Fashauer v. NJ Trans Rail

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit

6-29-1995

Fashauer v NJ Trans Rail
Precedential or Non-Precedential:

Docket 94-5523

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 94-5523

THOMAS FASHAUER, JR.

Appellant

v.

NEW JERSEY TRANSIT RAIL OPERATIONS, INC.

On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 92-cv-3459)

Argued May 23, 1995

BEFORE: GREENBERG, ROTH and ALDISERT, Circuit Judges

(Filed: June 29, 1995)

Marvin I. Barish (argued)
Marvin I. Barish Law Offices
Sixth & Walnut Streets
The Curtis Center, Suite 801
Philadelphia, PA 19106

Attorneys for Appellant

Cheryl A. Maccaroni (argued)
Deputy Attorney General
Joanne Stipick (argued)
Deputy Attorney General
Office of Attorney General of
New Jersey
Richard J. Hughes Justice
Complex
Trenton, NJ 08625

Attorneys for Appellee
 OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. Introduction, Factual Background and Procedural History

This appeal arises in a Federal Employers' Liability

Act (FELA) case in which the employer is New Jersey Transit Rail

Operations, Inc. To understand the germane facts one must in the

first instance know a bit about New Jersey Transit train design.

On New Jersey Transit trains, or at least on the one involved

here, cars are connected to each other by vestibules, which are

enclosed areas located just outside the passenger seating

compartments of each car. Thus, each car contains two

vestibules, one at each end. Each vestibule, in turn, contains

three doors -- one leading into the passenger compartment, the

other two leading out of the train onto the station platform.1

Railroad employees and passengers walk through the vestibules to

pass from one car to the next, and to exit from the car to the

platform and vice versa. While anyone may open the doors leading

into the passenger compartments, railroad employees open and

close the doors to the station platform by operating mechanisms

located within the vestibule.

On March 10, 1992, appellant Thomas Fashauer was

performing his usual duties as brakeman on a New Jersey Transit
1
. Of course, depending on which side of the platform the train
arrives, one of the two side doors opens.
train en route from Lindenwold, New Jersey, to Atlantic City, New

Jersey. These duties included entering the vestibule, opening

and closing the doors leading from the train to the station

platform, and signaling the engineer that the platform was clear

and that the train could depart. He began work in Atlantic City

at 1:00 p.m. and made several round trips.

It was raining heavily, and the rug on the vestibule

floor was soaked when the train arrived at the Atco station on

the last run of the day. Fashauer opened the doors, exited the

train, and, after checking the stairs for passengers running

late, returned to the train and signaled the engineer to leave.

Fashauer then shut the doors. The train jerked twice, once upon

leaving the station and once soon after. Fashauer was not

holding on to the handrails at the time, and he slipped on the

wet floor, striking his left shoulder against the wall. He

testified that he was in agony at the time, and he immediately

reported the incident to the conductor. At the conductor's

behest, Fashauer rested for the remainder of the trip. He

suffered serious injuries to his shoulder as a result of the

accident.

On August 21, 1992, Fashauer filed a complaint against

New Jersey Transit in the United States District Court for the

District of New Jersey, alleging that his injury was proximately

caused by New Jersey Transit's negligence. Specifically, the

complaint charged New Jersey Transit with negligently maintaining
certain seals between the cars, and further alleged that the

defective seals allowed rain to seep into the vestibule, creating

a dangerous slippery condition on a rainy day. He sought relief

pursuant to the FELA, which governs actions by railroad employees

against railroads for damages arising out of job-related

injuries.

The case was tried between March 7, 1994, and March 16,

1994. New Jersey Transit defended against Fashauer's claims by

presenting evidence that the seals were not defective, the

slippery condition was purely the result of the rainy weather,

and Fashauer failed to act with due care while walking through

the vestibule. On March 16, the jury returned a verdict finding

that New Jersey Transit was negligent and that its negligence

contributed to the injuries. It awarded Fashauer damages of

$71,320 in past lost earnings and $100,000 for pain and

suffering. However, the jury awarded nothing for future lost

earnings. Finally, the jury determined that Fashauer was 50%

responsible for his injuries. Under FELA's pure comparative

negligence provisions, this finding meant that the district court

reduced Fashauer's damages by 50%. Unhappy with the 50%

reduction and the jury's refusal to award damages for lost future

earnings, Fashauer moved for a new trial. When that motion was

denied on July 18, 1994 (in an Opinion and Order filed the next

day), he timely filed this appeal.
 The district court had jurisdiction pursuant to 28

U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. §

1291. We will affirm.

II. Discussion

Most of the questions on this appeal involve the

district court's denial of Fashauer's jury charge requests.

Generally, "[t]he standard of review for the district court's

ruling on points for charge is . . . abuse of discretion." Link

v. Mercedes-Benz of North America, Inc., 788 F.2d 918, 922 (3d

Cir. 1986). Where, as here, a party contends that the charge as

given states an incorrect legal standard, "we will review the

charge as a whole in the light of the evidence to determine if it

fairly and adequately submitted the issues to the jury and we

will reverse if the instructions were capable of confusing and

thereby misleading the jury." Griffiths v. CIGNA Corp., 988 F.2d

457, 462 (3d Cir.) (citing Limbach Co. v. Sheet Metal Workers

Int'l Ass'n, 949 F.2d 1241, 1259 n.15 (3d Cir. 1991) (in banc)),

cert. denied, ____ U.S. ____, 114 S.Ct. 186 (1993). We address

Fashauer's arguments in turn.

A. Assumption of Risk v. Contributory Negligence

The most significant question raised on this appeal is

whether the district court erred by denying Fashauer's request to

charge the jury that assumption of the risk is not a defense in a
FELA action. Fashauer timely requested such a charge,2 and

objected to the district court's charge, which declined to give

2
. At oral argument before us, a question was raised about
whether Fashauer adequately raised the issue before the district
court. Fashauer proposed the following points for charge:

The railroad cannot avoid liability for
personal injury on the grounds that the
injured party assumed the risk of his
employment. Assumption of risk is not a
defense in a suit by a railroad worker
against a railroad, and the railroad worker
does not assume the risk of being injured
through the negligence of his employer or the
negligence of a fellow employee.

You may not find contributory negligence on
the part of the plaintiff simply because he
acceded to the request or direction of a
supervisor that he work at a dangerous job,
in a dangerous place, or under unsafe
conditions.

The defendant has the burden of proving by a
preponderance of the evidence, contributory
negligence. The plaintiff does not assume
the risk of an unsafe place to work and
cannot be blamed for working in an unsafe
place.

It is the duty of a railroad worker to do the
work assigned. It is not his duty to find
the safest method of doing it, or to devise a
safe[r] method. Therefore, in considering
the defendant's claim that the plaintiff was
guilty of contributory negligence, the jury
will bear in mind that the plaintiff is not
chargeable with any negl[igent] conduct of
his employer. The plaintiff is only
chargeable with his own conduct. So in
connection with the defendant's claim of
contributory negligence, you will consider
only what the plaintiff himself did, or
failed to do, at the time and place in
question as shown by a preponderance of the
it. Fashauer essentially contends that the district court's

instructions inadvertently permitted the jury to reduce his

recovery based on the fact that he continued to perform his job

despite his knowledge that he was encountering a dangerous

condition. He further contends that under the FELA the jury

should not have been allowed to reduce his recovery because he

assumed the risk of injury.

1. Introduction

Congress passed the Federal Employers' Liability Act of

1906 in part to eliminate barriers common law courts erected to

protect railroad companies and other common carriers from

liability for their employees' workplace injuries. See Tiller v.

Atlantic Coast Line R. Co., 318 U.S. 54, 58-59, 63 S.Ct. 444, 447

(1943). The FELA "substituted comparative negligence for the

strict rule of contributory negligence," id. at 62, 63 S.Ct. at
(..continued)
evidence in the case. Thus, plaintiff cannot
be found contributorily negligent based
solely on his knowledge or acceptance of a
dangerous situation or based on the fact that
he was working at a dangerous job. Rather,
you may find the plaintiff contributor[ily]
negligent only if the defendant has proved by
a preponderance of the evidence that
plaintiff did not exercise slight care for
his own protection.

Quoted in Fashauer's brief at 11-12 n.1. Although Fashauer's
proposed instructions do not actually define assumption of the
risk, we believe they adequately conveyed his view that the jury
should not have been permitted to reduce his recovery based on
actions that constitute assumption of the risk.
448-49, but, as interpreted by the Supreme Court, originally

allowed an employer to interpose assumption of the risk as a

complete defense to the employer's liability. See Seaboard Air

Line Ry. v. Horton, 233 U.S. 492, 503, 34 S.Ct. 635, 639 (1915).

