St. Louis Southwestern Ry. Co. v. Grider

• Decision Date: 19 June 1995
• Docket Number: No. 94-947,94-947
• Citation: 321 Ark. 84,900 S.W.2d 530
• Parties: ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellant, v. Billy John GRIDER and Asplundh Railroad Division, Appellee, v. OAKLEY TRUCKING, INC. and Bruce Oakley, Inc., Cross-Appellants.
• Court: Arkansas Supreme Court

Page 530

900 S.W.2d 530

321 Ark. 84

ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, Appellant, v. Billy John GRIDER and Asplundh Railroad Division, Appellee, v. OAKLEY TRUCKING, INC. and Bruce Oakley, Inc., Cross-Appellants.

No. 94-947.

Supreme Court of Arkansas.

June 19, 1995.

Barry Deacon, D.P. Marshall, Jr., Jonesboro, for appellant.

Kent J. Rubens, West Memphis, Gene Napier, Kansas City, MO, for Billy John Grider.

Brian P. Boyce, Little Rock, for Asplundh R.R. Div.

Chris Leach, Michael Alexander, Little Rock, for cross-appellant Oakley Trucking.

HOLT, Chief Justice.

This case involves a collision between a freight train and a tractor-trailer, which occurred at a rural crossing in Crittenden County on August 1, 1990. The conductor of the train, appellee Billy John Grider, suffered a neck injury and brought suit against his employer, appellant St. Louis Southwestern Railway Company ("Railway"), under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq., asserting that Railway was negligent in failing to keep a right-of-way free from weeds and other obstructing vegetation, thus not providing him with a reasonably safe place to work. Railway filed a third-party complaint against Oakley Trucking, Inc., and Bruce Oakley, Inc. ("Oakley Trucking"), the owner of the truck, alleging that the truck driver, Doyle Montgomery, was negligent in operating the truck and for not stopping and yielding to the train. Mr. Grider amended his complaint to sue Oakley Trucking, which in turn filed a cross-claim against Railway and a third-party complaint against Asplundh Railroad Division ("Asplundh"), which had a contract with Railway to control the vegetation by spraying chemicals at this and other rights-of-way. Railway filed a cross-claim against Asplundh for contribution. The jury returned a verdict in favor of Mr. Grider, apportioning damages between Railway and Oakley Trucking. Pursuant to a stipulation as to property damage between Railway and Oakley Trucking and based upon the apportionment of fault as set by the jury, the trial court entered judgment in favor of Oakley Trucking on its cross claim against Railway for 75 percent of the damage to its trailer.

At trial, the jury heard testimony from several witnesses that weeds at the intersection reached heights of up to fifteen feet in contravention of Ark.Code Ann. § 23-12-201 (1993), which mandates that railroad corporations must maintain their rights-of-way free of obstructions. Edward Evans, the manager of Asplundh, testified that, pursuant to a contract between his company and Railway, Asplundh sprayed the crossing approximately two-and-one-half months prior to the accident, but that follow-up sprays were done only if they were notified by Railway that there was a problem. Railway employees admitted that they did not notify Asplundh that a respray was needed. The jury also heard testimony from Mr. Montgomery regarding his actions immediately prior to the accident, and from Mr. Grider, his physicians, and an economist regarding the extent of his injuries and economic losses as a result of the accident.

Over Railway's objection, the trial court instructed the jury on FELA rule-of-liability and on FELA assumption-of-risk. Following the trial court's denial of Oakley Trucking's motion for directed verdict, the jury returned a verdict evaluating Mr. Grider's damages at $1,750,000, apportioning 75 percent fault to Railway, and 25 percent to Oakley Trucking. Pursuant to a stipulation of property damage, the trial court entered judgment in favor of Oakley Trucking against Railway in the amount of $12,750. The trial dismissed with prejudice both Oakley's third-party complaint against Asplundh, and Railway's cross-claim against Asplundh for contribution. The trial court denied Railway's motion for new trial based on excessive damages and alleged errors in instructing the jury, which, together with Oakley Trucking's assertion that the trial court erred in refusing to direct a verdict in its favor, form the basis for the present appeal and cross-appeal. As neither Railway's arguments relating to the jury instructions nor Oakley Trucking's argument relating to the sufficiency of the evidence has merit, we affirm the findings of the trial court.

