Opinion
No. WD 53814
Submitted: December 4, 1997 Opinion Filed: April 21, 1998
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, THE HONORABLE DAVID W. SHINN, JUDGE.
Thomas G. Strong, Springfield, MO, for appellant[s].
Larry J. Tyrl, Kansas City, MO, for respondent[s].
Before Ulrich, C.J., P.J., Smart, J. and Turnage, Sr. J.
This case presents the issue of whether a trial judge may set aside a verdict for plaintiff as against the weight of the evidence pursuant to Rule 78.01 when the claim in question is one brought under the Federal Employer's Liability Act, 45 U.S.C. Section 51 et seq. ("FELA").
John Plumlee appeals the ruling of the trial court setting aside his verdict against the Kansas City Southern Railway Company. Because we conclude that the trial court lacked authority to set aside the verdict in favor of plaintiff and to order a new trial, we reverse the order of the trial court and remand the case to the trial court with instructions to reinstate the jury's verdict.
The Accident
On January 29, 1992, at approximately 4:00 a.m., a 98 car train loaded with grain and belonging to the Kansas City Southern Railway was proceeding south through the town of Anderson in southwestern Missouri on its way to Oklahoma. In the front engine, Plaintiff John Plumlee, the conductor, was seated. Nearby sat Steven Chitwood, the engineer. The train was traveling through the small town at 29 miles per hour.
There is a private road crossing at the Simmons Feed Mill, which is located just off Highway 59. The railroad tracks run more or less parallel to the highway in the vicinity of the feed mill. The private road was designed to provide access from the south part of the feed mill to the highway. There is also a public road just north of the feed mill which provides access to the highway from the feed mill. The private road crossing was added in 1988 for the convenience of the feed mill. The aerial photograph appended hereto depicts the intersection of the private road and the railroad tracks near the middle of the picture.
As the train was in the vicinity of the north portion of the feed mill, the engineer, Chitwood, observed a tractor trailer truck enter the feed mill property and turn around, and then head back toward the crossing. The truck belonged to Murphy Trucking Company and was being operated by David Mullinix. Mullinix had been driving a tractor trailer on his own for only three days. Mullinix had stopped at a nearby convenience store to obtain directions to his destination, and then had turned into and entered the lot of the feed mill in order to turn around. He was driving a tractor trailer unit measuring 62 feet in length.
Chitwood, observing the truck turn around in the parking lot and head back toward the tracks, sounded the train's horn. It appeared to Chitwood that the truck was attempting to get across the tracks before the train arrived. Then, the truck suddenly stopped, with the trailer portion of the unit directly centered on the tracks. Chitwood, still sounding the horn, warned Plumlee that there would be a collision and applied the train's emergency brake. Plumlee, who had been watching the back of the train, turned forward. The train could not be stopped, and it plowed through the middle of the trailer, which was loaded with 80,000 pounds of soybean meal. In the collision, Plumlee was injured.
In July, 1994, Plumlee filed suit against the railroad and against Murphy Trucking and David Mullinix. He sought damages for injuries to his back, neck and leg, which he claimed arose out of the collision. One of his claims against the railroad was a claim that the railroad failed to provide a safe workplace. Plaintiff submitted against the railroad on the issue of whether the railroad failed to "provide reasonably safe conditions for work in that the Simmons Feed Mill grade crossing was not reasonably safe because there was insufficient clearance between the railroad track and Highway 59" and was thereby negligent.
Mullinix, who testified at trial by deposition, said that he looked for a train as he approached the tracks, and saw no train. He said that he heard no horn. Although there was evidence indicating the tracks were marked with stop signs, Mullinix denied that there were any stop signs at the tracks. He said that after the tractor cab was already mostly past the tracks, he then became aware of the train approaching. He said he decided that he could not reverse direction and back up the truck in time to clear the crossing. He testified that he looked ahead and thought about acceleration forward, but, he said, he saw traffic coming from both directions on Highway 59. He believed that, because of the traffic on the highway, he could not safely accelerate forward without endangering highway traffic. He says that he did not use the "turnout road" between the tracks and the highway (also depicted in the photograph) because it seemed there was a deep ditch adjacent to the turnout road.
