Sorrell v. Norfolk Southern Railway Company, No. ED 84268-01 (Mo. App. 4/10/2007)

• Decision Date: 10 April 2007
• Docket Number: No. ED 84268-01.,ED 84268-01.
• Parties: Timothy Sorrell, Respondent, v. Norfolk Southern Railway Company, Appellant.
• Court: Missouri Court of Appeals

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Timothy Sorrell, Respondent, v. Norfolk Southern Railway Company, Appellant.

No. ED 84268-01.

Court of Appeals of Missouri, Eastern District.

April 10, 2007.

NOTE: THIS OPINION IS SUBJECT TO MODIFICATION OR TRANSFER TO THE SUPREME COURT.

Appeal from the Circuit Court of the City of St. Louis, Hon. Joan M. Burger, J.

James W. Erwin and David A. Dick, for Appellant.

Jerome J. Schlichter, Paul T. Slocomb, Roger C. Denton, for Respondent.

Draper III, P.J. and Crane, J.

Opinion

ROBERT G. DOWD, Jr., Judge.

Timothy Sorrell, a railroad trackman, was injured when the dump truck he was driving for his employer, Norfolk Southern Railway Company, went off the road and tipped on its side. Sorrell brought suit under the Federal Employer's Liability Act (FELA), 45 U.S.C. Section 51, et seq., against Norfolk. The jury returned a verdict for Sorrell in the amount of $1,500,000.00, and the trial court entered judgment upon the jury's verdict.¹ This court affirmed the trial court's judgment in Sorrell v. Norfolk Southern Ry. Co., 170 S.W.3d 35 (Mo. App. E.D. 2005).

One of Norfolk's points on appeal to this court alleged the trial court erred in giving an instruction based on MAI 32.07(B), which instructs the jury to find a plaintiff contributorily negligent if his or her negligence "directly contributed to cause" the injury, while the railroad's negligence is measured by whether the railroad's negligence "contributed in whole or in part" to the injury as provided in MAI 24.01.² Norfolk argued, where contributory negligence is an issue, the causation standard should be the same for both the plaintiff and the railroad. This court held, as it was required to, that the trial court did not err in giving an instruction based on MAI 32.07(B), the applicable MAI instruction for contributory negligence in a FELA case. The Missouri Supreme Court denied transfer.

The United States Supreme Court vacated the judgment of this court. Norfolk Southern Railway Co. v. Sorrell, 127 S.Ct. 799, 809 (2007). The Supreme Court held that the causation standard under FELA should be the same for both the railroad's negligence and the plaintiff's contributory negligence.³ Id. at 808-09. The Court vacated the judgment and remanded to the court the issue of whether any instructional error was harmless. Id. at 809. We now address that issue.

Sorrell argues that even if the causation standards contained in the instructions were improper, we should nonetheless affirm because any error was harmless. Sorrell contends that the evidence of his negligence presented at trial, if credited by the jury, could only have been a "direct" cause so that even if a different instruction using "contributed to cause his injury" or even "contributed in whole or in part to cause his injury" was given the result would not change.⁴

A judgment will be reversed because of instructional error if the error materially affected the merits and outcome of the case. Jone v. Coleman Corp., 183 S.W.3d 600, 605 (Mo. App. E.D. 2005). The party claiming instructional error has the task of showing that the instruction misdirected, misled, or confused the jury. Id.

At trial, the evidence showed that Sorrell was driving a dump truck on a gravel road alongside the tracks when another Norfolk truck, driven by fellow employee Keith Woodin, approached. The two men provided different accounts of what happened next, but somehow Sorrell's truck went off the road and tipped on its side. According to Sorrell's testimony, he feared that the two trucks could not pass each other, so he pulled his truck as close to the right side of the road as possible. After the truck driven by Woodin passed, Sorrell tried to drive his truck back onto the road, but the front tire on the passenger side "washed out" and his truck flipped onto its side. According to Woodin, he testified that he pulled his truck off the road and stopped when he was 400 to 500 feet from Sorrell. Woodin stated that while he was waiting for Sorrell to pass, he saw Sorrell's truck veer to its right, causing the truck's front passenger-side tire to drop off the road, after which the truck flipped onto its side.

Given the evidence before it, if the jury found Sorrell negligent,⁵ any negligence had to result from the way he drove the truck and thus, his negligence, if any, was a "direct" cause of his injuries. Indeed, Justice Ginsburg stated in her concurrence that "[u]nder the facts of this case, it is difficult to imagine that a jury could find Sorrell negligent in a manner that contributed to his injury, but only indirectly." Sorrell, 127 S.Ct. at 815 (Ginsburg, J., concurring). We conclude that the wording of the instruction on contributory negligence that the plaintiff's negligence "directly contributed to cause his injury" could not have affected the outcome of the trial.

Norfolk argues that it is impossible to know whether or how the differing causation standards affected the jury's decision. Norfolk maintains the jury may have been confused by the different causation standards. With the general verdict given by the jury where it did not indicate the percentages of fault it found, Norfolk asserts there is no way to know how the jury weighed conflicting evidence and whether the jury found Sorrell was negligent but that his negligence did not "directly" cause his injury.

We are not persuaded by Norfolk's arguments. Norfolk has not articulated any theory supported by evidence explaining how the jury could have found Sorrell negligent, but that his negligence did not directly contribute to cause his injuries. Under...