*1 INGLE, Respondent, L. Richard GULF RAILROAD
ILLINOIS CENTRAL
COMPANY, Appellant.
No. 40300. Appeals,
Missouri Court District,
Eastern
Division Two.
Jan. 1980. Rehearing July En Banc
On Rehearing and/or Transfer
Motion for 18, 1980. July Denied
Supreme Court
Application to Transfer Denied 9,1980.
Sept.
Greenfield, Davidson, & Mаndelstamm Louis, Voorhees, Voorhees, H. St. Alphonso appellant. for Friedman, Friedman, C. & Weitzman Louis, Friedman, respon- Marshall dent.
PUDLOWSKI, Judge. under the Fed- brought suit
Respondent
Liability
wages
for lost
Act
Employers’
eral
job
suffered on
debilitating injuries
Central
Illinois
against
employer,
his
Gulf,
jury returned
ver-
(appellant).
$550,000. The
favor of
respondent’s
dict in
appeals.
railroad
Gulf,
to work for the
Respondent went
part
(which later became
Mobile and Ohio
System)
Illinois
Gulf
Central
Alabama, in
at
yards
railroad
rose to
helper
as a
He started
carman,
of a skilled
a member
the level of
trucks,
couples,
repairs
which
craft
20, 1973,
respondent
was in a
wheels,
November
safety appliances
doors and
rail-
boxcars,
position
and contorted
inside the
way
hoppers
gondolas.
twisted
out,
cabinet, lifting
up
blower
repair shop
In
diesel
railroad’s
weighing
blower,
being top-heavy
at
to Tuscaloosa. Prior
Montgomery moved
wrenching
over
pounds, flipped
about 100
*3
machinists and
specially
trained
it had
His
arm felt
like
right
his arms.
daily
elеctricians
the locomotives
inspected
socket;
pain
the
shot
ripped
been
from its
necessary repair
at
did all
Montgomery and
shoulders,
his back and
between his
down
repair shop
work there. When the diesel
However, because the
right
into his
arm.
Tuscaloosa,
did the machinists
moved to
so
cramped, he did not
compartment was so
and electricians.
blower
on himself.
drop
drop
the
lest
it
he
regulations required
Because federal
day
and
work
finished
Resрondent
inspected daily,
locomotives be
it was neces-
hoping his con-
work
report
continued to
inspect
the
the locomo-
sary
pain would
his
improve
dition would
and
Montgomery yards.
being
tives
used in
However,
condition deteriorat-
subside.
his
However, because there were no machinists
In
and worse.
pain got
ed
his
worse
and
rail-
electricians at
hospital-
respondent
February of
pressed
perform
road
carmen into service to
re-
myelogram
The
myelogram.
ized for a
inspections.
cervical and
damage to both the
vealed
Respondent was one such carman. On
Later in Febru-
spine.
of his
lumbar areas
16, 1973,
Friday, November
a traction mo-
year
respondent
old
ary
year
of that
this
Engine
Respon-
tor blower broke on
1269.
and underwent cervical
rehospitalized
dent’s
him to fix it
foreman instructed
he underwent
lum-
surgery.
disc
In June
when a new blower arrived.
It came from
operations,
his
re-
surgery.
bar disc
Since
Tuesday,
Tuscaloosa on
Nоvember
spondent’s right
atrophied
arm has so
%
about % to
high
possesses only
The traction motor blower lies in the
he
do no
strength
two
of his left arm. He can
voltage
engine
cabinet of the
about
requiring
right
work
arm.
engine.
below the
use of his
one-half
three feet
legs
his
to bother
of Certain activities cause
high voltage
cabinet
is a clutter
it is
valves,
providing
him. He can drive a car
wires,
and has a
pipes,
pumps,
fuel
power
power
brakes and
equipped with
powers
whiсh
going through
shaft
it
sleeps
He
steering.
pain
His
is constant.
barely
is
motor blower. There
traction
narcotic,
Percodan, a
little. He takes
squeeze
into the
enough room for a man
stimulator.
wears a transcutaneous nerve
cabinet is some-
cabinet. The floor of the
give him
stimulator
His medication and
presence
oily
of an
slippery
times
due to the
permanent
His
is
some relief.
condition
film.
deteriorating.
machinists stated
Testimony from former
assignment of
removing
a
first
the correct method
dis
abused its
blower
use of two chain block error is that
the trial court
requires the
machinist,
motion
men,
helper
overruling
cretion in
the railroad’s
hoists and three
However,
forum non
ground
to dismiss on the
respondent
and a laborer.
had
and the trial in
Louis result
never seen this method
and had no conveniens
used
prejudice
appellant.
had never
ed in substantial
knowledge of it. The railroad
training on how to
given respondent any
point we must review
determining
In
blower;
provided
remove a
it had neither
to the trial
applicable
certain standards
given
adequate help
him
nor
him
with tools
discretion is
court’s action.
