Appeals court affirms $3.5M verdict against BNSF

A Missouri appeals count has affirmed a $3.5 million verdict for a railroad conductor who was injured in a 2013 train collision in Kansas.

On Nov. 26, a three-judge panel of the Missouri Court of Appeals Western District ruled in favor of Stephen C. Wynn in his case against BNSF Railway Co.

Wynn sued BNSF in Cass County Circuit Court in 2015, bringing a Federal Employers Liability Act claim against the company for injuries he sustained in November 2013 while riding on a train that collided with an abandoned vehicle on the tracks in Butier County, Kansas.

The collision occurred as Wynn was riding as a passenger, a practice also called deadheading, in the second of four locomotives on a train traveling from Kansas City to Wellington, Kansas.

Wynn alleged the company failed to properly train its employees to warn deadheading passengers of impending collisions. As a result of that failure to train, he alleged he sustained injuries to his leg, ankle and foot, which became chronic injuries.

In August 2018, a jury awarded Wynn $3.5 million. After factoring in a $50,000 credit for a previous settiement, his verdict was $3,450,000.

After trial, BNSF filed a motion for a new trial, which Judge William B. Collins denied. The company appealed the case to the Western District.

On appeal, BNSF argued that Collins erred in allowing a verdict director, involving Wynn's claim of failure to reasonably train employees, to go to the jury. The company said the verdict director was not supported by sufficient evidence and exceeded the scope of Wynn's petition.

Writing for the court, Judge Cynthia L. Martin called the point on appeal "impermissibly multifarious." She said it violated Rule 84.04(d) (1) because "it raises multiple, independent claims of trial court error."

Martin said the point also violates 84.04(e), which requires a concise statement describing whether the error was preserved for appellate review, how it was preserved and the applicable standard of review.

She said while the company's multiple violations of Rule 84.04 warrant dismissal of the first point, the panel elected to review BNSF's point on the merits.

Reviewing the record, Martin said BNSF earlier had abandoned its claim that the instruction exceeded the scope of the pleadings. She also ruled NSF's claim that the instruction was not supported by the evidence is without merit. in its second point on appeal, BNSF argued Collins erred in submitting two instructions to the jury. The panel dismissed the point for noncompliance with Rule 84.04.

In its third point, BNSF argued that Collins erred in refusing to allow its proposed jury instruction regarding mitigation of damages to go to the jury. The panel again found the point to not be in compliance with Rule 84.04, but again the panel chose to review it anyway.