UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 93-4829
_____________________
ALLEN C. GREGORY,
Plaintiff-Appellee,
versus
MISSOURI PACIFIC RAILROAD
COMPANY, d/b/a Union Pacific
Railroad Company,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
(August 31, 1994)
Before JOHNSON, BARKSDALE, and DeMOSS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
The principal issue in Allen C. Gregory's slip and fall action
against his employer, Missouri Pacific Railroad Company (MOPAC),
arising out of oil on the walkway of its locomotive, is the
peremptory instruction that the presence of the oil violated the
Boiler Inspection Act, 45 U.S.C. § 23. Because violation of the
Act, vel non, was a question for the jury, we REVERSE and REMAND
for a new trial.1
1
Accordingly, we do not address MOPAC's contention that it is
entitled to a new trial because the damages were excessive, or its
related contentions regarding lack of proof of causation and the
testimony of Gregory's expert economist.
I.
Gregory alleged that, in January 1989, while employed by
MOPAC, he slipped on oil on a locomotive walkway and fell; but this
action was not filed until mid-1991, culminating in a four day
trial in the spring of 1993.2 After being instructed that oil on
the walkway violated the Boiler Inspection Act (BIA), the jury
awarded Gregory approximately $362,000.3
2
Gregory testified about the injuries as follows. As a result
of the fall, he injured his left ankle and lower back; because his
ankle was hurt so badly, he did not pay much attention to the back
injury; he received physical therapy for his ankle for several
months, but continued to have problems with it giving way, causing
him to fall several times a week; in May 1989, he injured his ankle
when he stepped on a root in his yard; and that July, he broke a
bone in his hand when his ankle gave way as he was getting out of
his car, causing its door to close on his hand. (MOPAC introduced
evidence that Gregory broke the bone in his hand when he hit a wall
during an argument with his ex-wife. And, it introduced the ex-
wife's deposition testimony that Gregory told her that he was going
to tell the doctor that his ankle gave way, causing him to slip and
fall into the car door, so that he could get a better settlement
from the railroad.)
Gregory testified further that he tried to return to light
duty for MOPAC in May 1990; that on his second day, as he was
coming down the steps of an engine, he had a pain in his injured
hand; that he released the railing and fell to a standing position,
aggravating his injured back; that his ankle was completely healed;
and that his claim for future loss of earning capacity was based
solely on the back injury caused by the January 1989 fall.
Gregory had previously injured his left ankle, right wrist,
and lower back while working for MOPAC in September, 1987, and was
off work for five months. He accepted $22,000 from MOPAC in
settlement of his claims, and signed a release which stated that
those injuries were permanent. Gregory testified at trial,
however, that the 1987 injuries were not permanent, and that he had
signed the release only because he was told by MOPAC that he could
not go back to work unless he did so.
3
Gregory received approximately $62,000 for physical pain and
mental anguish, approximately $70,000 for past lost wages, and
$230,000 for future loss of earning capacity.
- 2 -
II.
"[T]he BIA is a safety statute which is to be liberally
construed to afford protection to railroad employees". Oglesby v.
Southern Pacific Transp. Co., 6 F.3d 603, 606 (9th Cir. 1993)
(citing Lilly v. Grand Trunk Western R.R., 317 U.S. 481, 486
(1943)). It "imposes `an absolute and continuing duty' to provide
safe equipment". Richardson v. Consolidated Rail Corp., 17 F.3d
213, 216 (7th Cir. 1994) (quoting Urie v. Thompson, 337 U.S. 163,
188 (1949)). The Act provides in relevant part:
It shall be unlawful for any carrier to use
... any locomotive unless said locomotive ... and
all parts and appurtenances thereof are in proper
condition and safe to operate in the service to
which the same are put, that the same may be
employed ... without unnecessary peril to life or
limb....
45 U.S.C. § 23.
In its peremptory instruction, the court employed language
from both the BIA and a regulation adopted under it, 49 C.F.R. §
229.119(c). It instructed that the BIA required operation "without
unnecessary peril to life or limb"; and from the regulation,
without referencing it, instructed that the Act "places an absolute
duty ... to ... [prevent] an accumulation of oil on ... the ...
passageway which presents a hazard to slipping, falling or tripping
by its employees."4
4
The jury was instructed:
The [BIA] was adopted to protect the safety of
railroad employees by imposing certain absolute
standards of maintenance for equipment used on
railroads. The [BIA] makes it unlawful for any
railroad to use or permit to be used on its line
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A.
