Alma Kay Atwood v. Union Pacific Railroad Company, 933 F.2d 1019, 10th Cir. (1991)

933 F.
2d 1019
Unpublished Disposition
NOTICE: Tenth Circuit Rule 36.3 states that unpublished
opinions and orders and judgments have no precedential value
and shall not be cited except for purposes of establishing the
doctrines of the law of the case, res judicata, or collateral
estoppel.
Alma Kay ATWOOD, Plaintiff-Appellant,
v.
UNION PACIFIC RAILROAD COMPANY, DefendantAppellee.
No. 90-4076.
United States Court of Appeals, Tenth Circuit.

May 20, 1991.
Before TACHA and SETH, Circuit Judges, and BRATTON, District

Judge.*
ORDER AND JUDGMENT**
TACHA, Circuit Judge.
Plaintiff-appellant Alma Kay Atwood appeals a jury verdict in his favor in an

action against defendant-appellee Union Pacific Railroad Company for liability
under the Federal Employer's Liability Act, 45 U.S.C. Secs. 51-60 (FELA or
Act). On appeal, Atwood alleges the district court erred by: (1) instructing the
jury on the issue of contributory negligence, (2) refusing to instruct the jury on
the unavailability under FELA of the defense of assumption of the risk, (3)
failing to instruct the jury properly on the central issues of the case, and (4)
admitting into evidence Atwood's unsworn statement and sending it into the
jury room. Atwood also argues there was evidence of future lost wages and the
jury's failure to award those damages requires a new trial. We exercise
jurisdiction under 28 U.S.C. Sec. 1291 and affirm.
Contributory Negligence
Atwood contends the jury should not have been instructed on the issue of
contributory negligence. A defendant in a FELA action is entitled to a
contributory negligence instruction if there is any evidence to support that
theory. Gish v. CSX Transp., Inc., 890 F.2d 989, 992 (7th Cir.1989); Wise v.
Union Pac. R.R., 815 F.2d 55, 57 (8th Cir.1987). Here, there was evidence
presented from which the jury could reasonably conclude Atwood did not
exercise due care. Atwood himself testified he had reported several weeks
before the accident that the switch was stiff and needed lubrication. The
foreman testified that switchmen in Atwood's position are required by company
safety rules to make general inspections of switches before operating them.
Visual inspection of this switch, he stated, would have shown it was dry and
required oiling. He further testified that when a switchman knows a switch is
stiff, he must exercise "extra caution."
Atwood's testimony indicated he did not inspect the switch and did not use a
two-step repositioning technique of switching, which the foreman testified is
required by the safety rules to avoid unsafe and awkward body positioning
while switching. Atwood also testified he continued throw the switch five or
six times after noticing the stiffness of the switch and feeling pain in his back
during the first switch. Based on evidence in the record, we hold Union Pacific
was entitled to have the theory of contributory negligence submitted in a jury
instruction.
Atwood argues evidence of violation of a Federal Railroad Administration

Regulation (FRA) should have barred submission of the issue of contributory
negligence from the jury. Section 53 of Title 45 provides: "[N]o ... employee
who may be injured ... shall be held to have been guilty of contributory
negligence in any case where the violation by such common carrier of any
statute enacted for the safety of employees contributed to the injury ... of such
employee." 45 U.S.C. Sec. 53. The FRA regulation allegedly violated in this
case is section 213.135(e), which states: "Each switch stand and connecting rod
must be securely fastened and operable without excessive lost motion."
A district court's refusal to instruct a jury that proof that a railroad violated a
safety regulation prohibits reduction of an award of damages for contributory
negligence can be prejudicial error. Eckert v. Aliquippa & S.R.R., 828 F.2d
183, 186 (3d Cir.1987); see also Pratico v. Portland Terminal Co., 783 F.2d
255, 267-68 (1st Cir.1985). However, when a plaintiff fails to submit a jury
instruction to this effect or fails to object at trial to an instruction on
contributory negligence for this reason, we apply on appeal the "plain error and
prejudice" rule. According to Rule 51 of the Federal Rules of Civil Procedure:
"No party may assign as error the giving or the failure to give an instruction
unless the party objects thereto before the jury retires to consider its verdict,
stating distinctly the matter objected to and the grounds of the objection."
Fed.R.Civ.P. 51. A party claiming fundamental error within the reach of Rule
51 has a heavy burden of demonstrating manifest injustice. Clegg v. Conk, 507
F.2d 1351, 1362 (10th Cir.1974), cert. denied, 422 U.S. 1007 (1975).
6
Here, Atwood did not request a jury instruction that a finding of violation of an
FRA regulation bars contributory negligence. Nor did Atwood present evidence
at trial the switch stand and connecting rod were not securely fastened or
operable only with "excessive lost motion." In fact, FRA regulation 213.135(e)
was admitted by judicial notice and was not discussed at trial by any plaintiff's
witness. Further, evidence in the record shows the switch was not defective but
rather "improperly maintained." Because the jury could have found the
condition of the switch did not violate the FRA regulation and no evidence was
presented to the contrary, we hold the lack of a jury instruction on this issue did
not result in manifest injustice.
Assumption of the Risk

