Wagner v. Union Pacific R. Co.

• Decision Date: 26 March 2002
• Docket Number: No. A-00-1020.,A-00-1020.
• Citation: 11 Neb. App. 1,642 N.W.2d 821
• Parties: Wayne WAGNER, Appellee, v. UNION PACIFIC RAILROAD COMPANY, Appellant.
• Court: Nebraska Court of Appeals

642 N.W.2d 821

11 Neb. App. 1

Wayne WAGNER, Appellee, v. UNION PACIFIC RAILROAD COMPANY, Appellant.

No. A-00-1020.

Court of Appeals of Nebraska.

March 26, 2002.

Steven W. Olsen, of Simmons, Olsen, Ediger, Selzer, Ferguson & Carney, P.C., Scottsbluff, for appellant.

Robert G. Pahlke of Van Steenberg, Chaloupka, Mullin, Holyoke, Pahlke, Smith, Snyder & Hofmeister, Scottsbluff, and Roger C. Denton, of Schlichter, Bogard & Denton, for appellee.

HANNON, SIEVERS, and MOORE, Judges.

MOORE, Judge.

I. INTRODUCTION

Wayne Wagner filed suit in the district court for Scotts Bluff County against his employer, the Union Pacific Railroad Company (Railroad), seeking damages under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq. (1994), and the Boiler Inspection Act (BIA), 49 U.S.C. § 20701 et seq. (1994), for injuries sustained in a work-related incident on March 1, 1998. After the trial court sustained Wagner's motion for summary judgment, finding that ice and snow on the walkway of a locomotive constituted a violation of the BIA, Wagner dismissed his cause of action based on the FELA. The case proceeded to trial on the issue of damages, and the jury returned a verdict in Wagner's favor in the amount of $1.9 million, which judgment was entered by the trial court. The district court subsequently overruled the Railroad's motion for new trial. For the reasons stated below, we affirm.

II. BACKGROUND

Wagner filed an amended petition on December 17, 1998, against the Railroad claiming injuries to his neck, shoulders, arms, back, and legs sustained in a work-related incident on March 1, 1998. In count I of his petition, Wagner alleged, pursuant to the FELA, the negligence of the Railroad in failing to provide Wagner with a safe place to work, failing to inspect and maintain the walkway on the locomotive in question to ensure that it was safe and in good condition and free of ice and snow, and failing to provide safe and adequate walkways throughout the locomotive. In count II, Wagner alleged a violation of the BIA. Wagner specifically asserted that the Railroad violated the BIA by failing to provide safe and adequate walkways on the locomotive as required by 49 C.F.R. § 229.7(a) (1997), allowing ice and snow to exist on the walkways of the locomotive in question in violation of § 229.7(a), and failing to make the required daily inspection report as required by 49 C.F.R. § 229.21 (1997). In its answer to Wagner's amended petition, the Railroad asserted that the locomotive at issue was not "in use" and that the BIA did not apply. The Railroad further asserted the affirmative defenses of Wagner's contributory negligence and his failure to mitigate his damages.

Before trial, Wagner moved for summary judgment on the issue of liability pursuant to the BIA. Wagner asserted that it was undisputed that while in the course of his employment with the Railroad, he slipped and fell on an icy platform on a locomotive that was in service in the Bill, Wyoming, trainyard, sustaining some injury. Wagner's motion for summary judgment was submitted to the district court on the following evidence: the deposition of Wagner, the railroad mechanic's report of his inspection of the locomotive in question following Wagner's injury, an affidavit concerning the locomotive's condition from the same railroad mechanic, and an emergency room record concerning medical treatment of Wagner on the day of the incident.

In his deposition, Wagner testified that he has been a certified locomotive engineer since August 1974. On March 1, 1998, Wagner came on duty at 10:15 a.m. He was working with a conductor. Wagner and the conductor were called to take a train from Bill to the coal mine. Upon reporting for duty that day, the manager, Larry Anderson, gave them a list of instructions regarding some "switching" that was to be completed before they took the train to the mine. Wagner indicated that this was an unusual instruction as they did not usually perform switching in the Bill trainyard. Wagner described the Bill trainyard as "a place to park trains." Anderson instructed Wagner to put together a "consist" of locomotives so that a train could be run. (A consist is a makeup of like units.) The mechanic-in-charge (MIC) was going to accompany them and assist in hooking up air hoses and jumper cables. They were to build a consist for their train to go west and also had to "make some adjustment switching of power" for eastbound trains. Wagner was also instructed to hook up a specific engine to an eastbound train and configure the airbrake setup so that the train would be charged with air.

