No. 86-285 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

DOUGLAS PLOUFFE, 

Plaintiff and Respondent, 

BURLINGTON NORTHERN, INC., 

a Delaware Corp., 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jardine, Stephenson, Blewett & Weaver; James E. Aiken, 

Great Falls, Montana 

For Respondent: 

Erick Thueson, Great. Falls, Montana 

Submitted on Briefs: Sept. 25, 1986 

Decided: December 30, 1986 

Filed: 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Burlington Northern, Inc. appeals from an order by the 

District Court of the Eighth Judicial District, Cascade 

County, granting plaintiff Doug Plouffe's motion for summary 

judgment on the issue of liability under the Federal 

Employers Liability Act (Title 45 U.S.C., § 51, et seq.) and 

denying defendant's motion for a new trial. We affirm. 

Three issues are raised on appeal. The first is whether 

the trial court erred in granting Plouffe's motion for 

partial summary judgment on the issue of liability und-er the 

Federal Employers Liability Act. The second is whether the 

trial court erred in denying Rurlington Northern's motion for 

a new trial. The final issue is whether the trial court 

acted properly in denying Plouff e ' s motion for pre- judgment 

interest. 

This action began when Plouffe sued his employer 

Burlington Northern (BN) under the Federal Employers 

Liability Act to recover for four separate on-the-job 

injuries received in 1979-1981. Plouffe maintained that his 

injuries were the result of BN's admitted violation of 

portions of the Federal Safety Appliance Act, 45 U.S.C. S 1, 

et seq. Hence, he argued, partial summary judgment on the 

issue of liability was proper, as BN's admissions precluded 

their raising questions of material fact. BN responded that 

a grant of partial summary judgment was improper in that it 

removed from consideration the issues of causation, 

contributory negligence and whether the defects existed. 

The District Court granted Plouffe's motion for summary 

judgment on the liability issue, agreeing with Plouffe that 
the railroad had admitted prior to trial that Plouffe's 

credibility concerning the accidents was not an issue and 

that defects were in fact the only explanation for the 

injuries. The court left the issue of medical causation to 

the jury. 

Plouffe's complaint and motion for partial summary 

judgment were based on the Safety Appliance Act, 45 U.S.C. 5 

1, et seq. This federal safety statute was enacted to 

protect railroad employees and the public from injury caused 

by defective equipment on cars and locomotives. Urie v. 

Thompson (1949), 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282. 

In addition to this recognized end, the statute also has the 

effect of facilitating recovery under the Federal Employers 

Liability Act, since violation by a carrier of a specific 

safety requirement is held to constitute negligence as a 

matter of law, regardless of a showing of negligence on the 

employee's part. Urie; Coray v. Southern Pacific Co. (19491, 

335 U.S. 520, 69 s.Ct. 275, 93 L.Ed. 208. The Safety 

Appliance Act "imposes absolute liability upon any carrier 

[violating] it." Callihan v. Burlington Northern, Inc. 

(19821, 201 Mont. 350, 355, 654 P.2d 972, 975. See, e.a. 

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

641, 42 St.Rep. 1738; McGee v. Burlington Northern, Inc. 

(1977), 174 Mont. 466, 571 P.2d 784. Further, contributory 

negligence is not a factor in determining liability if the 

Safety Appliance Act has been violated. Title 45, U.S.C. S 

53 states: 

. . . no such employee who may be injured or killed 

shall be held to have been guilty of contributory 

negligence in any case where the violation by such 

common carrier of any statute enacted for the 

safety of employees contributed to the injury or 

death of such employee. 
"The statute expressly imposes liability upon the 

employer to pay damages for injury or death due 'in whole or 

in part' to its negligence." Rogers v. Missouri Pacific 

Railroad Co. (1957), 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 

493, citing 45 U.S.C. § 51. To prove liability as a matter 

of law, Plouffe need only to have established a "defect or 

insufficiency" due to the railroad's negligence. Title 45 

U.S.C. § 51. 

