Oglesby v. Southern Pacific Transp. Co., 91-16059

Decision Date24 September 1993
Docket NumberNo. 91-16059,91-16059
Citation6 F.3d 603
PartiesChester OGLESBY, Plaintiff-Appellee, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Jerome L. Ringler, Fogel, Feldman, Ostrov, Ringler & Klevens, Los Angeles, CA, for plaintiff-appellee.

Terrence A. Jackson, Snell & Wilmer, Tucson, AZ, for defendant-appellant.

Appeal from the United States District Court for the District of Arizona.

Before: SCHROEDER, NORRIS, and BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge:

Defendant, Southern Pacific appeals the district court judgment entered against it after a jury verdict in favor of plaintiff, Charles Oglesby. We reverse and remand for a new trial.

I. Facts and Proceedings

Oglesby, a locomotive engineer for Southern Pacific, was injured when he attempted to replace an engineer's seat in a locomotive engine. To remove the seat Oglesby reached under it and felt for an L-shaped pin that he expected to be there for the purpose of allowing the seat to be removed. He did not feel any pin and did not look under the seat to determine whether the seat was secured to the pedestal in some other way. Oglesby pulled up on the seat to remove it. Although he lifted and twisted it, it did not come off its pedestal and he injured his back.

The seat had been secured to the pedestal by a permanent "roll" pin which made the seat incapable of being changed by persons other than the roadhouse personnel. It was not the usual type of pin used and Oglesby was not aware of the use or existence of this type of pin.

Oglesby brought an action in district court alleging violations of the Federal Employers Liability Act, 45 U.S.C. Sec. 51 ("FELA"), claiming he was injured as a result of Southern Pacific's negligence and/or its violation of the Boiler Inspection Act, Sec. 45 U.S.C. Sec. 22 ("BIA").

Southern Pacific's motion for a directed verdict on both the FELA negligence and BIA claims was denied by the district court. The district court also overruled Southern Pacific's objections to the jury instructions.

The case was submitted to the jury with a general form of verdict and a verdict was rendered in favor of Oglesby in the amount of $650,000.

II. Motion For A Directed Verdict

Southern Pacific argues that the district court erred in not directing a verdict in favor of Southern Pacific on Oglesby's claim under the BIA, on the ground that the defective seat was not the cause of Oglesby's injuries. A denial of a motion for a directed verdict is reviewed de novo. In Re Hawaii Federal Asbestos Cases, 960 F.2d 806, 816 (9th Cir.1992).

Southern Pacific argues that even if the condition of the seat which Oglesby attempted to replace violated the BIA, because its arms were bent, it was improperly tilted and its backrest was not properly supportive, that as a matter of law, these defects were not the cause of Oglesby's injury because Oglesby was injured not because the seat was defective, but because it was secured in a fashion he did not expect. Southern Pacific relies on Davis v. Wolfe, 263 U.S. 239, 44 S.Ct. 64, 68 L.Ed. 284 (1923), for the proposition that causation was not established because the defective seat "merely create[d] an incidental condition or situation in which the accident, otherwise caused" occurred. Id. at 243, 44 S.Ct. at 66.

In Davis v. Wolfe, a conductor was injured while standing on the side of a car to signal a stop. He was holding a defective grab iron which was loose and moved when the train jerked forward, causing him to fall. The conductor brought a suit against the railroad under Sec. 4 of the Safety Appliance Act which like the BIA requires the same standard of causation as an action under the FELA and provides in pertinent part:

it shall be unlawful ... to use any car in interstate commerce that is not provided with secure grab irons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars.

45 U.S.C. Sec. 4.

The jury awarded damages to the conductor and the railroad appealed arguing that the case should not have gone to the jury because while the defective grab irons caused the injury, there was no breach of duty imposed by Sec. 4 since the conductor was not engaged in the coupling of the cars. The Court held that while an employee cannot recover under the Safety Appliance Act if the violation "merely creates an incidental condition or situation in which the accident, otherwise caused" results in injury, an employee can recover "if the failure to comply with the requirements of the act is a proximate cause of the accident" regardless of whether the employee was "engaged in an operation in which the safety appliances are specifically designed to furnish him protection." Id.