Q. Okay. You mashed the throttle, the truck took off, and what happened?
A. Well, basically I start looking to see if I can get out on the highway. There's a truck coming down the highway, coming here, and there's a car here coming towards me, and both of them is coming together. There's no way I can take the highway. I remember it seems to me at the time and I later looked at the pictures and it don't look that bad in the pictures, but at the time it seemed like the ditch was way to deep to take here. There wasn't no way I could make the corner here, and it seems like there was a ditch here, too. I pulled up as far — I was pulling up as far as I was going to be able to. I realized there was basically, in my opinion, no place to go. I — you can't, I didn't feel as though I could get the truck into the ditch; I didn't feel as though I could get it out into the highway without the cabover, semi is what it was, was coming down this road to the north, and there was some kind of car coming from the other way. That avenue of escape was empty. I didn't feel as though I could get it into the ditch or over here into this ditch. I let off the throttle, smashed on the clutch and the brakes at the same time and reached over and popped off the pop-off valves and looked over in the side window, and maybe a second at the most, the train went out of sight and hit.
Q. Between the time you first saw the train and the time it hit you, it was a matter of very, very brief seconds?
A. Yeah.
Q. I mean within a couple, three seconds?
A. Yes, wasn't very long.
Q. All right. now, do you know if there was room enough for you to have stopped at the edge of this highway and been off the track?
A. I don't think it was. There may have been, there may not have been. But it seems to me that I was trying to stop before I pulled out in front of the semi that was coming, and get as far up as I could. It was the decision that I made at that moment.
Plaintiff showed that the crossing in question was constructed by the railroad in 1988. The distance between the highway and the nearest rail is 65 feet. When the overhang of a passing train is taken into account, there is approximately 62 feet of clearance between the crossing and the highway. Plaintiff presented evidence that on several previous occasions, tractor trailer trucks had been waiting at the highway intersection, with the rear of the trailer overlapping onto the tracks, when a train approached the crossing, and that the trucks had to "jack-knife" in order to make sure that the trailer was clear of the train.
The jury returned a verdict for Mr. Plumlee assessing his total damages at $1,750,000. The jury assigned 90% of the fault to Murphy and Mullinix and 10% of the fault to the railroad. During jury deliberations, Murphy and Mullinix reached a settlement with Plumlee. The railroad moved after trial for judgment notwithstanding the verdict or, in the alternative, for a new trial. The court denied the motion for judgment notwithstanding the verdict, but granted the motion for a new trial on the grounds that the verdict was against the weight of the evidence both on the issue of liability and on the issue of damages. Plaintiff Plumlee appeals the grant of the motion for new trial.
The Appeal
Plaintiff Plumlee contends on appeal that the trial court in a FELA case may not re-weigh the evidence and grant a new trial to the railroad. The railroad in turn argues that the verdict was against the weight of the evidence, and that the trial court acted within its discretion in granting a new trial. The railroad also argues that plaintiff did not even make a submissible case, and that this court should enter judgment for the railroad in accordance with its motion for judgment notwithstanding the verdict.
Because Plaintiff Plumlee claimed he was injured by the negligence of his railroad employer, his only legal remedy is an action against the railroad under 45 U.S.C. § 51 et seq., the Federal Employer's Liability Act. FELA was enacted in 1908 by Congress to serve as a remedial statute providing liberal recovery for injured railroad workers. Consolidated Rail Corp. v. Gottshall , 512 U.S. 532, 542-43 (1994). Congress believed that the duty of railroads to their workers under the common law was inadequate. See Briggs v. Kansas City Southern Ry. Co. , 925 S.W.2d 908, 913 (Mo.App. 1996). The Act has been given a liberal construction accordingly. Id.
