UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-40784
____________________
RICHARD K. WEAVER,
Plaintiff-Appellee,
versus
MISSOURI PACIFIC RAILROAD COMPANY, Doing Business as
Union Pacific Railroad Company; ET AL.,
Defendants,
MISSOURI PACIFIC RAILROAD COMPANY, Doing Business as
Union Pacific Railroad Company; UNION PACIFIC RAILROAD COMPANY,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Texas
August 21, 1998
Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Primarily at issue is whether compliance with the Locomotive
Inspection Act, 49 U.S.C. § 20701 et. seq. (LIA)(formerly the
Boiler Inspection Act, 45 U.S.C. § 23 et seq.), and regulations
promulgated thereto, regulating locomotive cabin conditions,
precludes finding negligence under the Federal Employers’ Liability
Act (FELA), 45 U.S.C. § 51 et seq. Because the district court did
not err in allowing the jury to consider such negligence, we
AFFIRM.
I.
Richard Weaver was employed by Missouri Pacific Railroad as
the engineer of a train on the night of 12 June 1996; it was very
warm and humid. Because his locomotive did not have air
conditioning, Weaver opened the window in the cab.
As the train approached Pinehurst, Texas, Weaver noticed a
person standing in the tracks. After the person jumped to avoid
the train, Weaver, using one hand to blow the horn and the other on
the emergency brake valve in anticipation of stopping the train,
turned to see if the person had been hit. As Weaver was doing so,
Einar Ristroph threw a bottle through the open window, striking
Weaver in the head and rendering him unconscious.
Weaver and his wife filed this action against Missouri Pacific
d/b/a Union Pacific Railroad and Union Pacific Railroad
(collectively, the Railroad), claiming that, under the FELA, the
Railroad was negligent in failing to provide a safe place to work;
to warn of the danger that Ristroph posed; to provide air
conditioning for the locomotive; and to arrange the configuration
of locomotives on the train, so that the lead locomotive was
equipped with air conditioning. They also claimed violation of the
LIA, and the regulations promulgated under it, and presented state
law claims against Union Pacific and Ristroph.
In May 1997, in response to the Railroad’s summary judgment
motion, the district court ruled that Union Pacific was Weaver’s
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employer; FELA, his exclusive remedy against it. Consequently, all
of Weaver’s other claims were dismissed. And, because Mrs. Weaver
was not a proper FELA plaintiff, her claims against Union Pacific
were dismissed.
And, concerning Weaver’s FELA claims based upon lack of air
conditioning, protective screens, and ditch lights, the Railroad
had claimed preemption by the LIA. The district court denied
summary judgment on procedural grounds.
At trial, the Railroad moved for judgment as a matter of law,
pursuant to FED. R. CIV. P. 50, contending, again, that Weaver’s
FELA claims were preempted by the LIA; or, at a minimum, that the
allegations could not form the basis for an LIA claim.
Subsequently, Weaver’s motion to dismiss all of the claims arising
out of the LIA was granted. Only his FELA claim was considered by
the jury.
Prior to the jury returning a verdict, Weaver and the Railroad
entered into a settlement agreement, approved by the district
court. It provided that, inter alia, if the jury returned a
verdict exceeding $749,000, Weaver’s recovery was limited to
$750,000, subject to appeal by the Railroad on the issue stated
infra.
The jury found in favor of Weaver, awarding him $1,591,000,
and attributing 95% fault to the Railroad and 5% to Ristroph.
II.
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As limited by the settlement agreement, and stated in the
district court’s amended judgment, the sole issue is whether “the
District Court erred in allowing the jury to consider the question
of whether the [Railroad] was negligent in not equipping its
locomotive with air conditioning and/or screens because the jury’s
consideration of such conduct is preempted by the Locomotive
Inspection Act (Boiler Inspection Act)”. (Emphasis added.) We
review de novo the denial of judgment as a matter of law, viewing
all the evidence in the light most favorable to the non-movant.
E.g., Hileman v. City of Dallas, Tex., 115 F.3d 352, 353 (5th Cir.
1997).
For starters, the Railroad concedes that the preemption
doctrine is not at issue; we are addressing the interaction of two
federal statutes. Cf. Texas Manufactured Housing Ass’n v. City of
Nederland, 101 F.3d 1095, 1099 (5th Cir. 1996) (Congress may
expressly or implicitly preempt state law), cert. denied, 117 S.
Ct. 2497 (1997). We also note that, in its appellate brief, the
Railroad fails to address protective screens, and instead focuses
solely on air conditioning.
The FELA provides, in relevant part:
Every common carrier by railroad engaging in
[interstate commerce] shall be liable in
damages to any person suffering any injury
while he is employed by such carrier in such
commerce ... for such injury or death
resulting in whole or in part from the
negligence of any of the officers, agents, or
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employees of such carrier, or by reason of any
defect or insufficiency, due to its
negligence, in its cars, [and] engines....
