COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00281-CV
ANDREW L. NELOMS, JR. APPELLANT
V.
BNSF RAILWAY COMPANY APPELLEE
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FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
Appellant Andrew L. Neloms, Jr. appeals the take-nothing judgment
entered against him in his Federal Employers‘ Liability Act (FELA)2 suit against
BNSF Railway Company (BNSF). He contends in one issue that the trial court
1
See Tex. R. App. P. 47.4.
2
See 45 U.S.C. § 51 (2007).
committed reversible error by omitting jury instructions concerning the FELA
burden of proof. We affirm.
II. Background
On October 19, 2004, Neloms was working for BNSF as the conductor
bringing a stack train from Temple to Pearland. He arrived at the Clear Creek
yard that evening and exited the train in the dark. While walking toward a switch
in the yard, Neloms tripped over a partially buried tie plate and fell. Neloms
finished his duties that evening, but his hand began to throb. By the next
morning, his hand was swollen, and he was not able to use it.
Neloms filed suit against BNSF in September 2007, alleging negligence
and seeking damages for lost wages and physical injury. The case proceeded to
a jury trial in March 2009, and the jury rendered a verdict for BNSF. The trial
court signed a final judgment in accordance with the jury‘s verdict, and this
appeal followed.
III. Standard of Review
We review a trial court‘s refusal to include an instruction in the jury charge
for an abuse of discretion. See In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000);
La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998). ―The trial court
has considerable discretion to determine necessary and proper jury instructions.‖
In re V.L.K., 24 S.W.3d at 341. To establish an abuse of discretion, the
requested instruction must be necessary to enable the jury to render a proper
verdict so that the trial court‘s refusal probably caused the rendition of an
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improper verdict. Pitts v. Sabine River Auth. of Tex., 107 S.W.3d 811, 819 (Tex.
App.—Texarkana 2003, pet. denied). When a trial court refuses a requested jury
instruction, we examine whether the instruction was reasonably necessary to
enable the jury to render a proper verdict. See Tex. R. Civ. P. 277, 288; Cleaver
v. Cundiff, 203 S.W.3d 373, 379 (Tex. App.—Eastland 2006, pet. denied).
Because the jury should not be burdened with surplus instructions, not every
correct statement of the law belongs in the jury charge. Cleaver, 203 S.W.3d at
379.
IV. Discussion
In his sole issue, Neloms contends that the trial court committed reversible
error by omitting jury instructions concerning the FELA burden of proof. BNSF
responds that the trial court did not abuse its discretion because the court‘s
charge provided the jury with the information that Neloms contends was omitted.
A. Applicable Law
FELA imposes liability on railroads for injuries to their employees ―resulting
in whole or in part from the negligence of any of the officers, agents, or
employees of such carrier, or by reason of any defect or insufficiency, due to its
negligence, in its cars, engines, appliances, machinery, track, roadbed, works,
boats, wharves, or other equipment.‖ 45 U.S.C. § 51. For FELA cases brought
in state court, federal law governs the parties‘ substantive rights, and state rules
govern procedural matters. Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 170
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(Tex. 2002); see Mitchell v. Mo.-Kan.-Tex. R.R. Co., 786 S.W.2d 659, 661 (Tex.
1990), overruled on other grounds by Williams, 85 S.W.3d at 168–69.
―To prevail on a FELA claim, a plaintiff must show that the defendant
railroad did not use reasonable care under the circumstances.‖ Williams, 85
S.W.3d at 165–66 (citing Davis v. Burlington N., Inc., 541 F.2d 182, 185 (8th Cir.
1976)). In other words, a FELA plaintiff must prove the traditional ―common law
components of negligence, including duty, breach, foreseeability, causation, and
injury.‖ Houghton v. Port Terminal R.R. Ass’n, 999 S.W.2d 39, 43 (Tex. App.—
Houston [14th Dist.] 1999, no pet.) (citing Adams v. CSX Transp., Inc., 899 F. 2d
536, 539 (6th Cir. 1990)). But the FELA causation standard differs from the
common law standard. Id. at 43–44 (citing Nicholson v. Erie R.R. Co., 253 F.2d
939, 940 (2d Cir. 1958)); see Diamond Offshore Mgmt. Co. v. Horton, 193
S.W.3d 76, 79 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). Instead of
proximate cause, a FELA plaintiff must prove only that the defendant‘s
negligence ―‗played any part, even in the slightest, in producing the injury for
which damages are sought.‘‖ Williams, 85 S.W.3d at 168 (quoting Mitchell, 786
S.W.2d at 661); see 45 U.S.C. § 51; Rogers v. Mo. Pac. R.R., 352 U.S. 500, 506,
77 S. Ct. 443, 448 (1957).
B. Analysis
Neloms argues that the court‘s charge did not inform the jury of the lesser
FELA causation standard, and he points to two instructions that the trial court
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refused to submit. We begin by addressing Neloms‘s contention that the federal
pattern jury charge must be submitted in FELA cases tried in state court.