The courts have determined that Congress intended to allow railroad employees the right to have their cases evaluated by juries. Atlantic and Gulf Stevedores, Inc. v. Ellerman Lines, Ltd. , 369 U.S. 355, 360 (1962). There is a "strong preference" in FELA cases for allowing the jury to determine all factual issues. Foltz v. Burlington Northern Ry. Co. , 689 S.W.2d 710, 716 (Mo.App. 1985); Briggs , 925 S.W.2d at 913 . "Congress vested the power of decision in these actions exclusively in the jury in all but the infrequent cases where fair-minded jurors cannot honestly differ whether the fault of the employer played any part in the employee's injuries." Rogers v. Missouri Pacific Railroad Co. , 352 U.S. 500, 509-10 (1957).
Zibung and Sanders : Is There a Congressionally Sanctioned Double Standard?
In their able briefs, the parties present arguments as to the authority of the trial court to set aside a jury verdict in a FELA case which is in favor of the injured employee. The arguments crystallize around the parties' varying interpretations of Zibung v. Union Pacific Railroad Company , 776 S.W.2d 4 (Mo. banc 1989) and Sanders v. National Railroad Passenger Corp. , 930 S.W.2d 36 (Mo.App. 1996). The railroad reads Zibung as standing for the proposition that a trial court may grant a new trial to the railroad on the grounds that the verdict is against the weight of the evidence, and argues that Sanders (which reversed a grant of a new trial to the railroad) was simply wrong in its understanding of Zibung . Plaintiff Plumlee argues that Zibung and Sanders are consistent in that neither case allowed a new trial to be granted to the railroad and Zibung allowed a new trial to the plaintiff. This, Plaintiff Plumlee argues, is consistent with the purpose of FELA to provide a liberal remedy for injured railroad workers, and is also, plaintiff argues, consistent with the preference for allowing submission of plaintiffs' claims to juries where there is any evidence to support the employer's negligence. Thus, plaintiff argues, FELA cases provide for a statutorily sanctioned double standard: trial courts may reweigh the evidence when doing it in behalf of the plaintiff, and the trial courts may not reweigh the evidence in behalf of the railroad.
In Zibung , 776 S.W.2d 4 , the injured worker brought a claim for injuries on the theory that the employer failed to provide safe working conditions. Id . at 5. The jury awarded the plaintiff $40,000. The railroad moved for judgment notwithstanding the verdict, contending that plaintiff did not make a submissible case. The plaintiff moved for a new trial on the issue of damages only. The trial judge granted a new trial as to all issues, and both parties appealed. The Missouri Supreme Court affirmed the trial court's order and remanded for a new trial.
The court first held that the trial court did not err in denying the motion for judgment notwithstanding the verdict because, the court held, plaintiff made a submissible case. Id . The court next held that the trial court did not err in granting a new trial on the ground that the verdict is against the weight of the evidence, because the "trial court has broad authority to grant a new trial," and the court found no abuse of discretion in this case. Id . at 6. The court then went on to hold that the trial court correctly denied plaintiff's motion for a new trial as to damages only, noting that where damages and causation are intertwined, a new trial on all issues is proper. Id . Plaintiff Plumlee, in considering this case, argues that the trial court granted a new trial to the plaintiff, while the railroad argues that the court granted a new trial to the railroad. The confusion comes from the unique procedural posture of the case. The railroad did not move for a new trial in the trial court, but only for judgment notwithstanding the verdict. Plaintiff moved for a new trial only on damages. Both motions were denied, and both denials were affirmed on appeal. Neither party expressed a desire for a new trial on all issues, and both parties appealed the decision of the trial court denying their respective motions. Obviously, the trial court was exercising its discretion sua sponte to grant a new trial on all issues. Who, then, was the trial court attempting to benefit by its order of a new trial?
A $40,000 verdict for plaintiff in a FELA case could hardly be considered a huge setback for the railroad in view of the substantial cost of defending the action. That is why, presumably, the railroad never moved for a new trial. The railroad was not particularly motivated to try the case over. Plaintiff, on the other hand, did not wish to retry the issue of liability, but only the amount of damages. The trial court may have agreed with plaintiff that the damage award was unduly low in view of the evidence, and yet have determined it would not be appropriate to order a new trial on the damage issue only (because of the intertwinement of causation and damage). To that extent, the trial court presumably viewed its action as accruing more to plaintiff's benefit than to defendant's, especially since defendant never asked for a new trial. Whatever way one looks at it, however, Zibung does not clearly address the issue before us. Plaintiff can permissibly argue that Zibung is not inconsistent with plaintiff's view of the law. Defendant, on the other hand, can argue that Zibung supports the proposition that the trial courts have broad authority generally to order new trials under Rule 78.01, and can further point out that the court in Zibung never professed to concern itself with the issue of which party was being assisted to a greater degree by the new trial order.
