Bevacqua v. Union Pacific Railroad

96-582

No. 96-582

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 120

EUGENE F. BEVACQUA,

Plaintiff and Appellant,

v.

UNION PACIFIC RAILROAD COMPANY,

Defendant and Respondent.

APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Alexander (Zander) Blewett, III, Hoyt & Blewett, Great Falls,
Montana

For Respondent:

Ausey H. Robnett, III, Paine, Hamblen, Coffin, Brooke &
Miller, Coeur D'Alene, Idaho; Dolphy O. Pohlman, Corette,
Pohlman, Allen, Black & Carlson, Butte, Montana

Submitted on Briefs: June 12, 1997

Decided: May 7, 1998
Filed:

__________________________________________
Clerk

Justice James C. Nelson delivered the Opinion of the Court.

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¶1 Eugene F. Bevacqua (Bevacqua) filed a claim in the District Court for
the Second Judicial District, Silver Bow County, against Union Pacific
Railroad Company (UP) alleging that UP had negligently injured him on three
occasions while he was employed by UP. A jury found UP partially liable and
Bevacqua was awarded judgment in the amount of $320,000. The District
Court denied UP's motion for a new trial, but granted its motion to amend the
judgment, thereby reducing the judgment to $40,000. Bevacqua appeals from
the District Court's order reducing the judgment and UP cross-appeals from the
District Court's order denying UP's motion for a new trial. We affirm in part,
reverse in part and reinstate the $320,000 verdict.

¶2 Bevacqua raised the following issue on appeal:

¶3 Whether the District Court erred in granting UP's motion to amend the
judgment by reducing it from $320,000 to $40,000.

¶4 UP raised nine issues in its cross appeal; we consolidate and restate
them as follows:

¶5 1. Whether the District Court erred in holding that UP was estopped
from relying on the statute of limitations for the 1973 and 1980 claims.

¶6 2. Whether the District Court erred in instructing the jury that the
physicians who examined Bevacqua were agents of UP.

¶7 3. Whether the District Court erred in concluding that the release and
settlement agreements executed by the parties following the 1973 and 1980
incidents were invalid.

¶8 4. Whether the District Court erred in instructing the jury that a
violation of the federal regulations applicable to locomotive noise emissions
constitutes negligence per se.

¶9 5. Whether the District Court erred in denying UP's motion for
judgment as a matter of law on the issue of foreseeability as to the negligence
claim arising from the 1990 incident.

¶10 6. Whether the District Court erred in granting judgment as a matter of
law in favor of Bevacqua on the issue of apportioning damages.

¶11 7. Whether the special verdict form submitted to the jury was
inherently confusing and misleading.

Factual and Procedural Background

¶12 Bevacqua is a brakeman for UP in Spokane, Washington. He has
worked for UP since March 30, 1973. On October 15, 1973, Bevacqua was

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injured attempting to release a hand brake on a boxcar. As he was descending
the ladder of the car, his coat caught on a jagged piece of metal causing him
to fall to the ground and injure his left knee. He was taken to a hospital in
Kellog, Idaho. Bevacqua reported the injury to his immediate supervisor and
submitted a written statement. UP directed him to see a Dr. Tousey.
Bevacqua contended that UP did not give him a choice as to which doctor to
see for his injury. Dr. Tousey examined Bevacqua's knee, advised him that he
had a simple sprain with no permanent injury, and released him to return to
work after only a week.

¶13 The pain in Bevacqua's knee went away after a month. He continued
to perform his duties as a brakeman with UP, however, he noticed an
occasional "popping" in his knee. On December 24, 1973, Henry Lorring, a
UP claims agent, paid Bevacqua $850 and presented him with a release of all
claims which Bevacqua signed. The release stated that it covered all claims
"INCLUDING CLAIMS FOR INJURIES, IF ANY, WHICH ARE
UNKNOWN TO ME AT THE PRESENT TIME. . . ."

¶14 Bevacqua was required to present himself for a physical examination
to various doctors recommended by UP every two or three years to insure that
he was physically capable of performing his job. In 1975, UP directed
Bevacqua to see Dr. Tousey again. Dr. Tousey examined Bevacqua and
cleared him to work as a brakeman with no restrictions. In his report, Dr.
Tousey did not mention the condition of Bevacqua's left knee. In 1978, UP
directed Bevacqua to see Dr. Maxwell Kepl. Dr. Kepl examined Bevacqua
and cleared him to return to his brakeman duties with no restrictions.

¶15 On March 31, 1980, Bevacqua was walking from the UP depot to the
parking lot to take an evening meal break. The area was not lighted and,
unbeknownst to Bevacqua, UP had stored a pile of blackened railroad ties next
to the designated walkway. Bevacqua tripped over two of the ties that jutted
out into the walkway causing him to re-injure his left knee. He immediately
reported the incident to UP whereupon he was taken to the hospital emergency
room for treatment. Bevacqua was directed to undergo a physical examination
by Dr. Kepl before he could return to work. Dr. Kepl advised Bevacqua that
he had a simple sprain and cleared him to return to work after one week.

¶16 After returning to work, Ray McDeid, another UP claims agent, told
Bevacqua that his knee had healed. McDeid had Bevacqua sign another
release and paid him $750. This release contained language identical to that
of the 1973 release regarding unknown injuries. The pain from this injury
subsided within a month, however, Bevacqua continued to have an occasional
"popping" sensation in his knee. After this second injury, UP required
Bevacqua to see Dr. R. E. Elston on July 13, 1981, November 1, 1983,
September 10, 1984, and March 30, 1987. On each occasion, Dr. Elston
determined that Bevacqua had no physical conditions which would restrict his
work activities.