The only statutory exception to this occurred "in . . . case[s]

where the violation by [a] common carrier of [a] statute enacted

for the safety of employees contributed to the injury of such

employee." Id. at 502-03, 34 S.Ct. at 639. Following widespread

criticism of its retention of the assumption of risk defense,

Congress amended the FELA in 1939 to eliminate the defense in

cases where the injury "resulted in whole or in part from the

negligence of any of the officers, agents, or employees" of the

employer. 45 U.S.C. § 54. Interpreting the amendments soon

thereafter, the Supreme Court held that "every vestige of the

doctrine of assumption of risk was obliterated from the law by

the 1939 amendment," see Tiller, 318 U.S. at 57, 63 S.Ct. at 446,

and that "cases tried under the Federal Act [are] to be handled

as though no doctrine of assumption of risk had ever existed."

Id. at 64, 63 S.Ct. at 450. The Court warned that "'[u]nless

great care be taken, the servant's rights will be sacrificed by

simply charging him with assumption of the risk under another

name.'" Id. at 58, 63 S.Ct. at 447 (citation omitted).
2. Assuring Assumption of Risk Stays Out

In light of the 1939 amendment and Tiller's

interpretation of it, because contributory negligence on the
plaintiff's part reduces his or her damages, while assumption of

risk does not, courts have the delicate job of separating out

evidence on one theory from evidence on the other. See Victor E.

Schwartz, Comparative Negligence, § 9-4(a)(1) at 202 (3d ed.

1994) ("[F]acts constituting implied assumption of risk have no

materiality except as they might also constitute contributory

negligence."). Some courts have guarded against jury confusion

by doing what Fashauer suggests the court should have done here:

describing assumption of risk to the jury and instructing it not

to reduce the plaintiff's recovery on that basis. See Koshorek

v. Pennsylvania R.R. Co., 318 F.2d 364, 370 (3d Cir. 1963)

(reversible error for district court not to instruct on

assumption of risk); Jenkins v. Union Pacific R.R. Co., 22 F.3d

206, 212 (9th Cir. 1994) (same). But other courts have expressed

wariness about instructing the jury on a legal doctrine not in

the case. As one court has put it, "the statutory elimination of

the defense of assumption of risk, when read to the jury in FELA

cases where that 'defense' has been neither pleaded nor argued,

serves only to obscure the issues in the case." Casko v. Elgin,
Joliet and Eastern Ry. Co., 361 F.2d 748, 751 (7th Cir. 1966).

The Court of Appeals for the Second Circuit, relying on the

proposition that "'it is a mistake to give instructions on

subjects not directly in issue in a case,'" DeChico v. Metro-

North Commuter R.R., 758 F.2d 856, 861 (2d Cir. 1985) (citation

omitted), has cautioned that "[a]n assumption of risk instruction
may be particularly inappropriate in cases where it 'might well

cause such confusion as to water down or even eliminate the issue

of contributory negligence.'" Id. at 861 (quoting Clark v.

Pennsylvania R.R. Co., 328 F.2d 591, 595 (2d Cir.), cert. denied,

377 U.S. 1006, 84 S.Ct. 1943 (1964)); see also Clark v.

Burlington N., Inc., 726 F.2d 448, 452 (8th Cir. 1984) ("Cases

discussing the issue have generally condemned the giving of an

assumption of risk instruction in FELA actions."); Heater v.

Chesapeake and Ohio Ry. Co., 497 F.2d 1243, 1249 (7th Cir.) (an

assumption of the risk "instruction is a confusing negative

statement which refers to issues not involved in a FELA case"),

cert. denied, 419 U.S. 1013, 95 S.Ct. 333 (1974).

These latter cases enunciate a salutary principle:

Whenever possible, courts should spare juries intricate

descriptions of opaque legal doctrines inapplicable to the case.

And indeed, our caselaw, while limited, supports that principle.

For example, in Seaboldt v Pennsylvania R.R. Co., 290 F.2d 296

(3d Cir. 1961), the district court at the last minute acceded to

the plaintiff's request and charged the jury that assumption of

risk is not a defense. Id. at 300. We pointed out that "for

this difficult concept to be thrown into the jury's mind at the

last minute without explanation was almost sure to have left it

in confusion." Id. See also De Pascale v. Pennsylvania R.R.

Co., 180 F.2d 825, 827 (3d Cir. 1950) (district court properly

refused to instruct on assumption of risk where "[a]ssumption of
risk was definitely not important in th[e] case [when t]here was

no suggestion regarding it during the course of the trial.").

But in the end, this salutary principle can only be a

starting point. Because assumption of risk and contributory

negligence are similar doctrines, and because only the latter is

a defense under the FELA, we recognize that sometimes the absence

of an explanation of the differences between the doctrines will

confuse the jury as to the governing law. And, following that

logic, we have held that when the facts of the case present a

danger of jury confusion on the issue, an assumption of risk

charge should be given. Thus, in Koshorek v. Pennsylvania R.R.

Co., the only evidence concerning the plaintiff's negligence

consisted of his continuing to work in a dusty shop when he

"either knew or should have known that inhalation of excessive

dust over an extended period of time might cause him harm." 318

F.2d at 369. The district court refused to give an assumption of

risk charge and the jury returned a verdict for the railroad. We

reversed because "[h]ad an adequate distinction between conduct

constituting contributory negligence and that which would have

constituted assumption of risk been pointed to the jurors in the

charge, the jury might well have reached a different verdict."

Id. at 369-70.
Thus, the most we can say as a matter of law is that

when the evidence adduced at trial presents a danger that the

jury might reduce a plaintiff's recovery based on the
impermissible theory of assumption of risk, then the trial judge

should instruct the jury on how that doctrine differs from

contributory negligence. But when the evidence presents no such

danger, then an adequate charge on contributory and comparative

negligence suffices. Of course, the most difficult part of the

inquiry is determining when the facts merit an assumption of the

risk instruction. To answer this question, we must inquire into

what Congress meant by the phrase "assumption of risk." Only

then will we be able to categorize the evidence and determine

whether such a charge should have been given.

3. Assumption of the Risk Generally
At common law an employee's voluntary,
knowledgeable acceptance of a dangerous
condition that is necessary for him to
perform his duties constitutes an assumption
of risk. Contributory negligence, in
contrast, is a careless act or omission on
the plaintiff's part tending to add new
dangers to conditions that the employer
negligently created or permitted to exist.

Taylor v. Burlington N. R.R. Co., 787 F.2d 1309, 1316 (9th Cir.

1986) (citations omitted). Despite this seemingly simple

definition, courts have a difficult time distinguishing between

assumption of the risk and contributory negligence. This

difficulty is certainly due in large part to the fact that the

"assumption of risk" concept of voluntarily and knowingly

accepting a dangerous condition often is used as an umbrella term

to describe a number of discrete and dissimilar concepts. See
Schwartz, Comparative Negligence, § 9-1(a) at 187; W. Page

Keeton, et. al., Prosser and Keeton on Torts, § 68 at 480 (5th

ed. 1984). For example, in some cases assumption of risk

describes a party's express contractual agreement to assume a

risk; under this scenario, "the defendant is relieved of a legal

duty to the plaintiff." Prosser and Keeton on Torts, § 68 at

481. Other times the phrase is used as a legal fiction under

which, based on the circumstances, a party is deemed implicitly

to have consented to bear particular kinds of risk. For example,

a railroad worker might be said to have assumed the risks

inherent in working in a dangerous occupation. The umbrella

category of assumptions of risk also divides into the

subcategories of reasonable assumptions of risk and unreasonable

assumptions of risk. See Schwartz, § 9-4(c)(2) at 214; Smith v.

Seven Springs Farm, Inc., 716 F.2d 1002, 1005 (3d Cir. 1983).

Thus, when an expert skier traverses an extremely difficult

slope, he may be said reasonably to have assumed the risk

inherent in skiing a difficult slope. Id. at 1009. But when a

novice consciously chooses the difficult slope, his actions

probably would be characterized as unreasonable. Thus, a

person's implicit consent to undertake a risk can be either

reasonable or unreasonable. As a corollary, an individual who

accepts a dangerous employment at a high wage might be said to be

acting reasonably. But a person who accepts the identical
employment for a lower wage and with minimal safety precautions

might be said to be acting unreasonably.

The subcategory of unreasonable assumption of risk

sounds suspiciously like a negligence concept. In fact, in such

cases -- where the plaintiff unreasonably assumed a known risk --

the difference between assumption of risk and contributory

negligence appears purely semantic. Rather than saying the skier

assumed a risk, we easily could say that he failed to act with

due care. See Prosser and Keeton on Torts, § 68 at 481 (equating

unreasonable assumption of risk with contributory negligence).