MOPAC contends that, because there was a factual dispute as to
whether the oil presented a slipping hazard and thus constituted an
"unnecessary peril to life or limb", the district court erred by
peremptorily instructing the jury that MOPAC violated the BIA.5
any locomotive unless the entire locomotive and
it[]s appurtenances are in proper condition and
safe to operate without unnecessary peril to life
or limb and it has passed the mandatory daily
inspection.
This statute places an absolute duty on the
railroad to, among other things, avoid the use of a
locomotive which has an accumulation of oil on its
floor of the cab or passageway which presents a
hazard to slipping, falling or tripping by its
employees.
In connection with the violation of this law
you need not consider whether the railroad was
negligent, whether the railroad exercised diligence
or due care, or whether the railroad knew of the
existence of an accumulation of oil on a walkway or
some other defect in the equipment. These matters
are not relevant to the claim that [MOPAC] violated
the [BIA], since the act imposes an absolute duty
on the railroad for injuries caused in whole or in
part by violation of the act.
Since it is uncontested in this case that
there was an accumulation of oil on the walkway or
passageway that ... Gregory was using on January
the 19th, 1989, you are instructed that on this
occasion [MOPAC] was in violation of the [BIA].
Under such circumstances, [MOPAC] is liable to
[Gregory] for any injuries which were brought about
in whole or in part by the violation.
(Emphasis added.)
5
Gregory maintains that MOPAC failed to preserve this issue.
MOPAC's objections to the charge included the following:
[T]here's no evidence ... that this oil on the
walkway was ... perilous to life and limb; and
therefore, come under the parameters of the [BIA].
- 4 -
The familiar standard adopted by our court in Boeing v.
Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc) governs our
review of the peremptory instruction. Simmons v. King, 478 F.2d
857, 860 (5th Cir. 1973). If all of the evidence, considered in
the light and with all reasonable inferences most favorable to
MOPAC, points so strongly and overwhelmingly in favor of Gregory
that reasonable jurors could reach only one conclusion -- that the
oil on the passageway presented an unnecessary peril to life or
limb because it presented a slipping, falling or tripping hazard
(unnecessary peril) -- the instruction was appropriate. Boeing,
411 F.2d at 374. But, if there is "evidence of such quality and
weight that reasonable and fair-minded men in the exercise of
I think that that's what the [BIA] does require.
Although the docket sheet reflects that MOPAC submitted proposed
instructions, they are not in the record; nor is the charge
conference. Therefore, we do not know what transpired regarding
the formulation of the charge. After the jury was instructed, the
parties were given an opportunity to make their objections to the
charge. Gregory had none; MOPAC, several, including the one quoted
above. Certainly, for purposes of contesting the peremptory nature
of the instruction, the objection could have been more specific,
but it meets the minimal requirements of Fed. R. Civ. P. 51. In
its objections to the charge, MOPAC did not contend specifically
that the oil did not constitute a slipping hazard under the
regulation. However, we consider that objection subsumed in its
objection to the instruction that it violated the BIA, inasmuch as
the charge did not differentiate between the statute and the
regulation, but stated that "[t]his statute [the BIA] places an
absolute duty on the railroad to ... avoid the use of a locomotive
which has an accumulation of oil on its floor of the cab or
passageway which presents a hazard to slipping, falling or tripping
by its employees".
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impartial judgment might reach different conclusions", the question
should have been submitted to the jury. Boeing, 411 F.2d at 374.6
There was conflicting evidence on whether the oil constituted
an unnecessary peril. Photographs taken the day after the incident
depict several spots of oil on the walkway. Gregory testified that
he slipped in the "largest spot, or puddle", located next to the
wall of the engine and two to three steps beyond the bottom of the
locomotive steps which he had descended just before slipping. He
described the size of the spot as "probably 12 inches, maybe, a
little larger".
The oil, as photographed the day after the incident, covered
approximately one-third of the width of the walkway. One of the
6
The parties have not cited, nor have we found, any cases
addressing a peremptory instruction such as the one at issue.