7
Atwood contends the district court erred by refusing to instruct the jury
regarding the unavailability of assumption of the risk as a defense in an FELA
action. Assumption of the risk is an affirmative defense that must be plead or
forfeited according to Rule 8(c) of the Federal Rules of Civil Procedure. Where
the "defense" of assumption of the risk has been neither pleaded nor argued,
instructing the jury regarding the statutory elimination of that defense serves
only to obscure the issues in the case. Casko v. Elgin, J. & E. Ry., 361 F.2d
748, 751 (7th Cir.1966) (citing Tiler v. Atlantic Coast Line R.R., 318 U.S. 54,
58 (1943) (Frankfurter, J., concurring)). Although giving an unrequested
assumption of the risk instruction in a FELA action may not be reversible error,
courts generally have disapproved such an instruction in FELA actions. Clark v.
Burlington N., Inc., 726 F.2d 448, 451 (8th Cir.1984); see also, e.g., Heater v.
Chesapeake & O.R.R., 497 F.2d 1243, 1249 (7th Cir.), cert. denied, 419 U.S.
1013 (1974); Clark v. Pennsylvania R.R., 328 F.2d 591, 592 (2d Cir.), cert.
denied, 377 U.S. 1006 (1964). Here, Union Pacific did not plead or argue the
defense of assumption of the risk. Therefore, we hold the district court did not
err by refusing to instruct the jury that assumption of the risk is not a defense
under FELA.
Form of the Jury Instructions

8
Atwood also contends the district court failed to instruct the jury properly on
the central issues of the case. When reviewing jury instructions, we examine
the record as a whole to determine whether the instructions state the governing
law and provide the jury with ample understanding of the issues and applicable
standards. Big Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259,
1271 (10th Cir.1988). An error in jury instructions mandates reversal only
when the error is prejudicial based on a review of the record as a whole. Id. at
1271 n. 19. A district court has wide discretion to select his own words and
instruct the jury in his own style. Bass v. International Broth. of Boilermakers,
630 F.2d 1058, 1061-62 (5th Cir.1980).
1. Instruction No. 15: Expert Testimony
9
Atwood contends he was unfairly prejudiced when the court instructed the jury
that experts can testify on the basis of hypothetical questions. However, the
governing law clearly allows experts to testify based on hypothetical questions.
See, e.g., Teen-Ed, Inc. v. Kimball Int'l, Inc. 620 F.2d 399, 404 (3d Cir.1980).
Based on the record as a whole, we cannot say this instruction does not
correctly summarize the applicable law. Further, the hypotheticals the defense
counsel used on cross-examination challenged only the amount, not the
propriety, of damages for future economic loss. Because the jury failed to
award any damages for future wages, Atwood could not have been prejudiced
by this instruction.
2. Instruction Nos. 30, 33, 35, and 36: Contributory