The point is crucial, because it means there are times when a

description of the defense of assumption of the risk "overlaps

with [a description of] the defense of contributory negligence."

Smith, 716 F.2d at 1006. In such cases, evidence supporting one

theory also constitutes evidence of the other. Thus, depending

on how courts characterize such evidence, a jury either may be

permitted to reduce the plaintiff's recovery or be barred

completely from considering such evidence. Thus, our next

inquiry must be into just what theory of assumption of risk

Congress sought to prohibit when it barred the defense under the

FELA. To answer the question, we turn first to the history

behind Congress' initial allowing and subsequent elimination of

the assumption of risk defense under FELA, and then we consider

the pertinent interpretative caselaw.
 4. Assumption of the Risk Under FELA

During the beginnings of industrial growth in the 19th

century, and prior to the enactment of FELA and other legislation

protecting employees, the common law governing employment

injuries "was heavily stacked against employees." Daniel Saphire,

Two Views on FELA and Railroad Safety, 19 Transp. L. J. 401, 402
(1991). Specifically, the common law courts had devised rules

"to insulate the employer as much as possible from bearing the

'human overhead' which is an inevitable part of the cost -- to

someone -- of the doing of industrialized business." Tiller, 318

U.S. at 59, 63 S.Ct. at 447. Thus, for example, "a plaintiff's

contributory negligence barred any subsequent recovery for

damages, even if the plaintiff was only slightly at fault." Monk

v. Virgin Islands Water & Power Authority, 1995 WL 231637 at * 2

(3d Cir. April 20, 1995). The point, in part, was "to give

maximum freedom to expanding industry," Tiller, 318 U.S. at 59,

63 S.Ct. at 447, in the belief that "optimal economic growth

could occur only when the government did not interfere unduly

with the free workings of the marketplace." Jane P. North,

Comment: Employees' Assumption of Risk: Real or Illusory Choice,
52 Tenn. L. Rev. 35, 39 (1984). The doctrine of assumption of

the risk was one of those barriers erected against this

background. The doctrine, which "prevented recovery when a

plaintiff was deemed to have assumed the risk of a known danger,"

Monk, 1995 WL 231637 at * 2 (citing W. Page Keeton et al.,
Prosser & Keeton on the Law of Torts, § 68, at 495-96 (5th ed.

1984)), really was "a judicially created . . . 'rule of public

policy, [developed because] an opposite doctrine would not only

subject employers to considerable and often ruinous

responsibilities, thereby embarrassing all branches of business,'

but would also encourage carelessness on the part of the

employee." Tiller, 318 U.S. at 58-59, 63 S.Ct. at 447 (citations

and footnotes omitted).

The Supreme Court summed up the meaning of the concept

in the pre-FELA case of Tuttle v. Detroit, G.H. & M. Ry. Co., 122

U.S. 189, 7 S.Ct. 1166 (1887), when it declined to allow a jury

to inquire into the reasonableness of a railroad's choice of

machinery. It explained its decision as follows:
The brakemen and others employed to work in
such situations must decide for themselves
whether they will encounter the hazards
incidental thereto; and, if they decide to do
so, they must be content to assume the risks.
. . . . 'A railroad yard, where trains are
made up, necessarily has a great number of
tracks and switches close to one another, and
any one who enters the service of a railroad
company connected with the moving of trains
assumes the risk of that condition of
things.' It is for those who enter into such
employments to exercise all that care and
caution which the perils of the business in
each case demand.

Id. at 194-95, 7 S.Ct. at 1168 (emphasis added) (citation

omitted). Thus, assumption of risk in the employment context

described the notion of implied consent -- when an employee takes

a job, he or she consents to assume the risk of any danger he or
she knows or should know necessarily is entailed in the job. In

a sense the doctrine estopped the employee from blaming the

employer for an injury resulting from a risk contemplated by the

parties when they fashioned their employment contract. The Court

in fact explicitly relied on this quasi-contract basis for the

doctrine: "'[T]he servant, when he engages in the employment,

does so in view of all the incidental hazards, and . . . he and

his employer, when making their negotiations, -- fixing the terms

and agreeing upon the compensation that shall be paid to him, --

must have contemplated these as having an important bearing upon

their stipulations. As the servant then knows that he will be

exposed to the incidental risk, he must be supposed to have

contracted that, as between himself and the master, he would run

this risk.'" Id. at 195-96, 7 S.Ct. at 1168-69 (citation

omitted). Therefore in an action claiming damages because of

one's employer's negligence, "although an employer may have

violated the duty of care which he owed his employee, he could

nevertheless escape liability for damages resulting from his

negligence if the employee, by accepting or continuing in the

employment with 'notice' of such negligence, 'assumed the risk.'"

Tiller, 318 U.S. at 69, 63 S.Ct. at 452 (Frankfurter, J.,
concurring).

In a case decided after the original FELA was enacted -

- when assumption of the risk remained a complete defense to the

railroad's negligence -- the Supreme Court distinguished
assumption of the risk from contributory negligence and again

described assumption of risk in implied consent terms.

"Contributory negligence involves the notion of some fault or

breach of duty on the part of the employee." Seaboard Air Line

Ry. v. Horton, 233 U.S. at 503, 34 S.Ct. at 639-40. Assumption

of the risk, on the other hand, "may be free from any suggestion

of fault or negligence on the part of the employee." Rather,

"employments [that] are necessarily fraught with danger to the

workman . . . are normally and necessarily incident to the

occupation [and] are presumably taken into account in fixing the

rate of wages." Id. at 504, 34 S.Ct. at 640. Assumption of the

risk again referred to risks to which the plaintiff implicitly

consented in taking the employment; other than that, the

plaintiff was charged with acting as a prudent person under the

circumstances.

Tiller, the seminal case that first interpreted the

1939 FELA amendment, canvassed the history of the assumption of

the risk defense, and explained it in implied consent terms. The

Court noted that assumption of the risk originally was included

in the FELA "because of acceptance of the theory that the

employee's compensation was based upon the added risk to his

position and that he could quit when he pleased." Tiller, 318
U.S. at 61, 63 S.Ct. at 448. But, the Court noted, in adopting

the amendments, "[t]he report of the Senate Judiciary Committee

struck at the basic reasons advanced by common law courts for the
existence of the doctrine, declared it unsuited to present day

activities, and described them as out of harmony with the

equitable principles which should govern determinations of

employer-employee responsibilities." Id. at 64-65, 63 S.Ct. at

450 (citing Senate report).

Thus, Supreme Court cases from the pre-FELA, pre-

amendment and post-amendment eras all contemplated that

assumption of risk under the FELA referred to the employee's

implied consent to assume the risks entailed in employment. So

Congress in adopting the 1939 amendments sought to prevent juries

from reducing a plaintiff's recovery because the plaintiff

performed a dangerous task or a dangerous job rather than quit or

find employment elsewhere.

5. Refining the distinctions

Various courts have refined the distinction between

assumption of risk and contributory negligence under the FELA in

the last few decades. In the oft-cited Taylor v. Burlington N.

R.R. Co., 787 F.2d 1309, a case in which the plaintiff claimed

injuries resulting from harassment by his supervisor, the

railroad argued that the plaintiff's failure to "bid off" to

another work area where he would work under a different

supervisor, constituted contributory negligence. The court

disagreed, holding that "[t]he employee who enters the workplace

for a routine assignment in compliance with the orders and
directions of his employer or its supervising agents, who by such

entry incurs risks not extraordinary in scope, is not

contributorily negligent, but rather is engaging in an assumption

of risk." Id. at 1316. Assumption of risk as the court

described it thus was comprised of the plaintiff's implicit

consent to the risks of employment; the employer could not reduce

its liability by arguing that the plaintiff should not have

performed the job.

