Payne v. Cornhusker Motor Lines, Inc.
| Citation | 177 S.W.3d 820 |
| Decision Date | 09 August 2005 |
| Docket Number | No. ED 84687.,ED 84687. |
| Parties | Charles PAYNE, Respondent, v. CORNHUSKER MOTOR LINES, INC., Appellant. |
| Court | Missouri Supreme Court |
Kevin L. Fritz, Dean A. Stark, St. Louis, MO, for appellant.
Roger Denton, Paul Slocomb, St. Louis, MO, for respondent.
Charles Payne ("Plaintiff"), a train engineer for Union Pacific, was operating a train near Paragould, Arkansas when it collided with a tractor-trailer owned by Cornhusker Motor Lines ("Defendant"). Plaintiff sued for injuries sustained in the accident and a jury awarded him $3,500,000.00 in damages and assessed him to be 15% at fault. The court granted Plaintiff's motion for judgment notwithstanding the verdict ("JNOV") and reversed the jury's comparative fault findings. Defendant appealed.1
Defendant raises nine points on appeal: (1) the trial court erred in granting Plaintiff's motion for JNOV and reversing the jury finding that Plaintiff was 15% at fault because Defendant made a submissible case for comparative fault; (2) the trial court erred in not letting Defendant cross-examine Plaintiff about Plaintiff's personal knowledge that the railroad crossing at issue was dangerous; (3) the trial court erred in permitting Plaintiff to call and elicit certain testimony from James Armes who was not designated as an expert witness; (4) the trial court erred in permitting Plaintiff to read portions of the deposition of Gary Allgeier, a company clerk for Defendant, where Allgeier testified regarding Section 392.10 of the Federal Motor Carrier Safety Regulations, James Sheppard's compliance with that regulation and Sheppard's fault in the accident; (5) the trial court erred in denying Defendant's motion for JNOV/New Trial and Defendant's motion for a full evidentiary hearing regarding juror non-disclosure because Defendant was denied its right to an impartial jury in that six jurors failed to respond to clear and material questions during voir dire regarding prior litigations and claims; (6) the trial court erred in refusing to admit the medical records of Dr. David Stronsky and Dr. Eli Shuter based on Plaintiff's objection to authenticity when Plaintiff stipulated to the authenticity of the records and the court released the records custodians who had been subpoenaed by Defendant; (7) the trial court erred in denying Defendant's motion for directed verdict and JNOV or Defendant's motion for a new trial because there was no credible or properly admissible evidence of Defendant's negligence or that Defendant's negligence, if any, contributed to or caused injury to Plaintiff; (8) the trial court erred in permitting the introduction of evidence of the replacement cost of insurance for Plaintiff's wife and child as this evidence was inadmissible and prejudicial; (9) the trial court erred in denying Defendant's motion for JNOV or motion for new trial as well as denying Defendant's motion for remittitur because the verdict is grossly excessive and is so excessive as to indicate bias, prejudice and jury misconduct. We affirm in part and reverse in part and remand.
It is undisputed that, on October 18, 2000, Plaintiff, then age 56, was operating a train near Paragould, Arkansas when he approached a railroad crossing at Goldsmith Road (hereinafter the "crossing"). The crossing had no gates or warning lights. At about this time, Sheppard, an employee of Defendant with approximately 25 years' experience driving a tractor-trailer unit, also approached the crossing. Plaintiff's train collided with a Cornhusker truck driven by Sheppard. At that point, the train was moving at 46 miles per hour. Sheppard was killed in the accident. Plaintiff applied the emergency brake at the moment of impact.
The proper interpretation of the facts regarding what happened before the collision is disputed by the parties. At trial, two witnesses testified to the events that happened before the collision, Plaintiff and Joe Brummett, a man who lived near the crossing. Plaintiff testified regarding the collision as follows:
We were leaving Paragould. Like I had said, I was belling [sic] up speed. There's Goldsmith crossing right before your whistle board, about a quarter of a mile. I started blowing my whistle. I noticed out of the corner of my eye this tractor-trailer coming up. And two longs, two short, that's the performance of your duties. I do not believe the man ever seen me. I never seen him. I could see him. When I got close enough that I could see him I was still doing my two longs and two shorts. But within the last ten seconds or so, I laid on it continuously because he didn't appear like he heard or seen me. And the tractor-trailer pulled up on the crossing. I big-holed the train.