“Judicial
job.
to do the
ruling
clearly
when a trial court’s
abused
then
against
logic
had re-
of the circumstances
respondent
Prior to his injury,
arbitrary
is so
lifting
before the court and
moved five or six blowers alone
jus-
the sense
without the
unreasonable as to shock
them and out of the cabinet
up
considera-
a lack
careful
manpower. On
tice and indicate
aid of a hoist or additional
tion;
if reasonable men
can differ about
(Mo.
banc
1970)
[1]
the facts enumerat-
an imba-
trial
this court cannot find
propriety
action taken
ed above
trial court’s
court,
it
or that
equities
then
cannot be
lance of
said
unreasonable
arbitrary
Anderson
court abused its discretion.
action was
court did
Robertson,
the trial
Mo.App.,
we find that
therefore
S.W.2d
[3-4].”
denying appel-
not abuse its discretion
Sbirrell v. Missouri Edison
S.W.2d
non con-
for forum
(Mo.
1976),
James
to dismiss
quoting
banc
lant’s motion
assignment
Turilli,
Appellant’s
veniens.
first
is denied.
error
Further,
said that
our courts have
doctrine of forum non
conveniens
is that
second contention
Appellant’s
caution;
applied only and unless
excluding a witness
erred in
trial court
equities is
strongly
balance of
favor
Wilkinson, from the
Mr.
appellant,
for the
*4
to
in Mis
forcing
not
these defendants
trial
contends that
appellant
The
courtroom.
souri,
choice Missouri as the
plaintiff’s
of
the
prejudicial
toward
exclusion
the
litigation
for this
not be dis
forum
its
Mr. Wilkinson
employees.
appellant
Indus., Inc.
rel. Farmland
turbed. State ex
appellant.
for the
previously testified
had
Elliott,
60,
(Mo.App.1977)
v.
Stabler,
employee
an
Respondent called Mr.
Lee,
(Mo.
citing Loftus v.
Considering by excluding Wilkinson.” In object enumerated Mr. factors as Chicago motions appellant post-trial ex rel. in its our Court State dition sustaining Riederer, that, “the court erred in R.I. & P.R. stated Schwartz, (Mo.1960). 339 S.W.2d756 Al- request plaintiff’s attorney that the Wilkinson, though untimely, after he had testi- the court’s comment was witness James by explaining during the court corrected its error fied be excluded from the courtroom of the case” by “magnitude jury rebuttal wit- testimony plaintiff’s cаse meant that had ness, “genuinely” he overruling and the court erred in de- try further that he days taken four objection such even fendant’s exclusion important. all cases as After that viewed though the court was assured defend- discussion with explanation and additional going ant’s counsel that the witness was not again bench he ad- appellant’s counsel at again testify. The court called result, jury, dressed the “As that was the by announcing presence further erred in the statement was made. mannеr in which that jury the witness Wilkinson’s exclu- judge. At the conclusionof all the was the court stated: prejudiced. Therefore for review. has failed to show indicia that the trial American [7] was loud or boisterous objection trial court. Plumlee v. 1968); 1970); untimely. broaden or raised sion from the courtroom.” These are neither definite nor sufficient. Co., concludes Ladies and The Counsel tion of for morning. Additionally, you. so I will have to excuse magnitude, Appellant’s contentions DeLisle, (Mo.1970); Langdon prejudiced magnitude” 732[2] Appellant’s 451 S.W.2d tonight attorney, only thing initially State Luechtefeld v. It’s too late to [1-2] instructions, closing arguments of objected Cyanamid An (Mo.App.1968). change all of the ex rel. and appeal beyond (Mo.App.1941); gentlemen by S.W.2d the record is devoid and and asked bring left now is the the basis and the remarks of the trial wherein and how it was to the third State submitting the case to judge’s testimony Marglous, submit nothing you Ramsay Dry 605[2-4] is not and the Highway point phrase “a case Koch, 940-41 back tomorrow for a mistrial. аnnouncement that made S.W.2d brief and are prejudice Stahlheber a case of this permitted is in this case. is that he scope 151 S.W.2d jury, objections preserved (Mo.App. evidence prepara- Comm’n [4] of Goods (Mo. that you any an 24.01which does tion guson, 486 S.W.2d juror instruction would Since without merit. do not plification. which is M.A.I. fourth he was sues and come out of already have did. on whether the award would tion then informed counsel not to could court erred All of the are without merit. affirmative.)” Appellant’s third Let the record indicate that all understand Appellant’s plaintiff. M.A.I. nodding court on out. The been been error for the court to have approached F.E.L.A. cases are ask Appellant’s say anything, Our require point going taxation, adequate instruction. they fully a erred Instructions submit ultimate (Mo. jurors this? question. their any Houston v. is fourth After the do so further instructed,” failing 24.01, juror in banc not not reversible instruction. respond be an (The jurors nodded in the settlement?” understand giving heads, final aptly. рrovide but to write his point judge 1970); Court has by wrote, for both to instruct The clarification or am giving of such an amplification of an covered M.A.I. point failing instruction in all of the is that the trial which the court and judge Therefore Northup, 460 for an instruc Senter writing, had “What taxes this? *5 be taxed to is that parties Appellant’s asked if he The error and It would by held that retired, a told point is give v. Fer 2,No. jurors jurors judge given Okay. ques- “You they that him an is finding largely paragraph requiring trial rests additional granting The of a new using ordinаry by Rovak “defendant knew or in of the trial court. that the discretion or condition, tally unqualified by training, instruction have known of such care should employees those are reasonably