In Rivera v. Farrell Lines, Inc., 474 F.2d 255 (2d

Cir.), cert. denied, 414 U.S. 822, 94 S.Ct. 122 (1973),3 the

Court of Appeals for the Second Circuit also applied the implied

consent theory of assumption of risk. In that case, the

plaintiff slipped and fell on a wet pantry floor while performing

his job of getting ice cream for a crew member. The district

court charged the jury that "appellant might have been

contributorily negligent by not having 'the common sense to go

and say to somebody in charge, "Look, this has got to be cleaned

up; I won't work here until it is done."'" Id. at 258 (quoting

charge). The court of appeals, noting that "unrebutted evidence

. . . established that . . . numerous complaints about the

situation in the pantry had been made to no avail," reasoned that

3
. Rivera arose under the Jones Act, but the standards governing
the parties' conduct generally are the same under both the FELA
and the Jones Act. Kernan v. American Dredging Co., 355 U.S.
426, 439, 78 S.Ct. 394, 401 (1958) (Seaman "was in a position
perfectly analogous to that of the railroad workers . . . and the
principles governing [FELA] cases clearly should apply [under the
Jones Act].").
"[i]t cannot be known whether further complaint by appellant

would have resulted in correction of the drain defect in time to

avoid the accident." Id. Thus, "if . . . contributory

negligence is submitted to the jury on retrial . . . it should be

done so only with a caveat that the appellant was not duty bound

to perform a futile act." Id. In other words, if the employee

could not reasonably expect the employer to correct the defect,

then the employee had no real alternative but to perform the

task, defect or not. But if reasonable safe alternatives were

available -- such as if notification could have resulted in

immediate correction of the problem, then it was not necessary

for the employee to accept the dangerous condition. The employee

could not be said to have implicitly consented to working in an

unsafe work area, and his actions in failing to follow a safer

alternative would constitute contributory negligence. Thus, when

alternatives besides quitting are available to plaintiff, his

actions are reviewed for reasonableness, and unreasonable

assumptions of risk constitute evidence of contributory

negligence. See also Joyce v. Atlantic Richfield Co., 651 F.2d

676, 683 (10th Cir. 1981) (adopting implied consent theory of

assumption of the risk) (person is not guilty of contributory

negligence "'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.'") (quoting Devitt and Blackmar, Fed. Jury

Prac. and Instructions, §94.16 (3d ed.)).

The Court of Appeals for the Ninth Circuit recently

applied these principles to the day to day relationships between

supervisor and employee in Jenkins v. Union Pacific R.R. Co., 22

F.3d 206 (9th Cir. 1994). In that case, a railroad engineer was

attempting to "shove a length of nine flatcars to a point where

they would be coupled with other cars." Id. at 208. Because the

engineer's locomotive was pushing (rather than pulling) the cars,

the engineer was unable to observe the point of contact, and the

plaintiff was asked to act as his eyes and ears. The plaintiff

did this by boarding the front car. Because the engineer

believed that the plaintiff was having difficulty boarding the

car, he stepped on the brakes. But the other cars continued to

move forward, and the plaintiff was "caught on the axle, pulled

under the train, and thrown out onto the rail," suffering severe

injuries. Id. at 209.

In making its analysis, the court distinguished between

general orders and specific orders. "'Where a general order is

given, an employee must use ordinary care in its execution, and

the giving of the order does not affect the question whether the

servant has been negligent in his manner of carrying it out,

where there is a choice open to him.'" Id. at 211 (citation

omitted) (emphasis added). In such cases, the plaintiff's

actions are reviewable for contributory negligence. However,
when the employee is given a specific order -- that is, where he

or she is told to perform a specific task in a particular way --

"he is not contributorily negligent; rather his conduct falls

under the abolished doctrine of assumption of risk." Id. In

other words, when a plaintiff has no real choice, his recovery

should not be reduced because he performed the task, regardless

of whether the plaintiff acted reasonably or unreasonably. But

when the plaintiff has reasonable alternatives available to him,

he must act reasonably in performing his job. And if he acts

unreasonably, he is answerable for contributory negligence.

To illustrate, in that case, the employer produced

evidence that the plaintiff violated company safety rules in

performing the job in the manner in which he did. Because this

evidence supported the employer's argument that the plaintiff had

a safer method of performing his job, the court "agree[d] with

Union Pacific that the jury could rationally find that Jenkins

contributed to his own injury by violating the operating rule."

Id. at 212.

Not all courts agree with the proposition that

assumption of risk under the FELA describes the theory that the

plaintiff implicitly has consented to the risks of his

employment, and that when there are alternatives available the

plaintiff must act reasonably. The Court of Appeals for the

Eighth Circuit, for example, took a more expansive view in

Birchem v. Burlington N. R.R. Co., 812 F.2d 1047 (8th Cir. 1987).
There, the plaintiff used a defective "mudjack" despite knowing

of company safety rules "forbidding the use of unsafe or

defective equipment." Id. at 1048-49. In the court's view, the

district court properly rejected the railroad's proffered

instruction that the plaintiff's conduct evidenced negligence on

his part. Rather, according to the court, "[t]he district court

properly admonished the jury during the trial that the Railroad's

theory was an impermissible effort to transfer to Birchem its

nondelegable duty to provide safe equipment and a safe working

environment." Id. at 1049. In so holding, the court necessarily

rejected the proposition that unreasonable assumptions of the

risk entailed in choosing one particular method of performing a

task may constitute contributory negligence. It thus rejected

implied consent as the theory of assumption of risk under FELA.4

We are not persuaded by the Birchem court's analysis.

In our view, the history behind the FELA and the Supreme Court's

pronouncements in pre- and post-FELA cases makes clear that

assumption of risk in the employment context refers to implied

consent. Taylor, Jenkins, and Rivera are in accord with that

principle and we find their analyses persuasive. Thus, we hold

the following: A plaintiff's recovery under the FELA never can

4
. Despite that language in the court's opinion, though, it
approved, without elaborating, the district court's instruction
that "evidence concerning the manner and way in which [plaintiff]
used the equipment was proper for its consideration." Birchem,
812 F.2d at 1049. It is difficult to see how a jury would
reconcile these instructions.
be reduced on the basis that he or she implicitly consented to

the risk by accepting employment with the railroad or by

performing a task in the manner which the employer directed.

This is true regardless of whether the plaintiff acted reasonably

or unreasonably. Thus, even when a jury examining a plaintiff's

position objectively would conclude that he acted unreasonably in

accepting employment, or performing a task at all, such

unreasonable actions for FELA purposes are characterized as

assumption of risk rather than contributory negligence.

But all other actions of plaintiff are "to be handled

as though no doctrine of assumption of risk had ever existed,"

Tiller, 318 U.S. at 64, 63 S.Ct. at 450, and if they are evidence

of negligence they should be admitted to show contributory

negligence. Thus, when reasonable alternatives besides quitting

or refusing to perform the task in an unsafe way are available, a

plaintiff is charged with acting with due care and will be held

responsible for acting unreasonably. In such circumstances

"[w]hen the plaintiff unreasonably assumes a known risk, his

fault in that regard is negligence and his damage award may be

subject to apportionment." See Schwartz at § 9-4(c)(2) at 214;
see also id. at § 9-4(a)(1) at 202 ("The language of the F.E.L.A.

makes it clear that . . . only facts that would constitute

unreasonable implied assumption of risk (as contrasted with

reasonable) can serve to reduce the plaintiff's award.").

Examples of evidence of contributory negligence include failing
to follow specific safety instructions reasonably calculated to

protect the employee from the injury that occurred; failing to

report a defect when the evidence establishes that such reporting

would be productive; and failing to act prudently in performing

the task.

Based on these principles, if no evidence of

impermissible assumption of risk has reached the jury, a correct

instruction on contributory negligence will do. However, if,

either because of evidence introduced at trial or because of

statements made by counsel in opening or closing arguments, there

is a risk that the implied consent theory of assumption of the

risk seeped its way into the case, the jury should be instructed

that it "may not find contributory negligence on the part of the

plaintiff . . . 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." Joyce, 651 F.2d at 683 (citation omitted).

We now turn to the facts of this case to determine

whether there was a danger that the jury confused assumption of

the risk with contributory negligence, and therefore that an

assumption of risk charge should have been given.

6. Application Of the Law

Fashauer claims that defense counsel made a number of

impermissible references in her opening and closing statements,
the net result of which enabled the jury to reduce his recovery

based on an impermissible version of assumption of the risk. He

first argues that defense counsel's statement in her opening that

"plaintiff is not a newcomer to the railroad," see app. 168,

demonstrates an illicit attempt to bring assumption of risk into

the case. He buttresses the point by quoting counsel's argument

that "[plaintiff] walked in that vestibule back and forth during

the course of that day through the very spot that he later

alleges he slipped in." app. 169.

When counsel's statements are read amidst the

surrounding context, however, it becomes clear that she was not

interjecting assumption of risk into the case but instead

attempting to show that: (1) the vestibule's condition was the

result not of New Jersey Transit's negligence but of normal

conditions during the rain; and (2) Fashauer did not act with due

care in walking through the wet vestibule. For instance, she

argued that "if you add up the total number of stops at the time

this alleged incident happened, [the accident happened on] the

19th stop. As you know on the stops passengers get on and off

the train and it has been continuing to rain the entire day."

