Rediker v. Chicago, R. I. & P. R. Co., 48648

Decision Date19 August 1977
Docket NumberNo. 48648,48648
Citation571 P.2d 70,1 Kan.App.2d 581
PartiesHarry REDIKER, Appellee, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant.
CourtKansas Court of Appeals

Syllabus by the Court

1. Under the Federal Employers' Liability Act the rule requiring a railroad to furnish its employees with a reasonably safe place to work refers not only to the physical condition of the place itself but may include negligent acts of fellow employees.

2. A jury of lay persons is not required to answer special questions in the precise language used by a lawyer in drafting a pleading. In a negligence case the rule requiring consistency between the negligence charged and that found by the jury is satisfied if the language used in the answer to a special question is reasonably synonymous with that charged, or if the answer can reasonably be construed to be included in the negligence charged.

3. In a personal injury action the incidence of federal or state income taxation is not a proper factor to be considered by the jury in making an award of damages.

4. No person may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the ground of objection, unless the instruction is clearly erroneous.

5. 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.

6. In an action for damages under the Federal Employers' Liability Act, it is held : (1) The trial court did not err in the giving or refusal to give instructions; (2) the jury's answer to special question finding negligence stated acts which were included in a ground of negligence charged against defendant; (3) the evidence sufficiently supported the finding; (4) the court properly prohibited evidence of the impact of income taxation upon damages to be awarded; and (5) the verdict was not excessive.

Mark L. Bennett, Jr., of Davis & Bennett, Topeka, and John J. Jurcyk, Jr., of McAnany, Van Cleave & Phillips, Kansas City, for appellant.

G. Michael O'Neal of Hubbell, Lane & Sawyer, Kansas City, Mo., and Robert D. Loughbom, Kansas City, for appellee.

Before HARMAN, C. J., and FOTH and SPENCER, JJ.

HARMAN, Chief Judge:

Plaintiff sued defendant railroad pursuant to the Federal Employers' Liability Act for loss of a leg and other injuries sustained when he fell beneath the wheels of a freight car on which he was coupling air hoses. Trial to a jury resulted in a verdict for plaintiff for $450,000. Defendant appeals from a judgment rendered thereon.

Plaintiff Harry Rediker, forty-two years of age, had worked for the Rock Island Railroad as a carman and car inspector at its Herington, Kansas, yards for twenty-two years prior to his injury. On the day in question, September 10, 1973, he commenced work at 3:30 p. m. His duties included inspecting all trains for defects, conducting air tests, making light repairs and coupling air hoses between railroad cars. He was equipped with a lantern and a walkie-talkie radio which enabled him to communicate with the yardmaster, who was in charge of all train movements and with the engineers on two switch engines operating in the yard at that time.

Plaintiff was informed of certain switching operations to be done in connection with a train (No. 02) which would arrive from the southwest during plaintiff's shift: One switch engine would move against the front or north end of the 02 train, remove a number of cars from its front end, set them over on the No. 2 track and couple them into a string of cars already standing there; another would move against the rear of the 02 train, remove fifty cars from it, set the cars over on the No. 2 track and couple twenty cars into the south end of the cars already there.

Prior to the 02 train's arrival, plaintiff proceeded to couple air hoses between cars in the string then standing on the No. 2 track. When the 02 train arrived, plaintiff told another car inspector he would bleed the air off the 02 train's cars. He did not tell anyone he would be returning to the No. 2 track. After reaching the north end of the main line he started back south when he saw by means of his lantern that the air hoses between the two north cars on the No. 2 track were disconnected (this occurred sometime after plaintiff's 8:30 p. m. lunch period). Plaintiff then stepped between the two cars to couple the hoses. As he did so the switch engine at the south end of the track shoved a string of fifty cars to couple them into the sixty cars already standing there. The resulting movement of the cars for about one to one and one-half car lengths caused plaintiff to fall under the wheels, injuring the tips of his fingers on his right hand and ultimately causing amputation of his right leg two inches below the knee. Further evidence will be stated in connection with the points raised.