Numerous cases imply, however, that whether a condition presents an
"unnecessary peril to life or limb" is an issue of fact for the
jury (assuming, of course, that the evidence is not so one-sided
that the jury could reach only one conclusion). See, e.g., Lilly
v. Grand Trunk Western R. Co., 317 U.S. 481, 489 (1943) ("The use
of a tender, upon whose top an employee must go in the course of
his duties, which is covered with ice seems to us to involve
`unnecessary peril to life or limb' -- enough so as to permit a
jury to find that the Boiler Inspection Act has been violated");
Topping v. CSX Transp., Inc., 1 F.3d 260, 261 (4th Cir. 1993) ("It
seems to us a classic jury question whether the presence of the
loose metal object rendered the locomotive cab `unsafe to
operate'"); St. Louis Southwestern Railway Co. v. Williams, 397
F.2d 147, 148-49, 151 (5th Cir. 1968) (jury could properly find
that presence of oil on step of locomotive constituted a violation
of the BIA); Calabritto v. New York, New Haven & Hartford R. Co.,
287 F.2d 394, 395 (2d Cir.) ("the use of an engine whose surface
has been made slippery by sand and oil may ... be found by a jury
to involve `unnecessary peril to life or limb' in violation of the
[]BIA"), cert. denied, 366 U.S. 928 (1961); Louisville & N.R. Co.
v. Botts, 173 F.2d 164, 167 (8th Cir. 1949) ("trial court clearly
was entitled to allow the jury to decide whether the footboard, in
the use to which the switch engine was put, was in proper condition
and safe to operate without unnecessary peril to life or limb").
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photographs depicts a man with a broom, apparently sweeping the
walkway. Gregory testified that the oil depicted in the
photographs looked different from when he fell; and that, in the
photographs, it appears that "oil dry" (a granular or powder
substance placed on the oil to absorb it) has been placed on the
oil. But MOPAC's manager of train operations, Larry Erwin, who saw
the oil shortly after the incident, testified that a photograph of
the walkway taken the day after the incident fairly and accurately
represented what he saw on the day of the incident.
Gregory testified that the oil was wet and was absorbed into
his clothing, boots, and radio; that he did not know he had fallen
in the oil because he was sitting in it; and that, when he got up,
the engineer told him that he had oil all over his pants. On
cross-examination, Gregory testified that the oil was plainly
visible, and that he would have seen it had he been looking down.
The conductor testified that he did not notice any oil on
Gregory's clothing. On cross-examination, he admitted that, when
he went to check on Gregory after the incident, he saw on the
walkway a "puddle of oil" which measured about 18" by 8". And, his
report prepared on the date of the incident stated that Gregory
"stepped in [a] puddle of oil".
Erwin, manager of train operations, testified also that he met
the train immediately after the incident, and saw "a patch of oil"
where it occurred. He described the oil as follows:
[W]hen I say a patch of oil, it wasn't like you
just poured some oil out of a can of motor oil, it
wasn't that type of oil. It ... looked more like a
- 7 -
dirty grease, greasy spot on the side of the engine
walkway next to the inspection doors....
Erwin testified that the oil did not look slippery; rather, it was
"kind of crusty looking ... [;] it was just a little place that
looked like it had been there for a while and it wasn't fresh
looking"; that the oil did not appear to be a slipping hazard; that
the walkway had a nonskid surface; that there were no footprints in
the oil spot and "no apparent marks of anybody slipping in this oil
or grease"; and that he did not see oil on Gregory's clothing.
When asked on cross-examination whether "[i]t's a pretty
serious no-no on the railroad to have oil on the walkway", Erwin
replied: " ... I would say it depends on where the oil was ...."
He opined that the oil was not a BIA violation.7
Because there is "evidence of such quality and weight that
reasonable and fair-minded men in the exercise of impartial
judgment might reach different conclusions", Boeing, 411 F.2d at
374, as to whether the oil constituted an unnecessary peril, that
question should have been presented to the jury.
B.
Gregory counters that the regulation referenced in the charge
controls, but takes a position inconsistent with both the language
used by the district court and the position Gregory took there. In
7
On the date of the incident, the train was using two engines.