experience. like- Carmen and that such condition was build, maintain various repair and ly to cause substantial harm.” carman The freight and box cars. cars by respon- Instruction No. as submitted crafts, including shop other craft and the given the trial court was: dent and complete machinists, required if plaintiff “Yоur must be verdict exten- and receive year apprenticeship four you believe: in training and instruction specialized sive “First, provide rea- defendant failed work re- The fields. their mechanical work, sonably methods of safe maintaining engines and diesel pairing “Second, thereby negli- defendant was locomotives, of trac- the removal including gent, ma- blowers, the work of the tion motor “Third, negligence directly resulted such in not trained Carmen are chinist craft. part injury plaintiff.” or in in whоle job. work, After their not furloughed at or retired last machinist No. 3 of the “Notes on Use” Note 1959, the instruction, approximately reference to the M.A.I. 24.01 any machinists. trial, rehire applicable railroad did not at the time of the states: machinists used equipment and tools concern negligence These theories of packed up or scrapped were either of which defendant had conditions the railroad. shipped points to other knowledge. constructive rеquired per- thereafter Carmen were act plaintiff In the event submits some maintaining work form the machinists’ negligence, knowledge constructive re- The carmen repairing locomotives. railroad, chargeable which is not from machinists ceived no instructions be in addition a there shall submitted work, and anyone performing else in paragraph “defendant providing knew own tools required provide their by using ordinary care should have removing equipment. task condition, known of such such еxtremely diffi- *6 traction motor blower reasonably likely was to cause condition cult, car- awkward and strenuous. Several paragraph substantial harm.” This men, testified plaintiff, who in addition to existing para- be inserted between they required were agreed that at the Fourth, para- and the graphs, Third and alone, without assist- perform to that task according- graphs should be renumbered any mechanical ance without the aid and ly- hoist, though job lifting device or even that contends therе was per- was too strenuous and difficult not sufficient evidence establish the de- by formed one man. knowledge fendant’s constructive diesel locomo- assigned Plaintiff was suggested paragraph therefore the of Note only He was the job tive in 1970 or 1971. 3No. of the “Notes on should have Use” position. that assigned to work employee been given. re- never and had qualified He was not Supreme Our that when Court has held any any or instruction training ceived failed to plaintiff submits that defendant training. schooling and requested kind. He (a) provide reasonably either safe conditions However, request- provided. were He none work, (b) or reasonably appliances, safe However, none books. ed instructional work, (c) or reasonably or safe methods provided provided. was neither were He (d) help, it is unneces- reasonably adequate pur- therefore nor equipment tools by using sary charge “defendant knew or nothing provided his own. He chased known of such ordinary care should have date perform Before the job. ” Chicago, R.I. & condition.... Wilmoth v. removed previously he had this occurrence P.R., (Mo.1972). blowers motor blowers. The traction two high inaccessible, a hole in perform- were down in was a carman and Plaintiff foreman, Mr. Dewber- work, was to- His voltage for which he cabinet. ing machinist’s ry, in, get Liepelt instructed him banc on the issue regarding unloosen the income bolts get equipment it out. No or tax application instruction and whеther its assistance were provided. He had extreme prospective retrospective. would be difficulty both spoke times. He to Mr. him, Dewberry Supreme ruling and told “There apply must be a To Court’s better way way case, easier do this. It’s Liepelt princi several to the instant got to Dewberry be.” Mr. told him to do ples must We recognize, be reviewed. the best he Plaintiff could. must, indeed we the substantive rights training removing or lessons in traction mo- parties federal governed law However, tоr blowers. none provided. were and the the U. decision of S. Court He requested equipment help. How- Atchison, control, must T. & F. Horn S. ever, none provided. plaintiff Neither 894, 896 Ry., (Tex.Civ.App.1975). nor any of the other carmen knew of the long questions It has been settled con machinists, method used by involving cerning damages the measure an F.E. two or three and two chain employees block L.A. action are federal character. This is hoists, fully which was described at brought true even if the action in statе trial. Ry. Liepelt, court. supra. Norfolk & W. The above was totally undisput- evidence ed at unequivocal- the trial. evidence That the Court did not enun However ly established that the defendant had actual ruling ciate was to applied whether its be knowledge proper safe method which appellate retroactively pending cases. should have been utilized remove a trac- apply existing We must standards therefore tion motor blower. guidelines. Chevron Oil Co. v. Hu In son, 97, 106-07,
We hold U.S. claim that (1971) submitted supported instruction was not L.Ed.2d 296 Court stated: Accordingly, evidence has no merit. First, applied the decision to be nonretro judgment is affirmed. principle a new actively must establish law, either by overruling past prece clear GUNN, J., STEPHAN, J., P. concur. relied, litigants may dent which * * * deciding or by an issue of first ON MOTION FOR REHEARING impression resolution was not whose
PER CURIAM:
* *
Second,
*.
