DUNCAN v. BNSF RAILWAY COMPANY (2026)

The plaintiff, Travis L. Duncan (“Duncan”), appeals the circuit court's judgment, following a jury trial, in favor of the defendant, BNSF Railway Company (“BNSF”). In his sole point on appeal, Duncan contends that the circuit court's submission of BNSF's contributory negligence defense to the jury was reversible error, arguing that said defense was not actually a contributory negligence defense but, rather, was an impermissible assumption of risk defense. Finding no merit in this contention, we affirm.

Standard of Review

“Whether a jury was properly instructed is a question of law this Court reviews de novo.” Hayes v. Price, 313 S.W.3d 645, 650 (Mo. banc 2010). We review the record in the light most favorable to the submission of the instruction. Id. “A faulty instruction is grounds for reversal if the defendant has been prejudiced.” Children's Wish Found. Intern., Inc. v. Mayer Hoffman McCann, P.C., 331 S.W.3d 648, 650 (Mo. banc 2011) (internal quotation marks omitted). “Prejudicial error is an error that materially affected the merits and outcome of the case.” Templemire v. W & M Welding, Inc., 433 S.W.3d 371, 385 (Mo. banc 2014) (internal quotation marks omitted).

Background

Duncan filed a negligence action against BNSF under the Federal Employers’ Liability Act (“FELA”), see 45 U.S.C. sec. 51, et seq., for damages he incurred while using a BNSF signal master ladder. BNSF disputed it was negligent and raised contributory negligence as an affirmative defense.

At trial, the circuit court instructed the jury on the issues relevant to this appeal as follows:

Instruction No. 8

[Duncan] does not assume any of the risks of [Duncan]’s employment. This matter is withdrawn from the case and you are not to consider such evidence in arriving at your verdict.

Instruction No. 9

Your verdict must be for [Duncan] if you believe:

First, conditions for work were not reasonably safe and [BNSF] knew or by using ordinary care could have known of such conditions and that they were not reasonably safe, and

Second, with respect to such conditions for work, [BNSF] either failed to provide:

reasonably safe equipment, or

reasonably safe methods for work, and

Third, [BNSF] in any one or more of these respects submitted in Paragraph Second was negligent, and

Fourth, such negligence resulted in whole or in part in injury to [Duncan].

Instruction No. 10

Your verdict must be for [BNSF] unless you believe [BNSF] was negligent as submitted in Instruction No. 9, and such negligence resulted in whole or in part in injury to [Duncan].

Instruction No. 11

In your verdict, you must assess a percentage of fault to [Duncan] if you believe:

First, [Duncan]:

used the signal mast ladder without using any assistive device to access it, or

jumped from the signal mast ladder, and

Second, [Duncan], in any one or more of the respects submitted in Paragraph First, was thereby negligent, and

Third, such negligence of Plaintiff resulted, in whole or in part, in jury to [Duncan].

Duncan, at all relevant times during and after trial, objected to BNSF's contributory negligence defense, including the submission of instruction 11 at the instruction conference, arguing that it violated FELA because it required the jury to find that Duncan assumed the risks of his employment.

Along with these and other instructions, the jury received a verdict form composed of two parts. The first part of the verdict form instructed the jury to find in favor of either Duncan or BNSF by writing in either name. The second part of the verdict form allowed the jury to first assess percentages of fault between Duncan and BNSF, but “only if the above finding is in favor of [Duncan] in Part 1[,]” and then calculate Duncan's damages if the jury “assess[ed] a percentage of fault to [BNSF].”

Ultimately, in part 1 of the verdict form, the jury wrote in BNSF as the prevailing party. Consistent with the instructions therein, the jury left part 2 of the verdict form blank. The circuit court thereafter entered judgment in favor BNSF, and this appeal followed.

Analysis

“Under FELA, railroads have a duty to provide their employees with a reasonably safe place to work.” Cole v. Kan. City S. Ry. Co., 713 S.W.3d 180, 190 (Mo. banc 2025) (internal quotation marks omitted). “FELA provides that a railroad is liable for damages when its employee is injured due in whole or in part to the railroad's negligence.” Id.