1. Federal Pattern Jury Charge
Neloms argues that ―both the Texas Supreme Court and the United States
Supreme Court have unequivocally held that the federal pattern jury charge
instructions should be used in state court FELA cases.‖ To support his
contention, Neloms cites Norfolk Southern Railway Co. v. Sorrell, 549 U.S. 158,
168 n.2, 127 S. Ct. 799, 806 n.2 (2007), and Williams, 85 S.W.3d at 170.
However, Sorrell holds only that the same causation standard applies to both
employers and employees when determining the employee‘s comparative
negligence.3 Sorrell, 549 U.S. at 171, 127 S. Ct. at 808–09. Sorrell does not
require all courts to use identical jury charges in FELA cases.4 See id. at 173,
127 S. Ct. at 809. Neloms relies on Justice Ginsberg‘s concurrence in Sorrell,
3
The Sorrell Court expressly limited its opinion to the issue of ―whether
different standards for railroad and employee negligence [are] permissible‖ under
FELA. Sorrell, 549 U.S. at 164, 127 S. Ct. at 804. For procedural reasons,
Sorrell did not actually address the causation standard applicable to carriers in
FELA cases. See id. at 164–72, 127 S. Ct. at 805–09.
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The Sorrell Court stated:
As a review of FELA model instructions indicates, there are a
variety of ways to instruct a jury to apply the same causation
standard to railroad negligence and employee contributory
negligence. Missouri has the same flexibility as the other States in
deciding how to do so, so long as it now joins them in applying a
single standard.
Id. at 173, 127 S. Ct. at 809 (citation omitted) (emphasis added).
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but even Justice Ginsberg‘s concurrence states only that ―sound jury instructions
in FELA cases would resemble the model federal charges.‖ Id. at 180, 127 S. Ct.
at 814 (Ginsberg, J., concurring) (emphasis added). Thus, Sorrell does not
mandate submission of federal pattern jury charges in FELA cases brought in
state courts.
Similarly, the Texas Supreme Court held in Williams that ―[s]tate courts
trying FELA cases must apply federal law about burdens of proof.‖ 85 S.W.3d at
170. Although Williams approved language from part of the Fifth Circuit‘s FELA
pattern jury charge and part of the Eighth Circuit‘s FELA pattern jury charge,
nothing in Williams requires Texas trial courts to submit federal pattern jury
charges in all FELA cases. See id. at 165–71; see also Mitchell, 786 S.W.2d at
662 (stating that a proper instruction ―may be had‖ by using the Fifth Circuit‘s
FELA Pattern Jury Instructions but not mandating submission of the pattern
instruction). Although the better practice in many cases may be the submission
of pattern jury charge instructions, neither Sorrell nor Williams mandates the
submission of federal pattern jury instructions in FELA cases tried in Texas state
courts. See Sorrell, 549 U.S. at 164–72, 127 S. Ct. at 805–09; Williams, 85
S.W.3d at 165–71; see generally Weeks Marine, Inc. v. Salinas, 225 S.W.3d 311,
319 (Tex. App.—San Antonio 2007, pet. dism‘d).
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Legal Cause of Damage
Neloms‘s first requested instruction states:
Negligence is a legal cause of damage if it played any part, no
matter how small, in bringing about or actually causing the injury or
damage. If you find that the Defendant BNSF Railway Company,
was negligent and that the Defendant‘s negligence contributed in
any way toward any injury or damage suffered by the Plaintiff,
Andrew L. Neloms, Jr., you must find that such injury or damage was
legally caused by the Defendant BNSF Railway Company[‘s] acts or
omissions.
Neloms argues that without this instruction, the jury was not informed of the
―feather weight‖ burden applicable to his FELA claim and that his proposed
instruction ―was the only source for the jury to know that the burden was
extremely loose‖ for him to show causation.
