Conley v. Burlington Northern Railroad

765 S.W.2d 272, 1988 Mo. App. LEXIS 1635, 1988 WL 125748
CourtMissouri Court of Appeals
DecidedNovember 29, 1988
DocketNo. WD 39857
StatusPublished
Cited by3 cases

This text of 765 S.W.2d 272 (Conley 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
Conley v. Burlington Northern Railroad, 765 S.W.2d 272, 1988 Mo. App. LEXIS 1635, 1988 WL 125748 (Mo. Ct. App. 1988).

Opinion

KENNEDY, Chief Judge.

Plaintiff Billy J. Conley appeals from a judgment of the trial court by which he was awarded $200,000 damages in a Federal Employers Liability Act claim against his employer Burlington Northern. His injuries consisted of aggravation of an earlier ankle sprain, the aggravation resulting from defendant’s alleged negligence in (quoting from his verdict-directing instruction) “assign(ing) plaintiff to work which defendant in the exercise of ordinary care should have known would aggravate plaintiff’s ankle condition”.

Conley claims that the trial court erred in submitting to the jury his contributory negligence in “failing) to report to defendant that his work assignments were causing pain in his ankle.”

The facts:

Plaintiff while going about his work as a special agent for the railroad on November 17, 1979, twisted his ankle. This injury is not the basis of the lawsuit; the lawsuit is based upon the subsequent aggravation of this injury by the railroad’s work demands upon him. Plaintiff’s regular work of surveillance of railroad equipment and cargo called for him to walk about the railroad yards, often on rough and uneven surfaces, and to climb on to railroad cars. He was on the night shift at least a part of the time in question. His evidence was that the ankle was causing him pain as he performed the duties of his employment; that he complained of this to his superiors; that he limped; and that his superiors knew of his ankle injury and pain; and yet it required him to continue working. We do not need to examine this evidence in detail, for the railroad has not appealed and there is no issue of the railroad’s negligence in the particulars submitted. (Of course, the railroad by failing to appeal does not admit its negligence, but only that the evidence made out a prima facie case of negligence on its part.)

Plaintiff says the evidence did not justify the submission of his contributory negligence because there was no evidence that he knew or should have known that continued work on the injured ankle when it was hurting would cause substantial harm. Plaintiff points out that no physician had ever told him of this danger and that he should not be charged with this knowledge as a layman without medical knowledge. Without that knowledge, he argues, his continued working without reporting the pain was not negligence on his part. For this position, he cites our opinion in an earlier appeal of this case, Conley v. Burlington Northern Railroad Company, 712 S.W.2d 381 (Mo.App.1986).

We hold, however, that it was not necessary for plaintiff, in order to be found guilty of contributory negligence, to have received advice from a physician that his continued work on the injured ankle could result in the degree of disability which [274]*274ultimately resulted. A layman is held to know what the experiences of daily life teach and that which is commonly understood and believed. The jury could believe that plaintiff knew or should have known that he was risking some damage to his sprained ankle by continuing to work upon the painful ankle, and that his failure to report the pain was negligence on his part — even though, as was no doubt the case, he did not realize the extent of the disability which might result, or (to use the language of his brief) he “did not know and appreciate the gravity of the consequences.”

In the first Conley v. Burlington Northern Railroad Company, supra, the court had before it a contributory negligence instruction which required a finding that plaintiff “knew or by using ordinary care should have known his performance of his regular duties was reasonably likely to cause him substantial harm but continued to perform such duties”. This submission was held to be unsupported by the evidence in that plaintiff a layman could not be held to “have the medical knowledge to realize that his continued work might cause him substantial harm”. 712 S.W.2d at 385. It is to be noted that the contributory negligence instruction in the present case does not require a finding by the jury that defendant knew or should have known that substantial harm was likely to result from his continued performance of his duties. It required findings only that plaintiff failed to report the pain to his superiors, that this failure so to report was negligence on his part, and that it contributed in some measure to his injury.

The degree of plaintiff’s negligence depends to some extent upon his knowledge of the risk — upon what he knew as to the possible extent of the aggravation of the ankle injury, and the likelihood of a serious and permanent disability. The more he knew, the greater his negligence in not taking steps for his own protection. The less he knew, the smaller his negligence. This is one of those things the jury must weigh in determining the contributory negligence of plaintiff, if any. “The question of how much of the injury is attributable to the employee’s own actions and lack of due care for his own condition is to Ibe decided by the jury if there is any evidence at all of contributory negligence.” Taylor v. Burlington Northern R. Co., 787 F.2d 1309, 1314 (9th Cir.1986). “An employee is con-tributorily negligent when he fails to use those precautions for his own safety which ordinary prudence requires_ [I]f negligence on the art of plaintiff contributed in any way to causing his injury, a submissi-ble jury case of mitigating negligence is made.” White v. St. Louis-San Francisco Ry. Co., 539 S.W.2d 565, 570 (Mo.App.1976).

Plaintiff then says that there was no evidence of the hypothesized fact that plaintiff failed to advise defendant that his work assignments were causing pain in his ankle. He also says that, if there was evidence that he did not so advise the defendant railroad, still there was no evidence that his failure so to report caused the disability he complains of. He argues that the evidence shows that his employer knew, without his telling them, of the pain caused by his work, and that there is no evidence that his reporting the pain would have made any difference in its work demands upon him.

In determining whether an instruction is supported by the evidence, we of course take the evidence most favorable to such instruction, and ignore all evidence contrary to the hypotheses of the instruction. Woten v. Day, 684 S.W.2d 901, 902 (Mo.App.1985).

There was testimony that plaintiff failed to advise defendant that his work assignments were causing pain in his ankle; that his superiors did not know of the ankle pain caused by his work; and that if Conley had told them of the difficulties he was experiencing in working on the ankle, that they would have relieved him of his duties. That testimony was as follows:

From the time of Conley’s initial injury November 17,1979, until the termination of his employment in early January, 1983, Conley had two successive supervisors. At the time of the injury and until March 1, [275]*2751981, his supervisor was Clifford Paul Frederick.

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Related

Bailey v. Norfolk & Western Railway Co.
942 S.W.2d 404 (Missouri Court of Appeals, 1997)
Cottrell v. Burlington Northern Railroad
863 P.2d 381 (Montana Supreme Court, 1993)
Mateer v. Union Pacific Systems
873 S.W.2d 239 (Missouri Court of Appeals, 1993)

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Bluebook (online)
765 S.W.2d 272, 1988 Mo. App. LEXIS 1635, 1988 WL 125748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conley-v-burlington-northern-railroad-moctapp-1988.