Congress amended FELA, however, “to eliminate the defense of assumption of risk.” Miller v. Norfolk S. Ry. Co., 591 S.W.3d 29, 37 (Mo.App. 2019). “In determining whether the issue of assumption of risk has been injected into the case, we are guided by the principle that an employee's voluntary, knowledgeable acceptance of a dangerous condition that is necessary for him to perform his duties constitutes an assumption of risk.” Id. at 42. (internal quotation marks omitted). “Assumption of risk in the employment context describes the notion of implied consent—when an employee takes a job, he or she consents to assume the risk of any danger he or she knows or should know necessarily is entailed in the job.” Id. (internal quotation marks omitted).

“Although Congress amended ․ FELA to eliminate the defense of assumption of risk, contributory negligence remains a viable defense to [a] FELA general negligence claim.” Id. In contrast to assumption of risk, contributory negligence “is a careless act or omission on the plaintiff's part tending to add new dangers to conditions that the employer negligently created or permitted to exist.” Id. (internal quotation marks omitted). “Contributory negligence involves the notion of some fault or breach of duty on the part of the employee.” Id. (internal quotation marks omitted).

In his sole point relied on, Duncan challenges the submission of BNSF's contributory negligence defense in Instruction No. 11, comparing it to “an impermissible assumption of risk defense in violation of [FELA] in that it improperly allowed the jury to hold [Duncan] liable for the danger [BNSF] put in [Duncan]’s workplace when there was no evidence that [Duncan] created a danger that was new or additional to the danger [BNSF] created.” (Capitalization omitted.) This point is without merit as Duncan fails to demonstrate any prejudice resulting from the submission of Instruction No. 11.

We begin by observing that at no point in his briefing does Duncan address Instruction No. 8, submitted at his request, instructing the jury that he had not assumed the risk of his employment and that assumption of risk could not influence the verdict. As was observed in Inglis v. BNSF Ry. Co., involving an identical instruction submitted to the jury, “[t]his Court presumes that the jury follows the instructions given by the [circuit] court.” 739 S.W.3d 645, 654 n.2 (Mo.App. 2026) (internal quotation marks omitted).

Next, we observe that there is a legion of cases that have already addressed the issue of whether a “comparative fault” instruction results in prejudice when a jury finds in favor of a defendant. Despite our use in this opinion of the different term, “contributory negligence,” when discussing the allowable apportionment-of-fault defense to a FELA claim, said “comparative fault” cases are equally applicable in this context. See Miller, 591 S.W.3d 29, 43 n.17 (stating that “[t]he reduction in a plaintiff's damages in proportion to his fault is often referred to as ‘comparative fault,’ however ․ FELA—and thus the [Missouri Approved Instructions] for [a] FELA claim—refer to this concept as ‘contributory negligence’ ”). We, therefore, turn to an opinion by the western district of this Court, Savage v. Kan. City Power & Light Co., which collected many such cases and recognized that our high court has provided the following guidance on the matter:

The Missouri Supreme Court has emphatically stated that, where a plaintiff's verdict directing instruction requires a jury to assess a percentage of fault to the defendant if the jury believes certain factual propositions and the jury assesses no fault to the defendant, the jury verdict assessing no fault to the defendant negates any claim of prejudice to plaintiff in the giving of a comparative fault instruction, even if the instruction was erroneous.

515 S.W.3d 778, 783 (Mo.App. 2017) (citing Wilson v. Shanks, 785 S.W.2d 282, 285 (Mo. banc 1990); Lee v. Mirbaha, 722 S.W.2d 80, 82-84 (Mo. banc 1986); and Barnes v. Tools & Mach. Builders, Inc., 715 S.W.2d 518, 520-22 (Mo. banc 1986)). The western district's thorough collection of cases in the Savage opinion continues further, including the following summaries of opinions by each of the districts of this Court:

All three districts of the Court of Appeals have followed the Missouri Supreme Court's directions without exception. See Rouse v. Cuvelier, 363 S.W.3d 406, 413 (Mo.App. 2012) (“ ‘Any error in submitting a comparative fault instruction is harmless when the jury returns a verdict attributing one hundred percent fault to the complaining party.’ ”); Marion v. Marcus, 199 S.W.3d 887, 896 (Mo.App. 2006) (Because the jury returned a verdict in favor of defendants, “ ‘the jury was never required to reach the question of apportionment of fault.’ Therefore, although the instruction contained an error, the jury never needed to consider the erroneous instruction. The error resulted in no prejudice.”); Powderly v. S. Cty. Anesthesia Assocs., Ltd., 245 S.W.3d 267, 279 (Mo.App. 2008) (“The absence of any assessment of fault to Defendants negates any claim of prejudice to Plaintiffs in giving the erroneous comparative fault instruction.”); and Skinner v. Leggett & Platt, Inc., 325 S.W.3d 520, 525 (Mo.App. 2010) (“The verdict in this case, finding zero fault in Respondent, negates any allegation of error in giving a comparative fault instruction.”).