¶17 The third injury to Bevacqua's knee occurred on May 21, 1990. United
States Customs officials at the United States-Canada border crossing in

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Eastport, Idaho had been complaining for a long period of time about the trains
that were parked on the tracks near the customs' office. The engines were left
idling due to the remoteness of the area and the possibility that the engines
could not be restarted if shut down. Customs officials contended that the noise
from the engines disrupted their business. UP failed to respond to the
complaints and, on May 19, 1990, Customs Officer Keith Barnhart threatened
UP with inspections if UP did not remedy the noise problem.

¶18 Two days later, on May 21, 1990, Barnhart inspected the train on which
Bevacqua was working. When Barnhart requested that the crew produce their
driver's licenses for identification purposes, Bevacqua was uncooperative.
Barnhart lost his temper with Bevacqua and, in an effort to force Bevacqua to
spread his legs so that Barnhart could frisk him, Barnhart kicked Bevacqua's
left leg. This action caused Bevacqua's third injury to his left knee.

¶19 Bevacqua was sent by UP to Dr. Thomas Osten. After examining
Bevacqua's knee, Dr. Osten referred him to Dr. Richard Treloar, an orthopedic
surgeon in Spokane. Dr. Treloar's examination of Bevacqua's knee revealed
that the anterior cruciate ligament (ACL), the primary stabilizer in the human
knee, had ruptured. This rupture to the ACL caused significant stresses on the
meniscus, the weight-bearing structures which cushion and stabilize the knee
and act as shock absorbers. Both the lateral and the medial meniscus in
Bevacqua's knee were severely torn. Dr. Treloar performed arthroscopic
surgery in June 1990 to remove the torn meniscus and a second surgery in
February 1991 to reconstruct the ruptured ACL.

¶20 Before permitting Bevacqua to return to work, UP required that he be
examined by Dr. Paula Lantsberger. Dr. Lantsberger insisted that Bevacqua
undergo extensive physical therapy before she would release him for work.
Hence, in mid-March 1992, after completing his physical therapy, Bevacqua
was permitted to return to work.

¶21 After the May 21, 1990 incident, Bevacqua filed a claim under the
Federal Tort Claims Act (FTCA) against the federal government for battery
based upon Barnhart's actions. Bevacqua lost this claim when the Ninth
Circuit Court of Appeals held that Barnhart was immune from suit and that his
conduct was privileged. However, during the FTCA proceeding, the
government hired Dr. Peter Rork, an orthopedic surgeon from Jackson,
Wyoming, to perform an independent medical examination of Bevacqua and
testify as an expert witness. Dr. Rork testified that prior to the frisking
incident, Bevacqua's left knee had a pre-existing condition comprised of a
ruptured ACL and extensive tears in his medial and lateral meniscus. He
further testified that the ACL was ruptured in the October 15, 1973 incident
when Bevacqua fell from the boxcar and that the meniscus damage occurred
in the March 31, 1980 incident when Bevacqua tripped over the railroad ties.
Dr. Rork also testified that by 1990, Bevacqua had developed severe
osteoarthritis in his left knee because of the first two injuries.

¶22 In February 1993, Bevacqua filed a claim against UP under the Federal

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Employers' Liability Act (FELA), 45 U.S.C. §§ 51 - 60, alleging that UP was
liable for damages sustained to his knee in the May 1990 incident. Bevacqua
amended his complaint in November 1995 to also allege claims against UP
arising from the 1973 and 1980 incidents. Additionally, he alleged that the
releases he had signed in 1973 and 1980 were invalid due to mutual mistake
of fact and that UP should be estopped from asserting the statute of limitations
as a defense. UP hired Dr. Rork to present the same testimony for UP that he
had presented on behalf of the government in the FTCA action.

¶23 The case was tried to a jury August 12 through 16, 1996. UP did not
call Dr. Rork to testify as it had planned, however, Bevacqua read Dr. Rork's
deposition to the jury. In that deposition, Dr. Rork reiterated that the 1990
incident aggravated the injuries to Bevacqua's knee stemming from the 1973
and 1980 incidents.

¶24 Dr. Treloar also did not appear in person but his deposition was read
to the jury. In his deposition, Dr. Treloar stated that the ACL was definitely
missing from Bevacqua's left knee long before the 1990 incident. He
maintained that Bevacqua ruptured his ACL in the 1973 incident and that he
tore the medial and lateral meniscus in his knee in both the 1973 and 1980
incidents. Dr. Treloar also testified that the only injury caused by the 1990
incident was a small extension of the tear to the medial meniscus.

¶25 Dr. Lantsberger testified in person. She stated that since she had been
treating Bevacqua, the degenerative arthritis in his left knee had increased
substantially indicating that there is further degeneration to the bone surfaces
in his knee. She noted that the injuries Bevacqua sustained in the 1973 and
1980 incidents were contributory to his degenerative arthritic condition and
that he will continue to have further progression of the degeneration in his left
knee.

¶26 At the close of the evidence, both parties moved the court for judgment
as a matter of law pursuant to Rule 50(a), M.R.Civ.P. UP moved for judgment
on all claims arising from the 1973 and 1980 incidents on the grounds that
those claims were precluded by the three-year statute of limitations and by the
settlement agreements as reflected in the releases signed by Bevacqua. UP
also moved the court for judgment as a matter of law on all negligence claims
related to the 1990 incident contending that there was no evidence that UP was
negligent, that the consequences of its actions were foreseeable, or that its
actions caused Bevacqua's injuries. The District Court denied these motions.

¶27 Bevacqua moved for judgment as a matter of law on the statute of
limitations and release issues with respect to the 1973 and 1980 incidents. The
District Court granted both motions ruling that the releases were invalid due
to mutual mistake of fact and that UP was estopped from asserting the statute
of limitations defense to the 1973 and 1980 incidents because the doctors to
whom Bevacqua was sent misdiagnosed the injuries. Bevacqua also moved
the court for judgment as a matter of law on the issue of apportionment. The
court granted this motion directing that there would be no apportionment of
Bevacqua's damages between the 1973, 1980, and 1990 incidents as UP had

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totally failed in its burden to put on any evidence of apportionment regarding
the preexisting conditions.

