Riley v. Union Pacific R.R.

• Decision Date: 27 June 1995
• Docket Number: No. WD,WD
• Citation: 904 S.W.2d 437
• Parties: Adrian M. RILEY, Appellant, v. UNION PACIFIC RAILROAD, Respondent. 48453.
• Court: Missouri Court of Appeals

Page 437

904 S.W.2d 437

Adrian M. RILEY, Appellant, v. UNION PACIFIC RAILROAD, Respondent.

No. WD 48453.

Missouri Court of Appeals Western District.

June 27, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 1, 1995.

Application to Transfer Denied

Sept. 19, 1995.

Joseph L. Walsh, III, Gray and Ritter, P.C., St. Louis, for appellant.

John S. Johnston, Keith T. Borman, Shook, Hardy & Bacon, P.C., Kansas City, for respondent.

Before ULRICH, P.J., and LOWENSTEIN and HANNA, JJ.

ULRICH, Presiding Judge.

Adrian M. Riley appeals the judgment following jury verdict entered in favor of Union Pacific Railroad Company in his action brought against the Railroad under the Federal Employer's Liability Act, 45 U.S.C. § 51 et seq. The judgment of the trial court is affirmed.

Mr. Riley was employed by the Union Pacific Railroad Company (Railroad) as a special agent with law enforcement responsibilities. He was stationed in Coffeyville, Kansas, and was the sole agent for parts of Kansas, Missouri, Oklahoma, Arkansas, and Texas. As a special agent, he was assigned to protect company property, freight, and employees. His responsibilities included inspecting bridges, crossings, buildings, and other facilities for possible trouble or disruption of shipments and effecting arrests of trespassers. Additionally, he inspected railroad cars for tampering or break-ins and was responsible for the yard security in Coffeyville.

On Saturday, July 30, 1988, Mr. Riley was notified that the Railroad had a "hot load or high-value load" of tires going through the Coffeyville yard. He was informed that tires from such shipments had been stolen before, and he was responsible for observing these cars while they were in transit to determine whether they appeared to have been tampered with. Mr. Riley intended to observe the moving trains on the west side by going to the south end of the Coffeyville yard. After the train passed, he intended to observe the east side of the train by driving his vehicle to a public street crossing north of the Coffeyville yard.

Mr. Riley drove south down a railroad service road that was parallel with the track running north and south through the yard. The service road was below the roadbed of the track. Mr. Riley drove his car as far as he could and then climbed up an embankment to the top of the roadbed. He testified that, while walking along the roadbed, he could see that the Railroad had been performing track and bridge construction in the area.

While waiting for the train to arrive, Mr. Riley decided to inspect a waterway bridge below the roadbed because trespassers had been reported in the area, and his supervisor had told him that he should increase the number of his inspections. Walking south along the roadbed in the southern end of the yard, he approached the bridge that he intended to inspect and began his descent approximately ten feet north of the bridge. Mr. Riley placed one foot on the edge of the ballast of the roadbed and moved his right foot down to the ground that sloped to the mouth of the bridge; but before he could firmly plant his right foot on the ground, the ballast of the roadbed collapsed under his weight. He slid approximately 15 to 20 feet down to the area of the mouth of the bridge, rotating about a half turn by the time he landed on his feet at the bottom. Although Mr. Riley testified that he felt pain in his back and spine, he continued his inspection and did not file an accident report that morning.

Mr. Riley went home for lunch and after a nap, awoke in pain and needed assistance getting out of his recliner and into bed. He stayed in bed the remainder of Saturday and Sunday. On Monday morning, he went to the Railroad office at Coffeyville, called his supervisor, and filled out an accident report. On the accident report, he indicated that the cause of the accident was that "loose ballast gave way under foot."

Mr. Riley saw his family doctor, Dr. Salrin, on August 1, 1988. The doctor's nurse indicated in office records that Mr. Riley had aggravated an injury in the same place he had surgery for the removal of a herniated disk in 1972, some sixteen years earlier. As a result of the surgery, Mr. Riley was off work for 28 days and returned to his regular job without any restrictions. He experienced some minor back problems between 1972 and 1988.

The Railroad sent Mr. Riley to Dr. Terry McLean in Kansas City, Missouri, for an MRI. Dr. McLean testified that Mr. Riley "would not be able to return to his pre-injury job indefinitely." Dr. McLean prescribed physical therapy and an epidural injection.

