                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 07-1695



MARK E. BENSON,

                 Plaintiff - Appellee,

           v.


CSX TRANSPORTATION, INCORPORATED, a corporation,

                 Defendant - Appellant,

           and


GATX   FINANCIAL    CORPORATION,   d/b/a   GATX   Rail,   a
Delaware   corporation;   ARKEMA,   INCORPORATED,  formerly
known as Atofina Chemicals, Incorporated, a Pennsylvania
corporation; PADUCAH & LOUISVILLE RAILWAY, INCORPORATED,
a Kentucky corporation; RESCAR, INCORPORATED, a/k/a Rescar
Industries, Incorporated, a Texas corporation,

                 Defendants.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (3:05-cv-00384)


Argued:   March 19, 2008                     Decided:   April 23, 2008


Before Sandra Day O’CONNOR, Associate Justice (Retired), Supreme
Court of the United States, sitting by designation, and MOTZ and
SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
opinion. Judge Shedd wrote the opinion, in which Associate Justice
O’Connor and Judge Motz joined.


ARGUED: Marc Ellis Williams, HUDDLESTON & BOLEN, L.L.P.,
Huntington, West Virginia, for Appellant. William A. Kvas, HUNEGS,
LENEAVE & KVAS, P.A., Minneapolis, Minnesota, for Appellee. ON
BRIEF: Paul J. Loftus, HUDDLESTON & BOLEN, L.L.P., Huntington, West
Virginia, for Appellant.    W. Michael Frazier, FRAZIER & OXLEY,
L.C., Huntington, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
SHEDD, Circuit Judge:

     Raising   several   issues,   CSX   Transportation,   Inc.   (“CSX”)

appeals from a jury verdict in favor of Plaintiff Mark E. Benson.

We find no error in the trial below.        However, we hold that the

district court erred in not granting CSX a setoff in the amount

Benson received from a settlement with defendants GATX Financial

Corp., Arkema, Inc., Paducah and Louisville Railway, Inc., and

Rescar, Inc. (together, the “Settling Defendants”).        Accordingly,

we affirm in part, vacate in part, and remand for entry of a pro

tanto setoff against the jury’s verdict.



                                    I

     On May 7, 2003, Benson suffered two exposures to hydrochloric

acid (“HCl”) while working as a locomotive engineer in CSX’s

Parkersburg, West Virginia, train yard.      HCl is a highly corrosive

hazardous material that can cause injury when breathed into the

lungs.   The first exposure occurred shortly after 5:00 a.m., when

Benson coupled his locomotive to a tank car containing HCl. Benson

soon noticed an unusual odor and began to experience dryness in his

eyes and mouth, as well as a metallic taste on his tongue.         After

a few minutes, a co-worker notified Benson that the tank car was




                                    3
leaking, releasing a cloud of HCl vapor six to eight feet into the

air above the car.1

      Benson immediately exited the locomotive and left the area of

the   leaking   car.   He   reported   the   leak   to   his   supervisor,

yardmaster Michael Smith.    Smith in turn contacted Carl McDowell,

a CSX yardmaster with hazardous materials training and summoned him

to the yard.    By the time McDowell arrived, Benson had re-boarded

the engine in order to move the leaking car, resulting in a second

HCl exposure.    The parties dispute whether Benson re-boarded the

engine at his own initiative or in response to Smith’s order to do

so.   In order to move the tank car, Benson was required to engage

in a number of “zigzag” movements through the yard.        Each movement

of the car released a cloud of HCl vapor from the top of the car,

and Benson again experienced dry eyes and mouth, a metallic taste,

nausea, and choking.

      Benson worked two shifts after the exposure.             However, he

continued to have difficulty breathing and chest pain when exposed



      1
      Later investigation determined that the tank car coupled to
Benson’s engine was leaking through a damaged rupture disc, a
device designed to break once the pressure inside the tank car
reached a certain point, thereby venting pressure from the car and
preventing catastrophic tank failure. It is not disputed that the
initial leak resulted from the negligence of the Settling
Defendants, which are, respectively, the owner of the tank car, the
shipper of the leaking HCl, the common carrier who handled the car
prior to delivery to CSX, and the company that repaired the leaking
car in Louisville, Kentucky, while en route to CSX’s Parkersburg
yard.


                                   4
to diesel exhaust, preventing him from returning to work as an

engineer.   Consequently, Benson brought this suit pursuant to the

Federal Employer’s Liability Act (“FELA”), 45 U.S.C. § 51, et seq.,

claiming that his HCl exposures resulted from the defendants’

negligence and left him with “severe and permanent injuries to his

lungs and respiratory system.”   J.A. 26.