¶28 The District Court presented a 23-question special verdict form, which
had been submitted by Bevacqua, to the jury. UP objected to the use of this
form but did not offer an alternative form. Based on this form, the jury, during
deliberations, asked if the total amount of damages decided for each incident
would be added together for a total award. In response, UP and Bevacqua
stipulated that under the admitted facts and the law of FELA, the amount of
damages incurred in each incident should be the same and that the amount of
damages for each of the three incidents would not, under any circumstances,
be added together.

¶29 The jury returned a verdict finding that UP caused Bevacqua damages
in the amount of $400,000. The jury also found that UP was 50% negligent
in the 1973 incident, 80% negligent in the 1980 incident, and 10% negligent
in the 1990 incident. This amounted to damages of $200,000, $320,000 and
$40,000, respectively.

¶30 Thereafter, the District Court entered judgment in favor of Bevacqua
for $320,000, the amount of the jury's verdict in the 1980 incident. UP moved
to amend the judgment pursuant to Rule 59(g), M.R.Civ.P., on the grounds
that the judgment did not "reasonably reflect or accurately state" the jury
verdict. The court granted UP's motion and reduced the award to $40,000, the
amount of the jury's verdict in the 1990 incident. UP also filed a motion for
a new trial based on what it perceived as prejudicial errors, but the court
denied that motion.

¶31 Bevacqua appeals the District Court's reduction of the judgment and UP
cross-appeals the denial of its motion for a new trial as well as the denial of
its several motions for judgment as a matter of law.
Bevacqua's Issue on Appeal

¶32 Whether the District Court erred in granting UP's motion to amend the
judgment by reducing it from $320,000 to $40,000.

¶33 The jury determined that UP caused Bevacqua $400,000 in damages
and that UP was 50% negligent in the 1973 incident, 80% negligent in the
1980 incident, and 10% negligent in the 1990 incident. However, since the
parties had stipulated that the amount of damages for each of the three
incidents would not be added together, the District Court entered judgment in
favor of Bevacqua for $320,000, the amount of the jury's verdict in the 1980
incident.

¶34 UP moved to amend the judgment pursuant to Rule 59(g), M.R.Civ.P.,
contending that since the injuries sustained in the 1973 and 1980 incidents
were asymptomatic resulting in minimal wage loss and no pain or discomfort,
Bevacqua should only be compensated for the 1990 incident as it was that
incident that caused the damage for which the jury awarded a total of

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$400,000. The District Court granted UP's motion and reduced the award to
$40,000, the amount of the jury's verdict in the 1990 incident. In amending
the judgment, the court stated:
As the substantial evidence supports that the May 21,
1990, incident caused the Plaintiff's physical condition to
become symptomatic, resulting in the need for corrective
surgeries and rehabilitation, the percentages of fault for the May
21, 1990, incident are applicable to the total jury verdict of
$400,000.

¶35 Bevacqua contends that the District Court erred in reducing the
judgment to reflect the amount awarded for only the 1990 incident as that
effectively nullifies the jury award for the 1973 and 1980 incidents. Bevacqua
argues that, because the jury found independent negligence and causation in
each of the three incidents, each incident played a part in causing the current
condition of his knee. He maintains that, if not for the stipulation that the
damage awards would not be added together, he would be entitled to $200,000
for the 1973 incident, $320,000 for the 1980 incident, and $40,000 for the
1990 incident. Hence, he argues that he should receive the greater of these,
the $320,000, and that the smaller two awards are subsumed in that amount.

¶36 The amendment of a judgment under Rule 59(g), M.R.Civ.P., is within
the discretion of a district court, thus, we review a court's grant or denial of a
motion to amend for an abuse of discretion. See Estate of Nielsen v. Pardis
(1994), 265 Mont. 470, 478, 878 P.2d 234, 238 (citations omitted).

¶37 In Rogers v. Missouri Pacific Railroad Co. (1957), 352 U.S. 500, 506,
77 S.Ct. 443, 448, 1 L.Ed.2d 493, the United States Supreme Court held that,
under FELA, an injured railroad worker is entitled to recover damages if the
negligence of the railroad played any part, no matter how slight, in causing the
injury or death for which damages are sought. In like manner, if Bevacqua
proved that UP was negligent in each of the three incidents and that UP's
negligence in each incident played any part, no matter how slight, in causing
injury to Bevacqua's knee, then he would be entitled to collect damages for
each separate independent act of negligence.

¶38 In Bevacqua's case, the jury specifically found independent negligence
and causation in each incident and that each incident played a part in causing
the current condition of Bevacqua's knee. Hence, Bevacqua could be entitled
to a judgment of $200,000 for the 1973 incident, $320,000 for the 1980
incident, and $40,000 for the 1990 incident. However, because of the
stipulation with UP that the jury awards for each incident would not be added
together, Bevacqua cannot collect any double recovery. Nonetheless,
Bevacqua should receive judgment in the amount of $320,000, the greater of
the jury awards, and the smaller awards of $40,000 and $200,000 are, as
Bevacqua suggested, subsumed in that amount. The District Court's amended
judgment vitiates the jury's determination that the 1973 and 1980 incidents
played some part in causing Bevacqua's injuries. Moreover, whether
Bevacqua's knee was symptomatic only after 1990, as the District Court

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pointed out, is not the standard to be applied under FELA.

¶39 In its amended judgment, the District Court stated that it was the 1990
incident that resulted in the need for corrective surgeries and rehabilitation for
Bevacqua's knee. Similarly, UP contends that the jury would not have
awarded Bevacqua $400,000 in damages had the 1990 incident not occurred
because it was that incident that required Bevacqua to seek surgery. Both UP
and the District Court are incorrect.

