Zimmer, Duncan & Cole

Keep the Trains Running on Time

A railroad worker slipped on a patch of ice in the switching yard, breaking his elbow and injuring his shoulder. A jury decided that his injuries were worth $300,000. The railroad thought differently. It appealed the verdict to our state Supreme Court in a case called Donald Jacobs v. DM&E Railroad (2011 S.D. 68).
The Dakota, Minnesota & Eastern Railroad Corporation is a real-life example of "the little engine that could". It started from nothing and never gave up.

The year was 1983, and the Chicago & Northwestern Railroad had announced it was abandoning its east-west line across South Dakota and Minnesota. The closure of our state's only east-west rail artery didn't sit well with South Dakota's grain customers or its senior senator, Larry Pressler. By 1986, a deal was brokered to create a tiny new railroad out of this unwanted stretch from Rapid City to Winona. The purchase included three dozen locomotives and 800 miles of forlorn rail beds. Because the route was not a money-maker, Chicago & Northwestern had done very little in the way of upkeep and maintenance. The tracks were in such terrible condition that it took three days to haul a load from one end to the other.

The railway persevered and quietly grew. From a simple brick building in downtown Sioux Falls, its managers nurtured DM&E into the 8th largest rail system on the continent. In 2008, it was sold for an eye-popping $1.5 billion.

But its history was not all roses. At the time of its sale, the Mankato Free Press reported that the DM&E had one of the worst rail safety records in North America. And this, perhaps, is what the jury recognized when it awarded $300,000 to DM&E's injured employee.
Don Jacobs worked at the company's Huron yard as a rail car mechanic. Each day he would drive his truck on the graveled paths in the yard to meet up with train crews. They reported any mechanical problems to Don, who would then work on fixing the broken rail cars. The rail yard did not drain well; during the winter months ice would accumulate in several places. South Dakota winters often added layers of snow on top.

Don was issued metal "ice cleats" to wear over his boots. But on the day in question, even the cleats weren't enough to protect him. As he walked back to his truck, he slipped on a snow-covered patch of ice. He landed on his elbow, fracturing it, and hurting his shoulder. His injuries caused permanent problems.

Don brought a lawsuit against DM&E. The jury weighed all the evidence, and determined that $300,000 would compensate Don for his injuries and his resulting loss of employability.
On appeal, DM&E raised two major objections to the jury's verdict. First, the railroad argued that Don's injuries were not foreseeable. "Foreseeability" asks whether this type of accident could have been predicted. We ask this question because the law recognizes it is unfair to make someone pay for harm they couldn't have prevented. Importantly, the question isn't whether this exact accident could have been predicted, but, instead, whether the general danger should have been recognized.

In a case like this, we look at what the railroad knew, but also what it could have known if it had been acting like a typical, careful business. Here, the Court decided that DM&E foresaw the hazard presented by ice accumulation in the yard. The jury saw photographs depicting water puddles and poor drainage at the Huron rail yard. DM&E also gave Don ice cleats for this very type of danger.

DM&E's second objection was about Don's damages for his loss of future earning capacity. In particular, DM&E suggested his future losses were too uncertain. After Don's recovery, he went back to work for DM&E, apparently at the same rate of pay, but in a new position to accommodate his injuries. The Court pointed out, however, that Don's injuries left him with significant work limitations. Since he was not guaranteed a lifelong job at DM&E, it was reasonably likely that Don's limitations would financially affect him in the future. His injuries will likely mean more unemployed time between jobs and lower paying jobs when he does find work.

The Court affirmed the jury's decision in favor of Don.