Norfolk Southern Ry. Co. v. Crown Power & Equip. Co., WD73586

CourtCourt of Appeal of Missouri (US)
Writing for the CourtKaren King Mitchell
PartiesNORFOLK SOUTHERN RAILWAY COMPANY, Appellant-Respondent, v. CROWN POWER & EQUIPMENT CO., L.L.C., Respondent-Appellant.
Decision Date26 June 2012
Docket NumberWD73586,WD73616

CROWN POWER & EQUIPMENT CO., L.L.C., Respondent-Appellant.



OPINION FILED: June 26, 2012

Appeal from the Circuit Court of Sullivan County, Missouri
The Honorable Gary E. Ravens, Judge

Before Division One: Cynthia L. Martin, Presiding Judge, and
Thomas H. Newton and Karen King Mitchell, Judges

This case involves an alleged error by the jury in recording its verdict. The primary issue is whether the trial court erred in denying the plaintiff's motion for additur or, in the alternative, for a new trial as to damages only, when the damage award contained in the verdict was contrary to the uncontested facts in the record but when there was no clear alternative to the jury's damage award. We hold that, under these facts, the court should have granted a new trial with respect to damages only.

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Another issue is whether the court erred in disregarding jurors' affidavits and other evidence purporting to establish that, contrary to the court's instructions, the jury reduced the plaintiff's damages by the applicable percentage of fault,1 when the uncontested evidence showed that the jury could not have rendered a verdict for the plaintiff in the amount stated on the verdict form. We hold that, given that the verdict was unambiguous on its face, and given further that the record did not reveal a clear alternative as to create an ambiguity, the trial court did not err in denying the plaintiff's motion to amend the judgment or the plaintiff's motion for additur.

The trial court properly denied both the plaintiff's motion for a new trial based on the exclusion of expert testimony and the defendant's post-trial motion. Accordingly, we affirm in part, reverse in part, and remand for a new trial as to damages only.

Facts and Procedural Background2

At a railroad crossing in Keytesville, Missouri, a large trailer got stuck on the tracks. Michael Sehlke, an employee of Respondent Crown Power and Equipment, L.L.C., was driving the truck that was transporting the trailer. Sehlke attempted to drive the truck backward and forward, but the trailer would not move. Jason Neidholdt, who was an acquaintance of Sehlke's, stopped to aid Sehlke, and the two men looked under the trailer and saw that a wheel was caught on the tracks.

Soon thereafter,3 a train owned by Appellant Norfolk Southern Railway Company came into sight, and it became evident that a collision would occur unless the train could be stopped or

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the trailer moved. A customer of Sehlke's was nearby, and, with his assistance, Sehlke attempted to dislodge the trailer from the tracks by chaining the trailer to a pickup truck and Sehlke's own truck and then attempting to jerk the trailer free with the combined power of the two trucks. The attempt failed. Neidholdt also called a number that was listed on the railroad crossing. However, no one called 911 until after the accident.

The conductor and the engineer saw that something was on the tracks. Once they determined that the object on the tracks was not moving, they put the train "into emergency," which means that the train would stop as soon as possible under the circumstances. Sehlke continued trying to dislodge the trailer, but he finally abandoned the attempt and fled for safety.

The train struck the trailer and derailed. The accident caused no serious physical injury to anyone, but Norfolk sustained damages in that its train, rail cars, and cargo4 were damaged, and its ability to meet its clients' needs was impeded during the time it took to clear the tracks.

Norfolk sued Crown for negligence. Crown raised comparative fault as a defense. Crown argued that Norfolk could have stopped the train before impact if its personnel had been maintaining a proper lookout.

Crown also argued that (1) Norfolk had a duty to maintain the crossing at a level grade in accordance with a regulation, 4 CSR 265-8.130(1)(B); (2) Norfolk breached that duty; and (3) the breach caused the trailer to get caught on the rails, which in turn caused the accident. Norfolk filed a motion in limine, arguing that the trial court should exclude any evidence of Norfolk's alleged failure to adhere to 4 CSR 265-8.130(1)(B). The court initially denied the motion, but, during trial, the court excluded any testimony regarding 4 CSR 265-8.130(1)(B), ruling that the regulation stated only that its specifications were desirable (as opposed to mandatory) and that it would be impossible to instruct the jury on such a regulation. Crown also

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sought to have its expert opine regarding a different subset of the regulation, 4 CSR 265-8.130(2)(A), but the court excluded such testimony because Crown had not disclosed that its expert had formed an opinion regarding any noncompliance with that subsection. The court also refused Crown's jury instructions regarding Norfolk's alleged failure to comply with 4 CSR 265-8.130.