10
Negligence
11
Atwood contends the court committed reversible error by giving four

instructions regarding contributory negligence because they unduly emphasized
the defendant's theories. We find no merit in this argument. The record
indicates Union Pacific presented evidence of contributory negligence and thus
was entitled to jury instructions regarding that theory. Further, the instructions
correctly summarize the law regarding contributory negligence in a FELA
action. See, e.g., Gish, 890 F.2d at 991-92 (providing general explanation of
contributory negligence in FELA actions); Birchem v. Burlington N.R.R., 812
F.2d 1047, 1049 (8th Cir.1987) (same); Teets v. Chicago, S. & S.R.R., 238
F.2d 223, 227 (7th Cir.1956) (where evidence presented that plaintiff violated
railroad operation rule, no error in providing jury instruction regarding possible
violation and its proximate causation of plaintiff's injury); Page v. St. Louis S.
Ry., 349 F.2d 820, 822 & n. 3, 824 (5th Cir.1965) (instruction explaining
proximate causation in terms of slight negligence appropriate for contributory
negligence instruction). We hold the district court did not err in instructing the
jury as it did on contributory negligence.
3. Instruction No. 36: Plaintiff's Negligence as Sole Cause

12
of Injury
13
14
Atwood asserts it is reversible error for the district court to have given a "sole
cause" instruction because the jury would be confused that a plaintiff's
contributory negligence can bar the defendant's liability under FELA. However,
the "sole cause" jury instruction given here conforms to model instructions
cited by the Supreme Court. See Carter v. Atlanta & St. A.B. Ry., 338 U.S. 430,
435-36 (1949). Further, there was no prejudice to Atwood from jury confusion
on this issue because the jury found Atwood contributorily negligent and still
awarded him damages.
4. Instruction No. 40: Standard of Proof for Damages

15
16
Atwood contests that instruction no. 40 confused the jury regarding the
standard of proof for damages. However, this instruction correctly summarizes
the law regarding the standard of proof for awarding damages. We find no
merit in Atwood's argument that the instruction regarding the standard of proof-the preponderance of the evidence--is confused by the phrase "evidence that
plaintiff in fact sustained future damages." We hold there was no error in
instruction no. 40.
5. Instruction No. 42: Reduction of Past Wage Loss for

17
State and Federal Taxes
18
Atwood contends the court committed reversible error by instructing the jury
that past earnings should be calculated on the basis of after-tax earnings. In
Liepelt v. Norfolk & W. Ry., 444 U.S. 490, 491 (1980), the Supreme Court
held it was reversible error for the district court to refuse to instruct the jury the
damages award would not be subject to income taxes. As the Court noted, the
Internal Revenue Code provides a damage award received on account of
personal injuries is not taxable income. See 26 U.S.C. Sec. 104(a)(2). Because
after-tax income provides the only realistic measure of an employee's earnings
ability, the Court pointed out, income tax is a relevant factor in calculating a
plaintiff's loss. Id. at 493-94. Although Liepelt does not require a district court
to instruct a jury that past wages should be reduced for state and federal taxes,
the Supreme Court stated that giving such an instruction "can do no harm." Id.
at 498. Therefore, we hold instruction no. 42 summarized the applicable law
and did not prejudice Atwood.
6. Instruction No. 47: Duty to Mitigate Damages

19
19
20
21
Atwood argues the district court erred by instructing the jury regarding
mitigation as it did in instruction 47. A defendant is entitled to an instruction
regarding his theory of the case, including the possibility of mitigation, if there
is evidence on the record to support it. See Trejo v. Denver & R.G.W.R.R., 568
F.2d 181, 184 (10th Cir.1977). The record shows there was evidence relating to
mitigation of damages. We hold the court did not err in instructing the jury as it
did in instruction no. 47.
Further, Atwood did not request a jury instruction stating the burden is on the
defendant to prove mitigation by a preponderance of the evidence. Because
Atwood did not object at trial to instruction no. 47 on this basis, he is subject to
the plain error rule. See Fed.R.Civ.P. 51. Considering the fact the district court
instructed the jury generally that the burden is on the defendant to prove every
element by a preponderance of the evidence, we must conclude manifest
injustice did not result from instruction no. 47.
Admitting Plaintiff's Transcribed Statement

