NO. 89-350 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

RICHARD KALANICK, 

Plaintiff and Respondent, 

-vsBURLINGTON NORTHERN RAILROAD COMPANY, 

A Delaware corporation, 

Defendant and Appellant. 

71 - 

APPEAL FROM: District Court of the Eighth Judicial ist trick^, 

In and for the County of Cascade, :- cThe Honorable Thomas McKittrick, Judge presidihg. 

I I C" 

c '-1 

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COUNSEL OF RECORD: 

For Appellant (s) : 

Curtis G. Thompson; Jardine Law Firm, Great Falls, 

Montana 

For Respondent (s) : 

Erik B. Thueson, Thueson Law Firm, Helena, Montana 

Submitted on Briefs: Dec. 7, 1989 

Filed: 

* Clerk 
Justice John C. Sheehy delivered the Opinion of the Court. 

Burlington Northern b ail road Co. appeals from a judgment 

entered in the District Court, Eighth Judicial ~istrict, Cascade 

County, awarding Richard ~alanick $431,450. We affirm the District 

Court. 

The issues raised by Burlington Northern (B.N.) are: 

1. Did the ~istrict Court err in striking the defense of 

contributory negligence and instructing the jury that Kalanick was 

not negligent as a matter of law? 

2. Did the trial court err by allowing evidence of a similar 

injury to be admitted? 

3. Did the trial court err by reading a portion of an 

instruction it had previously denied? 

4. id the trial court err by instructing the jury that the 

injury to Kalanick need not be the result of a single incident, but 

may arise gradually from the character of the work? 

5. Were portions of Kalanickls closing arguments improper, 

thereby prejudicing B.N.? 

6. Did the trial court err in denying B.N.Is motion to alter 

or amend the judgment? 

In April of 1986, B.N. employees on the hi-line route were 

informed that upper level management was soon to inspect the area. 

A concerted effort to clean up the right-of-way of debris became 

a priority job for hi-line employees. Roadmaster Ed Sherman was 

responsible for the area between Loma and Ethridge. Sherman put 

his section crews and inspection crews on clean-up detail, in 

addition to their regular work. 

Richard Kalanick and his partner were a two-man inspection 

crew. They were told to pick up what debris they could manage 

during their inspection patrol. 

Kalanick and his partner patrolled the track from a railmounted pickup truck known as a "high rail." Section crews were 

given mechanical lifting equipment to accomplish the job of lifting 
heavy debris such as old ties, but Kalanick and partner did not 

have the benefit of such a device. Consequently, if they spotted 

jobs requiring long periods of heavy labor, they reported them to 

the roadmaster for section crew assignment. 

Kalanick and his partner were assigned to a 46-mile rail 

stretch known as the Gildford section. This section was full of 

debris, including approximately 1,000 ties. Kalanick understood 

that he and his partner were to clean up any debris which they 

could manage. Kalanick and partner, due to the nature of the highrail truck and the lack of lifting equipment, necessarily had to 

lift and carry the ties up and down the subgrades and load them on 

the truck. Once loaded, they would drive to an area designated for 

burning, and manually unload the ties. Kalanick estimated that he 

and his partner loaded and unloaded some 900 ties prior to his 

injury . 

On April 23, 1986, after several hours of lifting ties, 

Kalanick's back gave out. 

Kalanick filed suit on August 28, 1987, alleging that B.N. 

negligently failed to provide him with a safe place to work, 

adequate instruction, reasonably safe equipment and adequate 

manpower to perform the job safely. B.N. filed its answer, denying 

the allegations and raising contributory negligence as a defense. 

Jury trial commenced on December 12, 1989. At the close of 

evidence, the trial court struck the defense of contributory 

negligence, ruling it to actually be an assumption of risk defense, 

precluded under the Federal Employers Liability Act. The jury 

returned a verdict in favor of Kalanick in the amount of $431,450. 

This appeal resulted. 

B.N. contends that the defense of contributory negligence was 

improperly stricken by the trial court. Kalanick maintained at 

trial that B.N. was actually attempting to assert the defense of 

assumption of risk, which is prohibited under the FELA. 45 U.S.C. 

5 54 states in part: 

In any action brought against any common carrier under 

or by virtue of any of the provisions of this chapter to 
recover damages for injuries to . . . any of its 

employees, such employees shall not be held to have 

assumed the risks of his employment in any case where 

such injury . . . resulted in whole or in part from the 

negligence of any of the officers, agents, or employees 

of such carrier . . .. 