With these basic precepts in mind, we turn to the issue 

raised of the propriety of the District Court's granting 

partial summary judgment on the issue of liability for each 

of the injuries in question. 

The first of the four accidents occurred on March 28, 

1979, when Plouffe was working as a switchman in the Havre 

yard. He and his co-workers were moving a string of cars 

onto another track when he noticed that a flat car in the 

string would not roll properly. This is ordinarily caused by 

sticking brakes. To eliminate the problem, Plouffe first 

tried bleeding the air from the brakes. When this did not 

work, he attempted to release the brakes by turning the 

handbra.ke located on the end of the car. However, the 

handbrake was stuck and would not turn. (The handbrake is a 

vertical shaft with a wheel at its top. The wheel is 

perpendicular to the shaft.) Plouffe knew that sometimes the 

chain to the brake shaft would stick or get tangled and 

prevent the handbrake wheel from turning. As Plouffe bent to 

rattle the chain located under the car, the handbrake shaft 

slipped down, causing the handbrake wheel on the top of the 

shaft to hit Plouffe on the back of the head, knocking him to 

the ground. There were no witnesses to this accident. 
' The ra-ilroad raises several contentions. First, they 

argue that the issue of contributory negligence should have 

been submitted to the jury. Second, they claim that there 

was no proof that the handbrake was defective. Finally, they 

claim that Plouffe's credibility was an issue of fact that 

should have been decided by a jury but was wrongly precluded 

by summary judgment. 

Title 45, U. S .C. S 11 provides that " [a] 11 cars must be 

equipped with . . . efficient hand brakes. . . " Compliance 

with S 11 is "not simply a question of whether the brake is 

efficient; it is necessary that the brake can be operated 

with safety. " Ballard v. Sacramento Northern R. Co. (1932) , 

126 Cal.App. 486, 14 P.2d 1045. If an inefficient brake 

causes injury, there is inescapable liability under the 

Federal Safety Appliance Act (FSAA) , Title 45, U.S.C. SS 

11-16. 

After the accident, Plouffe filed a personal injury 

report with the railroad. A tra-in master for BN conducted a 

supervisory investigation which confirmed that the brake 

shaft wheel dropped and hit Plouffe on the back of his head. 

Burlington Northern never inspected the handbrake after the 

accident, although under its own operating and safety rules 

it had a duty to do so. Further, BN, through the person it 

designated as a safety expert, admitted that if the handbrake 

shaft and wheel came down, as it did without the latch being 

released, it would be defective. These facts, undisputed by 

BN, provide ample evidence to support the District Court's 

finding that the FSA4 was violated because the equipment was 

defective. Further, the law provides that if this Act has 

been violated, then contributory negligence is not a factor 

in determining ljability. In short, an inefficient brake 
causes injury, there is inescapable liability. Title 45, 

U.S.C. 55 11-16, 

The United States Supreme Court discussed the absolute 

liability features of the Safety Appliance Act in Lilly v. 

Grand Trunk Western R. Co. (19431, 317 U.S. 481, 485-86, 63 

S.Ct. 347, 87 L.Ed. 411, stating: 

Negligence is not the basis for liability under the 

act. Instead it "imposes upon the carrier an 

absolute and continuing duty to maintain the 

locomotive, and all parts and appurtenances thereof 

in proper condition and safe to operate . . . without unnecessary peril to life or limb. 

(Citations omitted. Any employee engaged in 

interstate commerce who is injured by reason of a 

violation of the Act may bring his action under the 

Federal Employers Liability Act, charging the 

violation of the Boiler Inspection Act. The Act, 

like the Safety Inspection Act, is to be liberally 

construed in light of its prime purpose, the 

protection of employees and others by requiring the 

use of safe equipment." 

In the instant case, absolute liability was properly imposed. 

