Gouge v. Indiana Commuter Transp. Dist., No. 46A03-9506-CV-183

Docket NºNo. 46A03-9506-CV-183
Citation670 N.E.2d 363
Case DateAugust 22, 1996
CourtCourt of Appeals of Indiana

Page 363

670 N.E.2d 363
Chester K. GOUGE, Appellant-Plaintiff,
v.
NORTHERN INDIANA COMMUTER TRANSPORTATION DISTRICT, Appellee-Defendant.
No. 46A03-9506-CV-183.
Court of Appeals of Indiana.
Aug. 22, 1996.

Page 364

James M. Kapitan, Sachs & Hess, P.C., Hammond, Frank W. Petro, and F. Daniel Petro, Petro & Petro, Chicago, IL, for Appellant-Plaintiff.

Michael C. Harris and L. Charles Lukmann, III, Harris Welsh & Lukmann, Chesterton, for Appellee-Defendant.

Page 365

OPINION

GARRARD, Judge

Chester Gouge contends that the jury verdict entered in his favor with regard to his complaint under the Federal Employers' Liability Act (FELA) 1 was inadequate because the jury was not instructed that assumption of risk was no defense, and the court excluded evidence of subsequent remedial measures. Gouge further contends that he is entitled to certain costs in this case as the prevailing party. We affirm.

FACTS

Gouge was a terminal carman for the Northern Indiana Commuter Transportation District (Northern Indiana), a commuter transportation district organized under Indiana law. Gouge's responsibilities included the filling of passenger cars with water. Because water would overflow from the filling of the passenger cars, a significant amount of ice would develop in the area during cold weather. On February 9, 1989, the area where the passenger cars were being filled with water had become very icy. While attempting to push one of the water nozzles into a receptor on a passenger car, Gouge slipped and fell, injuring his right knee. While there was no salt or sand available in the outside work area, there was evidence that there was salt in three nearby buildings. The buildings were kept open so that the workers could have access, and the workers were instructed that there was salt in the buildings. 2

In an action under FELA, a plaintiff may recover upon showing that the defendant's negligence contributed in any way to the plaintiff's damages. See O'Connell v. National R.R. Passenger Corp., 922 F.2d 1039, 1042 (2nd Cir.1991) (citation omitted). The jury found that Northern Indiana had been negligent and assessed damages in the amount of $146,840.00. However, the jury also found that Gouge was 68% contributorily negligent. 3 Thus, Gouge's actual award against Northern Indiana was $46,988.80. While the court awarded costs to Gouge in the judgment order, it subsequently denied Gouge's petition for costs.

ISSUES AND DISCUSSION

We address the following issues raised by Gouge:

I. Whether the trial court erred in failing to instruct the jury that it could not consider the defense of assumption of risk.

II. Whether the trial court erred in excluding evidence of subsequent remedial measures taken by Northern Indiana.

III. Whether the trial court erred in failing to award costs to Gouge.

ISSUE I

Gouge first argues that the trial court committed reversible error by failing to instruct the jury that it could not consider the defense of assumption of risk.

We initially note that Gouge's argument regarding the jury instructions involves substantive issues arising from the application of FELA. Although FELA actions may be adjudicated in state courts and therein follow state procedural rules, the proceedings are governed by federal substantive law. Eversole v. Consolidated Rail Corp., 551 N.E.2d 846, 850 (Ind.Ct.App.1990), reh'g denied, trans. denied. Thus, whether the trial court committed reversible error in failing to instruct the jury regarding assumption of risk is a question of federal law. Id. In determining whether the jury was adequately instructed, we consider the trial court's jury instructions as a whole. Id.

Under FELA, the defense of assumption of risk has been eliminated, while the defense of contributory negligence remains. 45 U.S.C. § 54; Fashauer v. New Jersey Transit

Page 366

Rail Operations Inc., 57 F.3d 1269, 1274 (3rd Cir.1995), reh'g denied. With regard to the issue of whether a jury should be instructed regarding assumption of risk, the courts have reached varying conclusions. See Jenkins v. Union Pacific R.R. Co., 22 F.3d 206 (9th Cir.1994) (reversible error for court not to instruct on assumption of risk); O'Connell, 922 F.2d 1039 (trial court properly refused to charge the jury regarding assumption of risk as defense was not at issue); Taylor v. Burlington Northern R.R. Co., 787 F.2d 1309 (9th Cir.1986) (unnecessary to instruct jury on assumption of risk because doctrine was inapplicable); Koshorek v. Pennsylvania R.R. Co., 318 F.2d 364 (3rd Cir.1963) (given difficult distinction between contributory negligence and assumption of risk, failure to instruct on assumption of risk reversible error); Gowins v. Pennsylvania R.R. Co., 299 F.2d 431 (6th Cir.1962), cert. denied 371 U.S. 824, 83 S.Ct. 44, 9 L.Ed.2d 64 (1962) (if assumption of risk was not pled by the defense, no error in failure to instruct on this issue).