With Zibung failing to establish clear precedent on the issue before us, we look to Sanders v. National R.R. Passenger Corp. , 930 S.W.2d 36 (Mo.App. 1996), decided after Zibung . In Sanders , the claimant was injured by an unidentified projectile which struck him in the face through an open window on the train. Id . at 37. The jury found the railroad was negligent (in failing to provide a ventilation alternative to open windows), and awarded claimant $450,000. Id . The railroad moved for judgment notwithstanding the verdict and in the alternative for a new trial. The trial court granted both motions, with the new trial grant conditional upon appellate reversal of the judgment notwithstanding the verdict. Claimant appealed. The Eastern District of this court found that the claimant had made a submissible case. Id . at 38-39. The court then turned to the issue which it phrased as follows: "the discretion a trial court has in weighing the evidence under the reduced standard of proof applicable in FELA cases on a defendant's motion for new trial." Id . at 39. Citing Rogers v. Missouri Pacific Railroad Co. , 352 U.S. 500, 505-08 , the court said that jury verdicts under FELA must be upheld if there is any evidence, even the slightest, that the negligence of the railroad caused the injury. Id . The court said that "[j]udicial appraisal is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence by the employer played any part at all in the injury or death." Id . The railroad in Sanders cited Zibung , but the Sanders court dismissed Zibung as not pertinent because the court in Zibung did not grant a new trial for the railroad. Id . at 40. The court remanded the case with an instruction to the trial court to reinstate the jury verdict.
In view of the foregoing, it appears that this case is governed by Sanders . Rule 78.01 is a procedural rule which the courts of Missouri are free to apply, but the evidentiary standards and the strong preference for jury resolution of factual matters related to plaintiff's claims require that the discretion allowed trial judges to order a new trial for a defendant be severely limited in a FELA case. Thus, we are driven to the conclusion that the court may exercise its discretion to grant a new trial on ground that the verdict is against the weight of the evidence only when the court is acting in behalf of a plaintiff. The court may grant a new trial to the defendant only if fair-minded jurors could not honestly conclude that the fault of the employer played any part in the employee's injuries. See Rogers , 352 U.S. at 509-10 . In other words, if the case was submissible, the court may not grant a new trial to defendant on the ground that the verdict was against the weight of the evidence.
On the other hand, this does not mean the court could not grant a new trial in the face of a jury award which is completely arbitrary in some respect other than whether the case was submissible. For instance, if the jury in this case had found Mullinix five percent at fault, and the railroad ninety-five percent at fault, such a result would have been contrary to all reason. We conclude that in such a hypothetical case, the court could grant a new trial to the defendant. Rogers v. Missouri Pacific Railroad Co. , 352 U.S. 500 (1957) never indicated that juries were free to disregard all reason and enter the zone of complete arbitrariness, in view of the references to the phrase "with reason" in the court's discussion of the jury's function. Id . at 507-08. See also White v. St. Louis-San Francisco Ry. Co. , 539 S.W.2d 565, 569 (Mo.App. 1976) (stating judicial review is "confined to the reasonableness of the jury finding"); and Dodd v. Missouri-Kansas-Texas R. Co. , 193 S.W.2d 905, 907 (Mo. 1946) (stating court cannot interfere with size of verdict unless grossly excessive or inadequate).
In this case, defendant does not contend on appeal that the award was completely arbitrary in the way in which fault was allocated, or that the damage determination was completely contrary to all reason. Defendant does, however, argue that the case against the railroad was not submissible, as discussed in the next portion of this opinion.