The defective condition of the brake was undisputed and BN 

was unable to support its argument that a genuine issue of 

material fact existed. Hence, the District Court properly 

ruled that Plouffe was entitled to judgment as a matter of 

law. 

BM also claims that summary judgment foreclosed raising 

Plouffe's credibility regarding the accident. This claim is 

inconsistent with the railroad's pre-trial activity where, 

during discovery, it did not dispute Plouffe's testimony 

about how the accident occurred. In fact, the railroad's 

claims manager made the following admissions during the 

taking of his deposition: 

Q. (By Plouffe's attorney): There is nothing in 

the claims file indicating that the accident 

occurred in any other way; correct? A. Not that I 

am aware of, no. 

Q. Do you know of any reasons to doubt that is 

precisely what occurred in this instance? A. 
Doubt that Plouffe was hit on the head with the 

brake? 

Q. Right. A. No. 

Shortly following this dialogue, the railroad's attorney 

added the following: 

Q. (By Plouffe's attorney) . . . Is it Burlington 

Northern's position that they don't dispute Mr. 

Plouffe's description of how the accident occurred? 

A. (By BN's attorney) Based upon all the 

information I have in my review of the file, my 

discussion with (BN's claims manager) , it's my 

understanding that there is no basis at this point 

that we are aware of nor witnesses who will say 

that it didn't happen the way Mr. Plouffe says it 

happened. 

I will make it clear, however, that Burlington 

Northern certainly disputes the nature and extent 

of the injuries that relates to his back problems. 

You understand that? 

Q. I understand you are debating causation as far 

as that accident goes-- A. And its relationship 

to the overall problem, correct. 

Q. --but we are not fighting over how the accident 

occurred. That's what I am here for is to find 

that out. A. I am not aware of anything that 

suggests that Mr. Plouffe isn't telling the truth 

or that anybody saw it happen differently. 

Under well established concepts of law, a party cannot 

take one position during pretrial discovery and then change 

its position at the time of trial or on appeal. Under S 

26-1-601, MCA, the following is a conclusive presumption: 

The truth of a declaration, act, or omission of a 

party, as against that party in any litigation 

arising out of such declaration, act or omission, 

whenever he has, by such declaration, act or 

omission, intentionally led another to believe a 

particular thing true and to act upon such belief. 

Here, the railroad claimsman and attorney clearly lead 

Plouffe to believe that the railroad was not contesting 

Plouffe's credibility concerning how the accident occurred. 

Hence, the railroad was estopped from making this argument at 

trial and may not raise this issue on appeal. 
The second accident occurred on July 28, 1979 when 

Plouffe lost his footing while he was starting to climb down 

from an engine. Plouffe specifically remembers that he was 

looking where he was going because the deck on the locomotive 

had been worn so smooth that it had a "silvery finish." The 

cleats on the locomotive walkway, designed to prevent 

slipping, had been worn smooth. F?hen he started to climb 

down from the engine, his feet flew out from under him and he 

bounced down the steps on his rear. There were no 

eyewitnesses to this accident. 

Again the railroad presented no evidence to the District 

Court contradicting Plouffe's description of the accident. 

Nor did it meet its duty, under its own safety rules, to 

inspect the engine deck after the accident. 

The railroad does not dispute that the walkway was 

smooth and defective. Indeed, the person designated by BN as 

a safety expert on locomotives admitted that the railroad 

violated its own safety rules by having a walkway where the 

metal cleats were worn down to the point where the deck was 

shiny. 

The Federal Employers Liability Act provides that 

railroads have an absolute duty to maintain locomotives in 

such a condition as to prevent unnecessary peril to life or 

limb. Dallas v. Burlington Northern, Inc. (Mont. 1984), 689 

P.2d 273, 41 St.Rep. 1902, 1906. In addition, federal 

regulations require that floors be properly treated to 

provide secure footing. Anderson v. Burlington Northern, 

Inc. (Mont. 1985), 709 P.2d 641, 42 St.Rep. 1738 (citing 49 

CFR S 229.119(c)). 

