Johnson v. Norfolk & Western Railway Co.

CRANDALL, Judge,

dissenting.

I dissent.

Plaintiffs response in the questionnaire that his hearing problem “might be” related to his railroad employment is vague and speculative in nature. When questioned in his deposition, plaintiff expressed uncertainty about the meaning of his answers in the questionnaire. He stated: “See, the question means one thing and I answered it thinking it meant something else, you know, that’s something else.”

Plaintiffs answers in the questionnaire and answers in his deposition are simply evidence bearing on the issue of whether he should have known of the cause of his injury. The equivocal phrase “might be” fails to rise to the level of proof required for summary judgment. See Kestner v. Missouri Pacific R. Co., 785 S.W.2d 646 (Mo.App.1990). The inferences and ultimate conclusions to be drawn from the answers given by plaintiff are questions of fact that cannot be decided as a matter of law. Because reasonable people might differ as to the evaluative judgment to be given to the evidence in this record, summary judgment was improper. United States v. Conservation Chemical Co., 619 F.Supp. 162, 179 (W.D.Mo.1985).

For the foregoing reasons I would reverse the grant of summary judgment and remand the cause to the trial court.