McGee v. Burlington Northern, Inc. ( 1975 )

MR. JUSTICE HASWELL

delivered the Opinion of the Court.

This is an action for damages under the Federal Employers’ Liability Act. Plaintiff brakeman sued defendant railroad for injuries he received in a switching accident. The district court, Cascade County, granted plaintiff a partial summary judgment on the issue of liability. The issue of the amount of plaintiff’s damages was tried to a jury which returned an 8 to 4 verdict for $525,000. Following entry of judgment thereon and denial of defendant’s motion for a new trial, defendant appeals.

Plaintiff is Donald R. McGee, a 44 year old railroad employee with about 20 years experience. Defendant is Burlington Northern Inc., a railroad corporation, which was plaintiff’s employer.

The accident forming the basis of this litigation occurred in the railroad yards at Omak, Washington on November 4, 1971 at about 5:45 p.m. Plaintiff, a swing brakeman on a switching crew, was struck from behind by an iron door handle protruding downward and outward from the door of a moving boxcar.

There were no eyewitnesses to the accident. It was dark and switching was being done by lantern. The switch crew consisted of the engineer, the conductor, the head brakeman, the flagman and the swing brakeman (plaintiff). The conductor was not present at the accident site as he was checking a car of fruit in another part of the yard.

Shortly before the accident, the switch engine was on the main line facing east. A boxcar was coupled to the front of the engine with a chip car coupled directly to the boxcar. The switch engine pushed the two ears east along the main line. As the three neared a passing track leading off the main line, plaintiff uncoupled the chip car which was “kicked” upgrade along the main line to a point where the flagman “chopped” the wheels to prevent it from rolling back down the grade. After “kicking” the chip car up the main line, the switch engine and boxcar came to a stop on the main line with the forward trucks or wheels of the boxcar resting on the switch points of the passing track.

At this point the engineer was in his cab on the south side of the main line; he was facing east. The head brakeman was at the switch box on the north side of the main line. Plaintiff was about ten feet away from the head brakeman and had him in full view. The flagman was some distance away near the chip car.

According to plaintiff, he told the head brakeman that the switch engine and boxcar were going to be moved onto the passing track and the head brakeman acknowledged this verbally. Tbe head brakeman denies plaintiff said anything to him concerning where the boxcar would be “kicked”, but he was aware it would go on one of the inside tracks rather than the main line. However, he could not throw the switch because the boxcar “was sitting right on the switch.”

Again, according to plaintiff, he started walking east along the south side of the main line and called to the flagman “We are going to pull the pass”. The flagman gave a “come ahead” signal with his lantern, which plaintiff repeated to the engineer. The flagman confirmed plaintiff’s statement to him and indicated that he acknowledged the message by pointing his lantern at plaintiff. He denies giving a “come ahead” signal. At this time, the flagman was walking down the passing track on the north side of the main line out of sight of the engineer.

In any event, the engine with boxcar in front moved east down the main line. The protruding door handle of the boxcar struck plaintiff from behind causing his injuries.

Plaintiff filed this action in the district court of Cascade County on February 21, 1973, under the Federal Employers’ Liability Act and the Federal Safety Appliance Act claiming damages of $736,000. Defendant’s answer denied any negligence on the part of the railroad and pleaded the partial affirmative defense of contributory negligence. Extensive pretrial discovery was pursued by both parties consisting principally of interrogatories and answers, demands for production of documents, requests for admissions and responses, and numerous depositions.

Plaintiff moved for a partial summary judgment on the issue of liability. The district court granted plaintiff a partial summary judgment on the issue of liability under the Federal Employers’ Liability Act. The district court deemed it unnecessary to rule on plaintiff’s claim of violation of the Federal Safety Appliance Act.

In its order, the district court specifically stated there were no genuine issues of material fact, that defendant’s negligence was established as a matter of law, and that the record disclosed no negligence on the part of plaintiff which in any way contributed to his injuries. The order specified that the uncontroverted facts established defendant’s violation of its own rules requiring the boxcar door to be closed before the switching operation was ever commenced in which event the handle would not have protruded outward in the manner it did and plaintiff would not have been struck and injured.

Defendant then applied to this Court for supervisory control, seeking review and reversal of the district court’s order. This Court accepted jurisdiction and issued an alternative writ ordering the district court (1) to enter “an order denying partial summary judgment”, or (2) to appear and show cause “why said motion for partial summary judgment should not be denied.”

After oral argument, written briefs, and hearing, we denied defendant’s application in this operative language:

“IT IS ORDERED that the relief sought be, and it hereby is, denied, and this proceeding is ordered dismissed, and our stay order is revoked.”

Thereafter a jury trial was held in the district court limited to the issue of damages sustained by plaintiff. Prior to and during trial, defendant sought to reopen the issue of liability which it supported by offers of proof, all of which were denied. The jury returned a verdict for plaintiff in the amount of $525,000 and judgment was entered thereon. The district court denied defendant’s motion for a new trial. Defendant appeals from the judgment.

Defendant assigns 21 issues for review. The claimed errors can be summarized: (1) denial of defendant’s motion for a new trial; (2) awarding plaintiff a partial summary judgment on the issue of liability and limiting the jury trial to the amount of damages sustained by plaintiff; (3) admission of inadmissible evidence; (4) an excessive verdict based on passion and prejudice; (5) error in jury instructions; (6) prejudicial conduct by plaintiff’s counsel and the presiding judge; (7) improper rebuttal testimony; and- (8) denying defendant a pretrial examination of plaintiff for rehabilitation purposes. The principal errors claimed are the first four.