Norfolk called an expert witness who testified regarding the proper standard of care for a truck driver towing a large piece of equipment like the trailer. The expert testified that Sehlke breached the proper standard of care in that he failed to (1) plan a safe route; (2) drive over the crossing at an appropriate rate of speed; (3) measure the amount of clearance he had between the trailer and the ground; and (4) notice that the trailer would not be able to clear the railroad crossing. Norfolk sought to ask the expert whether the proper standard of care included calling 911 immediately after it became apparent that the trailer was stuck on the tracks. The trial court excluded the testimony, stating that it was a matter of common knowledge that someone can call 911 to report an emergency and that it was therefore unnecessary for the expert to so testify.

In his opening statement, Crown's attorney stated the following:

Ladies and gentlemen, damages. I'm not going to have a lot to say about damages because I really believe that the evidence is going to establish that it is the responsibility of the Norfolk Southern for this accident.
But they did—they hired a gentleman by the name of Gary Hunter, paid him over $35,000 for two months' work, and he's come up with a bunch of damages. Some of the damages there's no dispute about. You know, the cost of the destroyed automobiles that had to be salvaged, we're not disputing that. We 're not disputing the repair cost to some of the engines, but there is a lot of this damage, about 4 million dollars' worth, that I think the evidence will show that he just pulled it out of the air.
One of the things that he testifies is the impact of the slow order. He calculated some $375,000. Another railroad employee himself calculated the loss because of the impact of the slow order at about $3,000. So I'm not going to have a lot to say about damages because I think the real issue in this case is liability,

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responsibility, who's responsible, and I believe the evidence will be it's Norfolk Southern.

(Emphasis added.) Then, in his closing argument, Crown's attorney argued as follows:

Ladies and gentlemen, I told you in my opening statement, some of the damages don't even really dispute. Don't dispute the 1.8 million dollars on the bill of lad[ing]. Don't dispute the cleanup costs from the derailment. Don't dispute the autorack cars that were destroyed and their depreciated value, but there are some of the damages that I do dispute. The 2 million dollars loss of revenue on the engines, the 400 or 500,000 dollars for the loss of revenue on these autorack cars, the overhead—ladies and gentlemen, I do dispute that.
. . . .
Now, ladies and gentlemen, I would say 50 percent of the damages in this case that Mr. Hunter has been paid $33,000 to calculate is fluff, and I would urge you to use your common sense when you go back into that jury room.

(Emphasis added.)

Norfolk argued to the jury that its total damages amounted to either $7,248,467.83 or $7,004,567.83.

The trial court submitted the case with a comparative fault instruction, and the jury returned a verdict finding Crown 24.4% at fault and Norfolk 75.6% at fault. The verdict form also stated that "We, the undersigned jurors, find the total amount of plaintiff Norfolk Southern's damages disregarding any fault on the part of the plaintiff to be $1,709,114.55."

The trial court applied the percentage of Crown's fault (24.4%) to the total damages listed on the verdict form ($1,709,114.55) and entered a $417,023.95 judgment in Norfolk's favor.

Norfolk filed a motion for a new trial, a motion for additur or in the alternative for a new trial as to damages only, and a motion to amend the judgment. Along with the motion to amend the judgment, Norfolk submitted affidavits from all twelve jurors. The affidavits stated that the jury had agreed that Norfolk's damages were $7,004,567.83 and that, in arriving at their verdict,

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they reduced the total damages by the percentage of Norfolk's fault (75.6%). The affidavits stated further that the jury did not intend for the damages to be reduced again and that their verdict was that Norfolk should actually receive $1,709,114.55. The Motion to Amend the Judgment also noted that $1,709,114.55 is exactly 24.4% of $7,004,567.83.

In its motion for a new trial, Norfolk argued that the trial court erred in excluding its expert's testimony regarding Sehlke's alleged breach of the proper standard of care in failing to call 911.

Crown filed a motion titled "Alternative Post-Trial Motion for the Trial Court and Appellate Court's Consideration Should Plaintiff's Motion for a New Trial be Granted." Crown argued that, if any post-trial relief were to be granted Norfolk, Crown was entitled to a new trial because the trial court erred in (1) excluding expert testimony regarding 4 CSR 265-8.130; and (2) refusing to instruct the jury regarding Norfolk's alleged duty to comply with that regulation and/or its alleged duty to warn others regarding...

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