Sauer v. Burlington Northern R. Co., 95-1153

• Decision Date: 05 November 1996
• Docket Number: No. 95-1153,95-1153
• Citation: 106 F.3d 1490
• Parties: Steven V. SAUER, Plaintiff-Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1490

106 F.3d 1490

Steven V. SAUER, Plaintiff-Appellant, v. BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware corporation, Defendant-Appellee.

No. 95-1153.

United States Court of Appeals Tenth Circuit.

Nov. 5, 1996.

Ordered Published Feb. 14, 1997.

Norman R. Mueller, of Haddon, Morgan & Foreman, P.C., Denver, CO (Ty Gee, of Haddon, Morgan & Foreman, P.C., Denver, CO; and James L. Cox, Jr., of Morrisard, Rossi, Cox, Kiker & Inderwish, P.C., Aurora, CO, with him on the brief), for appellant.

Bennett Evan Cooper, of Steptoe & Johnson, Washington, D.C. (Charles G. Cole, of Steptoe & Johnson, Washington, D.C.; and Thomas L. Beam, of Knudsen, Berkheimer, Richardson & Endacott, Denver, CO, with him on the brief), for appellee.

Before BALDOCK, LOGAN and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Steven V. Sauer, a railroad worker employed by Burlington Northern Railroad Company (BN), appeals from the judgment entered on his personal injury claims against BN under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60. He contends (1) the district court erred by refusing to instruct the jury that assumption of the risk is not a defense under FELA, (2) expert testimony apportioning his injuries between a preexisting condition and the workplace accidents was required before the preexisting condition issue could be presented to the jury, and (3) the district court erred in instructing the jury on contributory negligence. We affirm.

I.

Sauer is employed by BN as a machinist to do repairs and maintenance on locomotives. On January 6, 1992, Sauer's lower back began hurting after he worked over the side of a locomotive engine for approximately 45 minutes as he replaced a locomotive exhaust gasket. The pain radiated down his left leg to the knee. Because the pain persisted, Sauer reported it to his employer and sought treatment from his chiropractor, Dr. Wills. In addition to his primary complaint of low back and leg pain, Sauer reported some popping and cracking in his neck and numbness in his left arm down to his hand every two or three days. Dr. Wills diagnosed the injury as a lumbar strain or sprain, with lumbar fixation (vertebra out of place and fixed in position) and low back pain. He also noted degenerative changes in the lumbar vertebrae that did not interfere with the spinal cord and an abnormal curvature of the spine caused by unequal leg length. BN placed Sauer on light duty and his back problem appeared to improve, although some activities aggravated the pain.

On January 23, 1992, another BN machinist, Roland Snyder, asked Sauer to help him replace a locomotive radiator hatch. Sauer used a crane to lift the hatch up to the locomotive, but Snyder had difficulty bolting it down. Snyder tried using a metal bar to pry the hatch down so it could be bolted and then, for more leverage, he climbed up on the locomotive's four-foot handrail, in violation of a company safety rule. Sauer knew this was unsafe because he had fallen from a rail several years earlier, but he did not warn Snyder or suggest another method. Snyder did not get down from the rail when another machinist, Jane Inglebright, suggested that he use a moveable platform rather than stand on the rail. Snyder placed one foot on the gate of a guardrail on a nearby concrete platform. The gate was unlatched and Sauer and Inglebright tried unsuccessfully to latch it. Snyder fell when the gate swung open. Sauer tried to get out of the way, but Snyder landed on him, knocking him to one knee. Sauer worked the five remaining hours of his shift, but experienced pain later that day in both his lower and upper back, with lower back symptoms similar to those following the January 6 incident. The symptoms continued for about a month, but on February 20, Sauer began to experience severe pain after an hour-long ride home from work in his pickup truck. An MRI revealed ruptured disks in his lumbar and cervical spine and he underwent surgery. Sauer was eventually able to return to work.

Two claims were submitted to the jury--one based on the January 6 accident, and one based on the January 23 accident. The jury found BN was not negligent in the January 6 accident, but that both parties were equally at fault in the January 23 accident. On a special verdict form, the jury attributed 75 percent of Sauer's injuries to preexisting conditions and prior accidents. Accordingly, the jury award of $68,904 to compensate Sauer for the January 23 injury was reduced to $8,613 and the district court entered judgment in that amount.

II.

A. Assumption of the Risk Instruction Requested

Sauer contends the district court erred by refusing to give a requested instruction on assumption of the risk. We disagree.