Wagner was on the job approximately 4 hours, switching around various locomotives, before he fell. The MIC was with Wagner and the conductor only for a brief portion of that time period. The final product of their activities that morning was a consist of three locomotives on track 6, which Wagner believed was the train with which they were to travel west. They also moved several locomotives to tracks 3 and 4, which Wagner believed were for eastbound loads. Wagner testified that the locomotive on which he fell was on a loaded train set to head east, presumably on either track 3 or 4.

Wagner recalled that when he came on duty that morning, the weather was overcast, that it was approximately 30 degrees, that there was no wind to speak of, and that it was not snowing. Wagner believed that it had snowed in Bill sometime in the previous 24 hours; however, he did not know how long the storm had lasted or how much snow had fallen. Wagner was certain that there were not blizzard conditions in Bill when he was working on March 1, 1998. Wagner indicated that virtually all of the locomotives that they worked on that day were snowy and icy, having quite a bit of snow on their walkways and steps. Some of the locomotive doors were snowed shut, and he and the conductor had to brush the snow away with a broom to gain access. Wagner testified that he called the MIC for assistance in removing snow and ice, but was advised that no MIC's were available. At that time, Wagner did not inform the yard office of the buildup of ice and snow and did not specifically indicate why they needed the assistance of an MIC. Wagner indicated that the removal of ice and snow was a task which he would typically call an MIC to perform, but that he had on occasion shoveled, swept, or put down salt or sand to remedy icy or snowy conditions.

Wagner testified that he and the conductor entered the locomotive in question on March 1, 1998, at its front end. The steps where they entered the locomotive were covered with snow. Once inside the locomotive cab, Wagner attempted to configure the airbrake setup so as to charge the train with air. Wagner understood that the locomotive was part of a consist and was to be a lead-position locomotive. Wagner did not know, but assumed, that the locomotive was running; however, he was unable to tell whether the locomotive was running as he approached it because of the noise from locomotives running on other tracks. Wagner attempted for approximately 10 or 15 minutes to set up the air configuration, but was unable to obtain readings from the gauges to indicate that it was pumping air. Wagner was unable to determine from inside the cab whether the engine was running. He indicated that there were no alarm bells, that the unit switch appeared to be online and was "not isolated," and that the gauges were showing some air. Because Wagner suspected that the unit was not running, he stepped out of the locomotive cab through the engineer's door behind the control panel to check the car body for vibration. Wagner had to kick the engineer's door open to exit the cab as it was blocked with snow. He walked three to four steps or 6 to 8 feet down the walkway and was unable to feel any vibrations. While doing so, Wagner held onto the "grab iron" with one hand, maintaining his other hand on the car body. At that time, Wagner became aware that there was snow and ice on the walkway and that the walkway was slippery. Wagner indicated that he observed the walkway to be covered in snow for its entire length. The buildup of snow varied in depth from 1 to 6 inches. Wagner also observed that the walkway was icy in spots. He indicated that the buildup of ice varied between 3 and 4 inches. Upon returning to the locomotive cab, Wagner informed the conductor that the engine was not running. Wagner indicated that they then unsuccessfully tried to start the locomotive from the cab.

Wagner testified that since Anderson had apparently believed that the unit was running, he felt it necessary to check to "make sure that the unit [was] drained" because it would "freeze up and break water pipes." Wagner then walked back out the engineer's door onto the walkway, attempting to reach the access panel where he would be able to see the sight glass and determine if there was water in the locomotive. While walking back toward the water gauge, Wagner again kept one hand on the grab iron and his other hand on the car body due to the icy conditions. After progressing along about half of the length of the car body, Wagner slipped and fell off the walkway, grabbed the grab iron with both hands, and was left suspended from the grab iron, facing away from the locomotive. He was able to turn himself around to face the engine, but did not have the strength to pull himself back onto the walkway. Wagner banged his right shin in the process of turning around. Wagner then let go of the grab iron, landing on his buttocks in the snow.

After composing himself, Wagner returned to the front of the locomotive, climbed inside the cab, and informed the conductor that he had fallen. Wagner showed the conductor his shin, which was "bumped and bruised and scraped and bleeding." Wagner indicated that they had basically completed the assigned task of moving the various units around, so they proceeded to return to the yard...