Negligence: FELA – Imputed Liability – Instructional Error

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Cluck v. Union Pacific Railroad Company (MLW No. 61685/Case No. WD70792 – 16 pages) (Missouri Court of Appeals, Western District, Hardwick, J.)

Where a railroad employee, who was injured when a co-worker’s gun discharged, sought to recover damages from his employer under the Federal Employers’ Liability Act, under FELA the negligence of a co-worker is considered the same as the negligence of the employer, and the undisputed evidence of the co-worker’s safety rule violation was sufficient to remove the issue of knowledge of an unreasonably dangerous condition from the jury, so the trial court erred in refusing to submit an instruction for imputed liability because the plaintiff presented substantial evidence that his injuries resulted from the negligent conduct of the co-worker, who was acting within the scope of his employment at the time of the accident, and the case is remanded for a new trial on the claim of imputed liability.

Judgment is reversed and remanded.

Cluck v. Union Pacific Railroad Company (MLW No. 61685/Case No. WD70792 – 16 pages) (Missouri Court of Appeals, Western District, Hardwick, J.) Appealed from circuit court, Jackson County, Mesle, J. (Charles W. Armbruster and Michael T. Blotevogel, Alton, Illinois;  Robert C. Sullivan and Jose M. Bautista, Kansas City, Missouri, for appellant) (James M. Yeretsky and Craig M. Leff,  Kansas City, Missouri, for respondent).

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