Court of Appeals of Missouri, Eastern District, Third Division
THOMAS R. WILSON, APPOINTED TRUSTEE OF CHAPTER 7 ESTATE OF JAMES E. JOHNSON, Appellant,
UNION PACIFIC RAILROAD COMPANY, Respondent.
from the Circuit Court of St. Louis County Hon. Barbara W.
T. Quigless, P.J.
R. Wilson, Appointed Trustee of the Chapter 7 Estate of James
E. Johnson ("Johnson"), appeals from the judgment
of the circuit court following partial summary judgment and a
subsequent jury verdict rejecting his negligence claims
brought against Union Pacific Railroad Co. ("Union
Pacific") under the Federal Employer's Liability
Act, the Locomotive Inspection Act, and the Safety Appliance
Act. We affirm the judgment.
AND PROCEDURAL BACKGROUND
review the evidence presented at trial in the light most
favorable to the jury's verdict, as required by our
standard of review. Johnson was a
railroad worker with Union Pacific for forty-six years, from
the time he graduated high school in 1962 until his
retirement in 2008. Johnson initially worked as a railroad
fireman, eventually worked his way up to brakeman, and
finally was promoted to conductor.
2007, one year before his retirement, Johnson was working as
a brakeman on a Union Pacific train with James Bradshaw
("conductor") and Bradley Hurst
("engineer"). They were taking a train through
Louisiana from Alexandria to Livonia. When the train entered
the Livonia Yard, it had several railcars and two locomotive
engines ("Johnson's Engine").
crew entered the Livonia yard on the receiving tracks and
left their railcars at the north end of the yard. The
yardmaster then instructed Johnson's crew to put their
two engines onto one of the four Diesel Service Tracks at the
south end of the yard. These tracks diverge from the main
receiving tracks and lead towards a building known as
"the shed" or diesel shop, where locomotive engines
are repaired. This is a service area under "blue flag
protection" and secured by
derails,  which are locked except when
an engine is authorized to enter the area. In this area, the
locomotive foreman controls all activity, and train crews,
like Johnson's, must get authorization from the
locomotive foreman prior to entering the area or interacting
with any of the other engines located there.
Johnson's Engine entered the Diesel Service Track, two
other locomotives were already on the track between
Johnson's Engine and the diesel shop, the UP 9484 and the
UPY 106. Both of these locomotives were stationary, parked
near the shed about fifty feet apart, unattended, with their
lights and engines turned off. As Johnson's Engine moved
towards the diesel shop, engineer Hurst and conductor
Bradshaw were together in the front cab, while Johnson was on
the rear. The engineer's job was to operate the
engine's controls, while Johnson's job as the
brakeman was to be the engineer's eyes, watching the
track and relaying instructions to the engineer by radio.
saw the UP 9484, and started relaying the distance to the
engineer in railcar lengths. . . five cars, two cars,
one-half car. Johnson testified he called for the engineer to
stop. However, the engineer testified he never heard Johnson
say "stop" until after Johnson's Engine made
contact with the UP 9484. When the engines made contact, they
did not couple upon impact, and
the UP 9484 began rolling towards the diesel shop. Johnson
testified the failure to couple was probably due to
misalignment of the couplers. Johnson jumped down, and ran
towards the UP 9484 to set the handbrake. In the process,
Johnson fell and asserts he injured his neck and back.
trial, Union Pacific introduced evidence of three rules
governing procedures for coupling with other engines. First,
under Rule 5.13F of Union Pacific's General Code of
Operating Rules ("Operating Rules"), Johnson was
prohibited from coupling his engine to any other engine in an
engine service area, such as the Diesel Service Track,
without first being instructed to do so by the locomotive
foreman. Johnson admitted he never received this
authorization. Second, under Livonia's "50 foot
rule, " Johnson was required to stop fifty feet away
from another engine prior to coupling. The evidence indicated
Johnson's Engine did not stop fifty feet away from the UP
9484 prior to attempting to couple. Third, under Operating
Rule 7.4, Johnson was required to verify that an engine is
properly secured and can be coupled and moved safely prior to
coupling. Johnson admitted he failed to follow this rule
because he never set the handbrake on the UP 9484 or checked
the alignment of the couplers prior to attempting to couple.
returning to Alexandria, Johnson reported the accident and
his injury to his supervisor and filled out an injury report.
Johnson was initially treated two months later by Dr. Gordon
Webb, who ordered tests and released him back to work.
Johnson never missed a day of work from the day of the
accident in 2007 until his retirement a year later in 2008.
Johnson retired when eligible based on his age and years of
service. Johnson never mentioned anything about retiring due
to any injury or disability.
received no medical treatment for his neck or back for a
period of nearly two years following his initial treatment
from Dr. Webb. Then, in January of 2010, Johnson sought
treatment from Dr. George Schoedinger, a surgeon in St.
Louis, who performed neck surgery and continued treating him
of 2010, Johnson filed a petition against Union Pacific,
alleging negligence under the Federal Employer's
Liability Act ("FELA"), 45 U.S.C. § 51 et
seq. (2007), the Locomotive Inspection Act
("LIA"), 49 U.S.C. § 20701 et seq.
