Welsh v. Burlington Northern R. Co., 49900

CourtCourt of Appeal of Missouri (US)
Citation719 S.W.2d 793
Docket NumberNo. 49900,49900
PartiesWilliam J. WELSH, Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, Appellant.
Decision Date12 August 1986

James W. Newbold, Private Atty., St. Louis, for appellant.

C. Marshall Friedman, Kenneth E. Rudd, Chris G. Echsner, C. Marshall Friedman, P.C., Private Atty., St. Louis, for respondent.

DOWD, Presiding Judge.

Burlington Northern Railroad Company (hereinafter defendant) appeals from a judgment entered on a jury verdict for William J. Welsh (hereinafter plaintiff) and against the defendant in the amount of $500,000. Plaintiff brought this action under the provisions of the Federal Employers Liability Act, 45 U.S.C. § 51, et seq., to recover damages for personal injuries plaintiff received during the course of his employment with the St. Louis-San Francisco Railway Company. The St. Louis-San Francisco Railway Company merged with Burlington Northern Railroad Company, a subsidiary of Burlington Northern, Inc. Plaintiff initially filed this lawsuit naming St. Louis-San Francisco Railway Company and Burlington Northern Railroad Company, Inc., as defendants. Plaintiff subsequently substituted Burlington Northern Railroad Company as the sole defendant.

On appeal, defendant contends that the trial court erred in: (1) admitting into evidence testimony regarding a green cart constructed by plaintiff's expert; (2) failing to instruct the jury that it was required to reduce to present value any damages it awarded to plaintiff for future loss; (3) failing to instruct the jury to sign the verdict form; (4) overruling defendant's motion for mistrial based upon an alleged emotional display by the plaintiff; and (5) overruling defendant's post-trial motion to receive and record as true the original verdict form received. For the reasons set forth, we affirm the judgment.

The plaintiff was employed as a journeyman electrician for the St. Louis-San Francisco Railway when he injured his lumbar spine on May 23, 1977. On the day of his injury, the plaintiff was manually lifting a propane gas tank onto a receptacle on one of defendant's business cars. He began his employment with the St. Louis-San Francisco Railway in March 1967. In 1971 he was a journeymen electrician and in 1976 he became a lead electrician.

As an electrician, part of the plaintiff's duties included loading propane tanks onto business cars. Business cars are used for meetings, track and bridge inspections, and customer entertainment. They contain an observation room, bedrooms, a dining room, kitchen, etc. Bottled propane is used on the cars for various purposes including cooking. The propane tanks are loaded onto the business cars at a customary "business car spot" and are stored in metal racks near the "business car spot."

The propane tanks are metal, cylindrical in shape and weigh approximately 239-257 pounds when loaded. The business cars hold four propane tanks in receptacles which are located on the exterior underneath each car approximately 25 inches above ground level. The receptacles hold the tanks on their sides with the top of each tank parallel to the railroad ties.

The propane tanks are loaded onto the business cars manually. Loading the tank involves pushing the tank off the metal rack where it is stored on its side and rolling the tank along the chat surface to the business car where it is then laid on its side with the top facing the rail. The bottom of the tank is then lifted, end over end, until the bottom of the tank is perched on the receptacle opening. The top of the tank is raised and is then shoved into the receptacle. On the day of plaintiff's injury, he was loading a propane tank onto a business car in the manner described when he felt a pain in his lower back and an electrical type shock down both of his legs. Plaintiff sustained permanent injuries to his lumbar spine.

After ten days of trial, the jury retired to deliberate on a verdict. The jury returned to the courtroom and gave the clerk an unsigned verdict form in favor of defendant which was read by the clerk. Discovering the verdict form was unsigned, the judge informed the jury that he could not accept it and instructed the jury to complete the verdict form in accordance with the instructions of the court. Thereafter, the jury returned a verdict in favor of plaintiff which complied with the court's instructions and was signed by nine jurors. At this time, defendant moved for a mistrial based on the prejudicial effect of an alleged emotional display by plaintiff in front of the jury when the first verdict was read by the clerk to the court. The trial judge overruled defendant's motion, polled the jury and thereafter discharged the jury.

Defendant contends in the first point that the trial court erred in admitting plaintiff's exhibit No. 10, a green cart, and testimony relating thereto, into evidence because such evidence was irrelevant and immaterial to any issue in the lawsuit and thereby interjected matters into the lawsuit which were highly prejudicial.

