Timothy Sorrell, Respondent, v. Norfolk Southern Railway Company, Appellant

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Timothy Sorrell, Respondent, v. Norfolk Southern Railway Company, Appellant Case Number: ED84268-01 Handdown Date: 04/10/2007 Appeal From: Circuit Court of the City of St. Louis, Hon. Joan M. Burger Counsel for Appellant: James W. Erwin and David A. Dick Counsel for Respondent: Jerome J. Schlichter, Paul T. Slocomb, Roger C. Denton Opinion Summary: Timothy Sorrell was injured when the dump truck he was driving for his employer, Norfolk Southern Railway Company, went off the road and tipped on its side. Sorrell sued Norfolk pursuant to the Federal Employer's Liability Act (FELA), 45 U.S.C. Section 51, et seq. The jury returned a verdict for Sorrell and the trial court entered judgment for $1.5 million. Norfolk appealed arguing, inter alia, that the trial court erred in giving a contributory negligence instruction with a different causation standard as the instruction for the railroad's negligence. This court affirmed the trial court's judgment in Sorrell v. Norfolk Southern Ry. Co., 170 S.W.3d 35 (Mo. App. E.D. 2005) holding, in part, that the trial court did not err in giving instructions following the applicable MAIs. The United States Supreme Court vacated the judgment of this court. Norfolk Southern Railway Co. v. Sorrell, 127 S.Ct. 799, 809 (2007). The Court held that the causation standard under FELA should be the same for both the railroad's negligence and Sorrell's contributory negligence. Id. at 808-09. The Court vacated the judgment and remanded to this court the issue of whether any instructional error was harmless. Id. at 809. AFFIRMED.

Division Two holds: Given the evidence before it, if the jury found Sorrell negligent, any negligence had to result from the way he drove the truck and thus, his negligence, if any, was a "direct" cause of his injuries. There was no evidence that would support a finding that Sorrell was negligent in a manner that indirectly caused his injury. Any error in the instructions was harmless error and the judgment must be affirmed. Citation: Opinion Author: Robert G. Dowd, Jr., Judge Opinion Vote: AFFIRMED. Draper III, P.J. and Crane, J., concur. Opinion: Timothy Sorrell, a railroad trackman, was injured when the dump truck he was driving for his employer, Norfolk Southern Railway Company, went off the road and tipped on its side. Sorrell brought suit under the Federal Employer's Liability Act (FELA), 45 U.S.C. Section 51, et seq., against Norfolk. The jury returned a verdict for Sorrell in the amount of $1,500,000.00, and the trial court entered judgment upon the jury's verdict.(FN1) This court affirmed the trial court's judgment in Sorrell v. Norfolk Southern Ry. Co., 170 S.W.3d 35 (Mo. App. E.D. 2005). One of Norfolk's points on appeal to this court alleged the trial court erred in giving an instruction based on MAI 32.07(B), which instructs the jury to find a plaintiff contributorily negligent if his or her negligence "directly contributed to cause" the injury, while the railroad's negligence is measured by whether the railroad's negligence "contributed in whole or in part" to the injury as provided in MAI 24.01.(FN2) Norfolk argued, where contributory negligence is an issue, the causation standard should be the same for both the plaintiff and the railroad. This court held, as it was required to, that the trial court did not err in giving an instruction based on MAI 32.07(B), the applicable MAI instruction for contributory negligence in a FELA case. The Missouri Supreme Court denied transfer. The United States Supreme Court vacated the judgment of this court. Norfolk Southern Railway Co. v. Sorrell, 127 S.Ct. 799, 809 (2007). The Supreme Court held that the causation standard under FELA should be the same for both the railroad's negligence and the plaintiff's contributory negligence.(FN3) Id. at 808-09. The Court vacated the judgment and remanded to the court the issue of whether any instructional error was harmless. Id. at 809. We now address that issue.

Sorrell argues that even if the causation standards contained in the instructions were improper, we should nonetheless affirm because any error was harmless. Sorrell contends that the evidence of his negligence presented at trial, if credited by the jury, could only have been a "direct" cause so that even if a different instruction using "contributed to cause his injury" or even "contributed in whole or in part to cause his injury" was given the result would not change.(FN4) A judgment will be reversed because of instructional error if the error materially affected the merits and outcome of the case. Jone v. Coleman Corp., 183 S.W.3d 600, 605 (Mo. App. E.D. 2005). The party claiming instructional error has the task of showing that the instruction misdirected, misled, or confused the jury. Id. At trial, the evidence showed that Sorrell was driving a dump truck on a gravel road alongside the tracks when another Norfolk truck, driven by fellow employee Keith Woodin, approached. The two men provided different accounts of what happened next, but somehow Sorrell's truck went off the road and tipped on its side. According to Sorrell's testimony, he feared that the two trucks could not pass each other, so he pulled his truck as close to the right side of the road as possible. After the truck driven by Woodin passed, Sorrell tried to drive his truck back onto the road, but the front tire on the passenger side "washed out" and his truck flipped onto its side. According to Woodin, he testified that he pulled his truck off the road and stopped when he was 400 to 500 feet from Sorrell. Woodin stated that while he was waiting for Sorrell to pass, he saw Sorrell's truck veer to its right, causing the truck's front passenger-side tire to drop off the road, after which the truck flipped onto its side. Given the evidence before it, if the jury found Sorrell negligent,(FN5) any negligence had to result from the way he drove the truck and thus, his negligence, if any, was a "direct" cause of his injuries. Indeed, Justice Ginsburg stated in her

