Velasquez v. Southern Pacific Transp. Co., 83-1187
| Decision Date | 14 June 1984 |
| Docket Number | No. 83-1187,83-1187 |
| Parties | 11 O.S.H. Cas.(BNA) 2060, 1984-1985 O.S.H.D. ( 27,092 Albert Ralph VELASQUEZ, Plaintiff-Appellee, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard C. Danysh, Ferd C. Meyer, Jr., San Antonio, Tex., for defendant-appellant.
Phil Hardberger, Phillip R. Spicer, Jr., San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before THORNBERRY, WILLIAMS and GARWOOD, Circuit Judges.
Southern Pacific Transportation Company appeals from an adverse judgment in an action brought under the Federal Employer's Liability Act (FELA). The issues raised in this appeal are whether the trial court erred in instructing the jury that regulations promulgated under the Occupational Safety and Health Act (OSHA) applied to the railroad in the facts of this case, and whether the court erred in denying Southern Pacific's requested instruction on the nontaxability of a personal injury award. We hold that because OSHA regulations did not apply to the defendant railroad in this case, the trial court's instruction to the contrary constitutes reversible error.
Albert Ralph Velasquez, an employee of Southern Pacific, was injured on August 5, 1981, while working on the Menger Creek railroad bridge in San Antonio, Texas. The bridge is situated in a railroad yard consisting of nine to ten tracks. The accident occurred as Velasquez and several co-workers were replacing a stringer, which is a large beam supporting the track. The workers had to remove a portion of the wooden walkway along the track so they could reach the area underneath the track. Velasquez slipped and fell through this opening, landing on the creek bed nine feet below.
Velasquez brought this FELA action, claiming that his injuries were the result of Southern Pacific's negligence. The jury found negligence to be the cause of the accident, and attributed sixty percent of the negligence to Southern Pacific, and forty percent to Velasquez. Velasquez was awarded $57,600 in damages.
In attempting to establish Southern Pacific's negligence at trial, Velasquez argued that the railroad had a duty to provide safeguards to prevent a worker from falling through the hole in the walkway. Southern Pacific had filed a motion in limine to exclude any evidence of OSHA regulations, arguing that those standards did not apply to railroad walkways and bridges. The trial court determined that OSHA regulations did apply to these areas, and denied the motion in limine.
Velasquez relied primarily on the testimony of a safety specialist, Carlton Spraggins, to establish the proper standard of care in this case. Spraggins explained to the jury the role of OSHA regulations in general, and asserted that these regulations applied to the railroad. He testified that OSHA regulations required that certain measures be taken to prevent workers from falling through the walkway hole. He suggested that, under OSHA regulations, rope barricades and a toeboard around the perimeter of the opening would have been appropriate measures. Exhibits of published OSHA regulations were admitted into evidence. The trial court reinforced the idea that OSHA regulations suggested the proper standard of care with the following instruction to the jury:
We agree with Southern Pacific's argument that OSHA standards do not apply to walkways along the tracks, or railroad bridges, because they have been displaced by a Federal Railroad Administration (FRA) policy statement. This displacement is in accordance with the Occupational Safety & Health Administration Act of 1970 which states in pertinent part:
Nothing in this chapter shall apply to working conditions of employees with respect to which other Federal agencies ... exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.
29 U.S.C. Sec. 653(b)(1). The FRA has issued a statement indicating which aspects of the railroad industry fall under the exclusive...
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