Qualls v. St. Louis Southwestern Ry. Co.

• Decision Date: 20 November 1990
• Docket Number: No. 72683,72683
• Parties: Dennis QUALLS, Plaintiff-Appellant/Cross-Respondent, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Defendant-Respondent/Cross-Appellant.
• Court: Missouri Supreme Court

Page 84

799 S.W.2d 84

Dennis QUALLS, Plaintiff-Appellant/Cross-Respondent, v. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY,

Defendant-Respondent/Cross-Appellant.

No. 72683.

Supreme Court of Missouri,

En Banc.

Nov. 20, 1990.

G. Edward Moorman, St. Louis, for plaintiff-appellant/cross-respondent.

John B. Gunn, Leslie G. Offergeld, St. Louis, for defendant-respondent/cross-appellant.

HOLSTEIN, Judge.

Plaintiff Dennis Qualls obtained a jury verdict on his claim against defendant St. Louis Southwestern Railway Company (the railroad) under the Federal Employers' Liability Act, 45 U.S.C.A. § 51, et seq. (West 1986) (FELA). Defendant filed a "post-trial motion" requesting the judgment be set aside and that judgment be entered for defendant or, alternatively, a new trial be granted. The trial court set aside the judgment and ordered a new trial. The parties filed cross-appeals. Following opinion by the Missouri Court of Appeals, Eastern District, this Court granted transfer. Affirmed.

I.

The trial court's basis for granting a new trial was error in the giving of an instruction, MAI 24.01 (1981). Plaintiff's solitary point on appeal is that the instruction given was not erroneous. Respondent's cross-appeal counters with a single point, apparently ¹ claiming plaintiff failed to make a submissible FELA case because plaintiff's evidence established no duty toward plaintiff that was violated by defendant.

The granting of a new trial eliminated the adverse judgment against defendant from which it might have appealed. § 512.020, RSMo 1986; Community Title Co. v. Roosevelt Federal Savings & Loan Ass'n, 796 S.W.2d 369, 370 (Mo. banc 1990). Nevertheless, the cross-appellant's brief raised the issue of submissibility of plaintiff's case and the question must be addressed. Id. at 371. In determining whether plaintiff made a submissible FELA case, the Supreme Court views the evidence in a light most favorable to the jury's verdict and affords the prevailing party the benefit of all reasonable inferences that may be drawn from the evidence. Melton v. Ill. Central Gulf R.R., 763 S.W.2d 321, 324 (Mo.App.1988).

II.

Qualls was first employed as a laborer by the railroad in 1973 and continued in that employment until the injury that is the subject of this suit. On the morning of December 6, 1984, he was a member of a work crew assigned to work on a section of track. The crew was staying in a motel in Cape Girardeau. The weather was quite cold, with ice and snow on the ground. The crew was taken by bus to a point about a mile from where they were to work. From there Qualls and his fellow workers began walking along the railroad right-of-way and across a bridge toward the location where labor was to be performed. About one-tenth of a mile from where the crew disembarked from the bus, Qualls discovered he had left his hood on the bus. Qualls returned back across the bridge to retrieve his hood from the bus. He discovered the bus had departed. He turned again to walk toward the work site. At that point Qualls was alone and carrying a five- to ten-pound maul used for driving railroad spikes. As Qualls was crossing the bridge for the third time, he thought he heard the sound of a train whistle.

This particular bridge, or trestle, is what is referred to as an open-deck bridge. The tracks sit on the cross-ties. Between the cross-ties are spaces that are open to the ground several feet below. A single set of tracks traverses the length of the bridge. Although some bridges have walkways and handrails, this one was not so equipped. On that day, the bridge was particularly slippery because of freezing rain and snow, which had fallen the night before and continued to fall that morning. Co-workers of Qualls testified they had trouble crossing this particular bridge, apparently because of the combined effects of the open deck design, absence of handrails or walkways and the slippery conditions on the bridge. One co-worker slipped more than once while crossing the bridge but was uninjured. Another managed to get across by using his maul as a cane to provide additional support. No cinders or salt were used on the bridge and no one on the crew was assigned to remove ice or snow from the trestle.

As Qualls heard what he believed to be a train whistle, he turned. As he turned, he slipped and lost his balance. He fell onto the bridge, to his back and to one side. At the same time his feet were going through the cross-ties. To keep from falling from the bridge and to the ground some five to six feet below, Qualls held onto the bridge. He immediately experienced low back pain, which radiated into his legs. He got to his feet, proceeded to the place where the work was being performed, and reported the injury to his fellow employees and his foreman.

III.

The railroad does not deny that it has a duty to provide plaintiff with a reasonably safe place to work or that if its negligence played any part, even the slightest part in producing plaintiff's injury, then a submissible case is made under FELA. See Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957). It argues, however, that it may not be held liable for injuries sustained from the mere existence of ice and snow outside the yard limits.

The duty to provide a reasonably safe workplace contemplates that the employer will take "precautions commensurate with the dangers to be encountered in the circumstances" and the question of reasonableness depends "upon the danger attending the place or the machinery." Britt v. Terminal R.R. Ass'n of St. Louis, 311 S.W.2d 130, 133 (Mo.App.1958), quoting Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943). The phrase "reasonably safe place to work" is a term of relative application, which requires the employer to eliminate those dangers that could be removed by the exercise of reasonable care by the employer. Raudenbush v. Baltimore & O.R.R., 160 F.2d 363, 366 (3rd Cir.1947). However, the employer is not an insurer of his employee's safety. Hightower v. Edwards, 445 S.W.2d 273, 275 (Mo. banc 1969).

From the above general principles, more specific rules have developed relating to the employer's duty to keep the workplace free of ice and snow. Within a railroad switch yard or terminal area where cars and locomotives are being moved and employees must move with celerity to perform their duties, the employer, within its reasonable ability to do so, is "required to exercise reasonable care to prevent an accumulation of snow and ice in such quantity and location as would constitute a menace to the employees in the performance of their work." Raudenbush, 160 F.2d at 366; see also Britt v. Terminal R.R. Ass'n, supra, and Zibung v. Union Pac. R.R., 776 S.W.2d 4 (Mo. banc 1989).

Outside the switch yard or terminal area the duty of the employer to keep the workplace free of ice and snow is somewhat different. In the open countryside traversed by trains and the railroad right-of-way, the railroad has little control over the vagaries of weather and climatic conditions. Thus, there is no duty to protect employees from "injuring resulting from the mere existence of ice or snow and disconnected from other circumstances." Raudenbush, 160 F.2d at 366; Banta v. Union Pac. R.R., 362 Mo. 421, 242 S.W.2d 34, 39 (1951).

Applying the above principles to the case at hand, it is apparent that the...