Gregory allegedly was injured on the second unit, and he admitted
that he was supposed to be on the lead unit. Erwin opined that the
oil did not violate the BIA because the crew operates off the lead
unit, and the oil was on the second unit; and the crew had not
reported the oil.
- 8 -
the alternative, he asserts that the jury did find that the oil
violated the Act.
1.
Gregory does not defend the peremptory instruction on the
ground that the evidence supported only a conclusion that the oil
was an "unnecessary peril to life or limb". Instead, he maintains
that he had only to prove that the oil violated regulations
promulgated under the Act.8 MOPAC agrees that violation of such a
regulation can be a violation of the BIA, but asserts that the
regulations do not provide that the mere presence of oil on a
walkway violates the Act.
The regulation MOPAC is said to have violated, as a matter of
law, provides:
Floors of cabs, passageways, and compartments shall
be kept free from oil, water, waste or any
obstruction that creates a slipping, tripping or
8
See, e.g., Lilly v. Grand Trunk Western R. Co., 317 U.S. 481,
488 (1943) (a rule adopted in the exercise of the Interstate
Commerce Commission's authority "acquires the force of law and
becomes an integral part of the [BIA]"); Givens v. Missouri-Kansas-
Texas R. Co., 195 F.2d 225, 229 (5th Cir. 1952) ("A violation of
any of [the] particular requirements [promulgated by the ICC] is a
violation of the [BIA]"); Mosco v. Baltimore & Ohio R., 817 F.2d
1088, 1091 (4th Cir.), cert. denied, 484 U.S. 851 (1987) ("[A]
carrier may violate the [BIA] in one of two ways. First, it may
fail to comply with the regulations promulgated by the Federal
Railroad Administration. Compliance with these regulations is not,
however, the only duty imposed by the Act. The Act also imposes a
broader duty on carriers to keep all the parts and appurtenances of
their locomotives in proper condition and safe to operate without
unnecessary peril to life or limb".).
The ICC's regulatory authority under the BIA was transferred
to the Department of Transportation. See 49 U.S.C. § 1655(e)(1)
(E). The Federal Railroad Administration is responsible for
carrying out the Secretary of Transportation's duties under the
BIA. See 49 U.S.C. § 103 (1994).
- 9 -
fire hazard. Floors shall be properly treated to
provide secure flooring.
49 C.F.R. § 229.119(c).9 According to Gregory, "whether something
created a slipping, tripping, or fire hazard ... would be raised
only if an injury resulted from `any obstruction' not specifically
listed in the regulation, i.e. - not from oil, water or waste". In
district court, however, in opposition to MOPAC's new trial motion,
Gregory interpreted the regulation as prohibiting "oil on a
passageway that creates a hazard of tripping or slipping".10
As quoted supra, the peremptory instruction took a position
contrary to Gregory's new found interpretation. It instructed that
the BIA was violated if the "accumulation of oil ... present[ed] a
hazard to slipping, falling or tripping", not that the mere
presence of oil constituted a violation.11
Accordingly, the interpretation Gregory takes now raises an
issue that we cannot consider. An appellee generally may urge in
support of a judgment any matter appearing in the record, e.g.,
9
Gregory also cites a more general regulation, 49 C.F.R. §
229.45, which provides:
General Condition. All systems and components of a
locomotive shall be free of conditions that
endanger the safety of the crew ... includ[ing] ...
leaks and accumulations of oil on electrical
equipment that create a personal injury hazard....
10
Gregory's cross-examination of Erwin reflects the same
interpretation of the regulation as that urged in Gregory's
response to the new trial motion.
11
Even on appeal, Gregory seems to alternate on how the
regulation is to be read. At one point, he states that the
instruction, which would include the above quoted portion
construing the regulation, "was a correct statement of the law".
- 10 -
City of Safety Harbor v. Birchfield, 529 F.2d 1251, 1254 (5th Cir.
1976), but that rule is not applicable here for the simple -- and
obvious -- reason that this point was not raised in district
court.12 Even more than that, as noted above, Gregory took the
opposite position. Gregory cannot take one position before the
district court and then take an inconsistent position here. See,
e.g., Jett v. Zink, 474 F.2d 149, 154-55 (5th Cir.) (party who
argued on first appeal that action was in personam was precluded
from arguing on second appeal that the action was quasi in rem),
cert. denied, 414 U.S. 854 (1973).
