Palmer v. Union Pacific R. Co., ED 92841.

• Citation: 311 S.W.3d 843
• Decision Date: 29 June 2010
• Docket Number: No. ED 92841.,ED 92841.
• Parties: Leroy PALMER, Respondent, v. UNION PACIFIC RAILROAD COMPANY, Appellant.
• Court: Court of Appeal of Missouri (US)

311 S.W.3d 843

Leroy PALMER, Respondent, v. UNION PACIFIC RAILROAD COMPANY, Appellant.

No. ED 92841.

Missouri Court of Appeals, Eastern District, Division Four.

March 30, 2010.

Motion for Rehearing and/or Transfer to Supreme Court Denied May 4, 2010.

Application for Transfer Denied June 29, 2010.

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James W. Erwin, Nicholas J. Lamb, Booker T. Shaw, St. Louis, MO, for appellant.

Daniel R. Francis, St. Louis, MO, for respondent.

GARY M. GAERTNER, JR., Judge.

Introduction

Union Pacific Railroad Company (Union Pacific) appeals from the trial court's judgment entered in accordance with a jury verdict in favor of Leroy Palmer (Palmer) and against Union Pacific in an action brought by Palmer under the Federal Employers' Liability Act (FELA), 45 U.S.C. Section 51 et seq. We affirm.

Factual and Procedural Background

Palmer initiated this action under FELA. In his First Amended Petition, Palmer alleged that, while employed by Union Pacific, he was a passenger in a Union Pacific vehicle that was involved in a motor vehicle accident. Palmer further alleged that he was injured when a Union Pacific employee failed to keep a careful lookout and turned in front of a vehicle. Palmer claimed that his injuries and damages were due in whole or in part to Union Pacific's negligence in one or more of the following respects: 1) it failed to provide him with reasonably safe conditions for work; 2) it failed to provide him with a reasonably safe place to work; 3) it failed to provide him with reasonably safe transportation; 4) it failed to maintain a careful lookout; or 5) it negligently and carelessly allowed unsafe practices to become common practice.

Palmer alleged that as a result of Union Pacific's negligent conduct, he suffered serious, painful and permanent injuries to his head, back, neck, left shoulder and upper extremities, including but not limited to vessels, muscles, ligaments, nerves, intervertebral discs, and adjacent structures. Palmer also alleged emotional and psychological damages, including depression and dysthymic disorder.

Palmer filed a pre-trial motion in limine, asking the trial court, as relevant, to prohibit Union Pacific from stating that any other non-party driver had caused any portion or all of Palmer's injuries and damages and from stating that Union Pacific was therefore not responsible for his injuries. The trial court granted this request in part and denied it in part.

Following trial, a jury returned a verdict in favor of Palmer and assessed damages at $1,600,000. Viewing the evidence and all reasonable inferences to be drawn therefrom most favorably to Palmer, the pertinent evidence adduced revealed the following.

Palmer, who worked as a trackman and machine operator for Union Pacific, testified that he drove from his home in Helena, Arkansas, to Rison, Arkansas, to report for work on July 28, 2005. He arrived at Rison around 6:30 a.m. and received his safety and job briefing from his supervisor, Stanley Adams (Adams). During this briefing, Adams told Palmer and the rest of the crew to travel to a location outside of Rison to install ties. The crew was told that they would be working on two crossings. The crew was not given a map of the area and was not told the name of the road leading to the job site. They were merely told to follow Adams.

Palmer rode to Rison in a company vehicle to the first job site with an employee named Bernard Simpson (Simpson). Palmer's supervisor called a dispatcher for "track in time," which is permission to get on the track to work; however, Palmer's crew did not receive permission to install the ties at this job site. Because they did not receive track in time, Palmer and the rest of the crew were told to travel to another crossing outside of Rison. The crew was traveling in several trucks. Adams drove the lead truck. Simpson's truck was the last in line.

The caravan of trucks proceeded north on Highway 79 towards Pine Bluff, Arkansas, but missed the turn to the job site. The trucks turned around in a field and proceeded to travel southbound on Highway 79, with Simpson's truck in the lead. None of the workers knew where they were going because they had not worked in the area before, and the tracks could not be seen from the highway. Simpson slowed the truck he was driving as he tried to find the logging road that led to the job site. Traffic began to back up behind the trucks.