¶40 Drs. Treloar and Rork stated in their depositions that the ACL in
Bevacqua's left knee ruptured in the 1973 incident and that the extensive tears
in his medial and lateral meniscus occurred in the 1980 incident. Both doctors
testified that the 1990 incident aggravated the injuries to Bevacqua's knee
caused by the prior incidents. In addition, Dr. Treloar testified that the 1990
incident caused a small extension of the tear to the medial meniscus in
Bevacqua's knee. Dr. Treloar also stated that Bevacqua's knee would have
required surgery even without the occurrence of the 1990 incident. Dr. Rork
agreed with this assessment and stated that the condition of Bevacqua's knee
worsened because he did not have surgery to repair the knee after the 1973
incident. In addition, Dr. Treloar stated that it would be impossible to
apportion how much of Bevacqua's pain and disability was caused by the 1990
incident as compared to the prior incidents.

¶41 Accordingly, we hold that the District Court erred in granting UP's
motion to amend the judgment, hence, we reverse and reinstate the $320,000
verdict.

¶42 In his reply brief on appeal, Bevacqua requests, for the first time, that
we impose sanctions against UP under Rule 11, M.R.Civ.P., for taking a
position in its motion to amend the judgment that was inconsistent with its trial
position. Bevacqua asserts that, before and during trial, UP argued that the
1990 incident caused only a relatively minor injury and that, in its motion to
amend the judgment, UP argued that it was the 1990 incident that caused the
damages to Bevacqua's knee.

¶43 This Court will not address an issue presented for the first time on
appeal. Rasmussen v. Lee (1996), 276 Mont. 84, 88, 916 P.2d 98, 100 (citing
Fandrich v. Capital Ford Lincoln Mercury (1995), 272 Mont. 425, 431, 901
P.2d 112, 115-16). Bevacqua could have raised this issue before the trial court
in its response to UP's motion to amend, but he failed to do so.
UP's Issues on Cross Appeal

¶44 UP appeals the District Court's denial of its motion for a new trial based
on what it perceives as irregularities in the proceedings and prejudicial errors.
UP also appeals the court's denial of its several motions for judgment as a
matter of law on the issues of the statute of limitations, the validity of the
releases, and the lack of foreseeability in the 1990 negligence claim.

¶45 The decision to grant or deny a new trial is within the sound discretion

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of the trial judge and we will not disturb that decision absent a manifest abuse
of discretion. Baxter v. Archie Cochrane Motors, Inc. (1995), 271 Mont. 286,
287-88, 895 P.2d 631, 632 (citing Jim's Excavating Service v. HKM
Assoc.(1994), 265 Mont. 494, 512, 878 P.2d 248, 259).

¶46 A motion for judgment as a matter of law is governed by Rule 50,
M.R.Civ.P., which provides, in pertinent part:
If during a trial by jury a party has been fully heard with
respect to an issue and there is no legally sufficient evidentiary
basis for a reasonable jury to have found for that party with
respect to that issue, the court may grant a motion for judgment
as a matter of law against that party on any claim, counterclaim,
cross-claim, or third party claim that cannot under the
controlling law be maintained without a favorable finding on
that issue.

Rule 50(a)(1), M.R.Civ.P. This Court's standard of review of appeals from
district court orders granting or denying motions for judgment as a matter of
law is identical to that of the district court. Durden v. Hydro Flame Corp.,
1998 MT 47, ¶ 22, ___ P.2d ___, ¶ 22, 55 St.Rep. 198, ¶ 22 (citing Ryan v.
City of Bozeman (1996), 279 Mont. 507, 510, 928 P.2d 228, 229-30).
Judgment as a matter of law is properly granted only when there is a complete
absence of any evidence which would justify submitting an issue to a jury and
all such evidence and any legitimate inferences that might be drawn from that
evidence must be considered in the light most favorable to the party opposing
the motion. Durden, ¶ 21 (citing Jacques v. Montana Nat. Guard (1982), 199
Mont. 493, 504, 649 P.2d 1319, 1325).
Cross-Appeal Issue 1.

¶47 Whether the District Court erred in holding that UP was estopped from
relying on the statute of limitations for the 1973 and 1980 claims.

¶48 FELA provides that no action shall be maintained under this act unless
commenced within three years from the day the cause of action accrued. 45
U.S.C. § 56. Both parties moved for judgment as a matter of law on the
statute-of-limitations issue at the conclusion of the evidence. UP contended
that Bevacqua's cause of action accrued upon the occurrence of the injury
regardless of whether the full extent of the disability was known at that time.
Bevacqua contended that he was misled into not filing suit within the three-year
statutory period as the doctors who conducted his physical examinations
between 1973 and 1990 were agents of UP and none of those doctors advised
him of the full extent of his knee injury. The District Court ruled that estoppel
tolled the statute, therefore the court instructed the jury that FELA's three-year
statute of limitations did not apply to Bevacqua's 1973 and 1980 claims.

¶49 The United States Supreme Court has repeatedly held that FELA is to
be given a liberal construction in favor of injured railroad workers so that it
may accomplish the humanitarian and remedial purposes intended by
Congress. Davis v. Union Pacific R.Co. (1997), 282 Mont. 233, 245, 937 P.2d

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27, 34 (citing Consolidated Rail Corp. v. Gottshall (1994), 512 U.S. 532, 543,
114 S.Ct. 2396, 2404, 129 L.Ed.2d 427; Urie v. Thompson (1949), 337 U.S.
163, 180-81, 69 S.Ct. 1018, 1030, 93 L.Ed. 1282). This Court has followed
federal case law in giving a liberal construction to FELA in favor of injured
railroad workers. Davis, 282 Mont. at 245, 937 P.2d at 34 (citations omitted).

¶50 FELA's statute of limitations is primarily designed to assure fairness to
defendants. Burnett v. New York Central Railroad Co. (1965), 380 U.S. 424,
428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941. Nevertheless, this policy of repose
is frequently outweighed where the interests of justice require vindication of
the plaintiff's rights. Burnett, 380 U.S. at 428, 85 S.Ct. at 1055.