This lawsuit was brought by plaintiff on the theory that defendant failed to provide a reasonably safe environment for its employees. Plaintiff provided evidence at trial that the defendant had previously supplied its employees with carts to load propane tanks onto business cars and had abandoned their use in the late 1960s. Additionally, employees of defendant testified that they had made numerous requests that a cart for loading propane tanks be furnished. These requests were made to defendant's foreman during safety meetings. The employees had been assured that a cart would be provided. No cart was provided by defendant to facilitate the loading of propane tanks. An employee of defendant's fabricating shop testified that the cart that had been requested by plaintiff and his fellow employees could have been assembled with the labor, tools, and materials in defendant's fabricating shop which constructed carts for other purposes for use by defendant's employees.

In preparation for trial, plaintiff's experts constructed a cart, plaintiff's exhibit No. 10, viewed by this court during oral argument, which could be used to load propane tanks onto defendant's business cars. Plaintiff's expert, Mario Gomez, an engineer with a doctorate degree, was provided information to build the cart from an electrician and a fabricating shop employee, who were either employed by defendant presently or at some time in the past. Specifically, Dr. Gomez was provided with: sketches of carts once used by defendant's employees to load propane tanks onto business cars; details of the conditions present at the business car location where the cart would be used and the materials available in the defendant's fabricating shop which could be used to construct a cart. Additionally, Dr. Gomez was provided with the size and weight of loaded propane tanks, photographs of the business cars and the receptacles, and the dimensions of the receptacles.

Dr. Gomez, using the aforementioned information, designed a cart which could be used to load propane tanks onto the business cars. The cart was fabricated by Gary Niemczyk under the direction of Dr. Gomez. Niemczyk testified that he constructed the cart in less than 16 hours.

Defendant asserts that any evidence relating to the "green cart" or the use of a cart to load propane tanks onto the business cars is inadmissible. Defendant argues that the cart was not an "available" alternative method of loading propane tanks because it was unknown to the defendant at the time of plaintiff's injury. Additionally, defendant contends that the admission of this evidence interjected a false standard into the lawsuit--whether there were safer tools or methods of work which might have been used. We disagree with defendant's arguments.

In issue is whether the tools or methods of work which were in fact made available to plaintiff were reasonably safe as required by Williams v. Terminal Railroad Association of St. Louis, 339 Mo. 594, 98 S.W.2d 651, 656 (1936). In a case involving the issue before us, evidence as to the manner of unloading radiators the previous day was held admissible to show that there was a safer method available. The question of alternative methods are facts to be considered by the jury in determining whether or not the method used by defendant was reasonably safe and whether or not other methods could have been easily adopted. Clark v. Widmer Engineering Co., 263 S.W. 500, 501 (Mo.App.1924).

We find that the testimony regarding the defendant's previous use of carts to load propane tanks on business cars, the requests made by employees to foremen to provide carts for the purpose of loading propane tanks and the testimony regarding the capability of defendant's own fabricating shop to construct the requested carts was relevant and probative on the issue of whether defendant was negligent in failing to provide reasonably safe equipment for its employees' use. It cannot be said that the use of a cart to load propane tanks onto business cars was unknown to the defendant at the time of plaintiff's accident because in the past carts had been used by defendant for loading the propane tanks onto business cars.

Finally, with regard to the admission of the green cart into evidence, we find defendant's arguments without merit. The admission of demonstrative evidence is a matter entrusted to the sound discretion of the trial court. Fravel v. Burlington Northern Railroad, 671 S.W.2d 339 (Mo.App.1984), cert. denied, 469 U.S. 1159, 105 S.Ct. 907, 83 L.Ed.2d 921 (1985). The value of demonstrative evidence lies in the human factor of understanding better what is seen than what is heard. The green cart offered as exhibit No. 10 by the plaintiffs we find relevant to the case. The cart incorporated the...

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16 cases
  • Welsh v. Burlington Northern, Inc., Employee Benefits Plan, s. 94-1767
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 4, 1995
    ...In late 1984, a jury awarded him $500,000 on a general verdict. That award was affirmed on appeal. See Welsh v. Burlington Northern Railroad Co., 719 S.W.2d 793 (Mo.Ct.App.1986). In late 1985, just before he turned 39 years old, Mr. Welsh became totally disabled from arachnoiditis (inflamma......
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    • United States
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    • February 2, 2016
    ...court has a duty to examine the jury's verdict to determine if the verdict is defective in any manner." Welsh v. Burlington N. R.R. Co., 719 S.W.2d 793, 799 (Mo.App.E.D.1986) (internal quotation omitted). "A verdict is not final until the jury decision is ‘submitted to the court, accepted b......
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  • Keith v. Burlington Northern R. Co., s. 18959
    • United States
    • Court of Appeal of Missouri (US)
    • November 17, 1994
    ...admissibility of the questioned evidence is a matter of procedure which is governed by the law of this state. In Welsh v. Burlington N. R.R., 719 S.W.2d 793 (Mo.App.1986), the issue was whether the tools or methods of work which were in fact made available to plaintiff were reasonably safe.......
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