In plaintiff's petition, his amended petition and in the pretrial order the grounds of defendant's negligence were stated to be: (1) Causing the cars to be moved suddenly and with unusual force, and (2) causing the cars to be moved suddenly and without warning to plaintiff. At trial upon conclusion of plaintiff's evidence he moved the court for permission to conform his pleading to the evidence by adding a general allegation of negligence, namely, failure to furnish a safe place to work. Defendant objected and the requested amendment was denied. At the conclusion of all the evidence the trial court gave the following instruction to the jury:

"12. The plaintiff claims that he was injured and sustained damages as a result of the negligence of the defendant in one or more of the following respects:

"a. In failing to provide a safe place to work;

"b. In causing the cars to be moved suddenly and with unusual force;

"c. In causing the cars to be moved suddenly and without any warning to plaintiff."

Defendant objected to the giving of 12a. Along with its general verdict the jury answered certain questions "1. Do you find from the evidence that the Chicago, Rock Island and Pacific Railroad Company was guilty of negligence which was a direct cause of the plaintiff's injuries?

"ANSWER: Yes.

"2. If your answer to Question No. 1 is in the affirmative, state the acts or acts of negligence of which the Chicago, Rock Island and Pacific Railroad Company was guilty.

"ANSWER: 1. Not safe place to work.

"2. Engineer on switch engine was not paying attention.

"3. Safety rules were not enforced."

Defendant-appellant's first point on appeal is that the trial court erred in adding failure to provide a safe place to work as a general ground of negligence. The argument is that the pretrial order should have controlled and appellant was deprived of opportunity to defend against that general allegation. First, it may be observed that under controlling federal law the rule which requires a railroad to furnish its employees with a reasonably safe place to work refers not only to the physical condition of the place itself but may include negligent acts of fellow employees (Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Griswold v. Gardner, 7 Cir., 155 F.2d 333). Counsel for the parties may well have had this rule in mind as revealed by events and colloquy at trial. In voir dire examination appellee's counsel stated recovery could be had "if you find it was negligent for them to move the cars while he was between them, whether they failed to furnish him a safe place to work." In appellee's opening statement it was said, "The evidence will show that this was an unsafe place to work." There was no objection to either statement. Later, in argument before the court on appellee's request to amend his petition to conform to the evidence and after appellant had objected, this colloquy occurred:

"MR. LANE: The pre-trial order was ten months ago. And, actually, what we have proved is an unsafe place to work, regardless of what we have called it. And under the F.E.L.A., it is an unsafe place to work. The cases and the statute have said this was to be freely allowed, and we have actually, in fact, proved an unsafe place to work and we have proved negligence.

"We have called this an unsafe place to work in our voir dire, in our opening statement, and counsel has said nothing about that; so, it has really gone in as an unsafe place to work.

"MR. BENNETT: He has alleged, in his allegations of negligence, that it was an unsafe place to work, in certain respects, and that is why there hasn't been anything said about his voir dire or his own opening statement. But, certainly, we didn't enter into this trial with any understanding we were faced with anything other than what was alleged in that pre-trial order."

Then, after the court had submitted its proposed instructions to counsel, this occurred:

"MR. BENNETT: We would, then going back, first, in reference to 12a., at the top of the page.

"THE COURT: All right, sir.

"MR. BENNETT: We would object to the giving of that instruction in the form in which it is presently set out, as it relates to 12a., b., and c., and the allegations of the plaintiff as to the negligence of the defendant for the reason that that does not reflect accurately the allegations of negligence which were which are contained in the pleadings, including the pretrial order.

"There is no separate allegation in the pretrial order as to negligence in failing to provide a safe place to work, rather they make that allegation with specificity, and they allege in that, in the pre-trial order, in the pleadings, that the defendant was negligent in providing a safe place to work in certain specified in a certain specified manner, and with no indication whatsoever that it occurred in any way other than in that the defendant negligently caused and permitted the cars to be moved on the tracks suddenly and...

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