Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/21/2017 12:11 AM CDT




                                                         - 557 -
                                  Nebraska Supreme Court A dvance Sheets
                                          296 Nebraska R eports
                                          WINDER v. UNION PACIFIC RR. CO.
                                                Cite as 296 Neb. 557




                                          K evin M. Winder, appellant, v.
                                         Union Pacific R ailroad Company,
                                        a Delaware corporation, appellee.
                                                    ___ N.W.2d ___

                                           Filed May 5, 2017.   No. S-15-1100.

                1.	 Federal Acts: Railroads: Claims: Courts. In disposing of a claim
                    controlled by the Federal Employers’ Liability Act, a state court may
                    use procedural rules applicable to civil actions in the state court unless
                    otherwise directed by the act, but substantive issues concerning a claim
                    under the act are determined by the provisions of the act and interpretive
                    decisions of the federal courts construing the act.
                2.	 Directed Verdict: Appeal and Error. In reviewing a trial court’s rul-
                    ing on a motion for directed verdict, an appellate court must treat the
                    motion as an admission of the truth of all competent evidence submit-
                    ted on behalf of the party against whom the motion is directed; such
                    being the case, the party against whom the motion is directed is entitled
                    to have every controverted fact resolved in its favor and to have the
                    benefit of every inference which can reasonably be deduced from
                    the evidence.
                3.	 Directed Verdict: Evidence. A directed verdict is proper at the close of
                    all the evidence only when reasonable minds cannot differ and can draw
                    but one conclusion from the evidence, that is, when an issue should be
                    decided as a matter of law.
                4.	 Federal Acts: Railroads: Liability. Under 49 U.S.C. § 20302(a)(1)(B)
                    (2012) of the federal Safety Appliance Acts, a railroad carrier may
                    use a vehicle, including a railcar, only if it is equipped with effi-
                    cient handbrakes.
                5.	 Federal Acts: Railroads: Negligence: Proof. Under 49 U.S.C.
                    § 20302(a)(1)(B) (2012) of the federal Safety Appliance Acts, there
                    are two ways an employee may show the inefficiency of handbrakes:
                    (1) Evidence may be adduced to establish some particular defect in
                    the handbrake or (2) inefficiency may be established by showing the
                                    - 558 -
               Nebraska Supreme Court A dvance Sheets
                       296 Nebraska R eports
                      WINDER v. UNION PACIFIC RR. CO.
                            Cite as 296 Neb. 557

     handbrake failed to function, when operated with due care, in the nor-
     mal, natural, and usual manner.
 6.	 Federal Acts: Railroads: Negligence: Words and Phrases. For pur-
     poses of 49 U.S.C. § 20302(a)(1)(B) (2012) of the federal Safety
     Appliance Acts, “efficient” means adequate in performance and produc-
     ing properly a desired effect. “Inefficient” means not producing or not
     capable of producing the desired effect and thus incapable, incompetent,
     or inadequate.
 7.	 Federal Acts: Railroads: Negligence. When there is conflicting evi-
     dence regarding whether a handbrake failed to function, when operated
     with due care, in the normal, natural, and usual manner, the question
     of inefficiency under 49 U.S.C. § 20302(a)(1)(B) (2012) of the federal
     Safety Appliance Acts is one for the jury.

   Appeal from the District Court for Douglas County:
K imberly Miller Pankonin and Peter C. Bataillon, Judges.
Affirmed.

  William Kvas and Richard L. Carlson, of Hunegs, LeNeave
& Kvas, P.A., and Jayson D. Nelson for appellant.

  Anne Marie O’Brien and Daniel J. Hassing, of Lamson,
Dugan & Murray, L.L.P., and Andrew Reinhart for appellee.

  H eavican, C.J., Wright, Cassel, Stacy, K elch, and
Funke, JJ.

   Stacy, J.
   Kevin M. Winder filed an action for damages against his
employer, Union Pacific Railroad Company (UP), alleging he
injured his back while turning a wheel to release the hand-
brake on a railcar. Winder asserted claims under the Federal
Employers’ Liability Act (FELA)1 and the federal Safety
Appliance Acts (FSAA).2 The jury returned a general verdict in
favor of UP, and Winder appeals. We affirm.