App. 169. Moreover, the references to Fashauer going in and out

of the vestibule were intended to point out that despite his

complaint about the soaked vestibule, "plaintiff never reported

any leaking from the tube diaphragm into the vestibule area at

any time before this accident happened." Id. That observation
was a legitimate attempt to rebut Fashauer's argument that the

vestibule was unusually wet that day. Further, defense counsel's

emphasis on the fact that Fashauer "wasn't holding on to any

handholds whatsoever," in violation of company safety rules, see

id. at 170, was a permissible argument advancing the defense of

contributory negligence. If the jury believed the evidence, it

could have found that Fashauer had a safer alternative to the

manner in which he performed his task.

Next, Fashauer points to defense counsel's argument in

her closing that:
[i]t's common sense that plaintiff should
have been expected to know that this floor
was wet. Again I'm going to stress this,
probably until you're sick of hearing that we
know it was raining all day long. He had
been out there for seven hours, at least.
Windy, hurricane, rainy day, stormy. I mean
passengers coming. You know there was two
hundred passengers, the floor has to be wet.
Plaintiff had to have known the floor was wet
and that the rug was wet. He had to know the
exact condition of the floor.

app. 892. But defense counsel did not use these observations to
build an argument that Fashauer should not have performed his

job. Rather, she argued that he acted unreasonably in performing

the task in the manner in which he did, and that the condition

Fashauer encountered was not abnormal and therefore not

proximately caused by New Jersey Transit's negligence. After

making the above-quoted statements, defense counsel segued into a

discussion of the relevant safety rules, and argued that when

Fashauer failed to follow them he contributed to the injury. See
app. 892-93. To say that such an argument should not have been

made would be "to water down or even eliminate the issue of

contributory negligence." DeChico v. Metro-North Commuter R.R.,

758 F.2d at 861. Indeed, if we precluded the argument we

virtually would be preventing the jury from considering whether

there were in fact reasonable safe alternatives for Fashauer to

follow. Id.; see also Jenkins, 22 F.3d at 212 (violating

operating rule constitutes evidence of contributory negligence).

More problematic is the district court's description of

the evidence in the case during its charge. The court instructed

the jury that "defendant . . . alleges that plaintiff contributed

to the happening of the accident by his own negligence in moving

about the vestibule and by failing to follow safety regulations."

App. 956. The first part of the court's statement could be read

to imply that Fashauer was contributorily negligent simply

because he moved about the vestibule in the rain. If the

statement had gone unqualified, we might be inclined to agree

with Fashauer that the charge permitted the jury to reduce his

recovery based simply on the fact that he performed his job. But

the court did not issue its statement in a vacuum as it made the

statement only after thoroughly describing the concepts of

negligence and ordinary prudence. Thus, the court was referring

to the manner in which Fashauer walked through the vestibule,

rather than to the simple fact that he walked through the

vestibule. Moreover, we have found nothing in the record
constituting an impermissible argument on assumption of risk as

we have defined it. As in Seaboldt and De Pascale, "[t]here was

no suggestion regarding [assumption of risk] during the course of

the trial." De Pascale, 180 F.2d at 827. It therefore is

inconceivable to us that the jury would sua sponte have taken it

upon itself to manufacture an additional defense.

To summarize, we do not believe that the charge as a

whole was confusing to the jury on this point. We therefore

reject Fashauer's argument that the district court erred by

failing to instruct the jury that assumption of risk is not a

defense under the FELA.

B. Charge on Contributory Negligence

Fashauer next contends that the district court gave a

defective charge on the standard for contributory negligence. As

indicated above, the question on review is whether the charge,

taken as a whole, correctly stated the applicable law. Here, the

question really is one of law -- defining the concept of

contributory negligence. The district court instructed the jury

as follows:
To determine whether the plaintiff was
contributorily negligent, you apply the same
definition of negligence discussed earlier.
That is did the plaintiff take or fail to
take actions which a reasonably prudent
person would have taken in the circumstances.
You also apply the same rule of causation.
That is did plaintiff's negligence, if any,
play any part in bringing about his injuries.
Although I have instructed you that plaintiff
has the burden of proving its case by a
 preponderance of the evidence, it is the
defendant which has the burden of proving
also by a preponderance of the evidence that
plaintiff was contributorily negligent.

App. 960-61 (emphasis added). The court previously defined

negligence as follows:
Negligence is simply the failure to use the
same degree of care which a person of
ordinary prudence would use in the
circumstances of a given situation. It could
be the doing of something which a reasonably
prudent person would not have done, or
failing to do something which a reasonably
prudent person would have done under the
circumstances. The definition of negligence
requires the defendant to guard against those
risks or dangers of which it knew or by the
exercise of due care should have known.

App. 957.

Fashauer contends that the court erred in "impos[ing] a

standard of causation in dealing with the issue of plaintiff's

contributory negligence that is significantly more harsh than the

standard that would be applied under the common law." Br. at 23.

Fashauer also appears to take issue with the court's duty of care

instruction; he contends that under the FELA he has only a slight

duty to protect himself, and thus the court erred in holding him

to the same standard of care as the railroad. The district

court, in its opinion ruling on Fashauer's motion for a new

trial, followed the language of the statute, a Pennsylvania

district court case, and a case from the Sixth Circuit to hold

that the same causation and care standards apply to both employer

and employee. It noted, though, that "I personally find it very
problematic that in a remedial statute designed to protect the

working man and working woman, that you should apply, in effect,

an enhanced contributorily negligent [sic] statute, because

that's the effect. You're putting a heavier burden on the worker

than even the common-law would have put on it." Op. at 68.

In the first place, we are puzzled by Fashauer's

contention and the district court's concern regarding the

causation instruction. It must be remembered that under the pre-

FELA common law, contributory negligence totally barred a

plaintiff from any recovery. Thus, in that scenario, the

proposition that a plaintiff is contributorily negligent if his

negligence played any part at all in causing the injury at times

would have worked draconian consequences. But the FELA modified

the common law; it contains a comparative negligence scheme which

reduces plaintiff's recovery only in proportion to his share of

responsibility for the injury. In short, while the standards of

causation differ, so do the results of a finding of contributory

negligence. As the district court instructed the jury:

"[A]ssuming that you find . . . that plaintiff was negligent and

that his negligence played a part in causing his own injuries,

you must then determine the percentage to which plaintiff's

negligence, if any, contributed to his injuries." App. 961.

Thus, a jury finding of contributory negligence does no harm to

the plaintiff unless it makes a further finding that the

plaintiff's fault contributed to the injury to a particular
degree. In other words, if a plaintiff's negligence contributed

only marginally to the injury, his recovery would be reduced only

marginally. Since the jury found that Fashauer was 50%

responsible for his injury, it obviously found that he was more

than marginally responsible. Therefore, in a pure comparative

negligence scheme such as FELA's, Fashauer's argument is

insubstantial.

We also disagree with Fashauer's contention that a FELA

plaintiff is held to a lesser standard of care than his employer,

notwithstanding the district court's invitation to us to reverse

on this ground. See op. at 68-69 ("I welcome the insight,

guidance, and even reversal from the Third Circuit on this

issue."). In the first place, it is unclear what it means to say

that a plaintiff has only a slight duty to protect himself. It

seems to us that someone acts either with due care or without due

care. The FELA is neither a worker's compensation statute nor a

strict liability statute, and absent explicit direction from

Congress or the Supreme Court, we decline to turn it into one.

More importantly, our interpretation is confirmed by

the language of the statute. By its very terms, the FELA

provides that "the damages shall be diminished by the jury in

proportion to the amount of negligence attributable to such

employee." 45 U.S.C. § 53. The statute does not distinguish

between degrees of negligence; the statute does not say that the

plaintiff only has a slight duty of care. Under the statute, a
plaintiff's recovery is reduced to the extent that he is

negligent and that such negligence is responsible for the injury.

In such a situation, one must assume that Congress intended its

words to mean what they ordinarily are taken to mean -- a person

is negligent if he or she fails to act as an ordinarily prudent

person would act in similar circumstances. Such a reading also

is in accord with the FELA's pure comparative negligence scheme;

and to adopt Fashauer's argument would be to abandon the clear

dictate of the statute in favor of a policy decision to favor

employees over employers.

Our interpretation finds further support in precedents

of this court and others. In the Jones Act case of Mroz v. Dravo

Corp., 429 F.2d 1156 (3d Cir. 1970), the appellant contended that

the district court erred by charging the jury on contributory

negligence. In rejecting the argument, we reasoned:
[C]ontributory negligence is the neglect of
the duty imposed upon a person to exercise
ordinary care for his own protection and
safety which is a legally contributing cause
of an injury. In determining whether an
injured person has been guilty of
contributory negligence the standard of
conduct to which he must conform is that of a
reasonably prudent person under the
circumstances. If a person by his own action
subjects himself unnecessarily to danger
which should have been anticipated and is
injured thereby he is guilty of contributory
negligence.