In this case, where the cleats of the walkway had been 

worn smooth, it's clear that an unnecessarily perilous 
condition existed. In admitting this, the BN expert even 

went so far as to explain that the railroad should have taken 

precautionary measures of welding new cleats on the walkway. 

Here again, summary judgment based upon the Safety Appliance 

Act was proper. The District Court correctly held the 

railroad strictly liable for Plouffe's injuries, regardless 

of any contributory negligence. 

The railroad claims that Plouffe's cause of action was 

for negligence, and not legitimately a violation of the FSAA, 

because there was a factual issue that Plouffe had oil on his 

boots and that the oil could have contributed to his fall. 

If this was the case, they argue, then there would be no 

violation of the FSAA and the railroad could only be liable 

for negligence for leaving the oil in the yard. However, the 

admission that the walkway lacked cleats precludes this 

theory, as the lack of cleats created an unnecessarily 

perilous condition. The questionable oily condition of 

Plouffels boots was not a factor discussed in determining 

that the FSAA was violated. 

The railroad also claims that Plouffe's credibility 

concerning this accident was in issue and that it was error 

for the District Court to deny it the opportunity to raise 

the credibility issue at trial. Here again the railroad is 

estopped because of its actions during discovery. The 

following exchanges took place during the deposition of the 

railroad's claims manager: 

Q. Was any evidence developed that contradicts Mr. 

Plouffels statement by you concerning how the 

accident occurred? A. No one has told me that Mr. 

Plouffe did not slip on Unit 1835 and hurt his 

right arm. 

Q. Was any evidence developed indicating that Mr. 

Plouffe was somehow not telling the truth in that 

regard? A. Not that I am aware of. 
Q. Do you know of any reason to doubt Mr. 

Plouffe's statement that he did. slip on the step on 

Unit 1835? A. None whatsoever. 

The railroad's attorney again followed this discussion with 

the following admissions: 

I would make the same statement that I made earlier 

on the other accident [regarding the brake wheel] 

that while there is--I am not aware of any 

information, evidence or other witnesses who 

contradict what he has put down in his report. We 

do dispute the nature and extent of the injury, 

disability, from the [fall from the engine]. 

Whatever [Doug Plouffe] said took place before we 

don't dispute, whether he called it a fall or a 

slip or whatever it was. 

Once again, Plouffe's attorneys were lead to believe 

that Plouffe's credibility was not an issue. Once again 5 

26-1-601 estops the railroad from raising this issue in the 

District Court or on appeal. 

The third accident occurred on October 26, 1979. 

Plouffe was attempting to straighten a drawbar on a flat car. 

The drawbar is the heavy metal bar that supports the coupler. 

These bars will slide to the left or right in order to allow 

cars to go around curves in the track. To couple cars, 

however, the drawbar must be in the middle of its housing 

rather than off to its right or left. Otherwise, when the 

coupler is brought together with the coupler on a.n adjacent 

car, there can be damage to the coupler or to the car. 

A responsibility of railroad workers is to make sure the 

drawhar is straight and not misaligned when the cars are 

being coupled. To straighten the drawbar, a switchman leans 

against it and uses the weight of his body to move it into 

position. BN safety rules instruct workers in writing to 

straighten drawbars. It is the worker's duty to see that 

coupling appliances are in place and to adjust the drawbars 

prior to making coupling. 
In compliance with these rules Plouffe straightened a 

drawbar on October 29, 1979 and injured his back. Plouffe 

reported the accident and this time the railroad inspected 

the accident scene. Although the railroad found no defect in 

the drawbar, the absence is irrelevant. "The fact the 

coupler functioned properly before or after the incident in 

question is immaterial." McGee v. Burlington Northern, Inc. 

