Parra v. Atchison, Topeka and Santa Fe Ry. Co.
| Decision Date | 21 March 1986 |
| Docket Number | No. 84-2809,84-2809 |
| Citation | 787 F.2d 507 |
| Parties | Fidel A. PARRA, Plaintiff-Appellee, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Nicholas R. Gentry of Johnson and Lanphere, P.C., Albuquerque, N.M., for defendant-appellant.
O.R. Adams, Jr., Albuquerque, N.M., for plaintiff-appellee.
Before MOORE and SETH, Circuit Judges, and BROWN, District Judge *.
This is an appeal from a judgment for plaintiff in a personal injury suit brought under the Federal Employers' Liability Act (F.E.L.A.), 45 U.S.C. Sec. 51 et seq. The jury returned a verdict for the plaintiff in the amount of $233,764 plus medical costs finding the defendant to have been negligent and plaintiff free of any negligence. The defendant appeals asserting that the court erred in its instructions to the jury pertaining to contributory negligence and that there was no evidence of lost earning capacity.
Plaintiff-appellee, Fidel Parra, had been employed by defendant-appellant, Atchison, Topeka and Santa Fe Railway Company (AT & SF), as a trackman from 1977 until his injury on November 4, 1982. The position of a trackman entailed heavy physical labor in connection with the maintenance of the tracks. Mr. Parra could not read or write English and spoke Spanish while on the job. He had a third grade education in Mexico. The crew on which Mr. Parra worked was replacing railroad ties in the yards at Albuquerque, New Mexico on the day of the accident. Although the AT & SF had a machine to perform the task, on that day Mr. Parra and another man were assigned to drag the replaced ties out of the way. These ties were approximately 16 feet long and weighed about 300 pounds. While performing this task, Mr. Parra slipped and injured his back. He was treated by Dr. O.C. Mitchell who also testified at trial.
The substance of Dr. Mitchell's testimony was that Mr. Parra injured an unstable part of his back in that a disc had slipped at the fifth lumbar vertebrae and had a break in it. The doctor performed a fusion of the vertebrae. He testified that Mr. Parra would not be able to return to his job as a trackman. Dr. Mitchell also testified that although the injury was caused by heavy lifting, Mr. Parra had a congenital back disorder known as Grade I spondylolisthesis which is the previously mentioned unstable back. It was also his testimony that although the injury of November 4, 1982 aggravated the condition and necessitated the treatment, the preexisting back condition made the injury more likely and Mr. Parra would have been disqualified from heavy labor had the pre-injury condition been known. There was no evidence at trial that either Mr. Parra or the railroad knew of his congenital back condition or should have known.
The appellant introduced evidence that Mr. Parra was provided with a Spanish language copy of the company Safety Rule Book which contained among other rules the following, Rule 191:
The case was submitted to the jury on the question of appellant's negligence in failing to instruct Mr. Parra on the safe way in which to handle the task and failing to authorize the proper number of workers or the proper and available equipment to move the railroad ties. Appellant alleged contributory negligence and sought an instruction highlighting Mr. Parra's asserted violation of Rule 191. Appellant also objected to the trial court's instruction on loss of future earnings.
Appellant asserts that the trial court erred in refusing to instruct the jury on the significance of appellant's failure to comply with company Safety Rule 191. Appellant's requested jury instruction read as follows:
"If you find that plaintiff violated an applicable safety rule of defendant and that this violation contributed in whole or in part to the accident, you may consider this violation as evidence of negligence on the part of the plaintiff and diminish any damages awarded him in the manner explained to you elsewhere in these instructions."
Although the court did give an instruction concerning the effect of any negligence on the part of Mr. Parra, the trial court declined to give this or any other instruction dealing specifically with the alleged violation of Safety Rule 191 and we agree with the trial court's judgment on this matter. The safety rule at issue is very different from the more specific and objective safety rules for which a violation would...
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