I. Rule-of-liability instruction

For its first allegation of error on appeal, Railway asserts that jury instruction 19, AMI Civ.3d 1901, regarding FELA rule-of-liability, confused the jury and bound them to find Railway ultimately liable for Mr. Grider's injuries. The trial court instructed the jury as follows:

At the time of this occurrence there was in force a federal statute which provided that whenever an employee for a railroad is injured while engaged in the course of his employment and the injury results in whole or in part from the negligence of any of the officers, agents or other employees of the railroad or by reason of any defect or insufficiency, due to the railroad's negligence, in its works, then the railroad shall be liable in damages to the injured employee.

We have outlined the procedure for making objections to jury instructions as follows:

The procedure for preserving a point of appeal concerning instructions is not complex. A.R.C.P. Rule 51 mandates that in order to preserve an objection regarding an erroneous instruction of the law, the party appealing must make a timely objection by telling the trial judge why the instruction was wrong. When the point of appeal is that the court failed to give an instruction, the party appealing must submit a proposed instruction on the issue.

Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986). (Citations omitted.) See also Precision Steel Warehouse, Inc. v. Anderson-Martin Mach. Co., 313 Ark. 258, 854 S.W.2d 321 (1993). We have stated that no instruction is required to be proffered in substitution for the instruction to which objection is made; rather, all that is required to preserve an objection for appeal regarding an erroneous instruction of law is to make a timely objection and to state a valid reason for the objection. A.R.C.P. Rule 51; Thomas Auto Co. v. Craft, 297 Ark. 492, 763 S.W.2d 651 (1989); Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984). As Railway made a timely objection to jury instruction 19, stating that it was both confusing and binding in the sense that it told the jury "to find the railroad company completely liable, if it is negligent in any degree, with no consideration of the other defendants," it preserved its argument for our review.

Railway concedes that the joinder of Mr. Grider's FELA action with his common law actions was not error. Arkansas Kraft Corp. v. Johnson, 257 Ark. 629, 519 S.W.2d 74 (1975); See also Comment to AMI Civ.3d 1921. Although it acknowledges that jury instruction number 19 is an approved instruction, Railway contends that it was error for the trial court to give the instruction in the context of this case due to the fact that it was also alleged that Oakley Trucking's and Asplundh's negligence proximately caused the accident.

While Railway asserts that jury instruction number 19 should not have been given in the "context" of this case, we cannot say that this "context" is so unique in light of the Comment to AMI Civ.3d 1921, which states that the correct procedure in cases involving both FELA claims and common law claims is that the case be submitted on interrogatories. This case was so presented, and the jury decided the issues of Railway's, Oakley Trucking's and Asplundh's negligence in separate interrogatories. Thereafter, in response to Interrogatory No. 4, the jury apportioned damages as follows: 75 percent to Railway, 25 percent to Oakley Trucking, and zero percent to Asplundh.

In light of these apportionments, Railway's argument that jury instruction number 19 bound the jury to find it ultimately liable for Mr. Grider's injuries is not well taken. Similarly, we focused on the jury's apportionment of damages in rejecting a claim that the trial court erred in refusing to allow counsel to argue the effects of contribution among joint tortfeasors in Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993). In that case, we held that, even if the trial court had erred in precluding counsel's argument on the issue of contribution, such error was rendered harmless by the jury's apportionment of fault--75 percent fault to one tortfeasor and 25 percent to another tortfeasor.

Railway's reliance on our decision in Phillips Cooperative Gin Co. v. Toll, 228 Ark. 891, 311 S.W.2d 171 (1958), in support of its argument that jury instruction number 19 was a binding instruction is misplaced, as the issues in Toll do not correspond with the issues before us. Toll involved the question of whether a tortfeasor was an employee or an independent contractor, in which the jury was given an instruction regarding this issue. We held that, because the jury was told in the instruction to consider only two conditions, that is, (1) in whose business the tortfeasor was engaged, and (2) who had the right to control and direct his conduct, the instruction was an improper binding instruction because it omitted other conditions which should not have been ruled out in the case, including the employer's right to terminate the employment.

Here, we are concerned with whether jury instruction number 19 bound the jury to find Railway ultimately liable for Mr. Grider's injuries. Railway's argument in this regard fails for several reasons. Its assertion that Oakley Trucking's negligence and Asplundh's negligence are essential conditions wrongly assumes that the negligence of these parties is foundational to the determination of Railway's negligence. As Mr. Grider correctly states in his brief, the jury need not find Oakley Trucking or Asplundh negligent to find Railway negligent, and, conversely, negligence on the part of Oakley Trucking or Asplundh cannot exonerate Railway of its negligence. See ...