Plaintiff Plumlee Made a Submissible Case
Because we have decided that the trial court in this case lacked general authority to grant a new trial to defendant on the theory that the verdict was against the weight of the evidence, plaintiff is entitled to reinstatement of the verdict unless it can be shown that the plaintiff never made a submissible case in the first place. Consequently, we examine the issue of whether plaintiff made a submissible case. There is little real attention given in this case to the issue of the negligence of the railroad; the dispute is, rather, about causation. The negligence of the railroad is clear in that there was only 65 feet of clearance between the highway and the closest track at the crossing. With the train overhang, it means that there was 62 feet of clearance. Many of the tractor trailers are more than 62 feet. There was evidence that this fact had previously created a problem for several drivers waiting at the highway and extending on to the tracks at the time a train was approaching, requiring the trucks to take evasive action to avoid a collision. The railroad does not deny that it had control over the decision to allow a crossing at that location. Presumably, the railroad could have required the feed mill trucks to use the public road crossing, which had vastly greater clearance between the rails and the highway. While there was a "turnout road" which trucks could use between the tracks and the highway on the private road, the railroad had knowledge that trucks often failed to use the turn out road. With the U.S. Supreme Court indicating that a verdict must be upheld unless there is a "complete absence" of probative facts to support the finding of negligence and causation, Lavender v. Kurn , 327 U.S. 645, 653 (1946), we have no difficulty finding that there was submissible evidence of negligence.
As to causation, the railroad argues that Plumlee's evidence fails to show that the distance between the truck and the highway had anything to do with the collision. The railroad said there was no evidence that, by the time Mullinix saw the train, he had sufficient time to clear the track. Defendant argues that the evidence does not show that the purported lack of clearance had anything to do with the accident. Defendant argues that the lack of clearance was irrelevant because the physical evidence showed that Mullinix never attempted to move out of the way of the train. Defendant argues that the truck did not fail to clear the tracks because of insufficient distance to the highway, but rather because Mullinix was totally oblivious to his surroundings and to the approaching train. Defendant also argues that there was no evidence that, once Mullinix saw the train, he had the means and the time to move his truck out of the way of the train, regardless of the clearance. The railroad also argues that, if we assume Mullinix did have time to move out of the way, then he had time to use the "turn out road."
If Mullinix had not testified in this case, we would tend to agree. From Chitwood's testimony, one could draw the inference that Mullinix never saw the train until just a few seconds before impact. Even from some of Mullinix's testimony, we could draw a similar conclusion, because he too seemed to indicate it was just a few seconds. However, there was other testimony by Mullinix suggesting that the train was still a substantial distance away when he observed it, and that he had time to take evasive action, but failed to accomplish such action because he believed he could not fit the truck within the clearance. For instance, when Mullinix was asked specifically if the train headlight, when he first saw it, was less than 100 yards away, he said no, it was further away than that. There was evidence in the case that, at 29 miles per hour, the train was traveling at approximately 44 feet per second. If the train had been more than 100 yards away when he first observed it, Mullinix would have had at least seven seconds in which to clear the track. We must accept the fact that the jury was entitled to consider the testimony of Mullinix, and to believe as much of it as seemed credible to them. Mullinix said that he knew his tractor trailer was about 60 feet long; it looked to him like he could not fit his unit into the space between the rails and the highway; and he did not think he could take the turn out road because of the ditch adjacent to the turn out road; he concluded that he could not go farther forward because of the traffic on the highway, and that he did not think that he had time to back up. Regardless of whether this theory of causation is less reasonable than other theories not supporting the employer's liability, we fail to see how we can say, as a matter of law, that the lack of clearance between the railroad and the highway played absolutely no part in causing this collision. See Rogers v. Missouri Pac. R.R. Co. , 352 U.S. 500, 506-07 (1957; Lavender v. Kurn , 327 U.S. 645, 653 (1946).
Conclusion
For all the foregoing reasons, we reverse the order of the trial court granting a new trial and remand the case to the trial court with the instruction to reinstate the verdict.
ULRICH, C.J. P.J., and TURNAGE, SR. J., concur.