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Cottrell v. Burlington Northern11/2/1993
, 50 St.Rep. 1323
Submitted on Briefs July 1, 1993.
Plaintiff Vern Cottrell filed this action in the District Court for the Eighth Judicial District in Cascade County, Montana, to recover damages for injuries sustained during the course of his employment with defendant Burlington Northern Railroad Company. Following a jury trial, the jury returned a verdict for plaintiff, finding that defendant's negligence caused plaintiff damages in the amount of $1,362,236. Defendant appeals from the judgment entered pursuant to that verdict. We affirm the judgment of the District Court and remand with instructions.
The issues on appeal are:
1. Did the District Court commit reversible error when it excluded the opinion of Neil Meyer, M.D., regarding apportionment of plaintiff's damage between the incident which was the subject of this complaint and prior injuries?
2. Did the District Court commit reversible error when it excluded the testimony of Judy Freeman and her letter to plaintiff's attorney?
3. Did the District Court err when it rejected two of defendant's proposed jury instructions which pertained to contributory negligence and limitation of defendant's liability for plaintiff's pre-existing injuries?
4. Did the District Court err when it failed to rule on defendant's motion to amend the judgment, and declined to offset from the judgment monies paid to plaintiff by defendant and from other sources prior to trial?
DISCUSSION
This action was brought by Vern Cottrell pursuant to the Federal Employers' Liability Act found at 45 U.S.C. ยง 51 through 60 (1988). In his complaint and amended complaint, Cottrell alleged that in the winter of 1989, while working for the Burlington Northern Railroad Company in its maintenance of way department, he injured his back while operating some of defendant's machinery. Specifically, he alleged that in early winter 1989 he had been operating a small crane-like piece of machinery known as a "speed swing" over rough ground in the railroad yard, and that because that piece of equipment had an inadequate and worn out seat incapable of absorbing shock, his back was damaged while operating it. In addition, he alleged that on May 15, 1989, while operating an additional piece of machinery used for track maintenance and known as an "electromatic," he injured his back while lifting "buggies" which were used in combination with the electromatic and had to necessarily be loaded on it. He alleged that his injuries were caused by defendant's negligent failure to provide him with a safe place to work, adequate assistance to perform his job safely, and reasonably safe equipment.
In answer to Cottrell's complaint, defendant admitted that Cottrell was an employee and that during the course of his employment he had operated its machinery, but denied all of Cottrell's other material allegations. For affirmative defenses, defendant alleged that Cottrell was contributorily negligent, his damages were caused by pre-existing conditions, his damages were aggravated by his own failure to mitigate them, and that it was entitled to a credit against any money it had already paid him.
The evidence at trial established that Cottrell had first gone to work for defendant in 1976 as a section laborer doing track maintenance and began operating different types of machinery for defendant in 1977. He originally injured his back during the course of his employment in the fall of 1980 while trying to lift railroad ties onto a truck. Following that injury, two surgical procedures were performed on his back in the area of the 4th and 5th lumbar vertebrae. The first
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