96-200




                                                                                 No. 96-200

                                                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                                 1997



                                                                  JACKIE A. McGREGOR,

                                                                       Plaintiff and Appellant,

                                                                                         v.

                                                         NATIONAL RAILROAD PASSENGER
                                                          CORPORATION, a/k/a AMTRAK,

                                                                      Defendant and Respondent.




                     APPEAL FROM:                   District Court of the Eighth Judicial District,
                                                           In and for the County of Cascade,
                                                    The Honorable Robert P. Goff, Judge presiding.


                                                                   COUNSEL OF RECORD:

                                                                                 For Appellant:

                                              Chas. C. Dearden, Attorney at Law, Whitefish, Montana

                                                                                For Respondent:

                                                   Robert E. Sheridan; Garlington, Lohn & Robinson,
                                                                  Missoula, Montana



                                                                               Submitted on Briefs: July 31, 1997

                                                                               Decided: August 12, 1997
                                                                               Filed:


                                                         __________________________________________
                                                                     Clerk

                    Justice W. William Leaphart delivered the Opinion of the Court.


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        Jackie McGregor, a ticket agent for Amtrak, filed this suit pursuant to the
                                           Federal
Employer's Liability Act, 45 U.S.C.A.         51 et seq., seeking damages for injuries she
received while unloading baggage. She appeals from a special jury verdict finding no
                        negligence on the part of Amtrak. We affirm.
                                                   Issues Presented
            1.    Whether the verdict of no negligence is supported by the evidence.
           2.    Whether the court erred in excluding evidence comparing the baggage
                volume in Whitefish with the volume in Spokane and Seattle.
       3.     Whether the court erred in allowing Amtrak's counsel to question McGregor
                about a separate ADA claim that was pending against Amtrak.
                                                        Discussion
          McGregor began working as a ticket agent for Amtrak in 1983 and continued
   working as a lead ticket agent until her injury. As a ticket agent, her duties
                                        included the
handling of baggage and express items weighing up to 75 lbs. per item. On January 4,
1994, McGregor was unloading baggage from the train to the baggage cart. The baggage
 was stacked in the doorway of the train car. She was in the process of taking bags
                                             down
     from the car and placing them on the cart when she took a "quite heavy" bag
                                         (estimated
    to be 65-70 lbs.) and placed it on the cart and injured her arm in the process.

           1.   Whether the verdict of no negligence is supported by the evidence.
        Our review of the sufficiency of the evidence to support a jury verdict is
                                         limited.
Our standard of review in a jury case is set forth in Lee v. Kane (1995), 270 Mont.
                                           505,
 510-11, 893 P.2d 854, 857 (quoting Hansen v. Hansen (1992), 254 Mont. 152, 157, 835
                              P.2d 748, 750-51) as follows:
                "Our scope of review of jury verdicts is necessarily very limited.
       This Court will not reverse a jury verdict which is supported by substantial
        credible evidence. This Court has defined substantial credible evidence as
            evidence which a reasonable mind might accept as adequate to support a
          conclusion. The evidence may be inherently weak and conflicting, yet it
          may still be considered substantial. It is well established that if the
     evidence is conflicting, it is within the province of the jury to determine the
       weight and credibility to be afforded the evidence. Finally, upon reviewing
      a jury verdict to determine if substantial credible evidence exists to support
         the verdict, this Court must view the evidence in the light most favorable
                                   to the prevailing party."

          McGregor's theory was that Amtrak was negligent in failing to adopt and
implement rules and procedures for the safe performance of her work. Specifically,
                                          she
  argued that the weight limit and process used were unsafe; that despite awareness
                                       that its
75 lbs. per bag limit had caused injury to its employees, Amtrak continued to accept
     baggage up to 75 lbs. McGregor presented testimony from a number of Amtrak
 employees who testified that they had expressed concerns to their supervisors that
                                        the 75
  lb. weight limit was too heavy. McGregor also relied on an interoffice memorandum

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             issued on September 20, 1994, after her injury, which stated, in part,
              Effective with the October 30, 1994 timetable change, we have reduced the
               maximum weight of checked baggage to 50 lbs. per item. Passengers may
             check a heavier suitcase or carton, not to exceed 75 lbs., upon payment of
               a $10.00 surcharge. The intent is to provide a financial incentive for
                 passengers to keep their baggage light while still accommodating the
               occasional passenger who unavoidably has a heavier piece that does not
                       exceed the existing Amtrak Express regular weight limit.