We find that we must grant defendant a new trial on the basis of errors in law that occurred prior to and at the trial. These errors of law consisted principally of the exclusion of evidence relating to defendant’s partial affirmative defense of contributory negligence.

At the outset, we hold the district court’s order granting partial summary judgment was correct to the extent of its ruling that the negligence of defendant was established as a matter of law on the record before it.

Defendant disputes this holding. It argues the record discloses many genuine issues of material fact, principally just what did happen in the railroad yard at Omak at the time of the accident and specifically whether plaintiff was struck by the boxcar itself or the protruding door handle. Defendant contends the position of plaintiff after the accident, in relation to the boxcar, is as equally consistent with his being struck by the boxcar itself as by the protruding door handle. Therefore, defendant argues, the district court had to weigh the evidence, draw inferences therefrom, and assume the role of trier of the facts in order to conclude that plaintiff was struck by the protruding door handle and defendant’s negligence was thereby established.

The record before the district court belies this contention. The following uncontroverted evidence was before the district court: (1) plaintiff’s deposition testimony that he was hit by the protruding door handle; (2) the accident report phoned to the railroad’s Wenatchee office within a half hour after the accident and subsequently reduced to writing, states that plaintiff was struck by the protruding door handle; and (3) the railroad’s own operating rules require all doors to be closed before moving the boxcar. No factual inferences were required to establish that plaintiff was hit by the protruding door handle in violation of defendant’s own operating rules. Defendant’s contention that the facts of the accident are equally consistent with plaintiff’s being struck by the boxcar itself rests on supposition and conjecture not contained in the evidence before the court.

However, the record before the district court at the time it granted partial summary judgment disclosed several genuine issues of material fact relating to defendant’s claim of contributory negligence by plaintiff. Without attempting to set forth an exhaustive or all-inclusive list of such issues, we note these: (a) Should plaintiff in the exercise of ordinary care have seen the protruding door handle and corrected it prior to the accident? (b) Should plaintiff in the exercise of ordinary care have seen that the front trucks or wheels of the boxcar were on the switch points requiring the engine and boxcar to be backed up, so the switch could be thrown directing the boxcar onto the passing truck? (c) Did plaintiff himself initiate the “come ahead” signal to the engineer or was he simply relaying such signal from the flagman? (d) Was plaintiff himself guilty of violation of the railroad’s operating rules? (e) Did plaintiff himself conform to reasonable standards of conduct under the circumstances?

The existence of these genuine issues of material fact in the record before the district court precluded a finding or recital by the district court that “the record discloses no-negligence on the part of the plaintiff which in any way contributed to his injuries”. In this respect the district court’s order was in error.

In Federal Employers’ Liability Act cases contributory negligence on the part of plaintiff does not bar his claim, but simply reduces his recovery in proportion to his own contributing fault. The controlling statute provides that in all actions to recover damages under the Federal Employers’ Liability Act “the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee * * 45 U.S. C.A. § 53.

In the instant case, defendant was denied the right to introduce evidence on the issue of plaintiff’s alleged contributory negligence in diminution of damages. We acknowledge error in our order dismissing defendant’s application for supervisory control in failing to strike the summary finding or recital in the district court’s order that the record disclosed no negligence on the part of plaintiff contributing to his injuries. Perhaps this misled the district court in its subsequent rulings. In any event, the fact remains that defendant should have been permitted to introduce evidence relating to plaintiff’s alleged contributory negligence in reduction of damages. The prejudicial and reversible nature of the error is obvious.

On this basis, the judgment herein is vacated and set aside. A new trial is granted limited to the amount of damages that should be awarded plaintiff. At such trial defendant shall be permitted to introduce relevant, competent, and admissible evidence in support of its partial affirmative defense of contributory negligence.

This ruling renders consideration of most of the other issues on appeal unnecessary. They simply involve various alleged errors that occurred at the trial assigned as additional and independent grounds for granting a new trial.

The only remaining issue likely to recur on retrial is whether defendant should be permitted to have a pretrial examination of plaintiff for rehabilitation purposes. It is clear the district court’s order denying such examination was based, in part at least, on these considerations: (1) the repeated delay of defendant in advising the court of the purposes of the examination, the nature of the tests to be administered, who would perform the tests, where and when they would be conducted, and similar relevant information, (2) the conflicting representations to the court as to whether psychological testing would be involved, (3) the repeated continuances in hearing defendant’s motion occasioned thereby, and (4) defendant’s motion as presented was not in such form or with such particularity that plaintiff could make proper objections or concurrences.

We agree with the previous ruling of the district court based on the foregoing considerations. The broad question of whether defendant is entitled to pretrial discovery of plaintiff’s vocational rehabilitation potential by means of aptitude or psychological testing is not fairly presented by the record before us. Only if and when a timely, sufficient and proper motion is presented to the district court will such issue be reached. We decline to rule on this broad question in a factual vacuum.

The judgment of the district court is vacated and set aside. A new trial is ordered on the issue of the amount of damages to be awarded plaintiff, for the reasons and under the guidelines set forth herein.

ME. CHIEF JUSTICE JAMES T. HAEBISON and MB. JUSTICE CASTLES concur.