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Host v. BNSF Ry. Co.

Court of Appeals of Missouri, Western District, Second Division

May 5, 2015

THOMAS HOST, Respondent,

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Appeal from the Circuit Court of Cass County, Missouri. The Honorable William B. Collins, Judge.

Nelson G. Wolff, St. Louis, MO, for respondent.

Sean P. Hamer and Michael A. Preston, Overland Park, KS and Marianne M. Auld, Fort Worth, TX, for appellant.

Before Division Two: Lisa White Hardwick, Presiding Judge, Victor C. Howard, Judge and Cynthia L. Martin, Judge. All concur.


Cynthia L. Martin, Judge

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BNSF Railway Company (" BNSF" ) appeals from the entry of judgment in favor of Thomas Host (" Host" ) following a jury trial on Host's claim for damages under the Federal Employers' Liability Act (" FELA" ).[1] BNSF claims several errors involving the admission of evidence, the submission of Host's claims to the jury, and jury instructions, any one of which BNSF contends warrants a new trial. Finding no prejudicial error, we affirm.

Factual and Procedural Background[2]

Host was hired by BNSF in January 2007. In 2010, Host began working in the

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Argentine railway yard in Kansas City as a switchman and conductor.

At approximately 10:00 p.m. on February 19, 2011, Host and his co-worker received an assignment to move two locomotives from the diesel shop facility to another part of the railway yard and to couple the locomotives with train cars slated to leave the yard. Host and his co-worker began the process of moving the locomotives into the railway yard. The moving process took over an hour because of traffic in the yard. Once the locomotives reached their destination, Host moved from the lead locomotive to the trailing locomotive, entering on the conductor's side. Host remained in the cab of the locomotive awaiting further orders.

Early the next morning, the trainmaster gave Host permission to couple the locomotive with the train cars. Host was required to visually observe the coupling. He left the cab and opened the door to the locomotive's stairs on the engineer's side, preparing to exit the locomotive. Host shined his lantern in front of him and then stepped out of the locomotive. His foot slipped on the threshold. Host missed the next step and landed on the locomotive's walkway. Host felt excruciating pain in his lower leg and was transported to a hospital.

A medical examination revealed that Host had suffered a fracture to his ankle that required three surgeries to repair. After the final surgery, Host's doctor issued permanent restrictions against walking on uneven ground and prolonged standing or walking. Host testified that, as a result of those restrictions, he could not continue to work for BNSF as a switchman and conductor.

Host filed suit against BNSF on August 8, 2011. Host's petition asserted two theories of recovery under the FELA: (1) general negligence; and (2) negligence per se based on BNSF's violation of the Locomotive Inspection Act (" LIA" ).[3] Host alleged that the locomotive steps were slippery due to the presence of oil, water, or some other substance, and that the steps had not been properly treated with a non-skid surface.

After trial to a jury, the trial court, over BNSF's objection, submitted Host's general negligence and negligence per se theories of recovery in separate jury instruction packages, each with its own verdict form. Contributory negligence was submitted as an affirmative defense in the general negligence instruction package. The jury found in favor of Host on both verdict forms. On the general negligence verdict form, the jury awarded Host $453,477.50. On the negligence per se verdict form, the jury awarded Host $906,975.00. The trial court accepted both verdicts but only entered judgment in Host's favor in the amount of the negligence per se verdict.

BNSF appeals. Additional facts are discussed in the analysis portion of this opinion as necessary.

Summary of Issues on Appeal and Explanation for Order of Discussion

BNSF raises six points on appeal. It argues in Point One that the trial court erred in submitting Host's claims of general negligence and negligence per se to the jury and in denying its motions for directed verdict and for judgment notwithstanding the verdict (" JNOV" ) because there

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was " no evidence" that any slippery surface or the failure to properly treat locomotive surfaces caused Host's fall. BNSF argues in Point Two that the trial court erred as a matter of law in submitting Host's negligence per se claim because the locomotive on which Host was working was not " in use," a required condition to application of the LIA. BNSF argues in Point Three that the trial court erroneously permitted Host to argue general negligence based on evidence of defective handrails. BNSF alleges in Point Four that the trial court erred in admitting evidence of subsequent remedial measures to prove that BNSF was negligent. BNSF claims in Point Five that the trial court erroneously admitted the text of 49 C.F.R. section 229.119(c) into evidence because the regulation addresses subjects exceeding those relied on by Host to claim negligence per se, creating juror confusion. Finally, in Point Six, BNSF claims instructional error for three distinct reasons:[4] (a) the trial court erred in submitting Host's general negligence and negligence per se claims in two separate packages; (b) the verdict director for Host's general negligence claim was a " roving commission" as it instructed only that the jury must find that BNSF failed to provide a reasonably safe workplace; and (c) in connection with Host's general negligence claim, the trial court permitted the jury to reduce any award of damages by contributory negligence assessed to Host without requiring the jury to specify the percentage of fault assessed to Host.