But, more important, for this challenge to the peremptory
instruction, it is the language of the instruction that must
control. And, in this regard, we agree with the district court's
interpretation of the regulation.13
The regulation is not violated by the mere presence of any
oil, water, or waste on a passageway; instead, the presence of such
12
See also United States v. American Railway Express Co., 265
U.S. 425, 435 (1924) ("the appellee may, without taking a cross-
appeal, urge in support of a decree any matter appearing in the
record, although his argument may involve an attack upon the
reasoning of the lower court or an insistence upon matter
overlooked or ignored by it"); cf. F.D.I.C. v. LaGuarta, 939 F.2d
1231, 1240 & n.20 (5th Cir. 1991) (summary judgment generally
should not be affirmed on grounds that were neither raised nor
relied on in the district court). But see Schweiker v. Hogan, 457
U.S. 569, 584-85 & n.24 (1982) (although appellees did not present
statutory argument in the district court, "they are not precluded
from asserting it as a basis on which to affirm that court's
judgment"). Schweiker is distinguishable because, inter alia, it
dealt with a new contention rather than one that was inconsistent
with the appellees' position in the district court.
13
We address Gregory's interpretation of the regulation in the
interest of judicial economy, should Gregory take his present
position on remand.
- 11 -
a substance is a violation only if it creates a slipping, tripping
or fire hazard. To read the regulation otherwise is to impose an
absurd result. For example, under Gregory's interpretation, the
regulation would be violated every time a train operated in the
rain.14 Obviously, such an interpretation is illogical. It goes
without saying that, in construing a statute or regulation, we seek
to avoid imposing such results. See, e.g., Forsyth v. Barr, 19
F.3d 1527, 1544 (5th Cir. 1994); Brock v. City Oil Well Service
Co., 795 F.2d 507, 510 (5th Cir. 1986).
Moreover, Gregory's interpretation calls into question the
validity of the rule. In enacting the BIA, Congress recognized
that "[t]he operation of an engine, however equipped, involves some
`danger to life or limb.'" United States v. Baltimore & O.R. Co.,
293 U.S. 454, 462 (1935) (emphasis added). The BIA does not
address all perils associated with locomotives, only "unnecessary"
perils; it "conferred authority to prescribe by rule specific
devices, or changes in the equipment, only where these are required
to remove `unnecessary peril to life or limb'". Id. at 463
(emphasis added). Rules promulgated under the BIA must be
supported by a finding that the rule is necessary "to remove
`unnecessary peril to life or limb'". Id.; see also Lilly v. Grand
Trunk Western R. Co., 317 U.S. at 486 (the railroad regulator "is
broadly authorized to set the standards of compliance by
prescribing rules and regulations by which fitness for service [of
14
Erwin testified that, as is well known, locomotives operate in
all kinds of weather, 24 hours a day, seven days a week, and that
in wet weather, water cannot be kept off the passageways.
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locomotives, tenders and their appurtenances] shall be determined,
provided that ... the Commission finds such are required to remove
unnecessary peril to life or limb") (brackets in original; internal
quotation marks and citation omitted).
Gregory has not cited, nor have we located, any indication
that the Secretary of Transportation has found that any amount of
oil on a locomotive constitutes an unnecessary peril to life or
limb. We decline to interpret the regulation in a manner that
would call into question its validity.15
2.
In the alternative, Gregory contends that the jury determined
implicitly that the oil was a peril when it answered "yes" to the
first interrogatory, which asked: "Do you find, from a
preponderance of the evidence, that the oil on the walkway played
any part, no matter how slight, in bringing about an injury to
[Gregory]....?" Gregory asserts that "[t]he fact that the oil
puddle was sufficient to cause someone to slip and fall makes it a
peril under the [BIA]". Once again, Gregory takes a position
inconsistent with the one he took at trial. There, he took the
case to the jury basking in the warmth of a peremptory instruction:
the oil was a violation of the BIA. This was the roadmap for the
jury; one that Gregory was no doubt delighted with. Now Gregory
wants to change the rules, and seeks shelter under a special
15
As discussed supra, because there was "evidence of such
quality and weight that reasonable and fair-minded men in the
exercise of impartial judgment might reach different conclusions",
whether the oil constituted a slipping hazard, and thus violated
the BIA, was a question for the jury.