 1	
      45 U.S.C. §§ 51 to 60 (2012).
 2	
      49 U.S.C. §§ 20301 to 20306 (2012).
                                    - 559 -
                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                      WINDER v. UNION PACIFIC RR. CO.
                            Cite as 296 Neb. 557

                             FACTS
   On October 28, 2012, Winder was working as a conductor
for UP in North Platte, Nebraska. Part of his job was to man­
ually release the handbrakes on railcars. Handbrakes are used
to secure railcars to the track when a train is not in motion.
The handbrake is manually applied by using a brake wheel
and turning it clockwise. The handbrake is manually released
one of two ways: by either turning the brake wheel counter-
clockwise or using a quick-release lever. Not all handbrakes
have quick-release levers, but the ones Winder was releasing
did. Winder testified he was trained “to first try the quick
release lever [and] [i]f that does not work, then you turn
the wheel.”
   Winder successfully released the handbrake on the first
railcar. When he attempted to use the quick-release lever on
the next railcar, the lever pulled easily but the brake did not
release. Winder then began turning the wheel in a counter-
clockwise direction to release the brake. According to Winder,
as he did so, he suddenly felt a sharp pain in his back and
stopped working.
   Winder immediately notified UP of his injury, and he sought
medical attention. He received significant treatment, including
surgery, and was unable to return to work at UP.
   Winder eventually brought this action against UP, alleging
claims under FELA and FSAA. FSAA does not by its terms
confer a right of action on injured parties, but if a plaintiff
proves a violation of FSAA, he or she may recover under
FELA without further proof of negligence by the railroad.3
“In short, [FSAA] provide[s] the basis for the claim, and . . .
FELA provides the remedy.”4 As will be explained in more
detail later, FSAA requires that railroads may use a vehicle,

 3	
      See Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018, 93 L. Ed. 1282
      (1949).
 4	
      Beissel v. Pittsburgh and Lake Erie R. Co., 801 F.2d 143, 145 (3d Cir.
      1986).
                                    - 560 -
                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                      WINDER v. UNION PACIFIC RR. CO.
                            Cite as 296 Neb. 557

including a railcar, only if it is equipped with “efficient
hand brakes.”5 Winder alleged UP violated this provision
of FSAA, because the quick-release lever on the handbrake
was inefficient.
   The case was tried to a jury. At the close of the evidence,
Winder moved for a directed verdict in his favor on the ques-
tion of whether UP violated FSAA. The district court overruled
the motion, and the jury returned a general verdict in favor of
UP. Winder filed this timely appeal, which we moved to our
docket pursuant to our statutory authority to regulate the case-
loads of the appellate courts of this state.6

                   ASSIGNMENT OF ERROR
   Winder’s sole assignment of error is that the court erred in
failing to direct a verdict in his favor on the FSAA claim.

                   STANDARD OF REVIEW
   [1] In disposing of a claim controlled by FELA, a state
court may use procedural rules applicable to civil actions in
the state court unless otherwise directed by the act, but sub-
stantive issues concerning a claim under FELA are determined
by the provisions of the act and interpretive decisions of the
federal courts construing FELA.7
   [2,3] In reviewing a trial court’s ruling on a motion for
directed verdict, an appellate court must treat the motion as
an admission of the truth of all competent evidence submitted
on behalf of the party against whom the motion is directed;
such being the case, the party against whom the motion is
directed is entitled to have every controverted fact resolved
in its favor and to have the benefit of every inference which
can reasonably be deduced from the evidence.8 A directed

 5	
      49 U.S.C. § 20302(a)(1)(B).
 6	
      See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
 7	
      Ballard v. Union Pacific RR. Co., 279 Neb. 638, 781 N.W.2d 47 (2010).
 8	
      Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248 (2013).
                                     - 561 -
                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                       WINDER v. UNION PACIFIC RR. CO.
                             Cite as 296 Neb. 557

verdict is proper at the close of all the evidence only when
reasonable minds cannot differ and can draw but one con-
clusion from the evidence, that is, when an issue should be
decided as a matter of law.9
                            ANALYSIS
   [4] The relevant portion of FSAA provides that railroad
carriers may use a vehicle, including a railcar, only if it is
“equipped with . . . efficient hand brakes.”10 The U.S. Supreme
Court has interpreted this provision to impose “an absolute and
unqualified prohibition against [a railroad’s] using or permit-
ting to be used, on its line, any car not equipped with ‘efficient
hand brakes.’”11
   [5,6] In Myers v. Reading Co.12 the U.S. Supreme Court
analyzed FSAA’s efficient handbrake requirement. Myers held
there are two ways an employee may show the inefficiency of
handbrakes: (1) Evidence may be adduced to establish some
particular defect in the handbrake or (2) inefficiency may be
established by showing the handbrake failed to function, when
operated with due care, in the normal, natural, and usual man-
ner.13 Myers established that “‘[e]fficient means adequate in
performance; producing properly a desired effect. Inefficient
means not producing or not capable of producing the desired
effect; incapable; incompetent; inadequate.’”14
   Winder makes no claim in this appeal that the handbrake
had any particular defect. Instead, he points to undisputed
evidence that when he pulled the quick-release lever, it
failed to release the handbrake. He argues this evidence was