Oglesby concedes that causation is required to establish liability under the BIA but contends that a sufficient showing of causation was made in this case to submit the BIA claim to the jury. We agree. This case is similar to Minneapolis, St. P. & S. Ste. M. Ry. v. Goneau, 269 U.S. 406, 46 S.Ct. 129, 70 L.Ed. 335 (1926). In Goneau, a defective coupler had caused the breaking of the train. The defect was in the carrier iron which held the coupler in position. The plaintiff was injured when he fell while attempting to move the carrier iron into place so as to get the train coupled up again. The Railway Company argued that "the defective condition of the carrier iron was merely a condition presenting the occasion for making the repairs, and not a proximate cause of the accident." Id. at 409, 46 S.Ct. at 131. The Court disagreed and affirmed the jury verdict for the plaintiff, finding that the defective coupler was a cause of the accident as distinguished from a condition creating the situation in which it occurred. Id. at 410, 46 S.Ct. at 131.

The test of whether a case should be submitted to the jury under the FELA is whether the evidence justifies the conclusion that the violation of the BIA "played any part, even the slightest, in producing the injury or death for which damages are sought." Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). At trial, Oglesby offered evidence that Southern Pacific violated the BIA by failing to furnish him with a proper and safe seat and that he injured himself in attempting to replace the defective seat. This is sufficient evidence of causation to properly submit the BIA claim to the jury.

This conclusion is further supported by the Supreme Court's finding that the BIA is a safety statute which is to be liberally construed to afford protection to railroad employees. Lilly v. Grand Trunk W. R.R., 317 U.S. 481, 486, 63 S.Ct. 347, 351, 87 L.Ed. 411 (1943).

Therefore, Southern Pacific's motion for a directed verdict was properly denied.

III. Jury Instructions

Southern Pacific also contends that a new trial should be ordered because the district court erroneously instructed the jury regarding the requirement of causation under the BIA and regarding the elements necessary to constitute a BIA offense.

A. Standard of Review

The standard of review on appeal for an alleged error in jury instructions depends on the nature of the claimed error. When an appellant alleges an error in the formulation of the jury instructions, the instructions are considered as a whole and an abuse of discretion standard is applied to determine if they are misleading or inadequate. Oviatt v. Pearce, 954 F.2d 1470, 1481 (9th Cir.1992). However, where an appellant claims the trial court misstated the elements that must be proved at trial, the reviewing court must view the issue as one of law and review the instructions de novo. Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir.1992).

An error in instructing the jury in a civil case does not require reversal if it is more probable than not that it is harmless. Id.

B. Causation

Southern Pacific argues that the jury was not properly instructed on the standard of causation required to establish liability under the BIA. It contends that the jury should have been instructed that the violation of the BIA was a "proximate" or "direct" cause of Oglesby's injury.

The standard of causation required in a BIA per se negligence case is the same as the standard of causation required in a traditional FELA negligence case. See e.g., Urie v. Thompson, 337 U.S. 163, 188-89, 69 S.Ct. 1018, 1033-34, 93 L.Ed. 1282 (1949); Carter v. Atlanta & St. Andrews Bay Ry., 338 U.S. 430, 434, 70 S.Ct. 226, 229, 94 L.Ed. 236 (1949); Green v. River Terminal Ry., 763 F.2d 805, 810 (6th Cir.1985). Therefore, we must consider the statutory language of the FELA and the case law interpreting it to establish the degree of causation required under the BIA.

The FELA provides in pertinent part:

Every common carrier by railroad ... shall be liable in damages to any person suffering injury while he is employed by such carrier ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.

45 U.S.C. Sec. 51 (emphasis added).

It is well established that the FELA does not provide worker's compensation, but that liability is based upon negligence having a causal connection with the injury. See e.g., Inman v. Baltimore & O. R.R., 361 U.S. 138, 140, 80 S.Ct. 242, 243, 4 L.Ed.2d 198 (1959).

Southern Pacific cites Davis v. Wolfe, 263 U.S. at 243, 44 S.Ct. at 66 (discussed above) for the proposition that "proximate cause" is required under the FELA. However, while the Court spoke in terms of proximate causation in Davis, it did not attempt to define the term and in Rogers v. Missouri Pac. R.R., 352 U.S. at 506, 77 S.Ct. at 448, the Supreme Court indicated that the standard of causation required under the FELA differs from common-law proximate cause.

In Rogers, the Supreme Court of Missouri had reversed a jury verdict for the plaintiff on the...

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