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interrogatory that simply asked whether the oil -- which the jury
was instructed was a violation of the BIA -- had any causative
effect for Gregory's injury. In no way was the jury asked to
decide whether the oil constituted a peril, under the Act or
through the regulation; just the opposite. Its operating mandate
was that the oil was a violation.
In any event, the Ninth Circuit rejected a similar contention
in Oglesby v. Southern Pacific Transp. Co., 6 F.3d 603 (9th Cir.
1993). Oglesby injured his back when he attempted to replace an
engineer's seat in a locomotive. Id. at 604. The district court
instructed the jury that
[t]o establish a violation of the [BIA] it is not
necessary to show any negligence on the part of the
... railroad and it is not necessary to show a
mechanical defect. Proof of the failure of an
appliance to work efficiently, when used in its
customary and proper manner, fastens liability on
the railroad without a specific defect. Plaintiff
need only establish that on the occasion in
question the item covered by the [BIA] did not work
properly.
Id. at 610 (emphasis in original). The railroad contended that the
instructions improperly allowed the jury to find a BIA violation
without finding that a defect in the seat posed a safety hazard.
Id. at 609-10. The Ninth Circuit agreed that the instructions
"improperly allow the jury to find a violation of the BIA merely
because the seat was not in a proper condition rather than because
it was unsafe, as the statute requires". Id. at 610. It rejected
Oglesby's assertion that a BIA violation was established by a mere
showing that the seat did not work efficiently, noting that it had
"found no case in which a violation [of the BIA] was established
- 14 -
without a showing that the alleged defect created a safety hazard".
Id. at 610.
In the alternative, Oglesby contended that any error in the
jury instructions was harmless because in finding that the
defective seat caused his injury, the jury must also have found
that it was unsafe. Id. The Ninth Circuit disagreed, stating that
"the alleged defects themselves must first be found to be unsafe in
order to constitute a violation of the BIA. Only once this finding
has been made is a BIA violation established and an inquiry into
whether the defective seat was the proximate cause of the injury
relevant". Id.
We agree. An inquiry whether the oil caused Gregory to slip
and injure himself was not relevant unless the jury found first
that the oil violated the BIA. Under proper instructions, the jury
could have found that the oil did not constitute a safety hazard.
III.
"[T]he seventh amendment preserves the right of parties to a
jury trial unless there is `no legally sufficient evidentiary basis
for a reasonable jury to find for [the] party on th[e] issue'".
Lloyd v. Pendleton Land & Exploration, Inc., 22 F.3d 623, 626 (5th
Cir. 1994) (quoting Fed. R. Civ. P. 50(a)(1)). Viewing the
evidence in the light most favorable to MOPAC, we conclude that it
does not point so strongly and overwhelmingly in favor of Gregory
that reasonable jurors could not find that the oil on the
passageway did not present an unnecessary peril to life or limb.
Accordingly, the jury should have been allowed to decide whether
- 15 -
MOPAC violated the BIA. Therefore, we REVERSE the judgment and
REMAND the case for a new trial.
REVERSED AND REMANDED
JOHNSON, Circuit Judge, dissenting:
The Boiler Inspection Act (BIA) was promulgated by Congress
for the purpose of promoting safety for railroad employees and the
public. Lilly v. Grand Trunk Western RR Co., 317 U.S. 481, 485
(1943). Section 23 of the BIA makes it
. . . unlawful for any railroad to use or permit to be
used on its line any locomotive unless said locomotive,
its boiler, tender, and all parts and appurtenances
thereof are in proper condition and safe to operate in
the service to which the same are put, that the same may
be employed in the active service of such railroad
without unnecessary peril to life or limb. . .
45 U.S.C. § 23. While recognizing this more general requirement,
the Supreme Court and this Court have additionally made clear that
violating any rules and regulations promulgated by the Department
of Transportation will constitute more specific violations of the
BIA. See Lilly, 317 U.S. at 488; Givens v. Missouri-Kansas-Texas
R. Co. of Texas, 195 F.2d 225, 228 (5th Cir. 1952) (contrasting the
instances where specific and definite violations of the BIA may
occur, creating liability as a matter of law [much like specific
and definite violations of the Safety Appliance Act], with the more
general violations, creating jury issues). Lilly made clear that
all Department of Transportation rules and regulations have the
same force and authority as law. Lilly, 317 U.S. at 488. Thus, a
violation of a Department of Transportation regulation constitutes
a violation of the BIA per se. See id.
