Merando v. Atchison, Topeka and Santa Fe Ry. Co.

• Citation: 232 Kan. 404,656 P.2d 154
• Decision Date: 29 December 1982
• Docket Number: No. 53532,53532
• Parties: Frank J. MERANDO, Appellee, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Appellant.
• Court: United States State Supreme Court of Kansas

Page 154

656 P.2d 154

232 Kan. 404

Frank J. MERANDO, Appellee, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Appellant.

No. 53532.

Supreme Court of Kansas.

Dec. 29, 1982.

Syllabus by the Court

1. During deliberation on a verdict, jurors may average their suggested awards so long as there is no prior agreement to be bound by the result of mathematical computation. Such a binding prior agreement is the evil which courts have found objectionable, and which impeaches the verdict and subverts the deliberative process by which jurors must arrive at their verdict.

2. The mental processes by which a jury arrives at its verdict may not be inquired into in order to impeach that verdict.

3. The trial court has discretion to waive its rules and to permit a party to call a witness who has not been previously disclosed to the opposing party, or who has not been listed as an expert. When we are called upon to review the trial court's exercise of discretion in permitting such a witness to testify, we must determine whether the opposing party was taken by surprise, whether the testimony is critical or cumulative, and whether or not the opposing party was substantially prejudiced.

4. Photographs which illustrate the nature and extent of the injuries sustained by the plaintiff in a civil case are ordinarily admissible in evidence, even though they may be gruesome.

5. The inclusion of trial errors in a motion for new trial is not a prerequisite to review of such errors on appeal, but it is the preferable procedure since it gives the trial court a second opportunity to consider the matter.

6. The fact that the evidence of future medical expenses is not extensive, and that future medical expenses cannot be precisely calculated, does not preclude consideration thereof by the jury.

7. The refusal of a trial court to give a requested instruction does not result in reversible error when the substance thereof is contained in the instructions given.

8. There is no fixed or absolute standard for measuring the excessiveness or inadequacy of a verdict in a personal injury action. In order for a judgment to be set aside on the grounds of an excessive verdict, it must appear that the amount of the verdict is so grossly excessive as to shock the conscience of the court.

Leonard O. Thomas and David K. Fromme, of Weeks, Thomas & Lysaught, Chartered, Kansas City, argued the cause, and Paul R. Hoferer, Topeka, was with them on the brief, for appellant.

Payne H. Ratner, Jr., of Ratner, Mattox, Ratner, Barnes and Kinch, P.A., Wichita, argued the cause, and William L. Roberts, Kansas City, was with him on the brief, for appellee.

MILLER, Justice:

The plaintiff, Frank J. Merando, was injured while employed as a switchman for the defendant, the Atchison, Topeka and Santa Fe Railway Company (Santa Fe) at Topeka, Kansas. He brought suit in Wyandotte District Court under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and following a jury trial recovered a judgment against the Santa Fe for the sum of $529,200. From that judgment and the overruling of its post-trial motions, the Santa Fe appeals. We will first set forth the facts, and then discuss the nine issues raised.

The plaintiff was injured while switching freight cars in the Santa Fe yards in Topeka, Kansas. The switchyards lie generally between 4th Street and 8th Street; there are thirteen tracks used in the switching operation. These tracks run north and south, slope downward toward the north at approximately 0.146 percent grade, and are generally parallel to each other. All of the tracks come together north of 4th Street and south of 8th Street to form a single "lead" track.

Switching involves the use of an engine to move cars onto different tracks. There are two procedures used, "shoving" and "kicking." In shoving cars, the engine is coupled to the cars to be moved; it then backs onto the lead track with the cars attached; the appropriate switch is opened; the engine pushes the cars onto the desired track, to the desired location. The engine is then uncoupled and backs out to the lead track. In "kicking," the procedure here involved, the engine pulls the cars onto the lead track, the proper switch is opened, and the engine reverses direction. After the slack is out of the line, a member of the crew uncouples the cars to be "kicked." The engine pushes them forward; when the proper speed is reached, the engine stops and backs out onto the lead track; the disconnected cars continue their forward progress and roll onto the desired track.

