Torchia v. Burlington Northern, Inc.

• Decision Date: 31 August 1977
• Docket Number: No. 13097,13097
• Citation: 174 Mont. 83,34 St.Rep. 1011,568 P.2d 558
• Parties: Helen TORCHIA, Individually and as a personal representative, Plaintiff and Respondent, v. BURLINGTON NORTHERN, INC., a corporation, Defendant and Appellant.
• Court: Montana Supreme Court

Page 558

568 P.2d 558

174 Mont. 83

Helen TORCHIA, Individually and as a personal representative, Plaintiff and Respondent, v. BURLINGTON NORTHERN, INC., a corporation, Defendant and Appellant.

No. 13097.

Supreme Court of Montana.

Submitted June 6, 1977.

Decided Aug. 31, 1977.

Gough, Booth, Shanahan & Johnson, Cordell Johnson, argued, Helena, for defendant and appellant.

Hoyt & Bottomly, John C. Hoyt and Richard V. Bottomly, argued, Great Falls, for plaintiff and respondent.

M. JAMES SORTE, District Judge. ^*

This is a wrongful death action filed in the district court, Cascade County, under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. (FELA).

Plaintiff Helen Torchia as personal representative of the estate of decedent Gennaro Torchia, and on behalf of their children, sued defendant Burlington Northern, Inc. for damages occasioned by the death of her husband Gennaro Torchia.

Gennaro Torchia, a Burlington Northern fireman, was killed in a head-on collision between two railroad trains. In her complaint plaintiff alleged negligence under the FELA and prayed for compensatory damages. She also, individually and as personal representative of the minor children, alleged willful and wanton conduct and prayed for punitive damages. In its amended answer, defendant admitted liability for negligence under the FELA. The trial court denied defendant's motion to strike those allegations from the complaint which had reference to punitive damages.

The case was tried to a jury on the issues of compensatory damages and conduct which would form the basis for an award of punitive damages. The jury returned a verdict for plaintiff for compensatory damages only, in the amount of $580,000. The jury found the facts did not justify an award of punitive damages. Defendant appeals from the judgment entered on the jury verdict. Plaintiff cross-appeals from an order denying her motion for a new trial on the issue of punitive damages.

The facts of this case are:

At approximately 11:45 p.m. on May 11, 1971, at a point near Sheffels on the Burlington Northern line between Great Falls and Havre, there was a head-on collision between two trains. Four of defendant's employees were killed and several others injured. One of those killed was plaintiff's husband, Gennaro Torchia.

The movement of trains between Great Falls and Havre is controlled out of the dispatcher's office in Havre. Trains are operated over this segment of the track by train orders and clearances. The Havre to Great Falls route consists of but one track. Thus, the orders and clearances are significant in controlling train movements where a "meet" is anticipated between trains traveling in opposite directions.

A dispatcher issues various orders to the operators at various stations on the line. The orders are communicated from the dispatcher to the operator by telephone. The operator then copies the orders on train order forms. The orders are then read back to the dispatcher to insure the copied orders are correct.

It is also the responsibility of the dispatcher to issue clearances which are communicated to and copied by the operator in the same manner as are train orders. A train is not allowed to move over a track which is controlled by train orders and clearances unless a proper clearance is issued for the train movement. Typically, orders and clearances are not issued until the train has been "called", that is, assembled and ready for departure. Generally, the conductor in charge of the train and crew picks up the orders and clearances from the operator. When it becomes necessary to issue a second order and clearance on a given train movement, the first orders and clearance are taken up and destroyed.

In 1971 it was and had been for many years the practice in Havre for the operator to place copies of the completed clearances and orders on the train register desk in the Havre Relay Office. There was no procedure whereby it could be determined when the orders were actually picked up by the conductor.

In this case Dispatcher Newell was on shift from 7:30 a.m. until 3:30 p.m. on May 11, 1971. He issued orders and a clearance at 3:08 p.m. for the Havre to Great Falls train, designated as "Extra 2013 West." Newell expected the train would be called momentarily. Operator Wirtzberger then placed the clearance and orders on the train register desk. At that time Newell was unaware a train was being assembled in Great Falls destined for Havre, also to leave on May 11.