     Prior to trial, Benson settled all his claims against the

Settling Defendants for approximately $88,500.    He then proceeded

to trial against CSX, limiting his claim to injuries caused by

CSX’s negligence in ordering him back onto the engine to move the

tank car (i.e., injuries resulting from the second exposure).

     At trial, CSX sought to assert a defense of contributory

negligence based on its claim that Benson re-boarded the engine

without having been instructed to do so.         The district court

granted Benson’s motion for judgment as a matter of law on this

issue, finding the evidence insufficient to support that defense.

The jury found CSX liable and awarded Benson $750,000.          The

district court denied CSX’s post-trial motion to alter or amend the

judgment, in which CSX argued (as it had throughout the trial) that

it was entitled to a setoff against the verdict for the amount

Benson received from the Settling Defendants.    CSX now appeals.




                                 5
                                         II

      CSX’s principal argument on appeal is that the district court

erred in granting judgment as a matter of law on CSX’s contributory

negligence defense. Pursuant to Fed. R. Civ. P. 50(a), a “district

court may grant a motion for judgment as a matter of law during a

jury trial after a party has been fully heard on an issue only if

there is no legally sufficient evidentiary basis for a reasonable

jury to have found for that party with respect to that issue.”

Brown   v.     CSX   Transp.,    Inc.,           18    F.3d       245,   248    (4th     Cir.

1994)(internal quotation and citation omitted).                            We review the

district court’s grant of judgment as a matter of law de novo,

applying the same standard.            Id.

      FELA provides that the damages an injured employee may recover

from his common carrier employer are to be reduced in proportion to

the   amount    of   injury     caused       by       the    employee’s        contributory

negligence.      45 U.S.C. § 53.             By contrast, FELA prohibits the

common law defense of assumption of the risk.                            45 U.S.C. § 54.

Accordingly, a district court in a FELA suit must determine whether

an    employer’s     evidence     supports            the        permitted     defense    of

contributory     negligence,      or     whether            it   instead     supports    the

prohibited defense of assumption of the risk.                        See Tiller v. Atl.

Coast Line R. Co., 318 U.S. 54, 66-67 (1943).

      Contributory negligence is a “careless act or omission on the

plaintiff’s part tending to add new dangers to conditions that the


                                             6
employer negligently created or permitted to exist.”     Taylor v.

Burlington N. R.R. Co., 787 F.2d 1309, 1316 (9th Cir. 1986).     By

contrast, “an employee's voluntary, knowledgeable acceptance of a

dangerous condition that is necessary for him to perform his duties

constitutes an assumption of risk.”   Id.   Thus:

     [W]hen an employee carries out his supervisor’s general
     order in an unsafe manner, he is responsible under FELA
     for his own contributory negligence.        But when an
     employee carries out a direct order, even if he has
     reason to know the order exposes him to danger, he is not
     contributorily negligent; rather his conduct falls under
     the abolished doctrine of assumption of risk.

Jenkins v. Union Pac. R.R. Co., 22 F.3d 206, 211 (9th Cir. 1994).

     Here, CSX claims that Benson was contributorily negligent

because he re-boarded the engine coupled to the leaking tank car

without being instructed to do so.    In support of this argument,

CSX cites McDowell’s trial testimony that (1) he did not ask Smith

to order Benson to re-board the engine, and (2) based on his

experience and training in dealing with hazardous materials, he

would not have ordered anyone to go near the leaking tank car

before he arrived on the scene and assessed the situation. Benson,

by contrast, testified that he re-boarded the engine in response to

a direct order from Smith, which he believed was relayed from

McDowell.   Smith did not testify.    Accordingly, Benson contends

that the evidence supports at most the common law defense of

assumption of the risk, which is not permitted under FELA.




                                7
     We hold that the district court correctly granted Benson’s

motion for judgment as a matter of law.          The only relevant

testimony CSX points to -– McDowell’s statement that he never told

Smith to order Benson to re-board the engine -- does not contradict

Benson’s testimony that Smith gave him such an order.    Because the

uncontradicted evidence at trial thus showed that Benson boarded

the locomotive upon the direct order of his supervisor, his actions

did not constitute contributory negligence.