Id. at 1163. Fashauer's argument that different duties of care

apply is directly contrary to this language, which applies the
same standard of care to both employer and employee. Other

courts similarly have ruled. See Karvelis v. Constellation Lines

S.A., 806 F.2d 49, 52-53 & n.2 (2d Cir. 1986) (approving jury

instruction charging that both plaintiff and defendant are

required to act with reasonable care), cert. denied, 481 U.S.

1015, 107 S.Ct. 1891 (1987); Brown v. OMI Corp., 863 F. Supp.

169, 170-71 (S.D.N.Y. 1994) (applying reasonable care standard to

defendant's contributory negligence claims).

To be sure, Fashauer's contention derives support from

a series of Jones Act cases decided in the Fifth Circuit. Under

the standard enunciated in those cases, "a seaman's duty to

protect himself is not ordinary care, but slight care." Brooks

v. Great Lakes Dredge-Dock Co., 754 F.2d 536, 538 (5th Cir. 1984)

(citing cases), modified on other grounds, 754 F.2d 539 (5th Cir.

1985). In Brooks, for example, the court of appeals found

reversible error in an instruction that "contributory negligence

is the failure on the part of the injured party to use ordinary

care for his own safety under the circumstances at the time and

place in question." Id. (emphasis added); see also Bobb v.
Modern Prods., Inc., 648 F.2d 1051, 1057 (5th Cir. 1981). But we

find those cases unpersuasive in light of the FELA's explicit

language and comparative negligence scheme, and further note that

it is unclear whether the slight care standard is viable in the

Fifth Circuit itself. In a more recent discussion of the

question, that court of appeals said in rather explicit terms
that "the same general negligence ('ordinary prudence') and

causation standards apply to both employer and employee in

Federal Employers' Liability Act (and, by extension, Jones Act)

cases." Gavagan v. United States, 955 F.2d 1016, 1019 n.7 (5th

Cir. 1992).

We find no error in the district court's contributory

negligence charge.

C. Future lost earnings capacity

Fashauer next argues that the district court erred in

its jury instruction on future lost earnings. It is settled law

that in a FELA case, a plaintiff may recover compensatory damages

for lost earning capacity. Wiles v. New York, Chicago and St.

Louis R.R. Co., 283 F.2d 328, 332 (3d Cir. 1960), cert. denied,

364 U.S. 900, 81 S.Ct. 232 (1960); Gorniak v. National R.R.

Passenger Corp., 889 F.2d 481, 483 (3d Cir. 1989); see also

McNight v. General Motors Corp., 973 F.2d 1366, 1370 (7th Cir.

1992), cert. denied, ____ U.S. ____, 113 S.Ct. 1270 (1993).

Under that theory of damages, if a plaintiff "show[s] that his

injury has caused a diminution in his ability to earn a living,"

he or she may recover damages covering the extent to which the

railroad's negligence caused the diminution in earning capacity.

However, such recovery is appropriate only where the plaintiff

"has produced competent evidence suggesting that his injuries
have narrowed the range of economic opportunities available to

him." Gorniak, 889 F.2d at 484.

In Gorniak, we discussed what such evidence must

entail, and, after canvassing the relevant caselaw, concluded

that a plaintiff may prove impaired earning capacity by

presenting evidence of "a decreased ability to weather adverse

economic circumstances, such as a discharge or lay-off, or [a

decreased ability] to voluntarily leave the defendant employer

for other employment." Id. In Wiles, for example, the

plaintiff, as a result of the defendant's negligence, had

undergone numerous operations and wound up with substantial and

ineradicable scars in his back, and a permanent minor back

deformity. While he remained employed by the railroad as a car

repairman, his medical expert testified that "he would have

difficulty getting a job in heavy industry elsewhere than with

the Railroad" because physical examinations, generally required

by such employers, "would compel Wiles to disclose the nature of

his operations and that he had a history of disc protrusion and

back fusion and these disclosures would militate against his

securing employment." Wiles, 283 F.2d at 331. Based on this

testimony, we held that, although Wiles was earning more in his

current position than in his position at the time of his injury,

he had no protection against being discharged or laid off. And

if one of those contingencies occurred, he would face the

consequences of a reduced ability to procure employment. Id. at
332. Additionally, "if [Wiles] cannot obtain gainful employment

elsewhere he is chained to his present job in a kind of economic

servitude." Id. In such circumstances, Wiles had shown evidence

that his injuries limited his economic horizons.

The evidence in Gorniak was even stronger. At the time

of the injury, Amtrak employed the plaintiff as a materials

handler. At trial, the plaintiff introduced expert evidence that

he "was subject to permanent physical restrictions . . . that

would preclude him from working as a materials handler or store

attendant in an Amtrak warehouse, and in many positions in the

industrial workforce outside Amtrak." Gorniak, 889 F.2d at 484.

Moreover, although after the injury Amtrak had given the

plaintiff a position as a ticket clerk, he introduced evidence

that because of the company's seniority system, if Amtrak cut

down on its light duty force, he would be without a job. In

support of this fear, "evidence at trial indicate[d] that Amtrak

has closed one if its Pennsylvania facilities and has abolished

jobs in plaintiff's craft at another during Gorniak's employment

with Amtrak." Id. at 484. Finally, we noted that "Gorniak . . .

is under no obligation to remain with Amtrak, and the fact that

his injuries hindered his ability to obtain other employment if

he wished was one the jury could consider in deciding to award

him damages." Id.
Although we reject New Jersey Transit's argument that

evidence supporting lost earnings capacity must come from a
vocational expert, we nevertheless agree that Fashauer has

produced no "competence evidence" supporting his claim for these

damages. The evidence consisted almost entirely of medical

testimony, only tangentially related to Fashauer's economic

horizons, that the accident caused a permanent injury to his

shoulder that restricted his physical activity. See app. 444

(testimony of Dr. Gary Goldstein). For instance, Dr. Goldstein

testified that because of the injury, Fashauer cannot lift

weights over 20 pounds above his waist level and therefore "can't

do any activities that would involve reaching overhead with even

minimal power." Id. Thus, Fashauer was unable to continue

working as a trainman or brakeman. Id. at 445. Fashauer himself

testified that his inability to lift his arm very high prevented

him from performing his prior work at the railroad. App. 221.

But Fashauer does not refer to testimony that he would

have difficulty obtaining work with a different employer, or that

jobs he could do after the injury were less lucrative than his

railroad job. No witness even opined that Fashauer's injury

limited his economic potential. On appeal, Fashauer points to

nothing specific in the record which would constitute evidence

from which a jury could calculate such damages. The jury had no

information from which to conclude that Fashauer's economic

horizons were limited. He essentially wanted the jury to take

his counsel's word for it.
 At any rate, contrary to Fashauer's argument, the

district court's charge, read in its entirety, adequately

instructed the jury on loss of future earning capacity. Fashauer

points to various portions of the district court's charge that he

contends permitted the jury to award future damages only for the

time he was unable to work at all. But the charge is not so

limited. For instance, the court said to the jury:
[Y]ou next have to fix the amount of the
loss. You do this by considering the length
of time during which plaintiff was not able
to work. The length of time he'll be unable
to work in the future. What his income was
before the injuries and the extent that any
physical impairments resulting from injuries
may lessen or decrease his income, should he
return to the work force.

App. 963 (court's jury charge) (emphasis added). While the court

first referred to damages while Fashauer was unable to work, it

then plainly instructed the jury to consider whether Fashauer's

income would decrease if he does return to work. It appears that

the judge categorized damages based on inability to work and

damages based on a decreased earning capacity as separate

measures of damages. The court continued:
If you decide . . . that it is reasonable
that plaintiff will lose income in the future
because he has not been able to return to
work, then you should also include an amount
to make up for those lost wages. In deciding
how much your verdict should be to cover
future lost income, think about the factors
mentioned in discussing past earning losses,
such as the nature, extent and duration of
his injury. Also consider the plaintiff's
age today, his general state of health before
the accident, how long you reasonably expect
 the loss of income to continue and how much
plaintiff can earn in any available job that
he . . . physically will be able to do.