Newell turned over his dispatching district to Dispatcher McMaster at 3:30 p.m. Pursuant to the then operative "staggered shift" work system, McMaster who was on duty dispatching another district was, in addition, given responsibility for Newell's district until 4:30 p.m. Newell explained to McMaster that he had cleared the Havre to Great Falls train. The clearance is reflected in the clearance record kept by the dispatcher. There was no dispatching activity during the hour McMaster had responsibility for the district so no further entries were made in the dispatcher's book. At the end of his shift McMaster merely initialed the record book and passed it on to Dispatcher Magnuson.

There is a dispute in the evidence as to whether McMaster verbally informed Magnuson the Havre to Great Falls train was cleared when the dispatching district was turned over to him. McMaster testified he informed Magnuson of the clearance. Magnuson testified no such statements were made. However, there is no dispute the records McMaster turned over to Magnuson clearly indicated the train had been cleared at 3:08 p.m. by Newell.

Magnuson, during his dispatching shift, was informed that a train would soon be leaving Great Falls bound for Havre. To arrange for a "meet" between the respective trains whereby one would take a side track as the other passed by, Magnuson issued a second order and clearance at 8:18 p.m. The second order and clearance were communicated to Operator Porter, who prepared them and placed them on the train register desk.

Sometime between the time Operator Wirtzberger placed the first order and clearance on the train register desk and the time the second order and clearance were placed on the desk, Conductor Freeburg, conductor for "Extra 2013 West", came into the Havre Relay Office and picked up the first orders and clearance. He was not seen picking up the orders and clearance by any dispatcher or operator.

Plaintiff's husband, Gennaro Torchia, was a member of the crew of the Great Falls to Havre train. Under the second orders issued to that train, but unknown to Conductor Freeburg of "Extra 2013 West" and its crew, it was to proceed to Portage where a "meet" would take place. The Havre to Great Falls train was to wait at Portage to permit the Great Falls to Havre train to take the siding.

The Havre to Great Falls train passed the siding at Portage without stopping and, shortly beyond Sheffels, the head-on collision between the two trains occurred. Gennaro Torchia was killed instantly. At the time of his death he was 49 years of age. Additional pertinent facts will appear later in this opinion.

Defendant raises numerous points of error on appeal. For this opinion we will discuss eight determinative issues:

1. Whether punitive damages are recoverable in an action under the FELA?

2. Whether the verdict should be set aside as being excessive and based on passion or prejudice?

3. Whether the voir dire examination by counsel for plaintiff was improper?

4. Whether admission of evidence pertaining to future railroad retirement benefits was error?

5. Whether the trial court erred in admitting certain testimony given by plaintiff's expert witness in the area of economics?

6. Whether a potential witness for defendant, whose name was not listed on the pretrial order, should have been permitted to testify?

7. Whether the trial court erred in selection of instructions and form of verdict?

8. Whether admission into evidence of a portion of the Federal Railroad Administration Accident report was prejudicial error?

Issue 1. A major contention of defendant is that punitive damages should not have been an issue in the case, and evidence and proposed instructions related thereto should not have been permitted. Defendant asserts such issue should have been removed upon its motion to strike. Defendant alleges punitive damages are not allowable under the FELA, and allowing plaintiff to introduce proof not only of liability, but also on the question of punitive damages was prejudicial and resulted in an excessive award as a result of passion and prejudice on the part of the jury.

As noted, defendant admitted its liability for ordinary negligence. At the outset we reject defendant's theory that upon such an admission, plaintiff's case must be limited solely to the issue of damages. Under the facts of this case plaintiff could prove her case as she wishes subject, of course, to the ordinary control and discretion exercised by the trial judge.

Whether or not evidence of punitive damages has a proper place in an action under the FELA, the jury here refused to allow such damages to plaintiff. In view of the evidence presented by plaintiff and the result reached by the jury, the presence of the element of punitive damages did not prejudice defendant in this case. Slifer v. Yorath, 52 Mont. 129, 155 P. 1113; Martin v. Corscadden, 34 Mont. 308, 86 P. 33. Further, the same reasoning applies with reference to the alleged error in the giving of instructions on willful and wanton misconduct and other matters relative to punitive damages. The salient fact remains the jury refused to award such damages and, in fact, specifically found there was no evidence of conduct which would form the basis for punitive damages. Defendant suffered no prejudice as a result. Hill v. Chappel Bros. of Montana, Inc., 93 Mont. 92, 18 P.2d 1106.

Issue 2. Was the jury verdict excessive and based upon passion and prejudice?

Defe...