that contributed to his injury, but only indirectly." Sorrell, 127 S.Ct. at 815 (Ginsburg, J., concurring). We conclude that the wording of the instruction on contributory negligence that the plaintiff's negligence "directly contributed to cause his injury" could not have affected the outcome of the trial. Norfolk argues that it is impossible to know whether or how the differing causation standards affected the jury's decision. Norfolk maintains the jury may have been confused by the different causation standards. With the general

verdict given by the jury where it did not indicate the percentages of fault it found, Norfolk asserts there is no way to know how the jury weighed conflicting evidence and whether the jury found Sorrell was negligent but that his negligence did not "directly" cause his injury. We are not persuaded by Norfolk's arguments. Norfolk has not articulated any theory supported by evidence explaining how the jury could have found Sorrell negligent, but that his negligence did not directly contribute to cause his injuries. Under the facts in evidence in this case, if Sorrell was negligent, it was because of the way in which Sorrell drove the truck. Thus, Sorrell's negligence, if a cause of his injuries, was a direct cause. If the jury found Sorrell negligent it would have necessarily found that his negligence "directly contributed to his injury." There was no evidence that would support a finding that Sorrell was negligent in a manner that indirectly caused his injury. Thus, an instruction that would have allowed the jury to find contributory negligence if Sorrell's negligence indirectly or partially contributed to cause his injury would not have changed the result in this case. If the jury found Sorrell negligent, then there could only be a direct connection between his negligence and his injuries under the evidence presented at trial. Any error in the instructions was harmless error and the judgment must be affirmed. Norfolk's remaining six points are denied. Extended discussions of these issues would have no precedential value. Accordingly, we affirm the trial court's judgment on these issues pursuant to Rule 84.16(b). Judgment affirmed. Footnotes: FN1.Here, although whether Sorrell was contributorily negligent was an issue, the jury returned a general verdict without assessing a percentage of fault to Sorrel or Norfolk. In most Missouri cases involving comparative fault, the jury is asked to determine a total amount of damages and the percentage of fault of the plaintiff and the defendant, and the jury is told that the judge will reduce the total damages awarded by the percentage of fault attributed to the plaintiff. See MAI 37.07. FELA, however, requires that the jury rather than the judge diminish the total damages by the comparative fault of the plaintiff. 45 U.S.C.A. Section 53. For this reason, the jury in FELA cases is instructed that after it determines the sum of damages to which it believes the plaintiff is entitled as a result of the defendant's conduct that "[i]f you find plaintiff contributorily negligent as submitted in Instruction Number _____, then your award must be determined by diminishing plaintiff's total damages in proportion to the amount of negligence attributable to plaintiff." MAI 8.02. The jury in this case was given instructions modeled after MAI 8.02 and MAI 36.01, which is the verdict form for a plaintiff alleging personal injuries against a defendant. MAI 36.01 does not provide for the assessment of percentages of fault to be listed on the verdict form. Thus, the jury did not specifically assess the percentages of fault it found on the verdict form. FN2.The contributory negligence instruction based on MAI 32.07(B) given at trial read: You must find plaintiff contributorily negligent on his November 1, 1999 injury claim if you believe: First, plaintiff either: failed to stop his truck, or failed to keep his truck on the roadway, and

Second, plaintiff, in any one or more of the respects submitted in Paragraph First, was thereby negligent, and Third, such negligence of plaintiff directly contributed to cause his injury. The verdict director based on MAI 24.01 provided: Your verdict must be for plaintiff Timothy Sorrell if you believe: First, that on November 1, 1999, defendant Norfolk Southern Railway Company's employee failed to use ordinary care or defendant Norfolk Southern Railway Company failed to provide Plaintiff with reasonably safe methods for work, and Second, defendant is in any one or more of the respects submitted in paragraph First was negligent, and Third, such negligence resulted in whole or in part in injury to plaintiff. FN3.The Court noted that there are a variety of ways to instruct a jury to apply the same causation standard to railroad negligence and plaintiff contributory negligence, but left it up to the State of Missouri how to do so as long as it applies a single standard. Id. at 809. FN4.Norfolk proposed that the contributory negligence instruction read "negligence of plaintiff contributed in whole or in part to cause his injury." The trial court rejected Norfolk's proposed instruction. FN5.We cannot tell from the verdict form whether the jury found Sorrell at fault or whether it assessed a percentage of fault to Sorrell. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.