On December 22, 1978, plaintiff was assigned as area foreman of a switch crew working in the south end of the Santa Fe yards. Another crew was assigned to the north end of the yards; the two crews were aware of each other but were not informed of each other's assignments. Each had a list of the cars his crew was to switch; these lists were prepared by the yardmaster.

About 4:30 o'clock that afternoon, plaintiff instructed the engineer on his switch engine to move onto track 112. Plaintiff crossed the yards, apparently to a point between tracks 112 and 113. He observed three freight cars on track 113; when he first saw them, they were standing still. His crew had not placed them there. In a few minutes, he noticed that the three cars were rolling toward the north. There is a grade crossing at 4th Street, and serious injury and damage could be caused if unattended cars are permitted to roll to the north. Plaintiff looked to the north, saw no approaching cars, and started to board the southermost of the three cars in order to apply the hand brake. Just as he began to board the car, a cut of several freight cars which had been kicked south onto track 113 by the other crew collided with the northernmost of the three rolling cars. Plaintiff was thrown to the ground by the force of the impact, and both of his feet were severely injured by the wheels of one of the cars. He sustained broken bones in one foot and a severe crushing injury to the other. One toe was amputated. The full thickness of most of the skin on one foot had to be removed and was replaced by skin grafts from plaintiff's thigh. His legs were pinned and his feet were suspended in mid-air until the grafting operations were completed and the surface of his feet had healed. Medical testimony indicated that this was an extremely painful procedure. Plaintiff was in the hospital for several months and off work for well over a year. He has functional impairment of both feet, and future difficulty with his feet is likely.

At trial, the Santa Fe contended that plaintiff was contributorily negligent in failing to see the freight cars approaching from the north. Plaintiff contended that the railway was negligent in failing to apply the hand brake or "tie down" the three cars kicked onto track 113, in kicking the next cars at an excessive speed, in switching cars at both ends of the track without providing a clear understanding to all crew members of the movements to be made by the respective crews, and in failing to comply and to require compliance with all safety rules. The jury returned a total verdict of $630,000 and found plaintiff 16% negligent and the railway 84% negligent. A judgment of $529,200 for plaintiff resulted.

1. The first issue raised by the appellant is that the trial court erred in refusing to hear evidence of juror misconduct, and in failing to order a new trial for juror misconduct. This claim is based on similar affidavits of two jurors.

The trial court properly instructed the jury that contributory negligence by a plaintiff does not prevent recovery, but does reduce his damages. This is in accord with the applicable federal law, 45 U.S.C.A. § 51 et seq. The court then instructed the jury that if it found that plaintiff's injury resulted in whole or in part from the negligence of both the plaintiff and the railroad, it should proceed first to determine the amount of plaintiff's damages without considering the effect of plaintiff's negligence. Next, it would determine what percentage plaintiff's negligence was of the total negligence. Finally, it would reduce the plaintiff's damages by the percentage of his negligence. The jury was thus able to see precisely what their finding of percentage of negligence on the part of the plaintiff would do, and exactly what judgment would result. The court's instruction in this regard was the usual one given in FELA cases where contributory negligence of an employee is claimed. See PIK Civ.2d 16.31 (1977). It parallels the practice of advising a jury of the effect of its answers to special questions in comparative negligence cases, a practice we approved in Thomas v. Board of Trustees of Salem Township, 224 Kan. 539, 550-551, 582 P.2d 271 (1978). The special verdict form submitted by the Court followed its instruction referred to above. The jury was told to find (1) the total damages, (2) the percentage of the total negligence attributable (a) to Frank J. Merando and (b) to the Santa Fe, and (3) to deduct the percentage of plaintiff's negligence from the total damages, and thus to compute plaintiff's net award.

The affidavits of the two jurors indicate that the jury did its calculation in reverse. It first determined item 3, the net award the jury wanted plaintiff to receive. Next, it determined what percentage that sum was of the total amount plaintiff claimed, and found that percentage to be 84%. It then assigned 84% negligence to the Santa Fe and 16% negligence to the plaintiff. Finally, it assigned as the total damages sustained the entire amount requested by plaintiff's attorney. The amount awarded to plaintiff was the amount the jurors had agreed upon. One juror says: "At one point, we had attempted to pick a percentage of fault to apportion to each party, but we found that it was impossible for everyone to agree on a figure." The other juror says: "The jury never decided on a percentage of fault...