Jenkins v. North American Van Lines, Inc.

• Decision Date: 26 September 1994
• Docket Number: No. 94-1363,94-1363
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. John E. JENKINS, Plaintiff-Appellant, v. NORTH AMERICAN VAN LINES, INCORPORATED; Charles E. Gere, Defendants-Appellees. . Argued:

Page 1124

46 F.3d 1124

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

John E. JENKINS, Plaintiff-Appellant, v. NORTH AMERICAN VAN LINES, INCORPORATED; Charles E. Gere,

Defendants-Appellees.

No. 94-1363.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 26, 1994.

Decided: Jan. 30, 1995.

ARGUED: Gail Starling Marshall, Rapidan, VA, for Appellant. Fred Calvin Alexander, Jr., MCGUIRE, WOODS, BATTLE & BOOTHE, Alexandria, VA, for Appellees. ON BRIEF: Leila H. Kilgore, KILGORE & SMITH, Fredericksburg, VA, for Appellant.

Before RUSSELL and MURNAGHAN, Circuit Judges, and CHASANOW, United States District Judge for the District of Maryland, sitting by designation.

OPINION

PER CURIAM:

Plaintiff has appealed the district court's denial of his motions for judgment notwithstanding the verdict and, alternatively, for a new trial, after a jury rendered a verdict against him based on a theory of contributory negligence. We affirm.

I.

Appellant John Jenkins was a street light mechanic for Dynatran, a company which worked under contract for the Virginia Department of Transportation. On July 30, 1991, Jenkins' company sent him with a groundman, James Caruthers, to repair a traffic signal on Backlick Road in Fairfax County, Virginia. Westbound traffic on Backlick Road was controlled by three traffic signals on a wire, one of which was hanging over each of the three westbound lanes. Jenkins was sent to replace the lower bulb of the middle traffic signal and was instructed to perform the repair without disrupting the flow of traffic. Caruthers was to work under the direction of Jenkins.

Jenkins' truck was parked north of the intersection, and orange plastic cones were placed around the truck to warn motorists of the work being done. Jenkins went up in the bucket of the aerial boom truck or "cherry picker" to replace the bulb. Although he was wearing a hard hat and orange vest, he had forgotten to put on his safety harness.

Charles Gere, a driver for North American Van Lines, operated a tractor-trailer truck and was travelling west on Backlick Road. Gere's son was travelling with him in the truck. Gere stated at trial that both the semi-trailer and the exhaust stack on his tractor were at the standard maximum height of thirteen feet, six inches, and that the height was stenciled on the side of the semi-trailer. Gere stopped at the Backlick Road traffic light behind eight to ten cars. When the light turned green, he proceeded through the intersection.

As Jenkins worked on replacing the bulb, Gere's truck drove through the intersection, and the bottom of the bucket in which Jenkins was working was struck first by the exhaust stack on the right rear of Gere's tractor, and then by the upper right corner of the front of the semi-trailer. Jenkins fell from the bucket onto the roof of the semi-trailer and was carried a short distance until he fell onto the highway.

Jenkins filed a suit for damages against Gere and North American Van Lines on July 23, 1993 in the Circuit Court for the County of Fairfax. Defendants filed a notice of removal to the United States District Court for the Eastern District of Virginia, and the case was tried to a jury on February 7-9, 1994 before Judge Cacheris. The jury found that (1) the defendants were negligent; (2) the plaintiff did not assume the risk; and (3) the plaintiff was contributorily negligent. After judgment was entered for the defendants on February 9, 1994, Jenkins filed motions for judgment notwithstanding the verdict, a new trial, and a partial new trial on damages. Jenkins' motions were denied on March 4, 1994, and he has appealed the rulings.

II.

Jenkins moved for judgment notwithstanding the verdict after trial. A motion for judgment notwithstanding the verdict is equivalent to a motion for judgment as a matter of law under Federal Rule of Civil Procedure 50. See Fed.R.Civ.P. 50, Notes of Advisory Committee on 1991 Amendment. A proper pre-verdict motion, made at the close of all of the evidence in the case, is a necessary prerequisite to a posttrial motion for judgment as a matter of law. See id.; Miller v. Premier Corp., 608 F.2d 973, 979 n. 3 (4th Cir.1979); Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350, 352 (4th Cir.1941). Jenkins failed to make a motion for judgment as a matter of law at the close of all of the evidence in the instant case. ¹ Under Rule 50, he was thereby precluded from making a post-trial motion for judgment as a matter of law. In addition, "[i]t is established that the sufficiency of evidence to support a verdict is not reviewable on appeal unless a motion for a directed verdict is made in the trial court." Tights, Inc. v. AcmeMcCrary Corp., 541 F.2d 1047, 1058 (4th Cir.), cert. denied, 429 U.S. 980 (1976); see also 5A Moore's Federal Practice p 50.08 ("[A] party who fails to move for judgment as a matter of law under Rule 50(a) at the close of all the evidence cannot ask the court to rule on the legal sufficiency of the evidence supporting a verdict for the opponent, or raise the question on appeal."). Thus Jenkins' appeal of the denial of his motion for judgment as a matter of law has not been properly presented before us. However, we may consider his motion for a new trial. See Benson v. Allphin, 786 F.2d 268, 273 n. 7 (7th Cir.) ("A motion for directed verdict is not required as a predicate for a motion for a new trial."), cert. denied, 479 U.S. 848 (1986). The denial of a motion for a new trial is reviewed under an abuse of discretion standard. Wadsworth v. Clindon, 846 F.2d 265, 266 (4th Cir.1988).