Thematic throughout BNSF's brief is the oft-repeated assertion that Host was erroneously permitted to submit two separate claims to the jury (general negligence and negligence per se ). This assertion is implicated directly by BNSF's Point Six (a). Because discussion and resolution of this issue will, as we explain, influence the order in which BNSF's remaining points should be addressed, if at all, we begin our analysis with Point Six (a).

Point Six (a)

BNSF contends that the trial court erroneously instructed the jury, over its objections, by splitting an " indivisible" FELA claim into two distinct claims--a claim for general negligence and a claim for negligence per se. BNSF claims that this error is demonstrated by the fact that the general negligence and negligence per se claims were submitted in two jury instruction packages, which allowed the jury to enter two separate verdicts for two different amounts even though Host only had a single claim for damages under the FELA.

" Whether a jury was instructed properly is a question of law that this Court reviews de novo." Doe 1631 v. Quest Diagnostics, Inc., 395 S.W.3d 8, 13 (Mo. banc 2013) (citing Klotz v. St. Anthony's Med. Ctr., 311 S.W.3d 752, 767 (Mo. banc 2010)). " 'If this Court finds that [an] instruction is erroneous, it must then determine whether the error misdirected, mislead or confused the jury, resulting in prejudicial error and justifying the grant of a new trial.'" Id. (quoting First Bank v. Fischer & Frichtel, Inc., 364 S.W.3d 216, 219 (Mo. banc 2012)).

BNSF's point requires us to address two distinct issues: (i) whether Host was impermissibly allowed to split a single FELA

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claim; and if not, (ii) whether it was error to submit separate theories seeking the same FELA damages in separate jury instruction packages.

The first of these two issues is not complicated to resolve. BNSF correctly observes that the " LIA does not confer a right of action on an injured plaintiff but rather allows a plaintiff to treat a proven LIA violation as negligence per se in an action under FELA." Payton v. Union Pac. R.R. Co., 405 S.W.3d 1, 5 (Mo. App. E.D. 2013). BNSF acknowledges, however, that a claim under the FELA can be asserted based both on a theory of general negligence and on a theory of negligence per se because of a violation of the LIA. [Appellant's Brief p. 21]; Urie v. Thompson, 337 U.S. 163, 189, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); Payton, 405 S.W.3d at 5. Nothing in this record suggests that Host attempted to assert or submit a private cause of action for violation of the LIA. Rather, Host asserted and submitted a claim under the FELA based on both the theory of general negligence and the theory of negligence per se.

Nonetheless, BNSF argues that Host impermissibly split his FELA claim. BNSF bases this assertion solely on the fact that Host's general negligence and negligence per se theories were submitted in separate jury instruction packages. BNSF cites no authority for the proposition that the manner in which the jury was instructed operated to impermissibly " split" Host's FELA claim. See Shiplet v. Copeland, 450 S.W.3d 433, 444 (Mo. App. W.D. 2014) (" The failure to cite relevant authority supporting a point or to explain the failure to do so preserves nothing for review." (internal quotation marks omitted)). BNSF's assertion is without merit.

BNSF's chief complaint is with the trial court's refusal of its tendered jury instructions which would have submitted the theories of general negligence and negligence per se in a single package with a single verdict form. Instead, over BNSF's objection, the trial court submitted Host's claims of general negligence and negligence per se in separate instruction packages with separate verdict forms. BNSF claims that this was error as a matter of law, as it resulted in " two different verdicts and awarded two different amount[s] of damages . . . for the same cause of action." [Appellant's Brief p. 50] Though we agree that Host's separate theories for recovery under the FELA are a part of a single claim for FELA damages that should have been submitted in a single verdict form, any " error" in the jury's rendering of duplicative and overlapping damage awards was resolved by the trial court's entry of judgment in only the amount awarded on Host's negligence per se claim.

It is uncontested that Host was entitled to submit his FELA claim to the jury under both a general negligence theory and a negligence per se theory. See Dickerson v. St. Louis Pub. Serv. Co., 365 Mo. 738, 286 S.W.2d 820, 824 (Mo. 1956) (holding that " on this evidence a clearly submissible case of negligence was made against defendant, both under the ordinance and the common law" ). " It is perfectly proper for a plaintiff to plead and to submit alternative theories for a single injury." Trien v. Croasdale Constr. Co., 874 S.W.2d 478, 480 (Mo. App. W.D. 1994). The question, of course, is in what manner alternative theories for a single injury should be instructed. " Missouri courts have allowed plaintiffs making submissible cases of both common law and per se negligence to offer separate jury instructions on ...

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