App. 964-65. Here again, it is clear that the court separated

the two measures of damages -- damages based on an inability to

work and damages based on impaired earning capacity in the

future. But it certainly did not say that the former is the

exclusive measure of future lost income damages. In discussing

the law regarding awards of fringe benefits, the court

instructed:
[Fringe benefits are] benefit[s] that you
should include in your award for each future
year, if any, in which you find plaintiff
will likely be unable to return to work. . .
. If you find that at some point in time
plaintiff should be able to return to work,
but at a lower paying position[,] in fixing
the amount of the future wage loss, you
should consider not only the difference in
pay rates, but the possible lower value of
any fringe benefits available to plaintiff in
his new position.

App. 966. Again, the "confusion" Fashauer perceives in the

charge derives from the court's decision to distinguish the two

measures of damages. It is difficult to see how a jury could be

confused by an instruction which repeatedly asks it to consider

loss of earning capacity. We reject Fashauer's argument.

D. Rebuttal Witness

Fashauer next contends that the district court erred in

refusing to permit him to call a rebuttal witness who was not
listed in the pretrial orders. His contention builds upon the

following procedural background.

In the pretrial order, New Jersey Transit named Dr.

Morris Ehrenreich as a vocational expert. Ehrenreich was slated

to testify that based on doctors' reports about Fashauer's work

abilities and a job search conducted in the New Jersey area,

Fashauer had numerous employment opportunities. Nothing in the

pretrial summary of testimony indicated that Ehrenreich had

conducted a job search by answering classified advertisements in

newspapers. At trial, however, when defense counsel asked

Ehrenreich about the methods he used to gauge Fashauer's ability

to gain employment, the following colloquy ensued:

Q: And what did you do?
A: I did a laborer survey, a laborer
survey, which looked at the jobs available to
him in this community, and, in fact, I found
him a -- employer who's ready to interview
him for a job if he wishes.

Q: And what job is that?

A: This was a job as a salesman for a car
dealership. I spoke to the manager who
suggested that Mr. -- that if he's interested
in the job, he can come down and apply for
the job and indicated that the average
salesman for this dealership earns between 30
and $70,000 a year.

App. 778-79.

Subsequent questioning by the court revealed that

Ehrenreich had discovered this "job opportunity" by responding to

newspaper advertisements in the Asbury Park Press the day before
he testified. Moreover, the court's further questioning revealed

that while the trial was proceeding, New Jersey Transit's counsel

had supplied Ehrenreich with the newspapers, thereby assisting

Ehrenreich in the untimely job search.5 In other words, as the

court later put it, Ehrenreich, with New Jersey Transit's

cooperation, amended his report during the trial without notice

to Fashauer's counsel.

5
. The court questioned the witness as follows:

THE COURT: What made you call up [the Jaguar
company]?

THE WITNESS: They had an ad in the paper
offering jobs with training.

THE COURT: Well, there's hundreds of ads
in the paper every day. . . . What made you
pick that one?

THE WITNESS: Well, I got the job from
Friday from the Asbury News.

THE COURT: From when?

THE WITNESS: This past Friday.

THE COURT: So, this was just done this
Friday?

THE WITNESS: Yes. And it was a -- many of
the jobs require that you -- that you fax
them a resume or you send a resume in.

* * *

THE COURT: And this you did last Friday?

THE WITNESS: This I did on Monday.

App. 780-82.
 Immediately upon discovering that the witness had

testified about a survey not mentioned in the pretrial report,

the court practically invited Fashauer to object to the

testimony. Nonetheless, his counsel explicitly declined to

object, informing the court that "I'm not objecting." App. 782.6

Subsequently, out of the presence of the jury, the court severely

rebuked New Jersey Transit and the expert:
THE COURT: I think harm has been done to
slip by the notion that to have this witness,
in effect, work on his report, because that's
what he's doing when he's making the calls.
He's working on his report. He's modifying
his report when he gets up there and says
there is a car dealership that would
interview this man. He's modifying his
report.

6
. The relevant passage was as follows:

Q: Did you make any other calls previously
to them?

A: Not really.

THE COURT: Do you have something to say?

MR. BARISH: No.

THE COURT: I'm sorry.

MR. BARISH: I started to.

THE COURT: Either you object or you don't object.
Your motions don't mean --

MR. BARISH: I'm not objecting.

THE COURT: Okay. Ask your next question.

App. 782.
 I might add he didn't say till I
questioned him when that was done. Only in
response to my questions did it come out he
did it yesterday. It is yesterday, really
yesterday, not just -- I'm shocked and
stunned that a witness would be put on the
stand.

* * *

[I]t's another example of [sic] this
case of, in effect, trial by ambush, and the
idea is to say -- I don't have to repeat that
I don't like it.

App. 798. Instead of objecting to the testimony or requesting

the court to give a limiting instruction, Fashauer's counsel

elected to cross-examine Ehrenreich about the substance of his

telephone call to the dealership salesman.

After Ehrenreich finished testifying -- and after the

court again rebuked New Jersey Transit -- Fashauer's counsel

requested leave to present a rebuttal witness, who was to testify

that "he conducted a job search through the agencies, through a

number of sources of his business, through the State of New

Jersey, and that there were no jobs . . . presently available

that Mr. Fashauer could receive." App. 859. The district court

denied the motion, reasoning that "I think [Dr. Ehrenreich's]

testimony was so ludicrous that it's just inconceivable to me

that the jury got anything out of it." App. 861. Thus, "I'm

making the judgment that [Dr. Ehrenreich's testimony] is so

laughably ludicrous that I don't think you need -- that it

requires rebuttal." App. 861-62.
 In its ruling on Fashauer's post-trial motions, the

district court amplified the reasons behind its decision to

preclude the rebuttal testimony. In that opinion, the court

questioned Fashauer's counsel's motive in requesting leave to

call a rebuttal witness. Noting that his rebuttal witness

"apparently was in court ready to go" when Ehrenreich gave his

surprise testimony, see op. at 76, the court pointed out that

"[t]here's absolutely nothing [the witness] could have said about

that. . . . He couldn't say, I called the same Jaguar salesman,

and he said No, there is no job." Op. at 77. Therefore,

according to the court, Fashauer was using the testimony as an

artificial justification for testimony rebutting Ehrenreich's

general testimony about Fashauer's employability, as Fashauer

must have planned to call the rebuttal witness without regard to

whether Ehrenreich gave surprise testimony. As the court put it,

"[t]he only thing that was new in Dr. Ehrenreich's testimony that

hadn't been in his original report was that he looked in the want

ads and found a Jaguar salesman." Id. Therefore, the rebuttal

witness could have been named in the pretrial report. The court

concluded that "what we had here was a tactical decision made by

the plaintiff to get the last word in by withholding his own

expert and then springing him at the end. . . . What was really

wanted by the plaintiff was to put its vocational expert last and

get the last shot at the jury, and I don't think that's a proper

use of rebuttal." Op. at 76-78.
 Boiled down to its essence, the question before us is

whether, in light of the manner of the proceedings, the district

court erred in refusing to allow Fashauer to call a rebuttal

witness who was not listed in the pretrial orders. "[T]he trial

court ha[s] the discretion to exclude testimony of a witness who

had not been identified. The trial court's exclusion of

testimony because of the failure of counsel to adhere to a

pretrial order will not be disturbed on appeal absent a clear

abuse of discretion." Semper v. Santos, 845 F.2d 1233, 1238 (3d

Cir. 1988); see also Greate Bay Hotel & Casino v. Tose, 34 F.3d

1227, 1236 (3d Cir. 1994). As we have explained, "[o]ne of the

main purposes of the pretrial conference is to formulate the

issues to be litigated to aid the parties in preparation for

trial. If counsel are permitted to change the positions taken at

pretrial obviously the effectiveness of this procedure is

destroyed." Ely v. Reading Co., 424 F.2d 758, 763 (3d Cir.

1970).

Here, we find no abuse of discretion in the district

court's decision. Fashauer contends that rebuttal was required

to dispel the notion left by Ehrenreich's testimony that he was a

malingerer. However, the district court's finding that

plaintiff's counsel was using the rebuttal witness to rebut

anticipated testimony and simply get the last word, is not

clearly erroneous. That being the case, Fashauer "'from the

outset of this action knew the [defendant's] contentions and the
necessity for . . . rebuttal testimony could reasonably have been

anticipated.'" American Int'l Trading Corp. v. Petroleos

Mexicanos, 835 F.2d 536, 538 (5th Cir. 1987) (internal

alterations omitted) (alteration added) (citation omitted).

Therefore, the district court acted within its discretion in

refusing to allow the rebuttal expert to testify.

