Jenkins v. Union Pacific R. Co.
| Decision Date | 18 April 1994 |
| Docket Number | No. 93-15151,93-15151 |
| Parties | Raymond H. JENKINS, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, a corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
E. Elizabeth Summers, Law Offices of E. Elizabeth Summers, Oakland, CA, for plaintiff-appellant.
James C.E. Barclay, Union Pacific Law Dept., Los Angeles, CA, for defendant-appellee.
Appeal from the United States District Court for the District of Nevada.
Before: POOLE, BEEZER, and T.G. NELSON, Circuit Judges.
Opinion by Judge BEEZER.
Raymond Jenkins sued defendant Union Pacific Railroad Company under the Federal Employer's Liability Act, 45 U.S.C. Sec. 51 et seq. (FELA) for injuries he sustained during his employment. The jury determined Jenkins was 65% responsible for his own injuries. The damage award of $800,000 was reduced by 65% to $280,000. Jenkins appeals, arguing that the district court erroneously instructed the jury on contributory negligence and erroneously denied his motion to amend the complaint to conform to the proof adduced at trial. We reverse and remand for a new trial on the issue of liability.
Jenkins worked as a brakeman for the Union Pacific Railroad. On the evening of February 20, 1988, he was working with a crew at Apex, Nevada. He was seriously injured while helping the locomotive engineer shove a length of nine flatcars to a point where they would be coupled with other cars.
Jenkins' job was to serve as the eyes and ears of the engineer, who, because of the darkness and his position behind the line of flatcars, 1 would be unable to see exactly how far to go and when to stop. Jenkins was standing next to the line of flatcars as it began to move. The conductor, Dan Pierson, directed Jenkins to assist the engineer in coupling the "blind shove" of cars. There was conflicting evidence about whether Pierson specifically ordered Jenkins to board the lead, or point, car, or whether Pierson gave Jenkins a non-specific order to "get on point" or "take the point," which Jenkins could have carried out in any of several different ways. 2 Pierson testified as follows on direct examination by counsel for Jenkins:
On cross examination, Pierson testified:
On further cross examination, Pierson testified:
Jenkins ran to catch up with the point car and boarded it. Although Pierson could not see Jenkins at this time, Pierson believed Jenkins was having difficulty, and radioed the engineer to slow the train. The engineer applied the engine brakes, but did not apply the independent brakes on the cars. Because only the engine brakes were applied, accumulated momentum, or slack, moved forward along the line of cars. The slack action was so severe it threw Jenkins from the train. He was caught on the axle, pulled under the train, and thrown out onto the rail. He suffered very severe injuries.
The point car was a flatcar with a stirrup and grabiron separated by only sixteen or seventeen inches. Riding on the side of this type of flatcar is unsafe because the rider's hands are positioned too close to his feet to obtain good balance. Union Pacific Operating Rule 4060 prohibits riding on the side of a flatcar or boarding it when it is in motion. 3 Jenkins testified that he was aware of the operating rules at the time of the accident.
The case was tried to a jury. On the third day of trial, Jenkins moved to amend his complaint to conform to evidence. He sought to include a claim of negligence based on violation of the Safety Appliance Act, 45 U.S.C. Sec. 1 et seq. Jenkins relied on a narrative report prepared by William Milton, a Union Pacific Train Operations manager, indicating that an automatic brake valve may have been defective. The district court denied the motion to amend after finding that Jenkins had been in possession of the relevant information for over a year and had not moved to amend his complaint earlier.
The district court instructed the jury on contributory negligence under FELA as follows:
In addition to denying that any negligence of the defendant caused any injury or damage to the plaintiff, the defendant alleges, as a further defense, that some contributory negligence on the part of the plaintiff, himself, was a cause of any injuries and consequent damages plaintiff may have sustained. Contributory negligence is fault on the part of a person injured, which cooperates in some degree with negligence of another, and so helps to bring about the injury.
By the defense of contributory negligence, the defendant in effect alleges that, even though the defendant may have been guilty of some negligence [sic] act or omission which was one of the causes, the plaintiff himself, by his own failure to use ordinary care under the circumstances for his own safety, at the time and place in question, also contributed one of the causes of any injuries and damages plaintiff may have suffered.
The burden is on a defendant, alleging the defense of contributory negligence, to establish, by a preponderance of the evidence in the case, the claim that the plaintiff himself was also at fault, and that such fault contributed one of the causes of any injuries and consequent damages plaintiff may have sustained.
Over his objection, the court omitted further language Jenkins requested:
You may not find contributory negligence on the part of the plaintiff, however, simply because he acceded to the request or direction of responsible representative of his employer that he work at a dangerous job, or in a dangerous place, or under unsafe conditions. 4
The jury returned a verdict finding that both Union Pacific and Jenkins were negligent. The jury found that Jenkins was 65% responsible for his own injuries due to his contributory negligence. The jury found damages in the amount of $800,000. The district court reduced Jenkins' damage award by 65% to $280,000.
The standard of review for an alleged error in jury instructions depends on the nature of the claimed error. Oglesby v. Southern Pac. Transp. Co., 6 F.3d 603, 606 (9th Cir.1993).
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 instruction de novo. Caballero v. City of Concord, 956 F.2d 204, 208 (9th Cir.1992).
Id. A party is entitled to an instruction concerning his or her theory of the case if it is supported by law and has some foundation in the evidence. Del Madera Properties v. Rhodes and Gardner, Inc., 820 F.2d 973, 978 (9th Cir.1987). But an error in the jury instructions does not require reversal if it is more probable than not that the error was harmless. Id. at 979.
This appeal concerns the distinction between assumption of risk and contributory negligence under FELA. The doctrine of contributory negligence, also known as comparative fault or comparative negligence, is codified in FELA. The Act provides that
the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.
45 U.S.C. Sec. 53. FELA does not, however, permit an employer to raise the defense of assumption of risk. Tiller v. Atlantic Coast Line R.R., 318 U.S. 54, 67, 63 S.Ct. 444, 451, 87 L.Ed. 610 (1943). An injured employee
shall not be held to have assumed the risk of his employment in any case where such injury or death resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier....
45 U.S.C. Sec. 54.
In Taylor v. Burlington N. R.R. Co., 787 F.2d 1309, 1316 (9th Cir.1986), we addressed the distinction between assumption of risk and contributory negligence. In that case, an employee sought damages under FELA based on harassment by a foreman. The district court barred testimony related to Taylor's ability to "bid off" his assigned section gang and work for another gang, on the basis that the railroad was attempting to circumvent the statutory bar to an assumption-of-risk defense by characterizing the defense as one of contributory negligence. We affirmed, explaining that
[a]lthough 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...
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