While assumption of risk is prohibited, the defense of 

contributory negligence has not been abolished in FELA actions. 

McClain v. Charleston W. C. Ry. Co. (1939), 4 S.E.2d 280. The 

question then becomes: what constitutes contributory negligence? 

This has been a common problem in FELA cases. Most courts have 

stated that assumed risk arises out of the employment contract, 

while contributory negligence arises out of conduct. In Taylor v. 

Burlington Northern R. Co. (9th Cir. 1986), 787 F.2d 1309, 1316, 

1317, the court stated: 

Although there is some overlap between assumption of risk 

and contributory negligence, generally the two defenses 

are not interchangeable. (Cite omitted.) At common law 

an employee's voluntary, knowledgeable acceptance of a 

dangerous condition that is necessary for him to perform 

his duties constitutes an assumption of risk. (Cite 

omitted.) Contributory negligence, in contrast, is a 

careless act or omission on the plaintiff's part tending 

to add new dangers to conditions that the employer 

negligently created or permitted to exist. 

The employee who enters the workplace for a routine 

assignment in compliance with the orders and directions 

of his employer or its supervising agents, who by such 

entry incurs risks not extraordinary in scope, is not 

contributorily negligent, but rather is engaging in an 

assumption of risk. *** 

Reporting to work or facing the risks inherent in one's 

job is the essence of assumption of risk. 

Following that reasoning, Kalanick asserts that his decision 

to follow orders and load and unload ties rather than refuse to do 
the work constitutes assumption of risk. Testimony of the 

Roadmaster, Ed Sherman, Kalanickts supervisor, reveals that 

Kalanick did the work expected of him, and as he was expected to 

do it. In addition, the testimony of three B.N. foremen was of the 

consensus that the assignment of heavy labor to two men with only 

a high-rail pickup was nunreasonablell and with the 

ultimate result that "somebody will wear out [and] get hurt." 

Testimony of the B.N. employees refutes B.N.'s contentions of 

an absence of negligence on its part. The FELA imposes a high 

standard of care upon the carrier. Kernan v. American Dredging Co. 

(1958), 355 U.S. 426, 439. There are duties imputed to the carrier 

under the Act, including: The duty to provide a safe workplace, 

Tiller v. Atlantic Coast R.R. (1943), 318 U.S. 54; the duty to 

furnish employees with suitable equipment to enable the employee 

to perform work safely, St. Louis Southwestern Ry. Co. v. Greene 

(Tex. 1977), 552 S.W.2d 880, 884; the duty to provide sufficient 

manpower to complete work in a reasonably safe manner, Blair v. 

Baltimore & O.R. Co. (1945), 323 U.S. 600; and the duty to assign 

workers to jobs for which they are qualified and to avoid placing 

them in jobs beyond their physical capabilities, Fletcher v. Union 

Pac. R.R. (8th Cir. 1980), 621 F.2d 902, 909, cert.denied 449 U.S. 

1110. See generally Ackley v. Chicago and North Western Transp. 

Co. (8th Cir. 1987), 820 F.2d 263. 

The record is clear that B.N. did not assign to Kalanick any 

lifting devices. Kalanick and his partner were expected to do 

substantial lifting without mechanical aid. Roadmaster Sherman 
testified that it was his responsibility to make sure that there 

was sufficient manpower and equipment assigned so that men would 

not get injured. The case law under the FELA amplifies that point. 

Sherman knew he had a duty to protect his men. The District Court 

weighed that fact against assertions by B.N. that Kalanick should 

have availed himself of additional manpower or equipment, used 

I1saferw lifting techniques or better discretion as to which items 

he lifted. B.N. contended that Kalanick, by his own failings, was 

contributorily negligent. The District Court, in light of 45 

U.S.C. 5 54 and the multitude of cases interpreting it, correctly 

dismissed B.N.Is contributory negligence defense. The court in its 

ruling stated: 

It seems to me that your factual arguments go to 

assumption of the risk . . . . There was testimony, very 

clear testimony from the representatives of ~urlington 

Northern that as far as they were concerned, Mr. Kalanick 

didnlt stray from the ordinary course of his duties. 

That he was performing his duties in a reasonable manner. 

Specifically, the question [of whether Kalanick created 

any new dangers for himself] was asked and answered. 

Where is the evidence? I just don't see it. I was 

listening very carefully for that very evidence that 

would give youthat defense [of contributing negligence], 

and I did not find it in this case. 