(2007), and the Safety Appliance Act ("SAA"), 49
U.S.C. § 20302 et seq. (2007). Count I alleged
negligence under FELA, claiming Union Pacific's
negligence caused the accident and Johnson's injuries by
failing to provide a safe workplace, equipment, and
procedures. Counts II and III alleged negligence per
se, claiming Union Pacific violated the LIA and the SSA
because the UP 9484 was defective in that it did not
"automatically couple" upon impact. Counts IV, V,
and VI alleged negligence, claiming Union Pacific failed to
provide safe working conditions over the course of
to trial, Union Pacific filed a motion for partial summary
judgment on Counts II and III, arguing that neither the LIA
nor the SAA applied to this accident because the UP 9484 was
not "in use" at the time of the accident, that
there was no evidence of a violation of either act because
the failure to couple due to misalignment is not a statutory
violation, and that these claims were barred by the statute
of limitations. The circuit court granted this motion,
finding that the UP 9484 was not "in use." Johnson
then voluntarily dismissed Counts IV, V, and VI.
trial was held on the remaining count, alleging negligence
under FELA. Union Pacific denied Johnson's allegations of
negligence. Specifically, regarding causation, Union Pacific
argued Johnson was the "sole cause" of his own
injuries because he violated multiple rules that would have
prevented the accident. Concerning damages, Union Pacific
argued Johnson did not suffer any compensable injury because
he did not receive any medical treatment for his alleged
injuries for a period of nearly two years prior to filing
suit, and he never missed a day of work until his retirement,
which was due to age and years of service, rather than any
injury or disability. At the close of all the evidence,
Johnson filed a motion for a directed verdict, which the
court denied. The court allowed Johnson to submit two claims
to the jury, FELA negligence and negligence per se.
jury returned a verdict in favor of Union Pacific. On the
FELA negligence claim, the jury found Union Pacific zero
percent at fault, instead attributing one hundred percent of
the fault to Johnson. On the negligence per se
claim, the jury found in favor of Union Pacific. The jury
also determined Johnson suffered zero dollars in damages. The
court entered judgment in favor of Union Pacific on both
claims. Johnson then filed a motion for judgment
notwithstanding the verdict, which the court denied. This
raises four points on appeal. In Point I, Johnson argues the
circuit court erred in granting summary judgment on the LIA
strict liability claim. In Point II, Johnson argues the
circuit court erred in admitting evidence that railroaders
like him are eligible or receive retirement benefits at age
sixty with thirty years of service because such evidence was
highly prejudicial, and its admission violated the collateral
source rule as applied in FELA cases. In Point III, Johnson
argues the circuit court erred by denying his motions for a
directed verdict and judgment notwithstanding the verdict on
the issue of negligence per se based on Union
Pacific's statutory violations for not having a handbrake
set on the unattended locomotive UP 9484. In Point IV,
Johnson argues the jury's verdict was against the weight
of the evidence.
Point One - Partial Summary Judgment on Johnson's LIA
Claim Was Proper
first point on appeal, Johnson argues the circuit court erred
in granting Union Pacific's motion for summary judgment
on Johnson's LIA claim. We disagree.
Standard of Review
standard of review for a trial court's decision granting
a motion for summary judgment is de novo.
Daugherty v. City of Md. Heights, 231 S.W.3d 814,
818 (Mo. banc 2007). Summary judgment is appropriate where
the moving party has demonstrated there is no genuine issue
as to any material fact and it is entitled to judgment as a
matter of law. Id.; Rule 74.04(c)(6). A fact is
"material" if "it has legal probative force as
to a controlling issue in the litigation." Y.G. v.
Jewish Hosp. of St. Louis, 795 S.W.2d 488, 494-95 (Mo.
App. E.D. 1990). An issue as to a material fact is
"genuine" when "the record shows two
plausible, but contradictory, accounts of the essential facts
and the 'genuine issue' is real, not merely
argumentative, imaginary, or frivolous."
Daugherty, 231 S.W.3d at 818. This court reviews the
record on the motion for summary judgment in the light most
favorable to the party against whom judgment was entered.
prevail on a motion for summary judgment, a defending party
may establish a right to summary judgment by demonstrating:
(1) facts negating any one of the elements of plaintiff's
claim; (2) that after an adequate period for discovery,
plaintiff has not been able and will not be able to produce
sufficient evidence to allow the trier of fact to find the
existence of any one of the elements of plaintiff's
claim; or (3) that there is no genuine dispute as to the
existence of the facts necessary to support movant's
properly pleaded affirmative defense. Stanbrough v. Vitek
Sols., Inc., 445 S.W.3d 90, 96-97 (Mo. App. E.D. 2014)
(citing Rule 74.04(c)).
the moving party has met this burden, the burden shifts to
the non-moving party to come forward with new evidence or to
identify evidence already in the record that directly
challenges or contradicts these facts. Nangle v.
Brockman, 487 S.W.3d 29, 34 (Mo. App. E.D. 2016). The
non-moving party cannot meet its burden to oppose a motion
for summary judgment by merely relying on the allegations in
the pleadings or denials of ...