                 Amtrak Express maximum weights (regular express, 75 lbs.) are not being
                 changed as it would make us uncompetitive with other shipping services.
                            Most have a weight limit of 70-75 lbs. per piece.

      McGregor contends that Amtrak "essentially admitted that it [the weight limit]
                                            was
   unsafe when it took steps to reduce the hazard by limiting checked baggage to 50
                                          pounds,
thereby reducing the volume of items over 50 pounds." On appeal, she argues that the
 above facts prove more than "slight negligence," which is all that is required in a
                                            FELA
 action, Rogers v. Missouri Pacific R. Co. (1957), 352 U.S. 500, 506, 77 S.Ct. 443, 1
 L.Ed.2d 493; and that the verdict of no negligence is not supported by the evidence
                                             and
                                    must be reversed.
          Amtrak asserts that the verdict is supported by the following substantial
                                        evidence:
        The District Court admitted safety rules entitled "Amtrak Onboard and Station
 Services Safety Rules." These rules provided specific direction to Amtrak employees
                                              on
  when to seek assistance in lifting objects that were unwieldy and/or heavy and how
                                           to use
   proper body mechanics when lifting the object. The rules provide that employees
                                           should
  avoid twisting or rotating the torso while lifting. In addition, Amtrak presented
                                        testimony
  that it provided video and training aids for station employees regarding the proper
                                 techniques for lifting.
         As to the testimony presented by McGregor that other employees had expressed
  concerns regarding the 75 lb. limit, Amtrak countered this testimony with evidence
                                            that
  the 75 lb. limit is universally accepted in the transportation industry, including
                                         airline,
       bus and railroad. Amtrak's Medical Director, Dr. McLean, testified that
                                     historically the
        entire railroad industry has had a weight limitation of 75 lbs. per bag.
           As to McGregor's contention that the September 20, 1994 memorandum is an
admission by Amtrak that its weight limit of 75 lbs. was negligent, Amtrak points out
  that, even under the new policy of charging for bags over 50 lbs., it continued to
                                           accept
 bags weighing up to 75 lbs. Amtrak presented testimony that the main purpose of the
 change in billing policy was to generate revenue. The memorandum exhibit offered by
            McGregor clearly states that the maximum weight remained the same.

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                 Amtrak Express maximum weights (regular express, 75 lbs.) are not being
                 changed as it would make us uncompetitive with other shipping services.
                            Most have a weight limit of 70-75 lbs. per piece.

         We conclude that, although there may have been conflicting evidence on the
     question of negligence, there was, nonetheless, substantial evidence which a
                                       reasonable
mind might accept as adequate to support a conclusion of no negligence on the part of
  Amtrak. Lee, 893 P.2d at 857. We affirm the District Court's denial of McGregor's
 motion for a new trial wherein she contended that there was insufficient evidence to
                                  support the verdict.
          2.   Whether the court erred in excluding evidence comparing the baggage
             volume    in Whitefish with the volume in Spokane and Seattle.