¶51 In Glus v. Brooklyn Eastern District Terminal (1959), 359 U.S. 231,
235, 79 S.Ct. 760, 763, 3 L.Ed.2d 770, the United States Supreme Court held
that a plaintiff is entitled to have his cause tried on the merits, even though he
did not file suit within the limitation period prescribed by FELA, if he could
prove that misrepresentations were made by agents of the railroad and that
those misrepresentations justifiably misled him into not filing suit within the
three-year statutory period.

¶52 Relying on Glus, the Ninth Circuit Court of Appeals has determined
that a FELA defendant may be estopped from raising the statute of limitations
for equitable reasons. Atkins v. Union Pacific Railroad Co. (9th Cir. 1982),
685 F.2d 1146, 1148 (citations omitted).
[C]onduct or representations by the defendant-employer which
tend to "lull (the plaintiff) into a false sense of security," can
estop the defendant from raising the statute of limitations, on the
general equitable principle that "no man may take advantage of
his own wrong."

Atkins, 685 F.2d at 1149.

¶53 In Fletcher v. Union Pacific Railroad Co. (8th Cir. 1980), 621 F.2d
902, 906, the Eighth Circuit Court of Appeals held that a railroad is equitably
estopped from asserting the statute of limitations as a defense "even if the
misrepresentations upon which the employee relied were unintentional." In
addition, the court in Fletcher stated: "Generally, a railroad has no duty to
ascertain whether an employee is physically fit for his job, but if it undertakes
to give physical examinations, it is liable if it performs such undertaking
negligently." Fletcher, 621 F.2d at 909. Even though the court held that
Fletcher's claim was barred by the statute of limitations because there was no
misrepresentation within three years of filing suit, the court determined that
the doctor was "almost certainly an agent of the employer" and that "the
employer undoubtedly has a hand in setting the standards for disability and
employment physicals." Fletcher, 621 F.2d at 909 n.9.

¶54 Moreover, the court in Fletcher determined that "[w]here a physician
certifies the employee as fit to return to heavy labor, it is not the employee's
burden to show malpractice by the examining physician." Fletcher, 621 F.2d
at 909. In making this determination, the court noted that "most such cases

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find that the examining physician was an agent of the railroad." Fletcher, 621
F.2d at 909 n.10.

¶55 Similarly, in Louisville & Nashville Railroad Co. v. Disspain (6th Cir.
1960), 275 F.2d 25, the plaintiff was sent to a doctor chosen by the railroad.
This doctor stated that there was nothing wrong with plaintiff and that he
should return to work. However, two years later, another doctor informed
plaintiff that he had a disintegrated intervertebral disc which required surgery.
The railroad claimed that the first doctor was not its employee but an
independent physician, hence it should not be estopped from raising the statute
of limitations. Disspain, 275 F.2d at 26.

¶56 The Sixth Circuit Court of Appeals held that it was sufficient if the
doctor's misrepresentation concerned the matter he was to perform for the
railroad--i.e., a physical examination. Moreover, the court determined that
when the doctor is an independent physician and is requested by the railroad
to examine an employee to determine if that employee is capable of continuing
to work, "it can hardly be said that the doctor acted without authority or on his
own." Disspain, 275 F.2d at 26.

¶57 Bevacqua underwent several physical examinations at the behest of UP
by doctors designated by UP. Each time he was certified as fit to return to
work. Additionally, Doctors Tousey, Kepl and Elston each filled out forms
setting forth Bevacqua's physical condition. These forms were provided by
UP and contained UP's name and logo. Moreover, the diagnoses of the
doctors that examined Bevacqua between 1973 and 1990 to the effect that
Bevacqua had a soft tissue bruise or a minor sprain or strain were
unequivocally wrong. None of the doctors, prior to Dr. Treloar in 1990, ever
diagnosed that Bevacqua had a ruptured ACL, torn meniscus, or degenerative
arthritis in his left knee, even though several other doctors later testified that
those conditions had been present since the 1973 and 1980 incidents.

¶58 UP most certainly had a hand in setting the standards for the
employment physicals and, since UP undertook to give these physical
examinations, UP is liable for any negligence that occurred in those
examinations. Fletcher, 621 F.2d at 909. Even though the doctors were
independent physicians, they were requested by UP to examine Bevacqua to
determine if he was capable of continuing to work, thus it cannot be said that
the doctors who examined Bevacqua at UP's request acted without authority
or on their own. Disspain, 275 F.2d at 26.

¶59 Therefore, we hold that the doctors who examined Bevacqua between
1973 and 1990 were acting as agents of UP. Moreover, those doctors
misrepresented Bevacqua's injuries as either a soft-tissue bruise or a minor
strain or sprain and those misrepresentations misled Bevacqua into not filing
suit within the three-year statutory period. Consequently, UP should not now
be allowed to take advantage of its own wrong. Atkins, 685 F.2d at 1149.

¶60 Since misrepresentations were made by agents of UP and those

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misrepresentations misled Bevacqua into not filing suit within the three-year
statutory period, Bevacqua is entitled to have his cause tried on the merits.
Glus, 359 U.S. at 235, 79 S.Ct. at 763. In this case, the interests of justice
require vindication of Bevacqua's rights. Burnett, 380 U.S. at 428, 85 S.Ct. at
1055.

¶61 Accordingly, we hold that the District Court did not err in ruling that
UP was estopped from relying on the three-year statute of limitations.
Cross-Appeal Issue 2.

¶62 Whether the District Court erred in instructing the jury that the
physicians who examined Bevacqua were agents of UP.

¶63 A district court has broad discretion regarding the instructions it gives
or refuses to give to a jury. Schumacher v. Stephens, 1998 MT 58, ¶ 21, ___
P.2d ___, ¶ 21, 55 St.Rep. 247, ¶ 21 (citations omitted). We will not reverse
a district court on the basis of its instructions absent an abuse of discretion.
Schumacher, ¶ 21. Furthermore, the party assigning error to the trial court's
instructions must show prejudice in order to prevail and prejudice will not be
found if the jury instructions in their entirety state the applicable law of the
case. Schumacher, ¶ 22.

