Ann Maher Dec. 18, 2014, 12:28pm

Edwardsville attorney Eric Carlson is appealing a judge's order denying post trial motions for an injured client who's won one and lost one trial in Madison County.

In October, Circuit Judge Andreas Matoesian denied Carlson's moves for judgment notwithstanding the verdict or in the alternative, new trial - what would be a third - for client Guy Webb who in July was found to be 100 percent at fault for injuries sustained in a private railroad crossing accident in Iron County, Mo. in 2007.

Webb's first trial ended more favorably for  him in his case against Union Pacific Railroad, as jurors in 2010 awarded him $2.5 million. That amount was reduced by half, as jurors then found Webb to be 50 percent comparatively at fault as driver in the accident.

But, Union Pacific appealed that judgment, and in 2012 the Fifth District Appellate Court reversed Matoeisan. The appellate court held that Matoesian erred by allowing the plaintiff to rely on certain industry safety standards, but prohibited Union Pacific from showing that those standards apply to public crossings, not private crossings. A new trial was ordered and held July 14-18.

Guy Webb had been an original defendant in a 2008 lawsuit filed by plaintiff Misty Webb, whose father James Webb, Jr., as passenger in Guy Webb’s vehicle, perished in the accident. In 2009, Guy Webb joined as counter plaintiff against Union Pacific.

Matoesian wrote Oct. 10 that he had reviewed Carlson's motion and Union Pacific's response, "and having heard the oral arguments of counsel the Court finds that the motion should be denied."

In his argument for judgment notwithstanding the verdict, Carlson wrote that the verdict “cannot stand” because “overwhelming evidence” of Union Pacific’s breach of legal duty was undermined or ignored by the jury in that 100 percent allocation of fault was placed on Webb.

“…It is clear Union Pacific’s continued argument and evidence that no state or federal statute or regulation or rule required it to blow its whistle or cut vegetation at private crossings allowed the jury to erroneously conclude that Union Pacific’s failure to cut its vegetation and refusal to blow its whistle was legally excused,” Carlson wrote.

“The existence of duty is a question of law to be decided by the Court, and not by the jury. This Court determined that Union Pacific had a duty at this crossing and the jury nullified this determination.”

Carlson also argued for a new trial saying the jury verdict was against the manifest weight of the evidence related to the conditions near the site of the accident. He wrote that consistent with the evidence, the court instructed jurors that they “must” assess a percentage of fault to Union Pacific if they believed either the railroad failed to properly maintain its crossing, failed to maintain a proper sight distance at its crossing or failed to sound an adequate warning before reaching the crossing.

He further argued that Matoesian erred by allowing Union Pacific to present evidence of its statutory obligations at public crossings but did not require the railroad to do the same at private crossings. Carlson also states that Matoesian improperly allowed certain testimony from defense experts.

Carlson wrote that Matoesian gave improper jury instructions, saying he refused to instruct both parties as to comparative fault or contributory negligence.

“…[P]laintiff’s counsel as well as defendant’s counsel were concerned that the Court’s refusal to instruct on comparative fault would be reversible error,” he wrote.

“When this concern was brought to the trial Court’s attention, the trial Court excused itself from the instruction conference and told the parties to simply work the matter out on their own.

“The parties were left with the difficult choice after a week of trial of having improper instructions given that both knew were likely reversible, or attempting to cobble together a set without the benefit of getting to lodge their objections and rulings by the trial Court. The parties chose the latter.”

His last argument for a new trial focused on news reports of an investigation into the Madison County jury commission. On July 30, State’s Attorney Tom Gibbons filed a motion for appointment of a special prosecutor based upon police reports of criminal misconduct.

“Recent allegations demonstrate that the jurors summoned may have been improperly tampered with so as to effect plaintiff’s right to a fair and impartial jury,” Carlson wrote.

But Union Pacific countered in its response that that argument was "nothing but speculation."

"In Plaintiff's quest for a new trial, he has unnecessarily made vague and unsubstantiated attacks on this Court and the Court's administrator," wrote Union Pacific attorney Thomas E. Jones of Belleville in response to the motions for judgment notwithstanding the verdict and new trial.

Jones wrote that the July verdict was supported by video evidence that Webb did not stop his vehicle before entering the crossing.

"Rather, he disobeyed the stop sign at the crossing, proceeded onto the tracks and stopped his vehicle on the tracks even though a train was coming, rolled back a bit, then moved forward, and then stopped again on the crossing. He did not move out of the way before the train hit his vehicle. These indisputable facts support the jury's verdict, and Plaintiff's motion must be denied."

The record on appeal is due to be filed at the Fifth District by Jan. 8, 2015.

Madison County case number 08-L-1139.

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Union Pacific
1400 Douglas St
Omaha, NE 68179

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