The District Court, having viewed all the evidence, determined 

that B.N. was attempting to interject assumption of risk, and 

therefor properly disallowed the defense. To impute negligence to 

~alanick through instruction to the jury when no contributory 

negligence was shown would have been error. Because no 

contributory negligence was shown, the court correctly instructed 

the jury that Kalanick was not negligent a matter of law.I1 

6 
(Emphasis supplied.) 

B.N. next contends that the trial court erred by allowing 

evidence of a similar injury to be admitted. B.N. Section Foreman 

Joe Stiffarm testified, and Roadmaster Ed Sherman verified, that 

another man previously under Sherman's direction had injured his 

back by lifting ties and had sued, alleging insufficient manpower 

and inadequate lifting devices. 

B.N. argues that the evidence was irrelevant, due to failure 

to show the accident happened under similar circumstances. 

This Court has stated that evidence of prior accidents is 

admissible for the purpose of showing the existence of danger or 

defect and notice thereof. Runkle v. Burlington Northern (1980), 

188 Mont. 286, 613 P.2d 982. The accidents need not be identical 

to be admissable. Tacke v. Vermeer Mfg. Co. (1986), 220 Mont. 1, 

713 P.2d 527. Kalanick maintains that B.N. had notice of the prior 

injuries and that Kalanick's injury was foreseeable in light of the 

prior injuries. B.N. counters that the prior injury occurred six 

years before ~alanick's injury, took place in the railroad yard on 

flat surface, and involved a larger tie. 

Both accidents involved a laborer, working under the same 

foreman, lifting rail ties manually and thereby injuring his back. 

For the purpose of showing the railroad was or should have been on 

notice that workers may be injured and that such injuries are 

foreseeable, the District Court properly allowed evidence to be 

admitted to show the railroad's failure in the duty, under FEU, 

to "promulgate and enforce safety rules. 'I Ybarra v. Burlington 
Northern (8th Cir. 1982), 689 F.2d 147. In Young v. Illinois Cent. 

Gulf R.R. Co. (5th Cir. 1980), 618 F.2d 332, 339, the court stated: 

Admission of evidence of two recent prior accidents for 

the sole purpose of showing that [the railroad] had 

notice . . . does not require a trial of the details and 

circumstances of those prior accidents. It should be 

considered by the jury for the purpose of determining 

whether a reasonably prudent railroad with notice of 

prior accidents . . . would have taken precautions 

against future accidents . . .. 

The District Court properly admitted evidence of the prior 

injury. B.N. did not object to Foreman Stiffarm's testimony on the 

grounds of hearsay, hence the objection was not preserved on 

appeal. M.R.Evid. 103 (a) (1). 

B.N. next contends that the trial court erred in reading a 

portion of plaintiff's offered instruction that had been denied 

earlier on the grounds of being argumentative. 

Plaintiff's proposed instruction read: 

The railroad has a continuing obligation to furnish 

adequate manpower and equipment to perform the work 

assignment in a reasonable and safe manner. Thus, the 

railroad cannot escape its legal obligation to furnish 

suitable equipment or adequate manpower by claiming that 

adequate manpower or proper equipment was not available. 

During the settlement of instructions, B.N. objected to the 

second sentence of the instruction as being argumentative. The 

trial court agreed and excised the second sentence, but later read 

the entire instruction to the jury. B.N. claims that the language 

of the second sentence imposed a bias upon the jury against B.N.'s 

position at trial that all manpower and equipment was mobilized 

during the cleanup campaign. 

Under FELA, the railroad has a continuing obligation to 
provide adequate manpower and equipment. The court in Ragsdell v. 

Southern Pac. Transp. Co. (1982), 688 F.2d 1281, 1283, stated: 

The duty is a "continuing onett and requires a jury to 

weigh a myriad of factors -- including the nature of the 

task, its hazards and efforts -- in determining whether 

an employer furnished an employee with a reasonably safe 

place to work . . .. This continuous duty to provide a 

safe place to work is broader than the general duty to 

use reasonable care. Other courts in FELA actions have 

held that failure to instruct a jury regarding an 

employer's duty to provide a reasonably safe place to 

work is reversible error. 

