Byrd v. Burlington Northern Railroad

939 S.W.2d 416, 1996 Mo. App. LEXIS 1984, 1996 WL 705909
CourtMissouri Court of Appeals
DecidedDecember 10, 1996
DocketNo. 69550
StatusPublished
Cited by3 cases

This text of 939 S.W.2d 416 (Byrd v. Burlington Northern Railroad) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Byrd v. Burlington Northern Railroad, 939 S.W.2d 416, 1996 Mo. App. LEXIS 1984, 1996 WL 705909 (Mo. Ct. App. 1996).

Opinion

GERALD M. SMITH, Judge.

Defendant, Burlington Northern Railroad Company, appeals from a judgment against it of $1,300,000 based upon a jury verdict in this FELA ease. We affirm.

Plaintiff, Kenneth Byrd, worked as a car-man for the railroad. He had been so employed for 28 years except for a period of military service. He and a co-worker, Coble, were sent by their supervisor from the repair facilities in Springfield, Missouri, to repair a gondola car in Columbus, Kansas, approximately 100 miles from Springfield. The gondola car was loaded with scrap iron. The repair involved replacement of an air brake reservoir, located underneath the car and weighing 256 pounds. Plaintiff and Coble, although experienced carmen, had limited experience in replacing reservoirs of this kind, particularly on a loaded car, by hand, away from the repair facility.

No mechanical lifting device or jack was provided to plaintiff and Coble for this job. Because the car was loaded they could not cut a hole in the bottom of the car and utilize the boom on their truck to move the new reservoir into position. They therefore sat on the ground and attempted to lift the reservoir into position. Coble weighed approximately 135 pounds; plaintiff in excess of 250 pounds. After placing one end of the reservoir into position they attempted to place the other end in place at which point the already placed end fell on plaintiff. He experienced immediate pain but he and Coble were able to place the reservoir into position and Coble secured it into place. Plaintiff immediately reported the injury when he returned to the repair shop in Springfield.

The injury precluded plaintiff from working as a carman, required surgery which only partially relieved his pain, and rendered him permanently disabled from performing work as a carman.

Railroad makes no challenge to the sufficiency of the evidence to support the verdict. It raises five allegations of trial error. The first alleges error in giving plaintiffs instruction pertaining to future pecuniary damages and in the court’s refusal to give defendant’s withdrawal instructions of those damages. The point is based upon defendant’s contention that no evidence was presented by plaintiff as to “present value” of such damages and that defendant’s voir dire had established that no member of the jury was capable of determining “present value” of such damages.

An instruction on present value is mandatory in a FELA case if requested by either party. Anglim v. Missouri Pacific Railroad Co., 832 S.W.2d 298 (Mo.banc 1992)[29,30], cert. denied sub nom. Missouri Pacific R.R. Co. v. Anglim, 506 U.S. 1041, 113 S.Ct. 831, 121 L.Ed.2d 701 (1992). Either party may offer present value evidence, but whether such evidence is offered or not, the subject is open to jury instruction if requested and to jury argument. Id. at [32]. Anglim relied upon Bair v. St. Louis-San Francisco Ry. Co., 647 S.W.2d 507 (Mo.banc 1983), cert. denied 464 U.S. 830, 104 S.Ct. 107, 78 L.Ed.2d 109, for the proposition that the “fact that a dollar today is not the same thing as a dollar payable some years from now, is the matter of plainest fact which could be appropriately argued without the need for expert testimony.” Anglim, supra at [31]. The Anglim court further noted that there is no single method for determining present value mandated by federal law. Id. at [32], The court then held: “In the absence of any contrary indication, we can assume that each juror in his or her respective fashion complied with the instruction and determined the present value of future wage loss.” Id.

Defendant contends that the first seven words of the last quoted sentence preclude an award of future pecuniary damages where no evidence is adduced of present value and none of the selected jurors on voir dire indicated knowledge of how to compute present value. It is apparent from the remainder of the quoted sentence that the court did antici[418]*418pate that jurors may not have specific knowledge of how to compute present value but that each will in their “respective” ways determine what they believe “present value” to be. If defendant wishes to influence that determination it is free to present evidence to assist the jury. If it chooses not to, then it leaves that determination to the common knowledge of the jury. Defendant did not seek to provide the jury with assistance in this area. Further the non-itemized verdict of the jury does not enable us to determine what award it made for future pecuniary damages and whether or not it made some adjustment for “present value”. Id. at [32]. We find no error.

Defendant next contends that the trial court erroneously refused to give defendant’s requested mitigation of damages instruction. A defendant is entitled to a mitigation of damages instruction if there is evidence to support such an instruction. Hawkes v. Norfolk & Western Railway Company, 876 S.W.2d 705 (Mo.App.1994)[2], The evidence here did not support a mitigation instruction. Plaintiff at the time of trial was still in his healing period from the back surgery and his doctor did not consider it advisable for him to ever work as' a carman. When plaintiff sought to go back to work after his injury he was unable to perform satisfactorily and was told by his supervisor not to return to work until he was able to perform the full requirements of the carman position. In the period prior to the back surgery the only employment offered by the railroad was a job for which plaintiff did not appear to be qualified and which would have cost him his seniority in his carman position and additional benefits. We find no error in denying the requested mitigation instruction.

In its third' point the defendant asserts error in the admission of testimony concerning the possible loss of plaintiffs farm as a result of his injuries. An objection was made to earlier testimony given by a neighbor of plaintiff concerning the fact the farm was for sale. The court overruled that objection on the basis that the evidence was relevant to show that because of his injuries the plaintiff was no longer able to work the farm. Defendant made no objection to the testimony of plaintiff of which it now complains. The earlier testimony was relevant for the reason stated by the court in overruling the objection. Defendant was required to object to the testimony of the plaintiff of which it now complains if it believed the testimony was offered for a different and objectionable reason. The point has not been preserved.

Defendant next premises error on the court’s refusal to give MAI 24.01’s knowledge paragraph, mandated in certain cases by Qualls v. St. Louis Southwestern Railway Company, 799 S.W.2d 84 (Mo.banc 1990), cert. denied sub nom. St. Louis Ry. Co. v. Qualls, 499 U.S. 961, 111 S.Ct. 1585, 113 L.Ed.2d 650 (1991). In that case the court said the paragraph was not required if the judge decides the plaintiff has shown defendant had actual knowledge of the negligently produced condition. Id.

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939 S.W.2d 416, 1996 Mo. App. LEXIS 1984, 1996 WL 705909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byrd-v-burlington-northern-railroad-moctapp-1996.