Cremer v. Missouri Pacific Railroad

811 S.W.2d 23, 1991 Mo. App. LEXIS 782, 1991 WL 94086
CourtMissouri Court of Appeals
DecidedJune 4, 1991
DocketNo. 58429
StatusPublished
Cited by2 cases

This text of 811 S.W.2d 23 (Cremer v. Missouri Pacific 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
Cremer v. Missouri Pacific Railroad, 811 S.W.2d 23, 1991 Mo. App. LEXIS 782, 1991 WL 94086 (Mo. Ct. App. 1991).

Opinion

GARY M. GAERTNER, Presiding Judge.

Appellant, Missouri Pacific Railroad Company, appeals from a jury verdict of 2.6 million dollars on respondent’s, Thomas Cremer’s, action for damages pursuant to F.E.L.A., 45 U.S.C. § 51 et seq. The jury found that respondent was fifty percent at fault in the incident, therefore, the jury’s verdict netted respondent 1.3 million dollars. While the evidence to support the jury’s award is not questioned, we will briefly recite the facts of the case before addressing appellant’s claims of error.

On July 6, 1987, respondent, a railroad conductor for appellant, was assigned to move a train from Jefferson City, Missouri to Kansas City, Missouri. The train consisted, inter alia, of seven empty railroad cars which were to be dropped off in Lee’s Summit, Missouri. At Lee’s Summit, respondent was to pick up an additional thirty-one empty cars which were to be taken to Kansas City.

Upon arriving in Lee’s Summit, respondent unhitched the four engine cars from the rest of the train and picked up the thirty-one empty railroad cars which he was to transport to Kansas City. Respondent then connected the engines and thirty-one empties to the rest of the train. The train then consisted of four engine cars, thirty-one empties, thirty-four loaded cars and the seven empties which needed to be dropped off.

In order to drop off the seven empty cars, which were at the rear of the train, the train had to be backed.1 The train’s engineers operated the locomotive engines while respondent rode on the back of the last car to make sure that the train’s path was clear.

As the train was shoved, seven of the block of thirty-one empty cars derailed causing the train to stop suddenly. The sudden stop flung respondent to the ground. Respondent suffered injuries to his neck, back and arms. Respondent is no longer able to perform manual labor and will eventually require surgery to his back.

The trial commenced on Monday, January 22, 1990, and did not end until Thursday, February 1, 1990. The jury found appellant and respondent equally at fault and assessed respondent’s total damages at 2.6 million dollars.

Appellant’s first point on appeal is that the court erred in admitting expert testimony which was beyond the scope of the expert’s endorsement and which was not revealed during the expert’s deposition. Appellant claims that the court should have granted appellant a continuance so that it could obtain rebuttal testimony. Appellant’s point cannot be sustained.

Respondent endorsed Michael Mas-sie as an expert to testify regarding the negligence of appellant and the safety and condition of the track and the ground in the vicinity of the derailment. Respondent’s theory of negligence, as supported by Mr. Massie, was that the appellant failed to maintain the rail bed in a safe manner by allowing water and mud to weaken the area where the cars derailed. Respondent also claimed that appellant negligently arranged the railroad cars which required respondent, as conductor, to perform a shove in order to drop off the seven empty cars.

During respondent’s own testimony, it was established that a shove involving a large number of railroad cars was more dangerous than a shove which involved a smaller number. Respondent stated that the larger number of cars causes streets to be blocked for a longer period of time and interferes with radio communications with the central dispatch in Kansas City.

[25]*25Respondent, during direct examination of Mr. Massie, asked Mr. Massie whether he had ever been involved in shoves of trains of this length, seventy-two cars (seventy-six, including the four locomotive engines). Appellant objected claiming that such testimony by this expert would constitute a surprise and, therefore, appellant was entitled to a continuance. The court took appellant’s word for the fact that Mr. Massie did not discuss the subject of whether shoves of this length were dangerous and allowed appellant to voir dire Mr. Massie outside the presence of the jury. The court did not grant a continuance.

The record belies appellant’s claim. During Mr. Massie’s deposition, appellant questioned him quite extensively regarding every aspect of his testimony including the safety of performing a shove with a large number of railroad cars. Representative of Mr. Massie’s deposition testimony on the subject is the following:

Q. (Appellant’s attorney): So the longer the train, the heavier the train, the more lateral drawbar force that would be exerted?
A. (Mr. Massie): I think that would be directly proportional, yes.
Q. Is that a dangerous shove?
A. Shoving ninety-five cars?
Q. In your opinion.
A. It shouldn’t be. It shouldn’t be done on a daily basis. Depends on the position of the cars, naturally, could increase problems, and what we have discussed earlier, the condition of the track and the grade, terrain, curvature in the track. All of that has to do with increasing the problem.
* * * * * *
A. (Mr. Massie): Is it safer to shove twenty than fifty?
(Appellant’s attorney): Yes.
A. I guess it would depend on the makeup and type of cars and a lot of other criteria, like the area that you’re in.
Q. (By Mr. Luther): On a completely flat stretch of track, is it safer to shove twenty cars as opposed to fifty cars?
******
A. Same type of cars, I don’t see any problems in shoving those, but either way, as long as proper techniques are used. The likelihood of derailment occurring might be greater with additional cars, just on the ratio increasing.

The above testimony is strikingly similar to the testimony which Mr. Massie offered during the trial:

Q. (Respondent’s attorney): All right. And do you have an opinion as to whether such a long shove, in and of itself, is an unsafe move?
A. (Mr. Massie): In my opinion is that it is not unsafe, no.
Q. How would you characterize it?
A. Well, the more cars you put on, the more cars you are shoving, the safety factor may come into play. It may be less safe with more cars, but taking into consideration the grade, the engineer’s training and techniques and the signals given, it can and is done every day very safe.

We fail to see how appellant could have been surprised by Mr. Massie’s testimony regarding the safety of performing a shove with a large number of rail cars. As the trial court aptly stated, “this has always been an issue in this case.” j

Even assuming that appellant was correct in asserting that Mr. Massie’s testimony was beyond his endorsement and deposition testimony, appellant’s argument would fail. The trial court is granted broad discretion in fashioning a remedy for the failure of a party to properly disclose the opinions of its experts or the factual basis for reaching their conclusions. Gassen v. Woy, 785 S.W.2d 601, 604 (Mo.App., W.D.1990); Stallings v. Washington University,

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811 S.W.2d 23, 1991 Mo. App. LEXIS 782, 1991 WL 94086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cremer-v-missouri-pacific-railroad-moctapp-1991.