Mitchell v. Missouri-Kansas-Texas R. Co.

• Decision Date: 21 February 1990
• Docket Number: MISSOURI-KANSAS-TEXAS,No. C-7286,C-7286
• Citation: 786 S.W.2d 659
• Parties: H.W. MITCHELL, Petitioner, v.RAILROAD COMPANY, Respondent.
• Court: Texas Supreme Court

Page 659

786 S.W.2d 659

H.W. MITCHELL, Petitioner, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Respondent.

No. C-7286.

Supreme Court of Texas.

Feb. 21, 1990.

W. Douglas Matthews, Timothy F. Lee, Houston, for petitioner.

Gay C. Brinson, Jr., Brock Akers, Houston, for respondent.

ON MOTION FOR REHEARING

RAY, Justice.

Petitioner's motion for rehearing is granted. Our opinion and judgment of July 5, 1989, reported at 32 Tex.Sup.Ct.J. 526, are withdrawn, and the following opinion is substituted.

The issue presented involves the propriety of an explanatory jury instruction in a case brought under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 (1986) ("FELA"), and the Federal Boiler Inspection Act, 45 U.S.C. § 23 (1986). Haskell W. Mitchell sued the Missouri-Kansas-Texas Railroad Company ("M-K-T") for damages based on injuries received during the course of his employment with the railroad company. After the jury failed to find negligence against M-K-T, the trial court rendered judgment that Mitchell take nothing. The court of appeals affirmed the judgment of the trial court. 743 S.W.2d 666. We reverse the judgment of the court of appeals and remand the cause for a new trial.

While attempting to board an M-K-T locomotive, Mitchell was injured after slipping from its steps. According to Mitchell, ice had formed on the steps and grab-irons of the engine and thus caused him to slip from the train. The jury found that ice was present on the train, but failed to find that M-K-T was negligent under the FELA in maintaining a reasonably safe workplace or in providing reasonably safe equipment. With respect to the claim asserted under the Federal Boiler Inspection Act, the jury also failed to find that the steps and grab-irons were in an improper condition and unsafe to operate.

Prior to the submission of the jury questions, Mitchell objected to a portion of the instructions pertaining to the issue of M-K-T's alleged negligence under the FELA. The question and the contested portion of the instruction read as follows:

SPECIAL ISSUE NO. 4

Whose negligence, if any, was a cause, in whole or in part, however slight, of the occurrence of January 21, 1984 which has been made the basis of this suit?

* * * * * *

In answering this issue, you are instructed that, before negligence, if any, can be established against the Defendant, Railroad, it must be shown that the Defendant-Railroad, through its officers, agents and/or employees, knew, or, in the exercise of ordinary care, should have known of an unsafe condition, if any.

Mitchell attacks this instruction for two basic reasons. First, he argues that the instruction violated his federal substantive rights under the FELA by placing the issue of foreseeability before the jury. Second, Mitchell characterizes the instruction as being an improper comment on the weight of the evidence. On the basis of these two theories, Mitchell claims that the instruction should not have been given and constitutes reversible error.

We hold only that the trial court erred in submitting an erroneous instruction to the negligence question, and therefore do not address Mitchell's second argument. The challenged instruction effectively forced Mitchell to prove foreseeability in order to establish causation and thereby caused a greater burden to be placed on Mitchell than is permitted under the Federal Employers' Liability Act.

I.

This instruction effectively forced the plaintiff to prove foreseeability in order to establish causation, in clear violation of the substantive requirements of the FELA. It "appears perilously close to, if not identical with, the foreseeability component of It is settled that a cause of action is established under the Federal Employers Liability Act whenever the negligence of the employer played any part, however small, in the injury which is the subject of the suit. Rogers, supra. Foreseeability is thus not a part of the causation standard as to negligence in FELA cases. It is less clear, however, whether foreseeability remains an element of the employer's duty of care. Mitchell cites authorities which appear to impose an absolute duty to provide a safe place to work, regardless of whether the railroad knew or should have known of the dangerous condition. See, e.g., Shenker v. Baltimore & O.R.R. Co., 374 U.S. 1, 10, 83 S.Ct. 1667, 1673, 10 L.Ed.2d 709 (1963); Duncan v. St. Louis-San Francisco Ry. Co., 480 F.2d 79, 83 (8th Cir.1973). On the other hand, a number of authorities indicate that reasonable foreseeability of harm is an element in determining the employer's duty to provide a safe place to work. See, e.g., Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108, 117, 83 S.Ct. 659, 665, 9 L.Ed.2d 618 (1963); Urie v. Thompson, 337 U.S. 163, 178, 69 S.Ct. 1018, 1028-29, 93 L.Ed. 1282 (1949); Richardson v. Missouri Pac. Ry. Co., 677 F.2d 663, 665 (8th Cir.1982); Almendarez v. Atchison, T. & S.F. Ry. Co., 426 F.2d 1095, 1099 (5th Cir.1970); Miller v. Cincinnati, New Orleans & Tex. Pac. Ry. Co., 317 F.2d 693, 700 (6th Cir.1963); Kaminski v. Chicago River & Indiana Ry. Co., 200 F.2d 1, 4 (7th Cir.1952). While time has vindicated Justice Frankfurter's pessimistic observation that "so long as negligence rather than workmen's compensation is the basis of recovery, just so long will suits under the Federal Employers' Liability Act lead to conflicting opinions about 'fault' and 'proximate cause,' " Wilkerson v. McCarthy, 336 U.S. 53, 66, 69 S.Ct. 413, 419, 93 L.Ed. 497 (1949) (Frankfurter, J., concurring), we believe that under the weight of authority foreseeability remains an element of duty.

