Gaulden v. Burlington Northern

The opinion of the court was delivered by This is an appeal by the defendant, Burlington Northern, Inc. (the railroad), successor to the St. Louis-San Francisco Railway Company (Frisco), from a judgment for $750,000 entered against it and in favor of the plaintiff, Sylvester Gaulden, following a jury trial in Sedgwick District Court. Gaulden, a former Frisco employee, brought the action to recover damages for personal injuries against the railroad under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. (FELA), and against defendant Jack James, the driver of a pickup truck involved in a crossing accident, alleging that the joint negligence of the defendants caused him injury. The primary issue on appeal is whether the trial court erred in failing to submit the issue of James' negligence to the jury. Gaulden was employed as a brakeman on November 22, 1979. The accident occurred while the train was pushing eleven freight cars over the State Street crossing in Augusta, Kansas, in a switching operation. Plaintiff was riding on the north side of the front end of the lead tank car as it approached the crossing. The train was moving at a speed of approximately three to four miles per hour. It passed over a switch some 575 feet west of the crossing, which activated eight flashing lights on each side of the crossing, and a warning bell. Gaulden, carrying a signal lantern and a walkie-talkie radio pack, was preparing to flag the crossing as is required by transportation department rules, and as was his duty. Plaintiff saw the James pickup truck approaching the crossing from the north, and he started to step off of the train in order to flag the crossing. The truck slowed down and paused or stopped; Gaulden stepped back on the tank car, and as he did so, [232 Kan. 207]