¶64 The District Court's Instruction No. 34 states:
In this case, to determine if the doctors who initially
treated the plaintiff were agents of the railroad you may
consider these factors:
1. Was the medical care provided pursuant to a contract
or statute;
2. Who pays the physicians or contributes to the fund for
compensating the physicians;
3. Who administers the fund and how;
4. Who selects the physicians;
5. Who sets the standards for employment and disability
physicals;
6. Whether injured employees are required to report to
the company physician;
7. What non-monetary advantages accrue to the railroad;
and what is the custom and practice.

UP contends that this instruction, besides being confusing, is "just plain
wrong."

¶65 In addition, the court's Instruction No. 36 states:
Since the statements made by the doctors to plaintiff
concern the very matter he was employed by the railroad to
perform, the doctor was not acting on his own but was acting on
behalf of the defendant and the defendant is responsible for all
the acts of these doctors.

UP argues that this instruction contradicts Instruction No. 34 and is "totally at

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odds with the evidence."

¶66 We held previously in this opinion that the doctors who examined
Bevacqua were indeed agents of UP because they were acting on UP's behalf.
As such, UP is liable for any negligence that occurred in those examinations.
Thus, the District Court's Instruction No. 36 is not "totally at odds with the
evidence," but is correct. Instruction No. 34, however, is inaccurate and
contradictory. Since it was already determined that the doctors who initially
treated Bevacqua were agents of UP, it was unnecessary for the jury to decide
that issue. While these two instructions given together may have been
confusing, UP has failed to show that it was prejudiced by these instructions;
the instructions, in their entirety, state the applicable law of the case.
Schumacher, ¶ 22.

¶67 Accordingly, we hold that the District Court did not err in instructing
the jury that the physicians who examined Bevacqua were agents of UP.
Cross-Appeal Issue 3.

¶68 Whether the District Court erred in concluding that the release and
settlement agreements executed by the parties following the 1973 and 1980
incidents were invalid.

¶69 After both the 1973 and 1980 incidents, Bevacqua signed a release
purporting to settle all claims arising from those incidents. Both releases
stated that the parties were settling all claims "INCLUDING CLAIMS FOR
INJURIES, IF ANY, WHICH ARE UNKNOWN TO ME AT THE PRESENT
TIME. . . ." At the close of the evidence in this case, both parties moved for
judgment as a matter of law on the release issue. UP argued that Bevacqua
was foreclosed from pursuing his 1973 and 1980 claims because the releases
settled any claims arising from those incidents. Bevacqua argued that a mutual
mistake of fact occurred thus the releases were invalid. The District Court
agreed with Bevacqua and concluded that the releases were invalid as a matter
of law due to a mutual mistake of fact.

¶70 The validity of a release in a FELA action is governed by federal rather
than state law. Wilson v. CSX Transp., Inc. (6th Cir. 1996), 83 F.3d 742, 745
cert denied by CSX Transp., Inc. v. Wilson (1996), ___ U.S. ___, 117 S.Ct.
295, 136 L.Ed.2d 214 (citing Maynard v. Durham & S. R. Co. (1961), 365
U.S. 160, 161, 81 S.Ct. 561, 562, 5 L.Ed.2d 486). See also Taylor v.
Chesapeake and Ohio Railway Company (4th Cir. 1975), 518 F.2d 536, 537;
Dice v. Akron, Canton & Youngstown R. Co. (1952), 342 U.S. 359, 361, 72
S.Ct. 312, 314, 96 L.Ed. 398; Brophy v. Cincinnati, New Orleans, & Texas
Pacific Railway Co. (S.D.Ohio 1994), 855 F.Supp. 213, 215. A FELA release
may be set aside on the basis of mutual mistake of fact in executing the
release. Counts v. Burlington Northern R. Co. (9th Cir. 1991), 952 F.2d 1136,
1141 (citing Callen v. Pennsylvania R. Co. (1948), 332 U.S. 625, 630, 68 S.Ct.
296, 298, 92 L.Ed. 242). However, under FELA, a mutual mistake of fact is
sufficient to avoid a release only when the mistake goes to the nature of the
injury and the mistaken belief is held by both parties. Wilson, 83 F.3d at 745.

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¶71 UP argues that a mutual mistake of fact did not exist because Bevacqua
was aware there was still something wrong with his knee based on the
"popping" sensation that continued to exist. On the contrary, even though the
"popping" in his knee continued, Bevacqua was lulled into believing that
nothing was wrong with his knee because of the repeated assurances by the
various doctors that examined him at UP's request. All of these doctors
released Bevacqua to return to work; none of these doctors diagnosed
Bevacqua's knee injury as anything serious.

¶72 Moreover, Henry Lorring, the UP claims agent at the time of the 1973
incident, relied on the medical records received from Dr. Tousey. These
records indicated that Bevacqua had a simple sprain with no permanent injury.
Lorring related this information to Bevacqua before the 1973 release was
signed. Ray McDeid, the UP claim's agent at the time of the 1980 incident,
testified that he was not aware of the extent of Bevacqua's injuries at the time
the release was signed. He also testified that the $750 paid for the 1980
release was far too low for a ruptured ACL and torn meniscus. Hence, a
mutual mistake of fact in executing the releases did occur in this case and,
under the law of FELA, that is sufficient to set aside the releases. Callen, 332
U.S. at 630, 68 S.Ct. at 298; Counts, 952 F.2d at 1141.

¶73 Accordingly, we hold that the District Court did not err in invalidating
the release and settlement agreements executed by the parties following the
1973 and 1980 incidents.
Cross-Appeal Issue 4.

¶74 Whether the District Court erred in instructing the jury that a violation
of the federal regulations applicable to locomotive noise emissions constitutes
negligence per se.