- 16 -
Department of Transportation Regulation 43 C.F.R. § 229.119(c)
clearly states that the "[f]loors of cabs, passageways, and
compartments shall be kept free from oil, water, waste or any
obstruction that creates a slipping, tripping or fire hazard." 43
C.F.R. § 229.119(c). Interpreting this regulation according to its
plain meaning, the regulation prohibits the presence of the
specific substances of oil, water, and waste and then goes on to
make a more general prohibition of any other obstruction that
creates a slipping, tripping, or fire hazard. See id. The
undisputed evidence in this case establishes that there was an 18"
by 8" conglomeration of oil on the passageway of the train when Mr.
Gregory slipped. (R. III, 406-07). The presence of this oil
violates the regulation, and in turn the BIA, on its face, thereby
rendering the trial judge's instruction fully appropriate.
The majority holds Gregory's argument that the BIA combined
with 49 C.F.R. § 229.119 creates a strict duty on the part of
railroads to keep their floors free of oil is an issue that the
Court cannot consider. They reach this conclusion first on the
basis that Gregory is estopped from making such an argument on the
ground that he took an inconsistent position in the district
court.16 Second, the majority presumes the district court was
16
The stringent consistency required of Gregory by the majority is
itself inconsistent with laxity granted by the majority to MOPAC in
the way of appellate preservation requirements. The majority is
willing to exercise every benefit of the doubt in favor of MOPAC in
holding its vague and disjointed objection to be specific enough to
preserve error. See Majority Opinion at Note 5. Federal Rule of
Civil Procedure 51 expressly requires that objections to jury
instructions state "distinctly the matter objected to and the
ground of the objection." FED. R. CIV. P. 51. The fundamental goal
of the Rule 51 distinctiveness requirement is to adequately alert
the trial judge of the potential error so that he or she can make
operating under the assumption that unnecessary peril to life or
limb is an absolute prerequisite to any BIA violation. However,
the fact that Gregory and the trial court may have referred to the
hazard produced by the oil is not inconsistent with the position
that violation of the Department of Transportation regulation
results in strict liability under the BIA. Certainly, as the
majority points out, a prime concern of the BIA was the prevention
of unnecessary peril to the life and limb of its employees. This
is precisely why Congress gave the Department of Transportation
full legal authority to promulgate rules and regulations for the
railroads. Additionally, this concern with personnel security is
why Congress backed the Department of Transportation's authority
with strict liability under the BIA. While strict liability
statutes may be highly controversial, this Court and the Supreme
Court have recognized their need and constitutionality. See, i.e.,
Gollust v. Mendell, 501 U.S. 115, 122 (1991); United States v. West
of England Ship Owner's Mutual Protection & Indemnity Ass'n, 872
F.2d 1192, 1198 (5th Cir. 1989). When Congress acts or authorizes
such a strict liability statute for the protection of a specified
group, it is the duty of this Court to support it in that decision.
Today the majority seeks to establish a defense where Congress
the necessary corrections. See McDaniel v. Anheuser-Busch, Inc.,
987 F.2d 298, 306 (5th Cir. 1993). The objection made in this case
could not have adequately pointed out the now-asserted error to the
trial judge for his correction; since the purpose of Rule 51 has
not been at all furthered, this writer does not feel that error has
been sufficiently preserved here. At the very least this writer
feels that the same allowances given MOPAC must also be given to
Gregory.
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intended there be none. As the majority recognizes, there is
likely to be water and/or oil on trains due to a variety of
reasons. Congress and the Department of Transportation also
recognize this tendency through the BIA and Regulation 49 C.F.R. §
229.119. They both also recognize that because of such conditions
and the great dangers these conditions can present to railroad
employees, the railroads have an absolute duty to either rectify
such problems or cease operation of the train until such problems
cease.
Accordingly, this dissent is respectfully tendered.
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