515 S.W.3d at 784 (citations modified, footnote omitted).

In his initial brief, in the statement of facts section, Duncan states, “[t]he Jury found in favor of [BNSF] on [BNSF]’s theories that [BNSF] was not negligent, and therefore, the Jury did not reach the questions of [Duncan]’s contributory negligence or damages.” (Emphasis added.) BNSF, in its brief, concludes likewise and cites authority that includes Lee, 722 S.W.2d at 83-84, cited by Savage, supra, in support of the proposition that Duncan cannot show prejudice. Duncan filed reply brief, in which he backpedals, stating “[i]t is, of course, not correct that the Jury never ‘reached’ the improper contributory negligence defense.” Duncan then identifies Instruction No. 2, another instruction submitted to the jury, and quotes the following from it with the added emphasis: “ ‘You should consider each instruction in light of and in harmony with the other instructions, and you should apply the instructions as a whole to the evidence.’ ” Duncan then reasons that “[t]his is an instruction that the Jury is presumed to follow, and therefore, it is presumed that the Jury did ‘reach’ [BNSF]’s improper contributory negligence defense.”

Again, we turn to Savage, where the western district considered and rejected an identical argument by the plaintiff-appellant involving the same instruction. See 515 S.W.3d at 784-85 (arguing that Instruction No. 2 required the jury to consider both the comparative fault instruction and verdict directing instruction). In doing so, the western district noted that Instruction No. 2 “is given in all Missouri cases since at least 1980 and would have been read to juries in every Missouri case, including all the cases that we noted above.” Id. at 785.

Maintaining, nevertheless, that the jury “reached” Instruction No. 11, Duncan attempts to explain how, in his view, the erroneous submission of Instruction No. 11 affected the jury's consideration of the verdict director. Specifically, Duncan maintains that Instruction No. 11 adversely affected the jury's consideration of the causation element set out in paragraph four of Instruction No. 9.

We must turn again to the Savage opinion where the western district recognized the following:

Further, as explained by the Missouri Supreme Court, where a verdict directing instruction is self-contained, any alleged error in the comparative fault instruction does not require reversal “because the jury found no basis for liability against the defendant and returned a general verdict for the defendant under instructions not dependent on” the comparative fault instruction. Barnes, 715 S.W.2d at 521. In Barnes, the plaintiff claimed that the definition of “negligence” in the comparative fault instruction had confused the jury and undermined the verdict directing instruction. Id. The Missouri Supreme Court rejected this argument, noting that because the verdict directing instruction was self-contained, it could not have been affected by errors in the comparative fault instruction[.]

Savage, 515 S.W.3d at 785.

The same is true here. As in Barnes, Instruction No. 9 was “a full and complete verdict director which commands the jury to return a verdict for the plaintiff if it finds the four facts there hypothesized.” 715 S.W.2d at 521. Also likewise, Instruction No. 9 contained “no ‘tail’ referring to [the allegedly] erroneous Instruction No. [11].” Id. Simply put:

The jury returned an unequivocal verdict for the defendant, actually writing in the defendant's name as prevailing party. We must assume that it followed its instructions and would have assessed a percentage of fault against the defendant if it had found that the four hypotheses were established. The jury must necessarily have concluded that the plaintiff did not establish at least one of these four propositions by proof meeting the required standard.

Id.

Duncan presents no argument or authority suggesting otherwise. Thus, even if we assume without deciding that the submission of Instruction No. 11 amounted to error, it was not reversible error as Duncan failed to demonstrate any prejudice resulting therefrom. Accordingly, Duncan's sole point on appeal is denied.

Decision

The circuit court's judgment is affirmed.

BECKY J. WEST, C.J.

JENNIFER R. GROWCOCK, J. – CONCURS MATTHEW P. HAMNER, J. – CONCURS