¶75 As we stated elsewhere in this opinion, a district court has broad
discretion regarding the instructions it gives or refuses to give to a jury and we
will not reverse a district court on the basis of its instructions absent an abuse
of discretion. Schumacher, ¶ 21.

¶76 Bevacqua contended at trial that the injury he sustained in 1990 was
caused by UP's negligence. He theorized that UP engaged in negligent
practices by parking idling locomotives near the customs' office
inconveniencing customs officials and that the excessive noise emitted from
the locomotive parked near the customs' office angered Barnhart causing him
to assault Bevacqua. Both theories were predicated on the noise emissions
from the locomotives.

¶77 The District Court instructed the jury that federal railroad regulations
require that any railroad that uses railroad equipment that is noise defective
must correct the defect or remove the defective equipment from service.
Additionally, the court instructed the jury that if the jury found that UP
violated this regulation and that such violation played any part in causing
Bevacqua's injuries, then UP was negligent as a matter of law.

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¶78 UP contends that the District Court's instructions are in direct
contradiction of the law as previously established by this Court. UP cites
several Montana cases for the proposition that a violation of a statute may
constitute negligence per se under certain circumstances, however, the
violation of a regulation does not. Thus, UP asserts that since locomotive
noise emission standards are federal regulations and are not statutory, we
should consider any violation as merely evidence of negligence and not
negligence per se. In addition, UP contends that even if a statute had been
violated, it would not be negligence per se unless Bevacqua belonged to the
specific class of persons the statute was enacted to protect and the injury
Bevacqua sustained was of the sort the statute was enacted to prevent.

¶79 While UP's contentions are correct as applied to Montana statutory and
regulatory law, they are incorrect when applied to FELA. In a FELA action,
"the violation of a statute or regulation, such as [a regulation regarding radio
standards and procedures] automatically constitutes breach of the employer's
duty and negligence per se and will result in liability if the violation
contributed in fact to the plaintiff's injury." Walden v. Illinois Central Gulf
Railroad (7th Cir. 1992), 975 F.2d 361, 364. Accord Kernan v. American
Dredging Co. (1958), 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (holding that
recovery was permissible, without any showing of negligence, for death
resulting from the violation of a rule concerning lighting equipment); Pratico
v. Portland Terminal Co. (1st Cir. 1985), 783 F.2d 255 (wherein the court
determined that a jury instruction requiring the jury to find the defendant
negligent as a matter of law if the defendant violated an OSHA regulation and
such violation was a proximate cause of plaintiff's injury, was correct as a
matter of law).

¶80 In addition, the United States Supreme Court stated in Kernan that
the theory of the FELA is that where the employer's conduct
falls short of the high standard required of him by this Act, and
his fault, in whole or in part, causes injury, liability ensues.
And this result follows whether the fault is a violation of a
statutory duty or the more general duty of acting with care, for
the employer owes the employee, as much as the duty of acting
with care, the duty of complying with his statutory obligations.

Kernan, 355 U.S. at 438-39, 78 S.Ct. at 401.

¶81 In the case before us, evidence at trial established that, prior to the 1990
incident, one of the locomotives left idling on the tracks near the customs
building had a defective valve which prevented the air tanks from closing
properly and causing the tanks to blow out air. Under FELA:
Every common carrier by railroad . . . shall be liable in
damages to any person suffering injury while he is employed by
such carrier . . . for such injury or death resulting in whole or in
part from the negligence of . . . such carrier, or by reason of any
defect or insufficiency, due to its negligence, in its cars, engines
. . . or other equipment.

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45 U.S.C. § 51 (emphasis added).

¶82 Furthermore, contrary to UP's contention that even if it had violated a
statute, it would not be negligence per se unless Bevacqua belonged to the
specific class of persons the statute was enacted to protect and the injury
Bevacqua sustained was of the sort the statute was enacted to prevent, the
United States Supreme Court has held that the violation of a statute or
regulation creates liability under FELA without regard to whether the injury
flowing from the violation was the injury the statute or regulation sought to
prevent, if the violation contributed in fact to the injury. Kernan, 355 U.S. at
433, 78 S.Ct. at 398. Accord Pratico, 783 F.2d at 263.

¶83 Accordingly, we hold that the District Court did not err when it
instructed the jury that a violation of the federal regulations applicable to
locomotive noise emissions constituted negligence per se.
Cross-Appeal Issue 5.

¶84 Whether the District Court erred in denying UP's motion for judgment
as a matter of law on the issue of foreseeability as to the negligence claim
arising from the 1990 incident.

¶85 UP contends that, in order to prevail on a FELA negligence claim,
Bevacqua must prove the traditional common law components of negligence,
including duty, breach, causation and injury. UP argues that Bevacqua failed
in this regard as to the 1990 incident in that he did not establish the element
of foreseeability because he did not submit any evidence that UP knew or
should have known that its activities with respect to the idling locomotives
created a reasonable possibility of harm to Bevacqua.

¶86 We have already determined elsewhere in this opinion that violation of
a federal regulation is negligence per se under FELA, Walden, 975 F.2d at
364, and, as such, it is not necessary to establish the element of foreseeability
as negligence is proven by evidence that the locomotive-noise-emission
standards were violated. Evidence at trial established that prior to the 1990
incident, a locomotive with a stuck pop valve was parked on the tracks near
the customs building. This pop valve prevented the air tanks on the engine
from closing properly, thus it blew air for several hours. The fact of the
violation of the regulation appears undisputed.

¶87 Accordingly, we hold that the District Court did not err in denying UP's
motion for judgment as a matter of law on the negligence claims arising from
the 1990 incident.
Cross-Appeal Issue 6.

¶88 Whether the District Court erred in granting judgment as a matter of
law in favor of Bevacqua on the issue of apportioning damages.

¶89 Bevacqua moved for judgment as a matter of law on the issue of

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apportionment and the District Court granted that motion directing that there
would be no apportionment between the 1973, 1980 and 1990 incidents as UP
had totally failed in its burden to put on any evidence of apportionment
regarding the preexisting conditions.