Assumption of the risk is not a defense under FELA. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 57, 63 S.Ct. 444, 446, 87 L.Ed. 610 (1943). 45 U.S.C. § 54 provides:

"In any action brought against any common carrier [under the FELA] ... to recover damages for injuries to ... any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where such injury ... resulted in whole or in part from the negligence of any of the officers, agents, or employees of such carrier."

Sauer requested two instructions on assumption of the risk. The court rejected his requested instruction 32, which quoted the statute, but gave his requested instruction 11, which defined contributory negligence, and concluded with the following: "You may not find contributory negligence on the part of the Plaintiff, however, simply because he acceded to the request or direction of responsible representatives of his employer that he work at a dangerous job, or in a dangerous place, or under unsafe conditions." Appellant's append. 56.

Although instruction 11 did not use the phrase "assumption of the risk" or quote the statute, it was sufficient to prevent the jury from improperly relieving BN from liability based on assumption of the risk. In Joyce v. Atlantic Richfield Co., 651 F.2d 676, 683 (10th Cir.1981), this court held that when the evidence could support either contributory negligence or assumption of the risk, instructions which only define contributory negligence are not sufficient to prevent the jury from applying assumption of the risk. The court held the jury instructions should also include the following admonition: "You may not find contributory negligence on the part of the plaintiff, however, simply because he acceded to the request or direction of the responsible representatives of his employer that he work at a dangerous job, or in a dangerous place, or under unsafe conditions." Id. at 683 (quoting Devitt and Blackmar, Fed. Jury Prac. and Instructions (3d ed.), § 94.16). The same instruction has been held sufficient by other circuits. See Fashauer v. New Jersey Transit Rail Operations, 57 F.3d 1269, 1280 (3d Cir.1995); Jenkins v. Union Pacific R. Co., 22 F.3d 206, 209-10, 212 (9th Cir.1994); Gish v. CSX Transp., 890 F.2d 989, 993 (7th Cir.1989). Because instruction 11 was sufficient, the district court did not err in refusing to give requested instruction 32.

B. Expert Testimony Apportioning Injury

Sauer contends there was insufficient evidence from which the jury could apportion his injuries between his preexisting condition and aggravation of that condition as a result of BN's negligence. Specifically, Sauer argues there must be expert testimony presented which apportions his injuries on a percentage basis between his preexisting condition and the workplace accidents before the jury can be asked to apportion his injuries. We disagree.

The district court gave the following instruction on aggravation of a preexisting condition:

"If you find for the Plaintiff, you should compensate him for any aggravation of an existing disease or physical defect resulting from such injury. If you find that there was an aggravation, you should determine, if you can, what portion of the Plaintiff's condition resulted from the aggravation and make allowance in your verdict only for the aggravation. However, if you cannot make that determination or if it cannot be said that the condition would have existed apart from the injury, you should consider and make allowance in your verdict for the entire condition."

Appellant's append. 69. The special verdict forms submitted to the jury asked for the percentage of damages from each of the two accidents attributable to preexisting conditions or prior accidents. The jury found BN was negligent only in the second accident and found 75 percent of Sauer's damages were attributable to preexisting conditions or prior accidents.

We conclude there was sufficient evidence to permit the jury to apportion Sauer's injuries between his preexisting conditions and BN's negligence. We reject Sauer's argument that there must be expert testimony precisely apportioning the injury on a percentage basis between preexisting conditions and prior accidents. The extent to which an injury is attributable to a preexisting condition or prior accident need not be proved with mathematical precision or great exactitude. The evidence need only be sufficient to permit a rough practical apportionment. Kegel v. United States, 289 F.Supp. 790, 794-97 (D.Mont.1968); LaMoureaux v. Totem Ocean Trailer Exp., 632 P.2d 539, 544-45 (Alaska 1981); Glassman v. St. Joseph Hosp., 259 Ill.App.3d 730, 197 Ill.Dec. 727, 754, 631 N.E.2d 1186, 1213 (1994); Dafler v. Raymark Industries, 259 N.J.Super. 17, 611 A.2d 136, 140-46 (1992), aff'd 132 N.J. 96, 622 A.2d 1305 (1993); Restatement (Second) of Torts § 433A, comment b (1965); W. Page Keeton, Prosser and Keeton on the Law of Torts § 52, pp. 345, 348-52 (5th ed. 1984). See Steinhauser v. Hertz Corp., 421 F.2d 1169, 1170 (2d Cir.1970); Henderson v. United States, 328 F.2d 502, 503-04 (5th Cir.1964). Although apportionment may be difficult, like comparative negligence it is a question for which...