Birchem v. Burlington Northern R. Co.

• Decision Date: 26 February 1987
• Docket Number: No. 86-5253,86-5253
• Parties: William BIRCHEM, Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1047

812 F.2d 1047

William BIRCHEM, Appellee, v. BURLINGTON NORTHERN RAILROAD COMPANY, a corporation, Appellant.

No. 86-5253.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 9, 1986.

Decided Feb. 26, 1987.

Deming Smith, Sioux Falls, S.D., for appellant.

Gary K. Woods, Minneapolis, Minn., for appellee.

Before LAY, Chief Judge, and WOLLMAN, Circuit Judge, and HANSEN, ^* District Judge.

LAY, Chief Judge.

William Birchem sued his employer, Burlington Northern Railroad (Railroad), under the Federal Employers' Liability Act, 45 U.S.C. Secs. 51-60 (1982) (FELA), after he was injured in two on-the-job accidents. A jury found for Birchem and awarded him $150,000. The district court ¹ denied the Railroad's motion for a new trial, and the Railroad appeals. The basic issue on appeal is whether the trial court erred in failing to submit to the jury the question of Birchem's alleged contributory negligence.

Facts

William Birchem began working for the Railroad in April, 1970. His work consisted mainly of section labor and maintenance work. He quit the Railroad in 1974 for personal reasons. In September, 1979, he returned to work for the Railroad.

On June 10, 1982, while working as a cook for a tie gang near Yankton, South Dakota, Birchem was injured while taking the garbage out of the cook car. At the time of the accident, he was carrying two bags of garbage, one in each hand. He set one bag on the floor to open the door. The door opened outward on the end of the cook car. He opened the door, picked up the bag, and walked out the door with both hands full. After he was outside the car, Birchem "butted" the door shut, but the action lacked sufficient force to catch the latch and hold the door. The wind caught the door and slammed the doorknob into his back.

Birchem did not lose any work time as a result of this accident, and in August, 1982, he transferred to a job on a sled gang. As part of this job, Birchem operated a mudjack. ² He claims that he was injured when he moved the machine along the track with the jaws raised. The jaws unexpectedly dropped, grabbed the track, and stopped. As a result of the sudden stop, Birchem lost his footing and fell, again injuring his back.

Birchem alleges that the cook car door was defective because it lacked a safety chain or strap to stop it from swinging open. He also claims that the mudjack was defective because the chain and ring used to hold the lever in place during transport were broken and had been replaced with wire. It was necessary to use some device to hold the lever in place because the linkage rod on the mudjack, which was designed to perform this function, was, in Birchem's words, "shot." Birchem testified that he had complained to the gang mechanic about the linkage rod and had offered to repair it himself. The necessary parts were not available, and neither Birchem nor the mechanic ever repaired the machine.

Discussion

The Railroad argues first that it adduced sufficient evidence to warrant a contributory negligence instruction. ³

Birchem stated on cross-examination that the latch on the cook car door was functioning properly, and he admitted that had he closed the door with his hand instead of his hip, the latch probably would have held the door shut. He also testified that he used the mudjack knowing of its condition and knowing of safety rules forbidding the use of unsafe or defective equipment. He further stated that he had replaced the wire on the mudjack himself as a substitute for the missing chain and ring.

In a FELA case, the burden of proving contributory negligence is on the defendant. Wilson v. Burlington N., Inc., 670 F.2d 780, 782 (8th Cir.) (court's instructions on contributory negligence not supported by record), cert. denied, 457 U.S. 1120, 102 S.Ct. 2934, 73 L.Ed.2d 1333 (1982). A defendant is entitled to a contributory negligence instruction if there is any evidence to support the theory. Id. If the defendant fails, however, to produce evidence of the plaintiff's lack of due care, then it is reversible error to give the instruction. Id.; Borough v. Duluth, M. & I.R. Ry., 762 F.2d 66, 69 (8th Cir.1985) (no error in refusing contributory negligence instructions).

Although Birchem acknowledged his awareness of the condition of the mudjack and confirmed that he knew about the company's safety rules, he nonetheless went ahead and used the machine. There is no evidence, however, that Birchem in any way failed to use proper care in operating the machine. The Railroad believes that Birchem's violation of safety rules is sufficient evidence to establish his negligence and make it a jury question. The district court properly admonished the jury during the trial that the Railroad's theory was an impermissible effort to transfer to Birchem its nondelegable duty to provide safe equipment and a safe working environment. The court, however, then advised the jury that evidence concerning the manner and way in which Birchem used the equipment was proper for its consideration.

We find no error in the district court's instructions. Refusing a contributory negligence instruction under these facts is consistent with FELA standards governing assumption of risk and contributory negligence. The Ninth Circuit has recently addressed the subtleties of the two common-law doctrines within the context of FELA, and we find its reasoning persuasive:

Although there is some overlap between assumption of risk and contributory negligence, generally the two defenses are not interchangeable. At common law an employee's voluntary, knowledgeable acceptance of a dangerous condition that is necessary for him to perform his duties constitutes an assumption of risk. Contributory negligence, in contrast, 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. Defenses once embraced substantially within the concept of assumption of risk are barred under the FELA and may not be revived in the form of contributory negligence. Where an act of alleged contributory negligence is but the practical counterpart of assumption of risk, it does not constitute a defense. By this reasoning, the employer's argument here must fail, for it is in essence an assumption of risk defense, not one based upon contributory negligence. The employee who enters the workplace for a routine assignment in...