On November 8, 1990, Mr. Riley saw Dr. William Dillon. A myelogram revealed an "extradural indentation at L4-5 level, suspicious for disk herniation and irregular narrowing of the thecal sac, or the sac around the nerves at the level of L5-S1." Dr. Dillon performed a decompressive laminectomy at L4-5. He believed that Mr. Riley had disk problems at levels above the level that was involved in his prior surgery. He testified that Mr. Riley had suffered permanent injuries and would have to "be very careful as to how he used his lower back for the rest of his life." Dr. George Schoedinger in St. Louis confirmed the diagnosis.

Mr. Riley has not worked since the date of his accident. At the time of his injury, he was earning $3,306 per month. In January 1989, Mr. Riley was offered vocational rehabilitation. He declined the job offer from the Railroad.

From the jury verdict, Mr. Riley appeals the judgment entered in favor of the Railroad.

I

As point one on appeal, Mr. Riley contends that the trial court erred when it admitted into evidence Exhibit 13, a photograph of the scene of the accident in question, taken five years after the date of the accident. The photograph was admitted as a fair and accurate representation of the scene where Mr. Riley fell as of June 17, 1993, two weeks before trial, not necessarily on the date of the accident, July 30, 1988.

The admission or rejection of a photograph is within the discretion of the trial court. Rust & Martin, Inc. v. Ashby, 671 S.W.2d 4, 8 (Mo.App.1984); Beshore v. Gretzinger, 641 S.W.2d 858, 861 (Mo.App.1982); Fox v. Kansas City, 343 S.W.2d 200, 201 (Mo.App.1960). That ruling will not be disturbed on appeal unless it is shown to be an abuse of discretion. Id.

A photograph is admissible if "it is a true and faithful representation of the subject, place or condition it purports to represent, as it existed at the time pertinent to the inquiry." Weber v. Missouri K.T. R.R., 519 S.W.2d 307, 313 (Mo.App.1975) (quoting Fox, 343 S.W.2d at 201). The proponent of the photograph must lay a foundation by extrinsic evidence that the photograph is what it purports to be. Id. If a witness familiar with what it shows testifies the photograph accurately represents the scene it portrays, the photo is admissible. Rust & Martin, Inc. v. Ashby, 671 S.W.2d 4, 8 (Mo.App.1984). A photograph taken long after an event may be admissible if any changed conditions of the area depicted are adequately explained. Berry v. Federal Kemper Ins. Co., 621 S.W.2d 948, 951 (Mo.App.1981).

In Harris v. F.W. Woolworth, 824 S.W.2d 31 (Mo.App.1991), a defendant in a slip and fall case complained that the trial court erred in admitting into evidence two photographs of an alley where the accident occurred taken six months after the accident. Id. at 35. In concluding that the trial court did not abuse its discretion in admitting the photographs, the Eastern District reasoned that the challenged photos were used primarily to demonstrate the area where the accident occurred, not to depict the alley on the day of the accident. Id. It also noted that the jury was not misled about whether the photographs were contemporaneous with the accident. Id.

In this case, Mr. Riley contends that the photograph was not representative of the scene of the accident when the accident occurred because the photograph was taken five years after the accident. The Railroad, however, used the photograph not to show the location of the accident or condition of the roadbed and ballast when the accident occurred, but to show the general area and topography of the land where the accident occurred. The photograph was unambiguously introduced as a depiction of the accident scene shortly before trial, not at the time of the accident. The photographer testified that the photograph was a "fair and accurate representation of the way it looked on June 17, 1993." Consequently, the trial court did not abuse its discretion in admitting Exhibit 13.

Even if the admittance of the photograph was error, Mr. Riley was not prejudiced by it. Mr. Riley introduced a diagram at trial depicting the area where the accident occurred. He visited the scene of the accident with his attorney in April or May 1993 in preparation for trial and an artist drew the diagram from his description of the area. Mr. Riley introduced a diagram of the area drawn two or three months prior to trial to show the jury where the accident occurred and cannot now claim that the introduction of Exhibit 13 prejudiced him. See Vasseghi v. McNutt, 811 S.W.2d 453, 456 (Mo.App.1991) (error in admitting evidence is not grounds for reversal if it does not prejudice complaining party.)

Point one is denied.

II

Appellant complains in point two that the trial court prejudicially erred in permitting counsel for the Railroad to cross-examine Mr. Riley about the allegations set forth in paragraphs 5(B)(C)(D) of the original petition because these allegations constitute conclusions of law and not statements of fact. ¹

In general, an abandoned pleading may be admitted as evidence in the proceeding in which it was originally filed to establish admissions against interest or for impeachment purposes. Danneman v. Pickett, 819 S.W.2d 770, 772 (Mo.App.1991); Bray v. Bray, 629 S.W.2d 658, 660 (Mo.App.1982). An admission, however, must be an assertion of fact,...