No. 86-285 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

DOUGLAS PLOUFFE, Plaintiff and Respondent,

BURLINGTONNORTHERN, INC., a DelawareCorp., Defendant and Appellant.

APPEAL FROM: DistrictCourt of the Eighth JudicialDistrict, Inand for the County of Cascade, The Honorable JohnMcCarvel, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Jardine,Stephenson, Blewett & Weaver; James E. Aiken, Great Falls,Montana

For Respondent: Erick Thueson,Great.Falls,Montana

Submitted onBriefs: 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 LiabilityAct (Title 45 U.S.C., § 51, et seq.) and denying defendant'smotion fora new trial. We affirm. Three issues are raised on appeal. The first iswhether the trial court erred in granting Plouffe's motion for partial summary judgment on the issue of liability und-erthe Federal Employers Liability Act. The second iswhether the trial court erred in denying RurlingtonNorthern's motion for

a new trial. The final issue is whether the trial court acted properly in denying Plouffe

### '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. Plouffemaintained that his injuries were the result of BN's admitted violation of portions of the Federal SafetyAppliance 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 ofmaterial fact. BN responded that

a grant of partial summary judgmentwas 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 thatthe 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 SafetyAppliance 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'spart. 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 violationby 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 'inwhole 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 inmind,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 inquestion. 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 rollproperly. This is ordinarilycaused 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. (Thehandbrake is a vertical shaft with a wheel at its top. The wheel is perpendicular to the shaft.) Plouffeknewthat sometimesthe chain to the brake shaft would stick or get tangled and prevent thehandbrakewheel fromturning. 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 theback of thehead,knockinghim to the ground. There were no witnesses to thisaccident.' The ra-ilroadraises several contentions. First, they argue that the issue of contributory negligence should have been submitted to the jury. Second, they claim that there

was noproof that thehandbrakewas 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 11provides that "[a]11 carsmust 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 reportwith the railroad. A tra-inmaster for BN conducted a supervisory investigation which confirmed that the brake shaftwheel dropped and hit Plouffe on theback 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 theperson it designated as a safety expert,admitted that if the handbrake shaft and wheel came down, as it did without the latchbeing released, it would be defective. These facts,undisputed by BN, provide ample evidence to support the District Court's finding that the FSA4was violated because the equipmentwas 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 brakecauses 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, 87L.Ed. 411,stating: Negligence is not thebasis for liability under the act. Instead it "imposes upon the carrier an absolute and continuing duty to maintain the locomotive,and allparts 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 theActmay bring his action under the Federal Employers Liability Act, charging the violation of the Boiler InspectionAct. The Act, like the Safety InspectionAct, is tobe liberally construed in light of its prime purpose, the protectionof employees and othersby requiringthe use of safe equipment." In the instantcase,absolute liabilitywasproperly 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 foreclosedraising 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 ofhisdeposition: Q. (ByPlouffe's attorney): There is nothing in the claims file indicating that the accident occurred in any otherway; 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. (ByPlouffe's attorney) 