 9	
      Id.
10	
      49 U.S.C. § 20302(a)(1)(B).
11	
      Myers v. Reading Co., 331 U.S. 477, 482, 67 S. Ct. 1334, 91 L. Ed. 1615
      (1947).
12	
      Myers v. Reading Co., supra note 11.
13	
      Id.
14	
      Id., 331 U.S. at 483.
                                      - 562 -
                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                       WINDER v. UNION PACIFIC RR. CO.
                             Cite as 296 Neb. 557

sufficient as a matter of law to prove the handbrake failed to
function in the normal, natural, and usual manner.
   No party disputes that when Winder pulled the quick-
release lever it failed to release the brake, requiring him to
use the wheel to release the brake. The question is whether
this evidence entitled Winder to a directed verdict that as a
matter of law, the handbrake failed to function, when oper-
ated with due care, in the normal, natural, and usual manner.
On this record, we find no error in denying the motion for
directed verdict.
   [7] Case law from other jurisdictions demonstrates that
when there is conflicting evidence regarding whether a hand-
brake failed to function in the normal, natural, and usual
manner, the question of inefficiency is one for the jury. In
Strickland v. Norfolk Southern Ry. Co.,15 a railroad worker
attempted to release a handbrake by using the quick-release
lever. The quick-release lever did not release the brake, which
the record showed was not “‘an out-of-the-blue thing.’”16 The
worker then attempted to release the handbrake using the brake
wheel, which would not turn. He injured himself attempting to
exert more pressure on the wheel. The district court granted
summary judgment in favor of the railroad, in effect finding
the handbrake was not inefficient as a matter of law. The 11th
Circuit reversed, finding the worker’s testimony about the
level of force exerted in turning the wheel created a fact issue
for the jury to resolve in determining whether the handbrake
was inefficient.
   An unpublished opinion from the U.S. District Court for
the District of Nebraska also illustrates that when there is
conflicting evidence on whether a handbrake failed to function
normally, the question of inefficiency cannot be decided as a
matter of law. In Chapp v. Burlington Northern Santa Fe R.

15	
      Strickland v. Norfolk Southern Ry. Co., 692 F.3d 1151 (11th Cir. 2012).
16	
      Id. at 1155.
                                      - 563 -
                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                        WINDER v. UNION PACIFIC RR. CO.
                              Cite as 296 Neb. 557

Co.,17 a railroad worker attempted to release a handbrake by
pulling the quick-release lever. When the quick-release lever
failed, he attempted to release the brake by turning the wheel
and alleged he was injured while doing so. The worker moved
for summary judgment on his FSAA claim, arguing, among
other things, that the handbrake was inefficient as a matter of
law. The court denied the motion, reasoning there was conflict-
ing evidence on whether the handbrake failed to function in the
normal, natural, and usual manner, and inefficiency could not
be determined as a matter of law.18
   Here, there was conflicting evidence at trial regarding
whether it was common or usual for a quick-release lever
to fail to release a handbrake. Winder testified that in his
work as a conductor, he recalled only two occasions when
the quick-release lever failed to release the handbrake. And
an expert witness called on Winder’s behalf testified that if
a quick-release lever failed to work, the handbrake opera-
tion was inefficient. But a UP trainman testified that quick-
release levers fail to release the handbrake “on a fairly regular
basis,” and he opined they worked about “half the time.” He
testified it was very common and usual in the industry for
the quick-release levers not to work. Another witness, a UP
supervisor, testified that quick-release levers failed to work
“quite a bit.” And a railroad consultant hired by UP testified

17	
      Chapp v. Burlington Northern Santa Fe R. Co., No. 4:04CV3021, 2005
      WL 1331157 (D. Neb. June 2, 2005) (unpublished memorandum and
      order).
18	
      Id. See, also, Rogers v. Norfolk Southern Ry. Co., No. 3:13 cv 798, 2015
      WL 4191147 (N.D. Ohio July 10, 2015) (unpublished opinion) (conflicting
      evidence on why handbrake failed to release and whether it failed to
      function in normal, natural, and usual manner presented questions for trier
      of fact and prevented summary judgment); Ditton v. BNSF Ry. Co., No.
      CV 12-6932 JGB (JCGx), 2013 WL 2241766 (C.D. Cal. May 21, 2013)
      (unpublished opinion) (conflicting evidence on failure of quick-release
      lever to release and evidence that handbrakes commonly become stuck
      presented factual questions for jury under FSAA).
                                       - 564 -
                Nebraska Supreme Court A dvance Sheets
                        296 Nebraska R eports
                       WINDER v. UNION PACIFIC RR. CO.
                             Cite as 296 Neb. 557

it was “not at all uncommon” for the quick-release lever not
to work.
   A directed verdict is proper at the close of all the evidence
only when reasonable minds cannot differ and can draw but
one conclusion from the evidence, that is, when an issue
should be decided as a matter of law.19 Here, there was con-
flicting evidence on whether the handbrake failed to function
in the normal, natural, and usual manner, and the district court
properly denied the motion for directed verdict and submitted
that issue to the jury.
                       CONCLUSION
   We find no merit to Winder’s assignment of error and affirm
the judgment of the district court.
                                                   A ffirmed.
   Miller-Lerman, J., not participating.

19	
      Wulf v. Kunnath, supra note 8.