(1977), 174 Mont. 466, 571 P.2d 784. Once again, the duty of 

the railroad to insure worker safety is absolute, without 

regard to negligence or the normal efficiency of the 

couplers. Title 45, U.S.C., S 2; Affolder v. New York C. & 

St. L. F.. Co. (1950), 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. 

683. Title 45, U.S.C. § 2 holds that it is "unlawful for any 

. . . common carrier (engaged in interstate commerce by 

railroad) to haul or permit to be . . . used on its line any 

car . . . not equipped with couplers coupling automatically 

by impact, and which can be uncoupled without the necessity 

of men going between the ends of cars." Because the railroad 

admits that Plouffe went between the cars to straighten the 

drawbar, as was his obligation, and because the drawbar is 

part of the coupling device and must be kept in operating 

order, the railroad violates Title 45, U.S.C. S 2 if the 

drawbar is so out of line that the car cannot be coupled 

automatically on impact. Plouffe was entitled to summary 

judgment on the liability issue for this accident. 

The final accident took place on February 10, 1981. 

Doug Plouffe was a switchman in a three man crew engaged in 

uncoupling cars. One of the pins that allows the coupler of 

a car to release was not working during the uncoupling 

operation. This required Plouffe to walk along with the 

movement of the train, holding the pin lifter level to make 
sure the couplers disengaged. As he was getting ready to 

give the engineer a stop signal, he stepped in a hole between 

the railroad ties and the adjacent ballast, lost his footing 

and sprained his lower back and right knee. Plouffe had not 

seen the danger because fresh snow had filled the hole. 

Plouffe's account of how this accident happened was 

uncontradicted and is corroborated by the testimony of the 

engineer who saw the accident and a crew member who actually 

saw the hole and recommended to BN that it provide fill in 

that area. 

In McGee v. Burlington Northern, Inc. (1977), 174 Mont. 

466, 477, 571 P.2d 784 this Court approved the following jury 

instruction: 

The Safety Appliance Act imposes an absolute duty . . . upon the railroad to provide its cars with 

coupling devices which operate efficiently at the 

time of the accident. If you should find from the 

evidence that plaintiff operated the uncoupling 

device in the usual accepted and customary manner 

and the uncoupler failed to immediately respond in 

an efficient manner, the railroad was in violation 

of the Safety Appliance Act. 

Here, the pin lifter was not working and Plouffe was required 

to walk along with the train. Based on Title 45, U.S.C. § 2 

and the authority cited above, this in itself was a violation 

of the FSAA. Therefore, we conclude there was sufficient 

undisputed evidence on which the District Court could base an 

order granting partial summary judgment. Appellant BN 

claimed that the action should have been in negligence and 

not brought under the FSAA because it was negligence (and not 

a violation of the FSAA) for it to have inadequate fill 

between the ties. This argument is illogical because it 

ignores the fact that Plouffe would not have been walking 

alongside the car (and hence injured) if the pin lifter had 

been operating. 
By granting summary judgment on liability the District 

Court took the issues from the jury of whether BN's violation 

of the FSAA caused the accidents. The railroad claims that 

there was insufficient evidence to establish the cause of 

Plouffe's accidents because there were no accidents in three 

of the four incidents. BN speculates that Plouffe could have 

been injured in ways that did not involve violations of the 

FSAA. However, we follow the rule that inferences drawn from 

circumstantial evidence can be as probative as direct 

evidence. Barich v. Ottenstror (1976), 170 Mont. 38, 550 

P. 2d 395; Anderson v. Burlington Northern, Inc. (Mont. 1985) , 

709 P.2d 641, 42 St.Rep. 1738. Furthermore, the party 

opposing a motion for summary judgment on a record. which 

reveals no issue of material fact must present facts of a 

substantial nature. Conclusionary or speculative statements 

are insufficient to raise genuine issues of material fact. 