45 U.S.C. § 51.
“[T]o prevail under [FELA], a plaintiff must prove that (1)
the defendant is a common carrier by railroad engaged in interstate
commerce; (2) he was employed by the defendant with duties
advancing such commerce; (3) his injuries were sustained while he
was so employed; and (4) his injuries resulted from the defendant’s
negligence.” Smith v. Medical and Surgical Clinic Ass’n, 118 F.3d
416, 419 (5th Cir. 1997) (citing Fowler v. Seaboard Coastline R.R.
Co., 638 F.2d 17, 19 (5th Cir. Unit B February 1981)), cert.
denied, 118 S. Ct. 1034 (1998). “What constitutes negligence for
[FELA’S] purposes is a federal question, not varying in accordance
with the differing conceptions of negligence applicable under state
and local laws for other purposes. Federal decisional law
formulating and applying the concept governs.” Urie v. Thompson,
337 U.S. 163, 174 (1949).
The Railroad contends that the LIA and its regulations
regarding locomotive cabin temperature and ventilation conditions
“totally occup[y] the field” of locomotive safety, pretermitting
liability under FELA for not installing the air conditioners and/or
protective screens.
The LIA provides, in relevant part:
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A railroad carrier may use or allow to be used
a locomotive or tender on its railroad line
only when the locomotive or tender and its
parts and appurtenances—
(1) are in proper condition and
safe to operate without unnecessary
danger of personal injury;
(2) have been inspected as required
under this chapter and regulations
prescribed by the Secretary of
Transportation under this chapter;
and
(3) can withstand every test
prescribed by the Secretary under
this chapter.
49 U.S.C. § 20701.
Pursuant to the LIA, the Federal Railroad Administration
promulgated regulations establishing standards for locomotives.
The regulations at issue provide, in part: “[c]ab windows of the
lead locomotive shall provide an undistorted view of the right-of-
way for the crew from their normal position in the cab”, 49 C.F.R.
§ 229.119(b); and “[t]he cab shall be provided with proper
ventilation and with a heating arrangement that maintains a
temperature of at least 50 degrees Fahrenheit 6 inches above the
center of each seat in the cab”, 49 C.F.R. § 229.119(d)(1998).
The regulations do not require air conditioning and/or protective
screens.
The Railroad contends that, having complied with the
regulations regarding temperature and windows, and in that those
regulations do not require air conditioning and/or protective
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screens, its conduct cannot be considered negligent. In other
words, because the Railroad complied with these regulations, then,
according to the Railroad, the district court erred by allowing the
jury to consider negligence under FELA.
Interpreting the LIA’s predecessor, the BIA, our court has
stated that it “‘is a safety statute which is to be liberally
construed to afford protection to railroad employees’”. Gregory v.
Missouri Pacific R.R. Co., 32 F.3d 160, 161 (5th Cir. 1994)
(quoting Oglesby v. Southern Pacific Transp. Co., 6 F.3d 603, 606
(9th Cir. 1993)). Moreover, commenting in Urie on the relationship
between the FELA and the BIA, the Supreme Court stated:
[T]he Safety Appliance Acts, together with the
Boiler Inspection Act, are substantively if
not in form amendments to the Federal
Employers’ Liability Act. They dispense, for
the purposes of employees’ suits, with the
necessity of proving that violations of the
safety statutes constitute negligence; and
making proof of such violations is effective
to show negligence as a matter of law. Thus
taken, as has been the consistent practice,
the Boiler Inspection Act ... cannot be
regarded as [a] statute[] wholly separate from
and independent of the Federal Employers’
Liability Act. They are rather supplemental
to it, having the purpose and effect of
facilitating employee recovery, not of
restricting such recovery or making it
impossible.
Urie, 337 U.S. at 1034.
Weaver asserted in his complaint that the Railroad should have
provided him with air conditioning and/or protective window screens
to protect him from known dangers. He presented evidence at trial
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that, during the period 1992-1996, there were 698 reported
shootings or stonings of Union Pacific Railroad locomotives, with
the greatest frequency from April through September. At the time
of Weaver’s injury, it was 90 degrees and very humid. And, at that
time, approximately 1000-1500 of the Railroad’s 4500 locomotives
were equipped with air conditioning.
The LIA regulations relied upon by the Railroad are not
premised on providing safety from such dangers; rather, their focus
is on ensuring proper ventilation, a minimum temperature, and an
undistorted view. See 49 C.F.R. § 229.119(b)(d)(1998). Restated,
compliance with these regulations, in the light of the evidence
presented at trial regarding the known dangers presented to
locomotive engineers traveling through the southern States in the
summer, does not address the safety of those engineers from known
dangers, such as stonings. In sum, in this regard, the LIA and
accompanying regulations do not totally occupy the field regarding
locomotive safety.
Accordingly, on the facts in this case, compliance with the
LIA and the accompanying regulations is not determinative of
negligence under FELA. See e.g., Mosco v. Baltimore & Ohio R.R.,
817 F.2d 1088, 1092 (4th Cir.), cert. denied, 484 U.S. 851 (1987)
(Although plaintiff had no viable BIA claim, “it is possible that
he might have stated a meritorious FELA claim based on the same
facts.”). Therefore, on these facts, the district court did not
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err in allowing the jury to consider, under FELA, whether the
Railroad was negligent in not equipping its locomotive with air
conditioning and/or protective screens.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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