III.

Jenkins has challenged certain instructions given to the jury by the district court, as well as the judge's refusal to give several of Jenkins' motion, the motion was not made at the close of the evidence. The preverdict motion for judgment as a matter of law must be made at the close of all evidence in order for a post-verdict motion for judgment as a matter of law to be considered by the court. See Fed.R.Civ.P. 50, Notes of Advisory Committee on 1963 Amendment ("A motion for judgment notwithstanding the verdict will not lie unless it was preceded by a motion for a directed verdict made at the close of all the evidence." (emphasis added)). As the Advisory Committee stated in its discussion of the 1991 Amendment, "This provision retains the concept of the former rule that the post-verdict motion is a renewal of an earlier motion made at the close of the evidence.... A post-trial motion for judgment can be granted only on grounds advanced in the pre-verdict motion." Id., Notes of Advisory Committee on 1991 Amendment; see also 5A Moore's Federal Practice p 50.08; Farley Transportation Co., Inc. v. Santa Fe Trail Transportation Co., 786 F.2d 1342, 1345-46 (9th Cir.1985). proffered jury instructions. We review for abuse of discretion decisions regarding whether or not to give a jury instruction as well as the content of the instruction. United States v. Russell, 971 F.2d 1098, 1107 (4th Cir.1992), cert. denied, 113 S.Ct. 1013 (1993). A judgment will be reversed for error in jury instructions "only if the error is determined to have been prejudicial, based on a review of the record as a whole." Wellington v. Daniels, 717 F.2d 932, 938 (4th Cir.1983).

A. Contributory Negligence

1. OSHA Regulations

We apply Virginia law in this diversity action. In the Commonwealth of Virginia, contributory negligence is a complete bar to a negligence action. Jones v. Meat Packers Equipment Co., 723 F.2d 370, 373 (4th Cir.1983). At trial, the appellees introduced evidence showing Jenkins' violation of certain Occupational Safety and Health Administration (OSHA) regulations as an indication that Jenkins was contributorily negligent. These regulations state that "[a] body belt shall be worn and a lanyard attached to the boom or basket when working from an aerial lift." See 29 C.F.R. Sec. 1926.556(b)(2)(v). The district judge gave an instruction to the jury on the use of the evidence of failure to wear a safety harness in determining contributory negligence. ² Jenkins, however, has claimed that a violation of OSHA regulations does not justify the contributory negligence instruction which the district court gave the jury. ³ The Virginia Supreme Court has stated that "the violation of any statute enacted to protect health, safety, and welfare, is negligence per se." MacCoy v. Colony House Builders, Inc., 239 Va. 64, 69, 387 S.E.2d 760, 763 (1990); Gough v. Shaner, 197 Va. 572, 576, 90 S.E.2d 171, 175 (1955). In order for the violation to be considered as negligence, the injured person must be in the class of persons whom the statute was enacted to protect. Williamson v. Old Brogue, Inc., 232 Va. 350, 355, 350 S.E.2d 621, 624 (1986); Pearson v. Canada Contracting Co., Inc., 232 Va. 177, 186, 349 S.E.2d 106, 112 (1986) (plaintiff who claimed injury as a result of defendant's OSHA violation could not recover on theory of negligence per se since the OSHA regulation was not enacted for his protection).

Jenkins was clearly an employee whom the OSHA regulations on safety in using aerial lifts was intended to benefit. His contention, however, is that if he is in the class of protected persons, the regulation cannot be used to establish his own negligence. The Virginia Court of Appeals has found that OSHA regulations are rules for employers to help make the workplace safer for employees, but that they are not "work rules for employees." Wyle v. Professional Services Industries, Inc., 12 Va.App. 684, 688, 406 S.E.2d 410, 412 (1991). In Wyle, the plaintiff was a roofing inspector who fell off of a ladder that was improperly tied in violation of an OSHA regulation. The duty to tie the ladder was on the roofing company, not on the plaintiff. At the time plaint...