Kalanick argues that the instruction is a correct statement 

of law, that B.N. cannot pick and choose which workers to afford 

adequate protection and at what time. If B.N. did not have the 

manpower or equipment, Kalanick argues, it should not have assigned 

him to the work. This Court has ruled in a FELA action, where the 

plaintiff has submitted to the jury evidence tending to prove an 

actionable violation of the Act, he is entitled to instruction 

adaptable to his case. McGee v. Burlington Northern, Inc. (1977), 

174 Mont. 466, 571 P.2d 784. Under McGee, the instruction was 

proper. 

B.N.Is next contention of error is over the following 

instruction: 

It is not necessary that the injury result from a single 

incident. The term has been construed broadly to include 

damage or harm to the physical structure of the body 

which arises gradually from the character of the work. 

B.N. objects to this instruction on the ground that it 

tteliminates the element of negligence." We do not agree. Under 

Buell v. Atchison, Topeka & Santa Fe Ry. Co. (9th Cir. 1985), 771 

F.2d 1320, cert. granted 476 U.S. 1103, affirmed in part, vacated 
in part, and remanded on other grounds 480 U.S. 557, this is a 

proper statement of the law. Further, the necessity of negligence 

on the part of the carrier for the injury to be compensable was 

properly set forth in accompanying instructions. This instruction 

merely helped define the concept of injury. The ~istrict Court 

properly allowed the instruction. B.N. next contends that 

~alanick's closing argument was improper and prejudicial. 

B.N. takes issue with Kalanick's statement that B.N. had 

previously injured another worker in the same manner and "then it 

was business as usual and then Dick [Kalanick] loses his back. And 

if we don't stop this, it's going to be business as usual in the 

future . . . . B.N. states that this argument is improper where 

punitive damages are not at issue. 

However, it must be viewed in context. This statement was 

made in rebuttal, following the railroad's argument that all 

equipment and manpower was properly utilized elsewhere, and that 

no negligence on the part of the railroad existed. Counsel for 

Kalanick disagreed, and pointed out the foreseeability of the 

accident due to the prior injury. Kalanick's counsel's next 

utterance is that: "The railroad has to know they have to follow 

the law. And if they don't follow the law, they have to compensate 

the man fully for the injuries that he has. That's the only way 

we can assure safety and compliance with the law.I1 

Improper argument requires a reversal of a verdict only when 

prejudice has resulted which prevents a fair trial. Nelson v. 

Hartman (1982), 199 Mont. 295, 648 P.2d 1176. There is no showing 
that the jury verdict was inflated in any way, suggesting part of 

the award was exemplary. Counsel for Kalanick merely asked for 

full compensation for his injuries. Where B.N. took the position 

that it had done no wrong under the law, and would continue those 

practices, Kalanick rightfully took issue with B.N.'s contentions. 

B.N. also contends that Kalanickls statements that an award 

of $200,000 would be against the law and violate the jurors' oaths 

were improper. In closing, counsel for B.N. argued that Kalanickls 

request for $345,000 for loss of future earnings was excessive, and 

offered $200,000 as a fair and equitable amount. On rebuttal, 

counsel for Kalanick argued: 

Let me go over what it would do if you awarded Dick 

Kalanick only $200,000. First of all, it would violate 

the law because the law says he's entitled to 

compensation, fair compensation according tothe evidence 

for every one of his losses. 

Secondly, it would violate the evidence, because the 

uncontradicted evidence . .. is that Dick Kalanick at a 

very minimum suffered $408,000 in economic losses alone. 

~hirdly, it would violate your oath as jurors . . . to 

award $200,000, because your oath is to follow the 

evidence and the law. 

As stated above, improper argument requires a reversal only 

when prejudice is the result, affecting a fair trial. Nelson, 

supra. Kalanick sought a minimum of $408,450 for loss of past and 

future earnings, the subject of the above-quoted argument. The 

jury, after hearing all arguments, awarded Kalanick $201,450 in 

lost earnings, less than the amounts of $63,450 in past earning 
loss plus $200,000 in future earning loss proposed by B.N. in 

closing argument. In light of these figure, B.N.'s contention that 

Kalanickvs argument resulted in prejudice has little merit. 

B.N.Is final contention is that the trial court erred in 

denying its motion to alter or amend the judgment. 

B.N. seeks three different reductions in the judgment. 

First, B.N. seeks to reduce the $48,000 reward for lost 

services, due to its vvspeculativevv nature. However, there was 

testimony at trial, including that of B.N.'s own medical examiner, 

which stated that Kalanick would not be able to safely lift more 

than 20 pounds. Based on life expectancy, this award amounts to 

approximately $1,200 per year for his inability to perform menial 

physical tasks as would a healthy man. Ample evidence at trial 

existed to support the award. 

