argument, in effect, improperly urge the jury to assess punitive damages against defendant?

2. Did the trial court err in submitting the issue of a FSAA violation to the jury?

3. Did the trial court err in giving and refusing certain instructions?

4. Did the trial court err in permitting plaintiff to introduce into evidence, over objection, a surveillance report compiled by defendant?

5. Did the trial court err in allowing improper rebuttal testimony offered by plaintiff?

6. Was the verdict excessive, as a result of passion or prejudice?

Issue 1. Defendant Burlington Northern argues the closing statement of plaintiff's counsel contained statements which, in effect, were arguments for punitive damages, impermissible under the holding of this Court in the first McGee appeal. The jury, it is maintained, was incensed and prejudiced as a result.

The record indicates the remarks complained of were:

" * * * How can the railroad be encouraged to do these things right? How can they be encouraged not to allow rules violations? How can they be encouraged to protect their men? Well, one way is by your verdict in this case.

" * * *

"The railroad is not cheap when it comes to spending money on such things as surveillance surveillance of one of its own employees, that it injured through its own gross and wilful and rotten negligence * * *."

Defendant objected, on the ground the argument went to punitive damages, an impermissible element of damages in a FELA case, citing as authority the first McGee opinion. The objection was overruled. Defendant's subsequent motion for a mistrial on this basis was denied. Following the court's ruling, this exchange between the court and defense counsel occurred:

"THE COURT: No. The Court thinks you're being completely you're misconstruing what he said completely. He never used the word 'punitive' or any synonym thereof in his argument, did he?

"MR. JOHNSON: No, he didn't, Your Honor.

"THE COURT: And the Jury would fail to recognize your motion if they heard it in front of the jury as being applicable to the facts.

"Your motion is denied."

This Court recently considered the effect of insertion of the element of punitive damages into the trial of a FELA action. Torchia v. Burlington Northern Inc., Mont., 568 P.2d 558, 34 St.Rep. 1011 (1977). In Torchia, we held that offered evidence, argument and instructions relating to punitive damages or the concept of "gross and willful negligence", while having no place in a FELA action, were not a ground for reversal, as the evidence failed to establish conduct which would have supported an award of punitive damages, and the jury failed to award them. Upon a review of the instant record, it is clear the element of punitive damages, apart from the possible connotations of counsel's statements set forth above, was wholly absent at the retrial. This issue we specifically met in Torchia, adversely to the defendant's position. Hill v. Chappel Bros. of Montana, Inc., 93 Mont. 92, 18 P.2d 1106 (1932).

Issue 2. Defendant also maintains that the trial court should have granted its motion for a directed verdict on the issue of the alleged FSAA violation. The core of its argument is that there was no showing that the automatic coupler was defective by FSAA standards, or that there existed a causal relationship between the alleged defect and plaintiff's injury, both elements being required under cases interpreting the pertinent provision of the FSAA, 45 U.S.C. § 2.

During the course of trial, plaintiff attempted to show that the automatic coupler mechanism between the boxcar and the chip car was defective, in that it would not remain uncoupled during normal switching operations. Such failure was alleged to have made necessary the second "kick" and caused the wheels of the boxcar to come to rest on the switch points, such that the engine proceeded along the wrong track, eventually leading to plaintiff's injury.

Defendant produced a witness in its case-in-chief, one Orville Busch, who participated in an inspection of the car involved in the accident. His duties, as an employee of defendant, were to inspect and repair freight and passenger cars and determine whether the cars satisfied FSAA standards. Busch testified that, upon his inspection, the...