Palmer, who wore a seat belt, was sitting in the back seat of the truck driven by Simpson and was looking forward. Palmer did not recall Simpson activating a turn signal. As Simpson started to turn onto the logging road, his truck was struck by a green car. The impact knocked Palmer unconscious. When he regained consciousness, Palmer found himself lying across the back seat. Palmer was taken by ambulance to the Jefferson Regional Medical Center in Pine Bluff.

Two other Union Pacific employees who were members of the work crew that day, Simpson and Billy Smith (Smith), testified at trial. Both Simpson and Smith agreed that the crew was not provided clear instructions about where it was to travel and that the crew was not given mile marker information for the job location during the July 28 job briefing. Simpson and Smith both acknowledged that Adams was driving the lead truck when the crew missed the turn to the job site and that Simpson took the lead after the trucks turned around.

Simpson further testified that it was raining that day and the road was wet. After they missed their turn, the crew asked for more directions and was told to go back and look for a stop sign that had a bow on it.

When Simpson arrived at the stop sign, he was driving about 35 miles per hour, which was about 20 miles below the speed limit. He saw a northbound car rapidly approaching, so he stopped the truck at the intersection to let the car pass by. Simpson looked to ensure the way was clear. His turn signal was on. After the northbound car passed him, Simpson began his turn. About halfway through his turn, Simpson heard a car horn. He looked and saw a car approaching in the northbound lane, so he "goosed it." The car struck the two back doors of Simpson's truck. The truck spun around and went into a ditch.

During cross-examination, Palmer asked whether Simpson had ever been convicted of a misdemeanor. Simpson indicated that he had not. When Palmer then asked Simpson if he had pleaded guilty to first-degree family assault, Simpson admitted that he had. After Simpson indicated that he had forgotten the incident, Palmer stated, "Okay. So I just want to go over the details of how you can forget that incident." Union Pacific objected, and the following bench discussion occurred, after Palmer indicated that Simpson had two convictions:

The Court: My ruling is you can ask him did he have another conviction, yes or no, and what was it for, this or that.

Palmer: There's another issue. In opening statement he vouched this man was a family man, worried about his wife.

The Court: I think the prejudice outweighs the relevance. If you want to get into the details of the crime, I say no.

Palmer: I have the case law that says you are allowed to whenever the witness is lying.

Union Pacific: I think the judge can use discretion. So are you sustaining the objection about him getting into it?

The Court: I am sustaining the objection with respect to the details of the crime.

Subsequently, Palmer again asked Simpson if he had pleaded guilty to first-degree family assault and Simpson indicated he had. Palmer then asked Simpson if he had pleaded guilty to another offense of first-degree assault on a family member. When Simpson denied that he had, Palmer said, "You pled—well, let's go over it then. You did one for your wife and one for your daughter; is that correct?" Simpson replied, "No." After Simpson indicated that he did not think he had to tell about these incidents because they were personal, Palmer attempted to establish that Simpson "selectively chose what truth to tell." Thereafter, the trial court sustained various objections and instructed Palmer to move on. During a recess, the trial court denied Union Pacific's motion for mistrial based on the cross-examination of Simpson with respect to his misdemeanor conviction.

During his trial testimony, Smith further stated that he was driving the second truck, behind Simpson's. The trucks were traveling below the speed limit so that they would not miss the turn-off again. Smith also testified that Simpson activated his left turn signal when he prepared to make his left turn on to the logging road. Simpson's truck was at a dead stop. A big Aramark truck was behind the three Union Pacific trucks on the highway.

Before Simpson could turn, a car approached. After this vehicle passed, Simpson paused for a few seconds, and started to turn. Halfway through Simpson's turn, a car "came up from nowhere," passing the four vehicles. Smith could not see this car because it was behind the Aramark truck. Simpson's truck was halfway into the lane when the car hit the truck. Prior to the collision, the Union Pacific trucks were traveling only two or three miles per hour.

Richard Moore (Moore), a witness to the collision, testified that on July 28, 2005, he was driving an Aramark delivery truck from Pine Bluff to Camden. As Moore traveled south on Highway 79, he came upon three Union Pacific trucks. He could tell the trucks were slowing because their brake lights were activated, so he slowed also, maintaining two—to three-car-lengths between him and the last truck. The Union Pacific trucks stopped.

When Moore approached the three trucks, he could not tell that they were preparing to make a left turn. As Moore slowed his vehicle, he noticed a car passing him at a speed Moore estimated to be in excess of 60 miles per hour. The lead Union Pacific truck then began to make a left-hand turn onto a gravel road. After this first...