Sanders v. National Railroad Passenger Corp.

930 S.W.2d 36, 1996 Mo. App. LEXIS 1334, 1996 WL 422065
CourtMissouri Court of Appeals
DecidedJuly 30, 1996
DocketNo. 68547
StatusPublished
Cited by8 cases

This text of 930 S.W.2d 36 (Sanders v. National Railroad Passenger Corp.) 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
Sanders v. National Railroad Passenger Corp., 930 S.W.2d 36, 1996 Mo. App. LEXIS 1334, 1996 WL 422065 (Mo. Ct. App. 1996).

Opinion

PUDLOWSKI, Presiding Judge.

This appeal arises from an action under the Federal Employer’s Liability Act (FELA). Mr. Sanders (appellant) brought suit against National Railroad Passenger Corporation (Amtrak) for injuries sustained to the nerves in his face when an object flew through an open window of the locomotive he was operating. The jury found the railroad was negligent and awarded appellant $450,-000.00. Amtrak motioned for judgment notwithstanding the verdict. The trial court granted Amtrak’s motion and in the alternative granted a new trial. We reverse the JNOV, reverse the order of a new trial and remand with instructions that the jury verdict be reinstated.

Appellant is a locomotive engineer for Amtrak. On the evening of July 7, 1990, appellant was operating a train through Caronde-let Park in St. Louis. It was approximately 89 degrees inside the cab of the locomotive and the cab was not air conditioned so appellant had the window open for ventilation. There was no regulation prohibiting crew members from opening the windows while operating a train. There was a regulation requiring glazed glass able to withstand specified impacts in all train windows.

As the train moved through the park, an object came through the window and struck appellant on the side of the face. Appellant believes it was a bullet because he recalls seeing a muzzle flash and hearing a gunshot immediately before he was struck. No bullet or other object was recovered. The object left appellant with a huge hematoma and scratches. As a result of the accident, he suffers from permanent nerve damage and chronic pain.

In December of 1991, appellant filed suit against Amtrak alleging negligence under FELA The case was tried to a jury pursuant to the FELA statute. The trial court took judicial notice of the fact that the railroad had notice that projectiles are regularly launched at trains. The jury returned a verdict in favor of appellant. Amtrak motioned for judgment notwithstanding the verdict and in the alternative a new trial. The trial court granted the JNOV and a new trial should the JNOV be overturned. This appeal followed.

As a threshold matter, Amtrak alleges appellant’s brief does not comply with Rule 84.04 in that his points relied on do not state what rule of law the court should have applied nor do they indicate wherein and why the trial court erred. Amtrak argues appellant has preserved nothing for review. Appellant motioned to file an amended brief and the motion was granted. The amended brief does comply with the rule. Amtrak’s argument is denied.

In point one, Appellant argues the trial court erred in finding he failed to present a submissible case and, therefore, erred in granting JNOV. We agree. In a FELA action, the question of whether plaintiff met his burden in making a submissible case is governed by federal law. Stewart v. Alton and Southern Ry. Co., 849 S.W.2d 119, 123 (Mo.App. E.D.1993). The Act is an avowed departure from common law. Id. The test under FELA is simply whether the proofs justify with reason the conclusion that the employer’s negligence played any part, however slight, in producing the injury for which damages are sought. Id. It does not matter that the jury could, on grounds of probability, attribute the injury to other causes. Id. Judicial appraisal of the proofs to determine if a jury question is presented is limited to the single issue of whether, with reason, the conclusion may be drawn that the negligence [38]*38of the employer played any part at all in the injury. Id.

A submissible case is made where plaintiff shows the railroad had a duty to provide a reasonably safe work place, that lack of care played some part, however slight, in producing the injury and that the injury was reasonably foreseeable. White v. Union Pacific R.R. Co., 871 S.W.2d 50, 53 (Mo.App. E.D.1993). There is no dispute about Amtrak’s duty to provide a reasonably safe work place. Amtrak alleges the injury was not foreseeable because the railroad had no notice that shootings occurred in Caron-delet Park. We disagree. The issue of foreseeability is generally a jury question. Stewart, 849 S.W.2d at 125. Judicial review is limited to the reasonableness of the jury finding. Id. It is the knowledge or anticipation of the possibility of harm to the plaintiff, not the exact nature of the injury that is determinative. Id. The trial court took judicial notice of the fact projectiles are often launched at trains, nationwide. This fact is sufficient to establish the railroad had notice that injury could occur at any given point on its train routes from an object coming through open windows. It is inconsequential that the railroad did not have notice of shootings in the park. The possibility of injury from a condition in the work place is what must be reasonably foreseeable, not knowledge of the precise injury and location. In this case, the condition was open windows rather than protective glass. Accordingly, it was reasonable for the jury to find the railroad had notice of the risk of injury based on the fact judicially noticed into evidence. There was also a memo from the railroad that indicated it was aware of the heat in locomotive cabs and that air conditioning would afford a more comfortable and safe working environment. The memo specifically admitted the railroad’s knowledge of risk of injury from projectiles coming through the open windows. We find this evidence clearly sufficient for a jury to conclude the railroad had notice of a danger to its employees from objects flying in through the open windows. It also indicates the railroad knew the heat in the cabs required open windows for ventilation and consequently, put the employees in the cab at risk. There was evidence of foreseeability.

Amtrak also contends no causation was shown. Amtrak argues even if the windows were shut it would not have prevented the injury because the Code of Federal Regulations only required glass that could withstand a .22 caliber bullet and the only evidence of the cause of the injury was the testimony of appellant’s co-worker that the projectile that struck appellant was a bullet larger than a .22 caliber. We disagree that the only evidence was the coworker’s testimony. There was the evidence of the injury. Whatever struck appellant did not penetrate the skin. From this the jury could reasonably conclude the projectile, if a bullet, was a .22 caliber or smaller.1

Amtrak cites Dildine v. Frichtel, 890 S.W.2d 683, 685 (Mo.App. E.D.1994) for the proposition a plaintiff is bound by the uncon-tradicted testimony of their own witnesses and argues appellant is bound by the coworker’s testimony as to the size of the bullet. Amtrak misconstrues the issue before the court in Dildine. That case dealt with the adverse witness rule. Where a plaintiff calls an adverse witness he is bound by the testimony elicited on direct examination, if uncontradicted, but not by the testimony on cross-examination. Id. This rule has no bearing on this case. It is the province of the jury to judge the credibility of the witness. DeLong v. Hilltop Lincoln-Mercury Inc., 812 S.W.2d 834, 842 (Mo.App. E.D.1991). They are free to believe all, part, or none of the testimony presented. Id.

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Bluebook (online)
930 S.W.2d 36, 1996 Mo. App. LEXIS 1334, 1996 WL 422065, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanders-v-national-railroad-passenger-corp-moctapp-1996.