We stress that the decision to exclude the rebuttal

expert had nothing to do with the content of Ehrenreich's

testimony, and nothing we say should be read to approve his

testimony. However, the record shows that Fashauer did not

object to the testimony, did not request a limiting instruction,

and was intending to use the witness to rebut anticipated

testimony rather than the surprise testimony. Fashauer chose to

cross-examine Ehrenreich in the hopes of discrediting him. He

cannot capitalize now on his tactical choice by getting improper

rebuttal before the court.

E. Mitigation of Damages

Finally, Fashauer contends that the district court

erred in neglecting to instruct the jury that New Jersey Transit

had the burden of proving that Fashauer failed to mitigate his

damages. Under the FELA, which is to be interpreted according to

"general principles of law as administered in the federal courts

. . . an injured plaintiff has a duty to mitigate his damages."

Jones v. Consolidated Rail Corp., 800 F.2d 590, 593 (6th Cir.
1986). However, "once it is established that a duty to mitigate

is present, the burden . . . falls on the wrongdoer to show that

the damages were lessened or might have been lessened by the

plaintiff." Id. at 593; DeBiasio v. Illinois Central R.R., 52

F.3d 678, 688 (7th Cir. 1995) (same); Jackson v. City of

Cookeville, 31 F.3d 1354, 1359 (6th Cir. 1994) (same); Schneider

v. National R.R. Passenger Corp., 987 F.2d 132, 136 (2d Cir.

1993). The district court instructed the jury that "[p]laintiff

. . . must try to minimize the damages due to loss of wages. But

extraordinary or impractical efforts are not necessary. All that

is required are reasonable efforts and ordinary care in trying to

reduce the loss." App. 963. The district court's charge, while

correctly stating that Fashauer had a duty to mitigate, failed to

specify that New Jersey Transit had the burden of proof on the

issue. Because the mitigation language occurred in the midst of

the court's general damages instructions, the jury could well

have believed that Fashauer had the burden to prove mitigation.

Therefore, the charge unquestionably was flawed.

However, Fashauer failed to request a charge on

mitigation of damages, and, as the district court pointed out,

"no one asked for that burden of proof charge. Mr. Barish

[plaintiff's counsel] admits, candidly, that he did not call to

my attention at any of the various points that I have failed to

do that." Op. at 48.
 Thus, while ordinarily an "[i]ncorrect jury instruction

as to burden of proof 'is "fundamental and highly prejudicial"

and requires a new trial,'" Waldorf v. Shuta, 896 F.2d 723, 730

(3d Cir. 1990) (citation omitted), that principle assumes that

the issue properly has been preserved for appeal. The procedure

for preserving an objection to a jury charge is governed by Fed.

R. Civ. P. 51 which provides that:
At the close of the evidence . . . any
party may file written requests that the
court instruct the jury on the law as set
forth in the requests. The court shall
inform counsel of its proposed action upon
the requests prior to their arguments to the
jury. The court, at its election, may
instruct the jury before or after argument,
or both. No party may assign as error the
giving or the failure to give an instruction
unless that 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 (emphasis added).

We repeatedly have stressed the important policy

objectives served by Rule 51. The rule affords the trial judge

"an opportunity to correct any error that may have been made in

the charge before the jury begins its deliberations." Seman v.
Coplay Cement Co., 26 F.3d 428, 436 (3d Cir. 1994); Miller v.

CIGNA Corp., 47 F.3d 586, 591 n.5 (3d Cir. 1995) (in banc). It

also "lessen[s] the burden on appellate courts by diminishing the

number of rulings at the trial which they may be called upon to

review." McAdam v. Dean Witter Reynolds, Inc., 896 F.2d 750, 769
n.29 (3d Cir. 1990). Thus, Rule 51 is consistent with the

general rule that "an appellate court will not predicate error on

an issue upon which the district court was not provided with an

opportunity to rule." Remington Rand Corp.- Delaware v. Business

Sys., Inc., 830 F.2d 1260, 1267 (3d Cir. 1987). We have followed

this proposition strictly, and have refused to consider "newly

developed arguments[s] concerning [a] jury charge deficiency."

McAdam, 896 F.2d at 769; see, e.g., Dunn v. HOVIC, 1 F.3d 1371,

1378 (3d Cir. 1993) (in banc) (declining to consider whether jury

instruction was defective under Virgin Islands law because "th[e]

issue was not properly preserved for appeal under Federal Rule of

Civil Procedure 51"), cert. denied, ____ U.S. ____, 114 S.Ct. 650

(1993).

In the absence of a party's preservation of an assigned

error for appeal, we review only for plain error, and our power

to reverse is discretionary. Cf. United States v. Olano, 113

S.Ct. 1770, 1778 (1993) (interpreting Federal Rule of Criminal

Procedure 52(b)). Consequently, "our discretionary power to

review errors in jury instructions which were not objected to at

trial should be exercised sparingly"; otherwise we risk

"emasculat[ing]" the important policies served by Rule 51.

McAdam, 896 F.2d at 770 n.31 (citing Trent v. Atlantic City Elec.
Co., 334 F.2d 847, 859 (3d Cir. 1964)). Thus, we should notice

the error only "'if [it] is fundamental and highly prejudicial or

if the instructions are such that the jury is without adequate
guidance on a fundamental question and our failure to consider

the error would result in a miscarriage of justice.'" Bereda v.

Pickering Creek Indus. Park, Inc., 865 F.2d 49, 53 (3d Cir. 1989)

(quoting United States v. 564.54 Acres of Land, 576 F.2d 983, 987

(3d Cir. 1978), rev'd on other grounds, 441 U.S. 506, 99 S.Ct.

1854 (1979)); Bennis v. Gable, 823 F.2d 723, 727 (3d Cir. 1987)

(same).

We take guidance in this regard from the Supreme

Court's recent interpretation of the Federal Rule of Criminal

Procedure setting forth the plain error standard, Rule 52(b).

The Court held that courts of appeal should exercise their

discretion to "correct a plain forfeited error affecting

substantial rights if the error 'seriously affect[s] the

fairness, integrity or public reputation of judicial

proceedings.'" Olano, 113 S.Ct. at 1779 (quoting United States

v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392 (1936)). If

anything, the plain error power in the civil context -- which is

judicially rather than statutorily created -- should be used even

more sparingly. And in keeping with this, the Court of Appeals

for the Second Circuit has held that the doctrine "should only be

invoked with extreme caution in the civil context." United
States v. Carson, 52 F.3d 1173, 1188 (2d Cir. 1995). The court

continued: "plain error review is only appropriate in the civil

context where the error is so serious and flagrant that it goes

to the very integrity of the trial." Id. (citing Brenner v.
World Boxing Council, 675 F.2d 445, 456 (2d Cir.), cert. denied,

459 U.S. 835, 103 S.Ct. 79 (1980)).

We decline to exercise our discretion to reverse in

this case, notwithstanding the importance of proper instructions

on burdens of proof. In the first place, the instruction was

quite cursory and not at all as detailed as mitigation

instructions usually are and should be. The court did not tell

the jury explicitly that Fashauer had a duty to mitigate. The

court did not instruct the jury how to reduce the damages if it

found Fashauer failed to mitigate. Thus, it seems doubtful that

the instruction had the significance with which Fashauer endows

it.

Moreover, Fashauer in his brief repeatedly confuses

loss of future earnings capacity with the duty to mitigate

damages. For example, he points to the fact that the jury

awarded no damages for future lost earnings as evidence that the

mitigation charge prejudiced him. But to the extent that the

district court's mitigation charge referred to future earning

potential, it was correct. The defendant is obligated to prove

failure to mitigate, but that burden only applies to damages for

past loss of earnings -- from the time of injury to the time of

trial. As discussed in detail above, though, the plaintiff has

the burden of proving future loss of earnings due to a diminished

earnings capacity. Gorniak, 889 F.2d at 484. As Judge Bailey

Brown pointed out in his concurrence in Jones v. Consolidated R.
Corp., 800 F.2d at 595, the "burden [i]s on the defendant to show

that, after his injury and prior to the trial, [plaintiff] was

able to do some work and did not make a reasonable effort to find

and do such work." But the burden remains on the plaintiff to

prove "damage[s] as a result of a decrease in earning capacity

which will reduce future income." Id. (Brown, J., concurring).

Here, the jury awarded Fashauer $71,320 for past loss

of earnings and he does not contend that this amount was

inadequate. Therefore, the fact that the jury awarded nothing

for future loss of earnings only reflects that Fashauer failed to

prove that element of damages. We recognize that, as in Jones,

the district court's charge did not adequately distinguish

between past losses and future losses, but that hardly prejudiced

Fashauer. And it hardly affected the integrity of the trial. We

reject Fashauer's argument.

III. CONCLUSION

For all the reasons detailed above, we will affirm the

judgment of the district court.