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Miller v. Norfolk Southern Railway Co.

Court of Appeals of Missouri, Western District, Third Division

October 8, 2019

GARY MILLER, Appellant,


          Before: Gary D. Witt, Presiding Judge, Edward R. Ardini, Jr., Judge and Thomas N. Chapman, Judge


         Gary Miller ("Miller") appeals from a judgment entered in favor of Norfolk Southern Railway Company ("Norfolk") following a jury trial on Miller's claim for damages under the Federal Employers' Liability Act ("FELA").[1] Miller, a former locomotive engineer employed by Norfolk, alleged that Norfolk was negligent for providing "loose and wobbly" locomotive cab seats that failed to protect him from excessive shock, jarring, and vibration, and that this negligence caused him to suffer significant back injuries. The jury was instructed on two theories of recovery for Miller under the FELA: general negligence and negligence per se for violation of the Locomotive Inspection Act ("LIA").[2] The jury found in favor of Norfolk on both theories.

         Miller raises three points on appeal, each asserting instructional error. Specifically, Miller argues that the trial court erred by: (1) refusing his proffered verdict director relating to his negligence per se theory and submitting on an instruction that did not properly state the law applicable to the claim; (2) refusing his proffered assumption of the risk withdrawal instruction; and (3) submitting an improper contributory negligence instruction to the jury. Finding the trial court's refusal to give Miller's proffered verdict director on his negligence per se theory was error, we vacate the entry of judgment in favor of Norfolk on that claim and remand for a new trial on that theory of recovery.

         Factual and Procedural Background

         Miller was hired by Norfolk in March 1993 as a switchman. Three years later, he began working as a locomotive engineer[3] in Norfolk's North Kansas City/Claycomo yards.

         Miller started experiencing significant back pain in 2014. He underwent spinal surgery in August 2014, and was cleared by his doctor to return to work on January 23, 2015, at which time he resumed his previous duties as a locomotive engineer. By November 2015, Miller was again experiencing back pain. He received epidural injections that failed to provide relief, and ultimately underwent a second spinal surgery performed in December 2016. Following that surgery, Miller's doctor placed him on restrictions that prevented him from returning to work as a locomotive engineer. Miller was approximately 51 years old.

         Miller filed suit against Norfolk on November 17, 2014. Miller's petition asserted one negligence count under the FELA, through which he sought recovery under two theories: (1) general negligence and (2) negligence per se based on Norfolk's violation of the LIA. Miller alleged that Norfolk failed to provide him reasonably safe locomotive cab seats and that such conduct was "in violation of the [LIA], as [Norfolk] failed to provide [him] with locomotives that did not pose an unnecessary danger of personal injury and was and is in violation of . . . 49 C.F.R. § 229.119 constituting negligence per se."

         At trial, Miller testified that as an engineer, he spent 80 percent of his day seated in a locomotive. The seats were mounted to the locomotive with steel poles, and did not use suspension, shock absorbers, or springs to dampen the vibrations that inherently occurred in locomotive cabs. Miller stated that "there was always vibration" in the cab when the engine was running, and the seats were "constantly shaking with vibration."

         Miller further testified that there were "quite a few" seats in the locomotive cabs that were "loose and wobbly," and that he encountered such seats 25 to 30 percent of the time. Other witnesses confirmed that loose seats had existed in the locomotive cabs, although to a lesser extent than testified to by Miller.

         Miller presented the testimony of two experts. Dr. Johanning, an occupational medical physician, testified that Miller's exposure to shock, jarring, and vibration while operating locomotives caused or directly contributed to his back injuries. Dr. Johanning also opined that riding on loose and wobbly seats 25 to 30 percent of the time would have caused or directly contributed to Miller's back injuries. Dr. Kress, a biomechanical and biomedical engineer, testified that by riding in seats without protection from shock and vibration over the course of his career, Miller was exposed to risk factors for the development of spinal degeneration.

         The evidence further established that Norfolk had a safety rule that required employees to report unsafe or defective equipment; Miller acknowledged the rule and confirmed that he had never reported a defective, unsafe, or loose or wobbly seat.

         Norfolk offered testimony from Dennis Mitchell, a certified professional ergonomist, who tested the locomotives in Norfolk's North Kansas City rail yard. This testing included participating in a "run" that was representative of Miller's regular work. Mitchell testified that the ride quality of the locomotive was reasonably safe and that Miller was provided with "a reasonably safe [work] environment from an ergonomic and ride quality standpoint." Additionally, Dr. MacMillan, an orthopedic surgeon who conducted an independent medical evaluation of Miller, offered his opinion that Miller's back condition was caused by "age- and obesity-related facet arthropathy, facet syndrome, spinal stenosis." Dr. MacMillan did not believe that Miller's back condition was attributable to exposure to vibrations while employed by Norfolk.

         The trial court instructed the jury on Miller's two theories of recovery: general negligence and negligence per se premised on Norfolk's violation of the LIA. The jury additionally received a contributory negligence instruction relating to Miller's general negligence theory of recovery. The jury found in favor of Norfolk on both theories, and the trial court entered judgment in Norfolk's favor.

         Miller appeals. Additional facts are discussed as necessary.

         The FELA and the LIA

         Prior to addressing the substance of Miller's points on appeal, we will discuss the law governing his claims.[4] The FELA imposes liability on railroads for their employees' injuries caused "in whole or in part from the negligence of the railroad or its employees." Host v. BNSF Ry. Co., 460 S.W.3d 87, 104 (Mo. App. W.D. 2015) (internal marks omitted). The FELA provides that:

Every common carrier by railroad . . . shall be liable in damages to any person suffering injury while he is employed by such carrier . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery . . . or other equipment.