it
clearly foreshadowed
This cause was
argued
submitted to
“we
has
must
...
been stressed
October,
Division Two of
court at its
weigh the
and demerits in each
merits
*7
1979,
22,
January
session in
Louis. On
prior
the
by looking
history
case
of the
1980,
opinion
the principal
adopted
was
effect,
question,
purpose
rule in
its
6, 1980,
February
without dissent. On
the
retrospective operation
and whether
will
*
* *
appellant
rehearing
filed
motion for
its
or
operation.”
its
further or retard
transfer to
Supreme
the
Court of Missouri.
Finally,
weighed
inequity
we
the
have
While appellant’s motion was under consid
imposed
application, for
by retroactive
eration,
Court of the
Supreme
the
United
of this
could
a decision
Court
“[w]here
States,
19, 1980,
on February
handed down
produce
inequitable results if
substantial
opinion
its
W. Ry.
Liepelt,
in Norfolk &
v.
applied retroactively,
ample
there is
basis
755,
490,
444 U.S.
100
83
of the rule
con-
purpose
the
First,
promulgated by the
“further”
the rule
ly.1
would
impression.
application
first
Supreme
versely
prospective
Court is one of
its
split
on whether
operation.
federal circuits
not “retard” its
be
on income
the
instructed
sup
is
application
Such non-retroactive
v. Humble Oil &
taxes.
Domeracki
See
relied
cited and
three cases
ported
the
Co.,
(3rd
F.2d
1252
Cir.
Refining
443
Court
upon by the United States
1971).
courts for
appellate
The Missouri
251
Dempsey
Thompson,
Liepelt:
in
Fergu
an
ter v.
bade such
instruction. Sen
(Mo.1952);
v. Humble
Domeracki
S.W.2d
son,
Liepelt
Finally, the third factor to be considered
is whether or not retroactively applying
Liepeit produce would inequita- substantial
ble results plaintiff. In that case the $302,000, amount of pecuniary loss was Richard L. al., DIXON et Respondents, according economist, plaintiff’s and the $775,000. jury awarded damages of FILLMORE objected defendant expert its testi- CEMETERY et al., Appellants. mony $138,327. pecuniary net loss was The Supreme Court believed that based No. WD 30506. facts, upon those jury must have con- Missouri Court sidered the tax of Appeals, issue and included it in their Western decision and therefore the defendant was District. prejudiced. However in this case we do not April 1980. any proof suggestion ap- Motion for Rehearing and/or Transfer to pellant prejudiced by the failure of the Supreme Court Denied May trial court to submit the but not cautionary Further, offered instruction. Application to Transfer Denied did not raise the issue of 12,1980. June briefly excessiveness. To perti- review the facts, plaintiff old, nent years was 45 $12,000
earning per year at the time of the serious,
accident. permanent, He suffered
deteriorating and disabling injuries, includ-
ing, among other surgery, an insertion of a
nerve stimulator affixed to one of his limbs. jury had the benefit of testimony from physicians
four including neurosurgeon,
neurologist and orthopedic surgeon. The
appellant saw fit not to have plaintiff
examined nor to offer medical any evidence
from which jury could evaluate the
extent and degree plaintiff’s injury. It
is argued that by the mere fact taxes, made inquiry about we must
assume that the jury improperly acted
inflated the recovery. agree. We do not is no evidence in the record that the
There
jury was in fact motivated such fact
and, presumed jurors it must be
followed their oaths and their ver- rendered according
dict to the evidence and the