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Wilson v. Union Pacific Railroad Co.

Court of Appeals of Missouri, Eastern District, Third Division

February 7, 2017


         Appeal from the Circuit Court of St. Louis County Hon. Barbara W. Wallace


          Angela T. Quigless, P.J.

         Thomas 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.


         We review the evidence presented at trial in the light most favorable to the jury's verdict, as required by our standard of review.[1] 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.

         In 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").[2]

         The 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"[3] and secured by derails, [4] 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.

         When 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.

         Johnson 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[5] 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.

         At 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.

         Upon 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.

         Johnson 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 until 2012.

         In May 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 Johnson's career.

         Prior 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.

         A jury 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.

         The 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 appeal follows.


         Johnson 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.


         I. Point One - Partial Summary Judgment on Johnson's LIA Claim Was Proper

         In his 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.

         A. Standard of Review

         Our 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. Id.

         To 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)).

         Once 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 ...

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