45 U.S.C. § 51.

         "The LIA supplements FELA by imposing on interstate railroads an absolute and continuing duty to provide safe equipment." Host, 460 S.W.3d at 104 (internal marks omitted). The LIA provides that a "railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtenances":

(1) are in proper condition and safe to operate without unnecessary danger of personal injury;
(2) have been inspected as required under this chapter and regulations prescribed by the Secretary of Transportation under this chapter; and
(3) can withstand every test prescribed by the Secretary under this chapter.

49 U.S.C. § 20701.[5] "Pursuant to the LIA, the Federal Railroad Administration ['FRA'], which acts under the authority of the Secretary of Transportation, has promulgated regulations on the governing standards of care for locomotive equipment, including seats." Delaware & Hudson Ry. Co., Inc. v. Knoedler Mfrs., Inc., 781 F.3d 656, 658-59 (3d Cir. 2015) (internal citations omitted). The regulation relevant to this appeal is found at 49 C.F.R. § 229.119(a), and provides that all locomotive cab seats "shall be securely mounted and braced."

         "Violations of the [FRA's] rules are violations of the [LIA.]" Urie v. Thompson, 337 U.S. 163, 191 (1949). "While the LIA and its regulations provide binding standards for the suppliers of locomotives and locomotive equipment, as well as for railroad companies, the statute does not provide a private right of action to employees injured by defective equipment." Delaware & Hudson Ry. Co., 781 F.3d at 659 (internal citations omitted). Rather, the LIA "allows a plaintiff to treat a proven LIA violation as negligence per se in an action under FELA." Host, 460 S.W.3d at 97. While a plaintiff seeking recovery for a violation of the LIA "is relieved of the burden of establishing the defendant's negligence, the plaintiff retains the burden to prove a causal relation between a violation and the injury for which he is suing." Id. at 104 (internal marks omitted). A plaintiff need not elect to bring his FELA claim under either a general negligence or negligence per se theory; rather, "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." Id. at 97 (citing Urie, 337 U.S. at 189).

         A railroad may assert contributory negligence as a defense to a plaintiff's claim for general negligence under the FELA. See id. at 98. If the jury finds that the plaintiff's negligence contributed to his injury, "the damages shall be diminished by the jury in proportion to the amount of negligence attributable to [the plaintiff.]" 45 U.S.C. § 53. However, the railroad cannot assert contributory negligence as a defense against a claim that the railroad committed negligence per se by violating the LIA. See id. (No employee "shall be held to have been guilty of contributory negligence in any case where the violation by [the railroad] of any statute enacted for the safety of employees contributed to the injury or death of such employee."); see also Lilly v. Grand Trunk W. R.R. Co., 317 U.S. 481, 491 (1943) ("Since petitioner's injuries were the result of respondent's violation of the [LIA], the partial defense of contributory negligence . . . [is] not available[.]").

         Congress amended the FELA in 1939 to eliminate the defense of assumption of risk. See Tiller v. Atl. Coast Line R.R. Co., 318 U.S. 54, 58 (1943); see also 45 U.S.C. § 54 (In an employee's action under the FELA, the "employee shall not be held to have assumed the risks of his employment in any case where such injury or death resulted in whole or in part from the negligence" of the railroad.). Thus, "case[s] tried under the [FELA] [are] to be handled as though no doctrine of assumption of risk had ever existed." Tiller, 318 U.S. 64.

         With this law in mind, we turn to Miller's claims of instructional error.

         Point I

         Miller's first point on appeal asserts error relating to the verdict director applicable to his negligence per se theory. Miller contends that Instruction 10[6] submitted his negligence per se theory under 49 U.S.C. § 20701(1) by requiring him to establish that Norfolk breached its duty to keep all parts and appurtenances in proper condition and safe to operate without unnecessary danger of personal injury. Miller argues that the giving of Instruction 10 was improper because his negligence per se claim was not based on that statutory subsection or the standard contained in the instruction, but instead was founded on Norfolk's violation of 49 U.S.C. § 20701(3) for its failure to comply with 49 C.F.R. § 229.119(a). Miller asserts that the trial court erred in refusing his proffered Instruction B[7], and instead giving Instruction 10, explaining "that Instruction B properly stated the federal substantive law applicable to [his] claim" and that his "claim was therefore not submitted under his chosen theory, which was supported by the evidence." We agree.


         We first address Norfolk's contention that this point of error was not properly preserved for our review. To preserve a claim of instructional error, a party must object "on the record during the instructions conference, stating distinctly the matter objected to and the grounds of the objection" and must also raise the objection in a motion for new trial. Rule 70.03. At the conclusion of Miller's presentation of evidence, Miller's counsel advised that it was Miller's intention to submit to the jury his negligence per se theory based on Norfolk's failure to comply with 49 C.F.R. § 229.119 and not "submit on the general LIA language" found in 49 U.S.C. § 20701(1). The trial court later conducted an off-the-record instructions conference that was followed by the trial court, on the record, reading in sequence the instructions it intended to give to the jury. After the trial court finished reading the instructions, Miller's counsel offered Instruction B and argued that it should be submitted instead of Instruction 10:

Miller's counsel: Last but not least, Your Honor, Plaintiff would offer Instruction B, which is a regulation - - the alternative to the MAI form submitted Locomotive Inspection Act.
I know Your Honor's using the Locomotive Inspection Act straight out of MAI, and I understand why you are, Your Honor.[8] We believe that Instruction B would be proper. It's a regulation submission, would be a proper statement of the law, and should be used because under the Locomotive ...

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