Further, the amount to be awarded in damages is properly left 

to the jury, and this Court will not intervene where the award is 

neither so grossly out of proportion to the injury as to shock the 

conscience nor induce belief that it was the product of passion or 

prejudice. Salvail v. Great Northern Ry (1970), 156 Mont. 12, 473 

P.2d 549. 

Secondly, B.N. seeks to reduce the jury award by $72,000, the 

amount awarded Kalanick for future medical care. 

In the three years prior to trial, Kalanick amassed medical 

costs of $29,156. The medical opinion offered at trial was that 

Kalanick would continue to need medical care for his injury, but 

to a lesser degree. Using Kalanickvs predicted remaining lifetime 
of 39 years, the jury's $72,000 award was reasonable. Where there 

is strong evidence of damages, a defendant should not escape 

liability because the amount of damages cannot be proved with 

precision. Johnson v. Murray (1982), 201Mont. 495, 656 P.2d 170. 

This Court will not disturb a damage award, particularly in a FELA 

case, unless the award appears outrageously excessive. Grunenthal 

v. Long Island R. Co. (1968), 393 U.S. 156. 

Finally, B.N. contends that the trial court erred by not 

crediting it with setoffs for wage advances and supplemental 

sickness benefits paid to Kalanick following his injury. 

B.N. advanced $11,025 to Kalanick prior to trial, pursuant to 

agreement signed by Kalanick which provided: 

I understand and agree that this money advanced me will 

be deducted from any payment made by settlement or 

compromise or otherwise due to me on account of said 

injuries, no matter by whom payment is made. 

~alanick admits B.N. Is entitlement to this setoff, and we 

therefore reduce the judgment by $11,025. 

B.N. also contends such a setoff is proper with regards to 

supplemental sickness benefits of $7,693.27 paid to ~alanick. 

These benefits were issued pursuant to the collective 

bargaining agreement adopted by Kalanick's union. The agreement 

provides in part: 

. . . benefits paid under this Plan will be offset 

against any right of recovery for loss of wages the 

employee may have against the employing railroad . . .. 

There is conflicting case law in regards to this matter. In 

Anderson v. Burlington Northern (1985), 218 Mont. 456, 709 P.2d 

641, this Court ruled on the same issue, containing the very same 
language in the agreement. We held that the provision was void 

under the FELA, 45 U.S.C. 5 55, which states: 

Any contract, rule, regulation, or device whatsoever, the 

purpose or intent of which shall be to enable any common 

carrier to exempt itself from any liability created by 

this chapter, shall to that extent be void: Provided, 

that in any action brought against any such common 

carrier under or by virtue of any of the provisions of 

this chapter, such common carrier may set off therein any 

sum it has contributed or paid to any insurance, relief 

benefit, or indemnity that may have been paid to the 

injured employee or the person entitled thereto on 

account of the injury or death for which said action was 

brought. 

In Anderson, as here, the payments were made through the union 

health and welfare agreement and were thereby exempt from setoff 

because they were a collateral source. 

While that would appear to be determinative of the issue, the 

Ninth circuit decision in Folkestead v. Burlington Northern (9th 

Cir. 1987), 813 F.2d 1377, ruling on the same clause, came to the 

opposite conclusion. 

This Court has stated that, while FELA actions may be filed 

in either state or federal courts, the rights and obligations of 

employees and employers as created by the Act are to be governed 

by the decisions of the federal courts. State ex rel. Burlington 

Northern v. District Court (1976), 169 Mont. 480, 548 P.2d 1390. 

Accordingly, we determine that Folkestead takes preference over 

Anderson, and B.N. Is claim for an offset for sickness payments made 

to Kalanick in the sum of $7,693.27 is hereby granted. 

Conversely, Kalanick contends that this Court should grant an 

additur for the reasonable value of past medical costs, equalling 

$29,156.16. Kalanick maintains that these costs were not awarded 
due to error in the trial court's instructions. 

This Court held in Fillbach v. Inland Construction Corp. 

(1978), 178 Mont. 374, 584 P.2d 1274, that an appellee who did not 

contest the amount awarded to him by cross appeal or did not except 

to or move to amend findings of fact of the trial court could not 

properly raise such questions in regard to amount of award for the 

first time on appeal. Accordingly, Kalanick is barred from seeking 

past medical costs here. 

We Concur: k Justice