         A trial court's ruling on the admissibility of evidence will not be disturbed
                                           unless
  it was an abuse of discretion. Burlingham v. Mintz (1995), 270 Mont. 277, 279, 891
 P.2d 527, 529.      In order for an abuse of discretion as to an evidentiary ruling to
                                           be the
  basis for a new trial, the court's error must be so significant that it materially
                                        affects the
  substantial rights of the appellant. Peschke v. Carroll College (Mont. 1996), 929
                                            P.2d
                              874, 881, 53 St.Rep. 1428, 1433.
         It was McGregor's contention that Amtrak failed to provide sufficient help at
                                             the
  Whitefish station. McGregor's evidence showed that Whitefish was staffed with five
      employees who had to cover two trains per day with a minimum of two employees
working each train. In the period leading up to her injury, McGregor had worked nine
 out of ten days. McGregor sought to prove her theory of understaffing by introducing
 evidence that Whitefish handled more baggage than either Spokane or Seattle. Amtrak
       objected to this evidence on the basis that Spokane and Seattle were "heavy
                                       stations" and
       handled more trains per day than did Whitefish and thus there was no valid
                                        comparison.
                The court sustained the objection and excluded the evidence.
       The jury was instructed that liability could attach if Amtrak failed "to provide
    sufficient manpower to complete the work in a reasonably safe manner." McGregor
 contends that the court's excluding of the evidence comparing Whitefish with Spokane
    and Seattle precluded her from showing that her injury was due to understaffing.
             Amtrak contended that since Spokane and Seattle handle more trains than
  Whitefish, and since they, unlike Whitefish, handle palletized units, there was no
                                           valid
  comparison to be made between the baggage volume figures. In a pretrial discovery
deposition, Amtrak's Product Line Manager, Gary Erford, testified that baggage counts
 at Whitefish could not be compared with those at Spokane and Seattle since those two
   cities were classified as heavy stations handling palletized shipments. A large
                                         palletized
shipment would be shown on the baggage reports as one unit, just as a single ski bag
                                             at
                           Whitefish would be shown as one unit.
            Furthermore, McGregor, on cross-examination, testified that there was a

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                                           sufficient
          crew to perform the baggage handling function on the day she was injured.
            Q     And it would be fair to say, would it not, that based upon the amount
              of baggage that was on board that train, and what was going to be put on
            the train, in other words, both loading and unloading, that four people was
                          an adequate crew to handle this baggage that day?

                                                                                  A          Yes.

               Q          You're not saying that there was not a sufficient crew there to help
                                      you unload the bags that day, are you?

                                                                          A           No, I'm not.

       Given the differences between the Spokane and Seattle baggage statistics as
   compared to those of Whitefish and McGregor's concession that the staffing was
sufficient on the day in question, we hold that the District Court did not abuse its
discretion in excluding the evidence of the baggage volume figures from Spokane and
                                       Seattle.
     3.    Whether the court erred in allowing Amtrak's counsel to question McGregor
                about a separate ADA claim that was pending against Amtrak.

      In response to a question on direct examination about her attempts to return to
    work, McGregor testified that: "After 30 years I just felt that they could do
                                       something
   to accommodate me." Then, on cross-examination, over counsel's objection as to
  relevancy, she was asked whether she had a lawsuit pending against Amtrak in U.S.
District Court concerning her "accommodation." McGregor replied that her counsel had
filed such a lawsuit. The court denied McGregor's motion for a mistrial and, at the
                                         close
    of the evidence, the court gave a curative instruction that, "You have heard
                                    testimony the
   Plaintiff has another lawsuit against Amtrak involving other issues. You are
                                      instructed
 not to consider the existence of that lawsuit in any way in your deliberations."
                                       McGregor
                            moved for a new trial arguing:
         I am concerned that the jury, now being aware of the fact of the pendency
         of the other case, may somehow feel or determine it appropriate to reduce
           the award here figuring that the rest is going to be picked up there.
                                           . . . .
          But there's no way we can exclude the possibility that they may deem it
                           appropriate to reduce the award here.

                             The court denied the motion.
       McGregor objected to the cross-examination about her pending claim in Federal
Court on the basis that such testimony was irrelevant and would adversely affect the
jury's computation of damages. Since the jury found no negligence by Amtrak, it did
                                          not
   reach the issue of damages. Thus, the error, if any, was harmless and did not
                                       affect a
            substantial right of McGregor's. See Peschke, 929 P.2d at 881.

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                                                                                 Affirmed.

                                                                           /S/ W. WILLIAM LEAPHART
                                                                   We concur:
                                                              /S/ JAMES C. NELSON
                                                                /S/ JIM REGNIER
                                                            /S/ TERRY N. TRIEWEILER
                                                               /S/ KARLA M. GRAY




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