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SEPTEMBER 30, 1987





The failure of the trial judge to give a nontaxability instruction in a Federal Employers' Liability Act case is the central issue in this appeal. Eugene Benjamin Cantrell, Jr., a Louisiana resident, brought suit in the Circuit Court, Jackson County, Mississippi in August 1984, against the Seaboard Systems Railroad, Inc., for injuries based on the Federal Employers' Liability Act, (FELA) 45 U.S.C. 51-56. This act provides concurrent jurisdiction in state and federal courts. Cantrell was awarded a jury verdict of $650,000, from which judgment the Seaboard System Railroad (hereinafter Railroad) appeals alleging:

 (1) The trial court erred in requiring the Railroad, on motion of Cantrell during the trial, to produce a statement of a non-party witness whose statement had not been sought by pretrial discovery or subpoena.

 (2) The trial court erred in granting plaintiff's instruction which not only said that" negligence "has a liberal interpretation in F.E.L.A. cases, but also said that negligence" includes any breach of any obligation that the railroad owes to its employees, including the obligation of seeing to the safety of its employees. "(Emphasis added)

 (3) The trial court erred in allowing plaintiff's economist to testify concerning present and future loss of income using hypothetical questions in which (1) plaintiff was totally and permanently disabled, and in which (2) plaintiff could earn only minimum wage, where there was no testimony in the record of wage earning capacity or of total disability.

 (4) The trial court erred in granting an instruction which permitted recovery (1) for" loss of or diminution of earnings or impairment of earning capacity or power "even though the only testimony was of physical limitations, not earning capacity, and (2) for" hospitalization, medical services, and drugs and surgical appliances, and all related expenses "past and future, absent evidence of any past or anticipated expenditures for any such items.

 (5) The trial court erred in refusing the Railroad's requested instruction that an award in this case" will not be subject to any income taxes, and you should not consider such taxes in fixing the amount of your award. "

 (6) The verdict was so excessive as to show bias, passion and prejudice on the part of the jury; it ignored appellee's contributory negligence and failure to mitigate damages.


 Eugene Benjamin Cantrell, Jr. (hereinafter Cantrell), a thirty year old, seven year employee of the railroad, was working as a flagman on the switching crew on the morning of November 13, 1983. He was helping at the rear, making up a train to take out to the main line. At approximately 3:45 to 4:00 a.m., he boarded the rear of the caboose car which was going to be repaired. The train had slowed to two to three miles per hour, to allow him and the foreman to board the

 train. He was given a radio with only a single channel; therefore, he had to signal with a lantern to the foreman who radioed the engineer to move the train forward and take out the slack.

 Each employee is trained and tested on the rules of the railroad. Slack action occurs with every train movement, starting, stopping, slowing, and speeding up. Grab irons are located at the back and inside the caboose, and when alighting from locomotives or cars, all employees are required by railroad rules to keep a firm hand hold until sure of secure footing. The rules further require that crewmen be prepared at all times to avoid injury from unexpected slack action.

 According to the operating rules, Cantrell was responsible for having a proper radio. If he was not issued a proper radio, it was his responsibility to exchange it, and he was to test and verify his ability to communicate on it before movement of the train.

 As Cantrell went up the steps of the caboose and took a step inside the door, the slack action of the train threw him to the floor against the grate at the back of the caboose. Cantrell testified the accident occurred because he was not prepared for the unexpected slack action. *fn1

 To explain his accident, Caldwell stated that he was not able to reach the grab iron; that the caboose inside flooring and everything were wet as if it had just been washed down and that the slack action was severe throwing him flying backward, and causing injury to his neck, head, and low back.

 Cantrell was aware that the steps, rail and deck of the caboose were wet and slippery as evidenced by Cantrell's warning to the foreman before he boarded by saying," Mike, it's slick, watch it. "Both Cantrell and the foreman testified that Cantrell was thrown off of his feet.

 By experience, Cantrell knew the slack action was coming. The foreman, fifteen to thirty feet from Cantrell, testified he called to Cantrell to tell him he was going to instruct the engineer to go ahead and take out the slack. Cantrell himself had signalled to the foreman with the lantern to go ahead with the train. The only eyewitness said the slack was sharp, not unusually hard; but different.

 Cantrell's complaints at the time of the fall in November, 1983, were of pain in his neck and shoulder. By December, 1984 Cantrell's major complaint was his back, and a

 disc problem was then suspected at L4-L5. Dr. Lewellyn asked Cantrell to return in January, 1985 for studies and tests to determine whether surgery would help his back, but Cantrell cancelled the appointment because of his fear of being crippled as other family members.

 The doctor cautioned that, with or without operative procedures, Cantrell should not return to employment that required jumping, climbing or repetitive lifting of 25 pounds or more. The doctor has not released Cantrell to return to work. The doctor said that if tests and studies showed an irreparable disc rupture, Cantrell could be treated medically and, with or without operative procedures, he would have an eight out of ten chance of becoming 85% comfortable, doing 85% of day to day activities. Without the recommended tests, the doctor did not know the extent of Cantrell's disc injury The doctor would not recommend surgery unless tests indicated it would improve the patient.

 Citing the causes of his accident to be the Railroad's failure to provide safe equipment and a safe place to work, together with negligent operation of the locomotive, Cantrell sued for two million dollars loss for past and future wages, earning capacity, physical disability, pain and suffering, and medical and rehabilitative expenses. The jury returned $650,000.00 for actual and compensatory damages.




 During a noon recess following the first portion of direct examination of Eugene Cantrell, counsel for plaintiff Cantrell made a motion to require that attorneys for Seaboard produce a recorded statement of the foreman, Mike Flinn, a witness for the plaintiff. The statement was recorded by a claims agent for Seaboard, and the statement was not transcribed until a week before trial. Mike Flinn never saw a copy of his statement, nor did he acknowledge by signature that the statement was his.

 Plaintiff's motion was predicated on Miss. R. Civ. P. 26(b)(3), which states:

 Subject to the provisions of subsection (b)(4) of this rule, a party may ...

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