probable cause, which is, essentially, nothing less than the ability to reasonably anticipate consequences." 743 S.W.2d at 668 (Levy, J., dissenting). A jury should not be instructed on foreseeability as a component of proximate cause in an FELA case. This is because under the FELA a plaintiff need not prove traditional common-law proximate cause, which is the combination of cause-in-fact and foreseeability. In an FELA case, a plaintiff is only required to prove that the railroad's negligence played any part, even the slightest, in producing the injury or death for which damages are sought. 45 U.S.C. §§ 51-60 (1986); Rogers v. Missouri Pac. R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957). Thus, common-law proximate cause plays no part in determining liability in an FELA case and requiring proof of it is reversible error. Page v. St. Louis S.W. Ry. Co., 312 F.2d 84 (5th Cir.1963); Dutton v. Southern Pac. Transp., 576 S.W.2d 782 (Tex.1978).

II.

The central question for our determination is whether, under the facts of this case, the court or the finder of fact should decide whether the risk was sufficiently foreseeable to impose a duty on the defendant.

M-K-T offers several federal decisions which suggest or imply that the issue of whether the employer knew or reasonably should have known of the risks posed by its workplace is a question of fact for the jury to decide in FELA cases.

Mitchell argues that Texas law governs this question. Since the existence of a legal duty is a question of law in Texas, Mitchell argues that the submission of an instruction to the jury on foreseeability in an FELA case is improper. See, Atchison, T. & S.F. Ry. v. Standard, 696 S.W.2d 476, 479 (Tex.App.--Eastland 1985, writ ref'd n.r.e.). State law dictates whether the court or finder of fact should determine duty and its factual elements. While federal law governs the substantive rights of the parties in FELA cases, procedural matters are governed by applicable state rules when tried in state court. St. Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411, 105 S.Ct. 1347, 1348, 84 L.Ed.2d 303 (1985); Scott v. Atchison, T. & S.F. Ry. Co., 572 S.W.2d 273, 276 (1978). This court has In Texas, the existence of a duty is a question of law. See, e.g., Oldaker v. Lock Constr. Co., 528 S.W.2d 71, 77 (Tex.Civ.App.--Amarillo 1975, writ ref'd n.r.e.); Rodriguez v. Carson, 519 S.W.2d 214, 216 (Tex.Civ.App.--Amarillo 1975, writ ref'd n.r.e.); Webb v. City of Lubbock, 380 S.W.2d 135, 136 (Tex.Civ.App.--Amarillo 1964, writ ref'd n.r.e.); City of Bryan v. Jenkins, 247 S.W.2d 925, 928 (Tex.Civ.App.--Waco 1952, writ ref'd n.r.e.); see also 1 Texas Torts and Remedies § 1.03 at 1-22 (J. Edgar & J. Sales eds.1989); Kilgarlin & Sterba-Boatwright, The Recent Evolution of Duty in Texas, 28 So.Tex.L.Rev. 241, 245 (1986). The imposition of a legal duty "depends on such factors as contemporary attitudes on social, economic, and political questions," and their application to the particular facts at hand. 1 Texas Torts and Remedies § 1.03 at 1-22. In one recent case, for example, this court noted that "factors which should be considered in determining whether the law should impose a duty are the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury and consequences of placing that burden on the employer." Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983). Among these factors, foreseeability has traditionally been considered the most significant. See Genell, Inc. v. Flynn, 163 Tex. 632, 637, 358 S.W.2d 543, 546-47 (1962).

recognized that "rules relating to the form, necessity, and effect of jury issues are procedural rather than substantive if they do not interfere with a right or defense provided by the F.E.L.A." Dutton v. Southern Pac. Transp., 576 S.W.2d 782, 784 (Tex.1978) (emphasis added). As no substantive right or defense of the statute is affected by this determination, we look to the law of this state to resolve this issue.

While foreseeability as an element of duty may frequently be determined as a matter of law, in some instances it involves the resolution of disputed facts or inferences which are inappropriate for legal resolution. See 1 Texas Torts and Remedies § 1.03. As ...