¶90 UP contends that the District Court erred in granting Bevacqua's motion
because there was evidence from which the jury could have apportioned the
damages between the injuries sustained in the 1973, 1980 and 1990 incidents.
UP asserts that statements made by Bevacqua's expert witness, Dr. Treloar,
differentiates between the injuries sustained prior to 1990 and the injuries
sustained in the 1990 incident. On the contrary, Dr. Treloar testified that it
would be impossible for him to accurately apportion damages between the
three incidents. Furthermore, UP did not call any medical expert to testify in
its behalf, thus, the undisputed medical evidence revealed that the 1980
incident aggravated the preexisting condition caused by the 1973 incident and
that the 1990 incident aggravated the preexisting condition caused by both the
1973 and 1980 incidents.

¶91 In a case factually similar to the case before us wherein the plaintiff
suffered two work-related back injuries prior to the injury for which he
brought a claim, we stated that
to impose upon the plaintiff the sometimes impossible burden of
proving which tortious act did which harm, would be an
expression of a judicial policy that it is better that a plaintiff,
injured through no fault of his own, should take nothing simply
because he could not prove which tortious act caused which
harm. We believe, on the other hand, that where the tortious act
is established, it is better that the tortfeasor should be subject to
paying more than his theoretical share of the damages in a
situation where the tortious conduct has contributed to the
confused situation making it difficult to prove which tortious act
did the harm.

Callihan v. Burlington Northern, Inc. (1982), 201 Mont. 350, 357, 654 P.2d
972, 976 (quoting Azure v. City of Billings (1979), 182 Mont. 234, 253, 596
P.2d 460, 470-71).

¶92 Accordingly, we hold that the District Court did not err in refusing to
apportion damages between the 1973, 1980 and 1990 incidents.
Cross-Appeal Issue 7.

¶93 Whether the special verdict form submitted to the jury was inherently
confusing and misleading.

¶94 The District Court submitted the case to the jury on a 23-question
special verdict form that had been proposed by Bevacqua. UP objected to the
use of this form, but did not offer an alternative form. UP contends on appeal
that the use of this special verdict form was error on the part of the District
Court because the form was inherently confusing and did not clearly indicate
the jury's intent with respect to the damages issue.

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¶95 During the course of its deliberations, the jury posed a question for the
court. The question focused on the interrogatories in the special verdict form
which referred to the amount of damages for each of the three incidents. The
jury inquired whether the amount of damages for each incident would "get
added together or not for the total award?" After discussion with counsel, the
court responded that the jury should fill in the same damages figure for each
incident and that the figures would not be totaled. UP now contends that the
jury's question indicates that the jury intended to apportion damages between
the three incidents but was unable to do so because of the court's ruling.

¶96 Special verdicts are governed by Rule 49(a), M.R.Civ.P., which
provides as follows:
The court may require a jury to return only a special
verdict in the form of a special written finding upon each issue
of fact. In that event the court may submit to the jury written
questions susceptible of categorical or other brief answer or may
submit written forms of the several special findings which might
properly be made under the pleadings and evidence; or it may
use such other method of submitting the issues and requiring the
written findings thereon as it deems most appropriate. The court
shall give to the jury such explanation and instruction
concerning the matter thus submitted as may be necessary to
enable the jury to make its findings upon each issue. If in so
doing the court omits any issue of fact raised by the pleadings
or by the evidence, each party waives the right to a trial by jury
of the issue so omitted unless before the jury retires the party
demands its submission to the jury. As to an issue omitted
without such demand the court may make a finding; or if it fails
to do so, it shall be deemed to have made a finding in accord
with the judgment on the special verdict.

The use of a special verdict form is left to the discretion of the trial court.
Rule 49(a), M.R.Civ.P.; Barthule v. Karman (1994), 268 Mont. 477, 488, 886
P.2d 971, 978 (citing Kinjerski v. Lamey (1981), 194 Mont. 38, 41, 635 P.2d
566, 567). "While it is within the trial court's discretion to structure the form
and frame the questions of a special verdict, the interrogatories must be
adequate to enable the jury to determine the factual issues essential to
judgment." Kinjerski, 194 Mont. at 41, 635 P.2d at 567 (citations omitted).

¶97 We use a three-part standard to determine the adequacy of a special
verdict form:
1) whether, when read as a whole and in conjunction with the
general charge, the interrogatories adequately presented the
contested issues to the jury;
2) whether the submission of the issues to the jury was fair; and
3) whether the ultimate questions of fact were clearly submitted
to the jury.

Story v. City of Bozeman (1993), 259 Mont. 207, 229, 856 P.2d 202, 215

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(citing Kinjerski, 194 Mont. at 41, 635 P.2d at 568). If the evidence does not
support a claim, then the trial court should not allow a jury to consider the
claim on the special verdict form. Story, 259 Mont. at 229, 856 P.2d at 215
(citing R.H. Grover, Inc. v. Flynn Ins. Co. (1989), 238 Mont. 278, 284, 777
P.2d 338, 342).

¶98 In the case before us on appeal, although the jury found it necessary to
ask a question about one portion of the special verdict form, they were able to
determine the factual issues essential to the judgment once their question was
answered. In addition, when read as a whole, the interrogatories adequately
presented the contested issues to the jury, the submission of the issues to the
jury was fair, and the ultimate questions of fact were clearly submitted.
Furthermore, UP did not make any substantial objections at trial that would
require reversal on this issue.

¶99 Accordingly, we hold that the special verdict form submitted to the jury
in this case was not inherently confusing and the District Court did not abuse
its discretion in using this form.
Conclusion

¶100 We reverse the District Court's order granting UP's motion to amend the
judgment and we reinstate the $320,000 verdict. In addition, we affirm on
each of UP's specifications of error and we deny Bevacqua's request for Rule
11 sanctions.

/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ WILLIAM E. HUNT, SR.

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