22
23
Atwood further argues his transcribed statement should have not been admitted
and sent into the jury room during jury deliberation. In reviewing the
evidentiary rulings of a district court, we reverse only for an abuse of discretion.
United States v. Alexander, 849 F.2d 1293, 1301 (10th Cir.1988); Bannister v.
Town of Noble, 812 F.2d 1265 (10th Cir.1987). Any error arising from a
district court's decision to admit evidence is subject to a harmless error analysis.
United States v. Shirley, 884 F.2d 1130, 1132 (9th Cir.1989).
24
Prior statements of a party-opponent are admissible under Rule 801(d)(2) of the

Federal Rules of Evidence as nonhearsay when they are offered against that
party. Fed.R.Evid. 801(d)(2). Relevant evidence may be excluded under Rule
403 if its probative value outweighs the danger of unfair prejudice. Fed.R.Evid.
403.
25
Here, Atwood's transcribed statements were admitted against him. Therefore,

they are admissions of a party opponent and should not be excluded as hearsay.
We find no merit in Atwood's argument the district court should have limited
admission of these statements to the purpose of impeachment. Further, the
record shows the transcribed statements contained probative evidence relating
to Atwood's actions before, during, and after throwing the switch; his medical
treatment; work history; and lifestyle. Assuming the truth of Atwood's
contention that "none of that information was inconsistent with his trial
testimony," no prejudice would be involved in submitting these statements to
the jury. Because any error that might have arisen from the admission of
Atwood's transcribed statements is harmless, we hold the district court did not
abuse its discretion.
Jury's Failure to Award Future Lost Wages
26
Atwood finally contends there was evidence of future lost wages and the jury's
failure to award those damages requires a new trial. A motion for a new trial is
properly granted only when the verdict is "clearly and decidedly or
overwhelmingly" against the weight of the evidence." Locke v. Atchison, T. &
S.F. Ry., 309 F.2d 811, 817 (10th Cir.1962). We review a district court's
decision on a new trial motion only for abuse of discretion. Patty Precision
Prods. Co. v. Brown & Sharpe Mfg. Co., 846 F.2d 1247, 1251 (10th Cir.1988).
27
Here, the record shows there was ample evidence supporting the jury's verdict
that Atwood's alleged future wage loss was not a result of Union Pacific's
negligence. Atwood testified that he felt he "pulled a muscle or something
minor" the day of his accident. He worked a full day, went deer hunting that
weekend, and continued to work full time for a month following the accident
before seeking medical treatment. Despite the "jab" Atwood felt in his back
when he first threw the switch the day of the accident, he testified he threw the
switch five or six more times that day.
28
Further, Atwood only was disqualified by his doctor from performing heavy
work that requires lifting, twisting, and turning. Atwood's vocational
rehabilitation expert testified that Atwood has an above average ability to learn
and good mechanical abilities. She also testified Atwood did not appear
motivated to find alternative employment or retrain in an another vocation. At
the time of trial, Atwood was not employed. Because we cannot conclude from
the record the evidence was overwhelmingly against the verdict, we hold the
district court did not abuse its discretion in denying Atwood's motion for a new
trial.
The Honorable Howard C. Bratton, Senior United States District Judge for the
District of New Mexico, sitting by designation
**
This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3

Alma Kay Atwood v. Union Pacific Railroad Company, 933 F.2d 1019, 10th Cir. (1991)

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933 F.

United States Court of Appeals, Tenth Circuit.

Before TACHA and SETH, Circuit Judges, and BRATTON, District

Plaintiff-appellant Alma Kay Atwood appeals a jury verdict in his favor in an

Atwood argues evidence of violation of a Federal Railroad Administration

Assumption of the Risk

Form of the Jury Instructions

2. Instruction Nos. 30, 33, 35, and 36: Contributory

Atwood contends the court committed reversible error by giving four

3. Instruction No. 36: Plaintiff's Negligence as Sole Cause

4. Instruction No. 40: Standard of Proof for Damages

5. Instruction No. 42: Reduction of Past Wage Loss for

6. Instruction No. 47: Duty to Mitigate Damages

Admitting Plaintiff's Transcribed Statement

Prior statements of a party-opponent are admissible under Rule 801(d)(2) of the

Here, Atwood's transcribed statements were admitted against him. Therefore,

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