Plaintiff testified that it was common for vehicles to approach crossings and he expected the tractor-trailer to stop. He testified that he saw the cab of the tractor-trailer dip down twice and he thought that meant the tractor-trailer was attempting to stop. Plaintiff said that when the train reached the crossing, the cab of the tractor-trailer was on the tracks and Plaintiff saw Sheppard looking north, away from the train. Plaintiff could observe the crossing before the whistle board,2 and his view was unobstructed.
He testified that as he approached the crossing he had one hand on the whistle and his other on the brake valve. Plaintiff also stated that when the collision occurred, he put the train into emergency stop.
He testified that the inertia of the train prevented it from stopping immediately on the tracks. When asked how far past the crossing the train stopped, Plaintiff testified, "I would say about three quarters of a mile, from a half to three quarters, or every bit of that." Plaintiff also testified:
Q (By Plaintiff's counsel) Charlie, was there anything you could do to slow down or stop that train when you saw that guy run the stop sign?
A No.
Q Absolutely nothing you could do?
A No.
Q All you could do was blow your whistle and hope; is that right?
A Yes.
When asked what happened to him physically during this collision, Plaintiff said:
Again, inertia of the tonnage and the impact send — in my seat, I was slammed forward to the front and back and forth from the train, the slack going in and out, sliding forward, the load set up, train set up. And that's the effect it gives. I was slammed down to the floor, banged around from the fire wall to the control stand before I fell. And that's where I wound up was between the floor and the fire wall next to the control stand there.
He testified that he had a window open and glass and parts of the tractor-trailer were flying in the window. Plaintiff also testified that after he got home, he had pain and numbness in his hands and back, but that he could not see his doctor immediately because the doctor was on vacation.
On cross-examination Plaintiff testified that he was able to see the crossing before he reached the whistle board and that his practice was to start blowing the whistle before he even reached the whistle board. He testified that he had not yet reached the whistle board when he first saw the tractor-trailer. Plaintiff stated that he was operating the train at a speed of 40-43 miles per hour when he first saw the tractor-trailer and he was still building speed. He said that he did not know how close the tractor-trailer was when he saw the cab dip down and he did not know the speed the tractor-trailer was going.
Q (By Defendant's counsel) Okay. What caused you to put your hand on the brake valve?
A The truck didn't stop.
Q Okay. And at the point in time where you begin continuously blowing your whistle, is that when you put your owe [sic] hand on the brake valve?
A I had my hand on the brake valve.
Q Okay. Before impact you were never able to make eye contact with the driver of the tractor trailer; were you?
A What I could see of, no.
Q After this accident, after the impact occurred, you don't know how long it took for your train to stop after you threw it into emergency; do you?
A I could give you a proximity.
Q You don't know exactly how long it took; do you?
A No.
Q But it may have stopped within half a mile of the crossing or three quarters of a mile of the crossing?
A Three quarters to a mile for sure.
Q I think yesterday you told us half a mile to three quarters?
A Half to three quarters, depends on the length of the train, that particular train I believe three quarters of a mile.
Q Okay. Was there a reason why you told us that it might have been a half mile to three quarters of a mile yesterday?
A Just depending on which brakes set up first.
Q And you really don't recall a landmark as to that would help you determine where it was that the tractor — or that the train stopped after the impact; correct?
A That is correct.
Q You put the train into emergency when the train hit the tractor trailer; correct?
A Yes.
Q And at that point in time the speed of the train was about 46 miles per hour; correct?
A Approximately.
Plaintiff also testified that the tractor-trailer never stopped from the time Plaintiff saw it until the train hit it and that Plaintiff had never lost sight of the tractor-trailer. He testified that he did not know if there was a stop sign at the crossing.
Brummett also testified regarding his observations of the accident. Through deposition testimony, Brummett stated that at the time of the accident, he was behind his house in Paragould, which is four to five hundred feet from the crossing where the accident occurred. He said that he had been living at that house since 1957. Brummett testified:
Q (By Plaintiff's counsel) What did you hear exactly?
A I heard the whistle.
Q Okay. And, did you look to see the...
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Smith v. Brown & Williamson Tobacco Corporation, No. WD 65542 (Mo. App. 7/31/2007), WD 65542.
...denial of a motion for judgment notwithstanding the verdict is whether a submissible case was made. Payne v. Cornhusker Motor Lines, Inc., 177 S.W.3d 820, 832 (Mo. App. E.D. 2005). In order to make a submissible case, the plaintiff must present substantial evidence for every fact essential ......
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