A recent case from the Third Circuit provides an excellent discussion of the issue before us, and we find its approach instructive. In Fashauer, 57 F.3d 1269, the plaintiff, a brakeman on a New Jersey transit train, slipped and fell on the wet floor of a vestibule between two train cars. The district court denied the plaintiff's request to charge the jury that assumption of the risk is not a defense in a FELA action, and the plaintiff argued, similarly to Gouge, that this failure "permitted the jury to reduce his recovery based on the fact that he continued to perform his job despite his knowledge that he was encountering a dangerous condition." Id. at 1273. The court acknowledged the concern of instructing the jury on a doctrine which is not a part of the case, stating that when possible "courts should spare juries intricate descriptions of opaque legal doctrines inapplicable to the case." Id. at 1275. However, the court went on to observe that, given the similarity between assumption of risk and contributory negligence, in certain cases the absence of explanatory instructions could confuse the jury. Thus, the court concluded that, when either the evidence at trial or the arguments of counsel creates a danger that the jury may reduce a plaintiff's recovery based upon the theory of assumption of risk, the jury should be instructed regarding assumption of risk. Id. However, if the evidence and counsels' arguments do not create this danger, then a correct instruction on contributory negligence would be sufficient. Id. at 1275, 1280.

We find these conclusions to be well-founded. Thus, we must determine whether the evidence at trial presented a danger that the jury would reduce Gouge's recovery based upon conduct which in fact constitutes an assumption of risk. The Fashauer court discussed the difficulty in distinguishing between assumption of risk and contributory negligence, first noting the seemingly simple definitional differences between the two doctrines:

At common law an employee's...

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16 practice notes
  • Lowe v. N. Ind. Commuter Transp. Dist., Supreme Court Case No. 21S-CT-295
    • United States
    • Indiana Supreme Court of Indiana
    • December 16, 2021
    ...and we agree that [the District] is a state agency." But Oshinski cited Gouge v. Northern Indiana Commuter Transportation District , 670 N.E.2d 363 (Ind. Ct. App. 1996), which did not address the Act. Oshinski , 843 N.E.2d at 539. Rather, Gouge concluded the District is a state agency under......
  • Dehahn v. Csx Transp. Inc, No. 79A02-0905-CV-443.
    • United States
    • Indiana Court of Appeals of Indiana
    • April 15, 2010
    ...the proceedings are governed by federal substantive law.” Januchowski, 905 N.E.2d at 1046 (quoting Gouge v. Ind. Commuter Transp. Dist., 670 N.E.2d 363, 365 (Ind.Ct.App.1996)). This substantive federal law “involves a significant watering down of the proof of causation.” Miller, 858 A.2d at......
  • Kelley v. City of Michigan City, No. 3:02 CV 626.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 12, 2004
    ...arm of the state for Eleventh Amendment purposes." Lewis at 601. The Court in Gouge v. Northern Indiana Commuter Transportation District, 670 N.E.2d 363, 369 (Ind.App.1996), found the Lewis Court's reasoning persuasive and agreed with its conclusion that NICTD is a state agency. See also, P......
  • Norfolk Southern Ry. v. Estate of Wagers, No. 50A03-0403-CV-110.
    • United States
    • Indiana Supreme Court of Indiana
    • August 25, 2005
    ...a finding of contributory negligence, even in excess of 50%, does not bar recovery under FELA. Gouge v. Indiana Commuter Transp. Dist., 670 N.E.2d 363, 369 In FELA negligence actions, the role of the jury is much greater than in common-law negligence actions; the right of the factfinder to ......
  • Request a trial to view additional results
16 cases
  • Lowe v. N. Ind. Commuter Transp. Dist., Supreme Court Case No. 21S-CT-295
    • United States
    • Indiana Supreme Court of Indiana
    • December 16, 2021
    ...and we agree that [the District] is a state agency." But Oshinski cited Gouge v. Northern Indiana Commuter Transportation District , 670 N.E.2d 363 (Ind. Ct. App. 1996), which did not address the Act. Oshinski , 843 N.E.2d at 539. Rather, Gouge concluded the District is a state agency under......
  • Dehahn v. Csx Transp. Inc, No. 79A02-0905-CV-443.
    • United States
    • Indiana Court of Appeals of Indiana
    • April 15, 2010
    ...the proceedings are governed by federal substantive law.” Januchowski, 905 N.E.2d at 1046 (quoting Gouge v. Ind. Commuter Transp. Dist., 670 N.E.2d 363, 365 (Ind.Ct.App.1996)). This substantive federal law “involves a significant watering down of the proof of causation.” Miller, 858 A.2d at......
  • Kelley v. City of Michigan City, No. 3:02 CV 626.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • January 12, 2004
    ...arm of the state for Eleventh Amendment purposes." Lewis at 601. The Court in Gouge v. Northern Indiana Commuter Transportation District, 670 N.E.2d 363, 369 (Ind.App.1996), found the Lewis Court's reasoning persuasive and agreed with its conclusion that NICTD is a state agency. See also, P......
  • Norfolk Southern Ry. v. Estate of Wagers, No. 50A03-0403-CV-110.
    • United States
    • Indiana Supreme Court of Indiana
    • August 25, 2005
    ...a finding of contributory negligence, even in excess of 50%, does not bar recovery under FELA. Gouge v. Indiana Commuter Transp. Dist., 670 N.E.2d 363, 369 In FELA negligence actions, the role of the jury is much greater than in common-law negligence actions; the right of the factfinder to ......
  • Request a trial to view additional results

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