Contrary to Neloms‘s assertion, the trial court did not fail to instruct the jury
on the ―feather weight‖ FELA causation standard. In this regard, the court‘s
charge included the following instructions:
―Negligence‖ is the failure to use reasonable care.
Reasonable care is that degree of care which a reasonably careful
person would use under like circumstances. Negligence may
consist either in doing something that a reasonably careful person
would not do under like circumstances, or in failing to do something
that a reasonably careful person would do under like circumstances.
Negligence is a “legal cause” of damage if it played any part,
no matter how small, in bringing about or actually causing the injury
or damage.‖ [Emphasis added.]
In Mitchell, the Texas Supreme Court approved a jury instruction in FELA
cases that states, in part:
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―Negligence‖ is the failure to use reasonable care.
Reasonable care is that degree of care which a reasonably careful
person would use under like circumstances. Negligence may
consist either in doing something that a reasonably careful person
would not do under like circumstances, or in failing to do something
that a reasonably careful person would do under like circumstances.
For purposes of this action, negligence is a ―legal cause‖ of
damage if it played any part, no matter how small, in bringing about
or actually causing the injury or damage.
786 S.W.2d at 663.5 Other than omitting the phrase ―for purposes of this action,‖
the trial court‘s charge in this case is identical to that approved by the supreme
court in Mitchell. See id.; see also Williams, 85 S.W.3d at 168 (reaffirming
Mitchell‘s FELA causation discussion and stating that ―a defendant is liable if its
negligence plays any part, however slight, in causing the injury‖). Therefore, we
hold that the trial court did not abuse its discretion by refusing to submit the first
requested instruction.
3. Liability under FELA
Neloms‘s second requested instruction states:
The ―Federal Employers‘ Liability Act‖ provides in part that:
Every common carrier by railroad while engaging in commerce
between any of the several states . . . shall be liable in damages to
any person suffering injuries while he is employed by such
carrier . . . for such injury or death resulting in whole or in part from
5
Williams overruled Mitchell ―to the extent that it rejected a foreseeability
instruction when the evidence about that element of the railroad‘s duty was
disputed‖ and ―to the extent that it approved the Fifth Circuit‘s pattern instruction,
even though the railroad‘s knowledge was disputed, on the erroneous basis that
‗it does not place the issue of duty before the jury.‘‖ Williams, 85 S.W.3d at 169.
Foreseeability is not at issue in this appeal.
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the negligence of such carrier, or by reason of any defect or
insufficiency, due to its negligence, in its roadbed, machinery . . . or
other equipment.
We first note that this requested instruction is a quote from FELA section
51. See 45 U.S.C. § 51. We also note that the court‘s charge instructed the jury
that Neloms was a BNSF employee, informed the jury that it may find BNSF
liable for Neloms‘s injury if it was satisfied that BNSF had actual or constructive
notice of a defective condition in ―equipment or his place of work‖ and a
―reasonable opportunity to remove or repair the defect before the occurrence,‖
and provided the jury with a legally correct instruction concerning negligence as a
―legal cause‖ of Neloms‘s injury or damage. Thus, the court‘s charge included
instructions containing the same information Neloms sought to include in his
second requested instruction. ―There is no error in refusing a requested
explanatory instruction when the substance of the matter contained therein is
included in the court‘s charge.‖ La. & Ark. R.R. Co. v. Blakely, 773 S.W.2d 595,
599 (Tex. App.—Texarkana 1989, writ denied) (citing Dixon v. Van Waters &
Rogers, 674 S.W.2d 479, 483 (Tex. App.—Fort Worth 1984, writ ref‘d n.r.e.)). In
other words, a trial court should refuse to submit unnecessary instructions, even
if they are correct statements of the law. Id.; see Rigdon Marine Corp. v.
Roberts, 270 S.W.3d 220, 228 (Tex. App.—Texarkana 2008, pet. denied).
Because the information contained within Neloms‘s second requested instruction
was otherwise included within the court‘s charge, we hold that the trial court did
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not abuse its discretion by refusing to submit the second requested instruction.
We overrule Neloms‘s sole issue.
V. Conclusion
Having overruled Neloms‘s sole issue, we affirm the trial court‘s judgment.
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER, J.; and DIXON W. HOLMAN (Senior
Justice, Retired, Sitting by Assignment).
DELIVERED: March 17, 2011
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