# . . . Is itBurlington Northern's position that they don't dispute Mr. Plouffe's descriptionofhow 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 thispoint 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. Youunderstand that? Q. I understand you aredebating causation as far as that accident goes-- A. And its relationship to the overallproblem,correct. Q. --butwe 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 ithappendifferently. 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 suchbelief. 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 railroadwas estopped frommaking this argument at trialandmay not raise this issue on appeal.The second accident occurred on July 28, 1979 when Plouffe lost his footingwhile he was starting to climb down from an engine. Plouffe specifically remembers that he was looking where hewas going because thedeck 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?henhe started to climb down from the engine,his feet flewout fromunder him and he bounced down the steps on his rear. There were no eyewitnesses to this accident. Again the railroadpresented 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 enginedeck after the accident. The railroad does not dispute that the walkway was smoothand 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. Dallasv. 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 perilouscondition existed. In admitting this, the BN expert even went so faras to explain that the railroad shouldhave taken precautionary measures of welding new cleats on thewalkway. Here again, summary judgment based upon the SafetyAppliance Act was proper. The District Court correctly held the railroad strictly liable for Plouffe's injuries, regardless ofany contributorynegligence. The railroad claims that Plouffe's cause of action was for negligence,and not legitimatelyaviolationof the FSAA, because therewas a factual issue that Plouffehad oil onhis 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 theyard. 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 Plouffelsboots was not a factor discussed in determining that the FSAAwas 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 claimsmanager: Q. Was any evidencedeveloped that contradictsMr. Plouffels statement by you concerning how the accidentoccurred? A. No onehas toldme thatMr. 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 Iam aware of.Q. Do you know of any reason to doubt Mr. Plouffe's statementthathe did.slipon the step on Unit 1835? A. None whatsoever. The railroad's attorney again followed this discussion with the followingadmissions: Iwouldmake the same statement that Imade 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 contradictwhat he has put down in his report. We do dispute the nature and extent of the injury, disability,from the [fallfrom the engine]. Whatever [Doug Plouffe] said took place before we don't dispute, whether he called it a fall or a sliporwhatever 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 DistrictCourt or on appeal. The third accident occurred on October 26, 1979. Plouffewas attemptingto straightenadrawbar on a flat car. Thedrawbar is theheavymetalbar that supports the coupler. Thesebars 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.nadjacent car,there canbe damage to the coupler or to the car. A responsibility of railroadworkers is tomake 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 tomaking 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),174Mont. 466, 571P.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. § 2holds 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 ofmen 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 makesure the couplers disengaged. As he was getting ready to give the engineera stop signal, he stepped inahole between the railroad ties and the adjacentballast, losthis footing and sprainedhis lowerback and right knee. Plouffehad not

seen thedanger because fresh snowhad 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 crewmember who actually

saw the hole and recommended to BN that it provide fill in that area. In McGee v. Burlington Northern, Inc. (1977), 174Mont. 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. Ifyou should find from the evidence that plaintiff operated the uncoupling device in the usual accepted and customary manner and the uncoupler failed to immediatelyrespond in an efficientmanner, the railroad was in violation of the SafetyApplianceAct. Here,thepin lifterwas not working and Plouffewas required towalk along with the train. Based on Title 45,U.S.C. § 2 and the authoritycited above, this in itselfwas aviolation of the FSAA. Therefore, we conclude there was sufficient undisputed evidence onwhich theDistrictCourt could base an order granting partial summary judgment. Appellant BN claimed that the action should have been in negligence and notbrought under the FSAAbecause it was negligence (andnot

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 (andhence injured) if the pin lifter had been operating.By granting summary judgment on liability the District Court took the issues from the jury ofwhether 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 couldhave 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. BurlingtonNorthern, 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 isnot sufficient." The railroad is also incorrect in claiming that the District Court took the issue of causation away from the jury. The issue ofmedical causation, that iswhether or not the accidents caused injuries to Plouffe,was properly left to the jury.The manner inwhich the accidents occurred and how they aggravated Plouffe

### 's back condition was fully explored. In short, the pertinent issues of causation of injurywere left to the jury. The only issues not submitted to the jurywere those thatwere establishedby uncontradictedevidence. The second issue raised by the railroad involves what the railroad believes is a post-trial event justifying a new trial. Theweek after trial,Plouffewent 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 towork because itwould aggravate hisback 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 hiswork lifeexpectancy. 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'smotion for a new trial, found that the note was similar tomany othernotes submittedwhen Plouffewas forced to go to work because he needed the money. It is evident from the record that itwas notwise for Plouffe to continue working, because he was only aggravating his back condition. However, it is equally clear that Plouffe had unavoidable financia.1obligations of family and home that had to be metin 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 towork 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 DistrictCourt'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 "legislativehistory and subsequent judicial application of the FELAdemonstrate thatgranting 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 isvested in him upon aparticular 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 ofbeing made certain. Callihanv. BurlingtonNorthern, 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