                                  III

        CSX also argues that the district court erred by refusing to

grant a setoff against the jury’s verdict in the amount Benson

recovered from the Settling Defendants. We review this legal issue

de novo.     Chisholm v. UHP Projects, Inc., 205 F.3d 731, 734 (4th

Cir. 2000).

     Joint and several liability is the traditional rule in FELA

cases.     Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 163 (2003).

Within this framework, a FELA defendant is entitled to a pro tanto

setoff against a jury verdict in the amount of any settlement the

plaintiff obtained from another party who, together with the

defendant, is jointly and severally liable for the plaintiff’s

harm.     See, e.g., Schadel v. Iowa Interstate R.R., Ltd., 381 F.3d

671 (7th Cir. 2004); Hess v. Norfolk S. Ry. Co., 835 N.E.2d 679

(Ohio 2005).


                                   8
       The question in this case is whether CSX and the Settling

Defendants are jointly and severally liable for Benson’s injury,

such that a setoff is required.            Benson contends that they are not

because the negligent conduct of the Settling Defendants giving

rise to the tank car’s initial leak, and thus Benson’s first

exposure, constituted a separate tort from CSX’s negligence in

ordering Benson to re-board the engine after the leak had been

discovered (which resulted in his second exposure).                  CSX, on the

other hand, argues that Benson’s strategic choice at trial to

present the two exposures as two separate torts does not change the

fact       that    Benson   suffered   a   unitary   injury   that    cannot   be

apportioned between the exposures.

       “If the independent tortious conduct of two or more persons is

a legal cause of an indivisible injury, each person is jointly and

severally liable for the recoverable damages caused by the tortious

conduct.”         Restatement (Third) of Torts: Apportionment Liab. § A18

(2000).2          The Restatement further provides that an injury is

indivisible if the evidence does not provide a reasonable basis for



       2
      Courts have frequently consulted Restatements for guidance on
the common law principles embodied in FELA. See, e.g., Stevens v.
Bangor and Aroostook R. Co., 97 F.3d 594, 602 (1st Cir. 1996); Ries
v. Nat’l R.R. Passenger Corp., 960 F.2d 1156, 1158-59 (3d Cir.
1992).




                                           9
the factfinder to determine “the amount of damages separately

caused”   by   the     independent       tortious    conduct   of   two   or   more

tortfeasors.         Id. § 26.         Furthermore, “there is no temporal

requirement for the actions of the tortfeasors” in order for joint

and several liability to attach.                Rather, “[t]he requirement is

only that the independent tortious acts ‘concur’ to cause an injury

that is not divisible based on the causal contribution of the

tortfeasors.”        Id. § A18.

      Thus,    our    inquiry     turns    on    whether   Benson’s   injury     is

divisible or indivisible.              Although occurring at separate times

(albeit only moments apart) and resulting from distinct acts of

negligence by different defendants, Benson’s resulting injury is

not   “divisible       based      on    the     causal   contribution     of    the

tortfeasors.” At trial, neither party introduced any evidence that

would have permitted the jury to determine the amount of damages

separately attributable to Benson’s first and second exposures.3


      3
      Generally, the jury in a FELA case is not permitted to
apportion damages. See Ayers, 538 U.S. at 160. Here, however,
Benson argued that his first exposure created a “preexisting
condition” that was aggravated by the second exposure. When a FELA
defendant’s negligence aggravates a plaintiff’s preexisting
condition, the defendant is liable for the plaintiff’s total damage
unless he can prove the extent of the aggravation. Stevens, 97
F.3d at 601-03. CSX offered no evidence on this point, and thus is
liable for the full extent of Benson’s injuries under the
traditional rules of joint and several liability, which in FELA
cases include the right to a pro tanto setoff for the amounts paid
by the Settling Defendants. Benson may not avoid this result by
recasting the injuries he suffered from the first exposure as a
“preexisting condition.”


                                          10
In   the     absence   of     any   such     evidence,    Benson’s   injury   is

indivisible, and CSX is jointly and severally liable for that

injury with the Settling Defendants. Benson was therefore entitled

to recover his full damages from any of the defendants, and CSX is

entitled to a pro tanto setoff in the amount Benson received from

the Settling Defendants.



                                        IV

     CSX raises several other challenges to the proceedings below,

which   we    conclude      are   without    merit.      Accordingly,   for   the

foregoing reasons, we affirm in part, vacate in part, and remand

for entry of a setoff against the verdict in the amount Benson

received from the Settling Defendants.



                                                             AFFIRMED IN PART,
                                                              VACATED IN PART,
                                                                  AND REMANDED




                                        11