Barich, supra; Rule 56, M.R.Civ.P. Here the railroad relied 

exclusively on speculative statements inconsistent with their 

earlier admissions. We agree with the District Court's 

conclusion that the railroad totally failed to set forth 

specific facts showing that there is a genuine issue for 

trial. "All (the railroad) does is tell the Court that it 

would be better to let the matter go to the jury because of 

its 'allegations or denials of its pleading. ' As set forth 

in Rule 56(e), this is not sufficient." 

The railroad is also incorrect in claiming that the 

District Court took the issue of causation away from the 

jury. The issue of medical causation, that is whether or not 

the accidents caused injuries to Plouffe, was properly left 

to the jury. 
The manner in which the accidents occurred and how they 

aggravated Plouf fe ' s back condition was fully explored. In 

short, the pertinent issues of causation of injury were left 

to the jury. The only issues not submitted to the jury were 

those that were established by uncontradicted evidence. 

The second issue raised by the railroad involves what 

the railroad believes is a post-trial event justifying a new 

trial. The week after trial, Plouffe went to the trainmaster 

in Havre and requested he be permitted to go back to work. 

He presented a note from his chiropractor which said "Doug 

Plouffe may now return to work." The same chiropractor had 

testified at trial that it was not medically feasible for 

Plouffe to return to work because it would aggravate his back 

condition. The railroad contends this evidence implies that 

Plouffe was physically able to return to work and that he 

intended to continue working in spite of his injuries. The 

railroad also argues that Plouffe committed fraud on the 

court, arguing that the note supported their position that 

the injuries were not severe enough to justify an award 

compensating him for lost earnings to the extent of his work 

life expectancy. 

Contrary to the railroad's arguments, this evidence is 

not new and it does not automatically imply that fraud has 

been committed. The District Court, in its order ruling 

against BN's motion for a new trial, found that the note was 

similar to many other notes submitted when Plouffe was forced 

to go to work because he needed the money. It is evident 

from the record that it was not wise for Plouffe to continue 

working, because he was only aggravating his back condition. 

However, it is equally clear that Plouffe had unavoidable 

financia.1 obligations of family and home that had to be met 
in spite of his doctors' and chiropractor's recommendations. 

After the judgment, Plouffe's financial status made it 

imperative that he secure income pending appeal. Hence the 

note to the railroad from Dr. Pardis. When Dr. Pardis felt 

Plouffe had recovered enough to return to work, he would 

submit notes similar to the one in issue. The trial changed 

matters little. Plouffe still needed to work to meet his 

obligations and Dr. Pardis, consistent with his earlier 

routine, released Plouffe to return to work after trial. The 

fact that Plouffe tried to continue to work despite his 

disabilities is not new. It was the same type of evidence 

presented at trial. Therefore, the railroad's contention is 

meritless. 

The final issue involves the District Court's denial of 

Plouffe's motion for an award of prejudgment interest. 

Plouffe relies heavily on Garcia v. Burlington Northern 

Railroad Co. (D. Colo. 19841, 597 F.Supp. 1304, a 1984 

decision currently under appeal that held that the 

"legislative history and subsequent judicial application of 

the FELA demonstrate that granting prejudgment interest . . . would promote the policies underlying the Act." Although 

prejudgment interest would address legimate concerns, 

discouraging dilatory pretrial tactics, the law of Montana 

does not provide such relief. Section 27-1-211, MCA, 

provides, "Every person who is entitled to recover damages 

certain or capable of being made certain by calculation and 

the right to recover which is vested in him upon a particular 

day is entitled also to recover interest thereon from that 

day. " In short, this statute allows interest only from the 

date of judgment, as that is the day the damages are capable 

of being made certain. Callihan v. Burlington Northern, Inc. 
(1982), 201 Mont. 35, 654 P.2d 972; Wyant v. Dunn (1962), 140 

Mont. 181, 368 P.2d 917. 

Therefore we affirm the District Court's grant of Doug 

Plouffe's motion for partial summary judgment. 

Justice 

We Concur: 

Chief Justice 

I