UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RONALD C. MANDRGOC,
Plaintiff-Appellant,

v.
                                                                      No. 95-3123
PATAPSCO & BACK RIVERS RAILROAD
COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-94-3287-AMD)

Argued: July 9, 1996

Decided: August 23, 1996

Before WILKINS, HAMILTON, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Allan B. Rabineau, RABINEAU & PEREGOFF, Balti-
more, Maryland, for Appellant. Robert T. Franklin, SEMMES,
BOWEN & SEMMES, Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

WILLIAMS, Circuit Judge:

Ronald C. Mandrgoc appeals from the district court's entry of
judgment as a matter of law, see Federal Rules of Civil Procedure
50(a), in favor of Patapsco & Back Rivers Railroad Co. (the Railroad)
on his negligence claim under the Federal Employers' Liability Act
(FELA), 45 U.S.C.A. §§ 51-60 (West 1986). A seventeen-year
employee of the Railroad, Mandrgoc sued to recover damages for a
foot injury he sustained when he leapt from the platform of a slow-
moving railroad car moments before it inexplicably derailed. The dis-
trict court granted the Railroad's motion in limine to exclude evidence
of four prior unexplained derailments. Finding that Mandrgoc prof-
fered no other evidence of negligence and rejecting his request to pro-
ceed under the doctrine of res ipsa loquitur, the district court then
granted judgment as a matter of law for the Railroad. Mandrgoc
appeals the district court's evidentiary ruling and its refusal to submit
the case to the jury. Finding no error, we affirm.

I.

The following facts are not in dispute.1 As a brakeman (also known
as a groundman), Mandrgoc signalled an engineer to move the train
through a thrown switch, thereby permitting the train to change
tracks. On the night he was injured, Mandrgoc was a member of a
three-man crew that was moving railroad cars into and out of the mills
of a steel plant in Sparrows Point, Maryland. The crew successfully
had moved cars through three switches on track 229 several times
during their shift. Immediately before the partial derailment occurred,
Mandrgoc threw the "229 switch," latched it, and inspected the
switch, track, terrain, and the three cars to be moved through the
switch. He then boarded a platform on the lead car and signalled the
engineer to move the locomotive, slug,2 and cars, which were loaded
_________________________________________________________________
1 During the pretrial hearing which concluded with the district court's
entry of judgment as a matter of law for the Railroad under Fed. R. Civ.
P. 50(a), the parties either stipulated to the facts or forecast the presenta-
tion of uncontroverted evidence in support of these facts.
2 A slug "is like a locomotive with the cab sheared off. It's to give addi-
tional traction because the cars are so heavy." (J.A. at 53.)

                     2
with hundreds of thousands of pounds of liquid steel, through the
switch. As the engineer moved the cars very slowly through the
switch, Mandrgoc sensed a problem with the lead car and jumped to
the ground, injuring himself.3 Without any apparent cause, the lead
car then partially derailed. A subsequent inspection of the derailed car
revealed no defects, and the cause of the derailment remains
unknown.

The Railroad had experienced four prior unexplained derailments
on the same stretch of track, the last of which had occurred nine days
before the instant derailment. Although they did not record the exact
location of the prior derailments, the Railroad's repair records indi-
cated that at least two of them did not involve any of the switches on
track 229. During the nine-day period between the fourth derailment
and the derailment here, the Railroad estimated that more than 2,000
cars had passed through the 229 switch without incident.

Asserting that the Railroad's negligence caused his injuries, Man-
drgoc filed this FELA action in the United States District Court for
the District of Maryland. Shortly before a jury was to be impanelled,
the district court granted both the Railroad's motion in limine to
exclude the evidence concerning the prior derailments, and, upon the
parties' stipulation of the evidence to be presented at trial, its motion
for judgment as a matter of law under Rule 50(a) of the Federal Rules
of Civil Procedure. Mandrgoc appeals both the evidentiary ruling and
the entry of judgment as a matter of law for the Railroad.

II.

Lacking direct evidence of negligence, Mandrgoc first asserts that
a rational jury could infer that the Railroad was negligent from evi-
dence that four prior derailments occurred within 300 feet of the par-
tial derailment that allegedly caused his injuries. He claims that the
evidence was admissible under the Federal Rules of Evidence to show
_________________________________________________________________
3 Although Mandrgoc's leap from the car, rather than the partial derail-
ment, was the immediate cause of his injury, we shall assume for pur-
poses of this appeal that Mandrgoc nevertheless would be able to prove
the causation element of his negligence claim at trial.

                     3
a habit of negligence, a breach of the standard of care, or the absence
of contributory negligence.

The district court, however, found that an inference of negligence
on the basis of prior derailments would be impermissible because
there was no evidence that they occurred at the 229 switch or that
they resulted from the Railroad's negligence. The court therefore
excluded the evidence, concluding that the dangers of unfair preju-
dice, confusion, and delay substantially outweighed its probative
value under Rule 403 of the Federal Rules of Evidence.

Reviewing the district court's evidentiary ruling for an abuse of
discretion, see Stillman v. Norfolk & Western Ry., 811 F.2d 834, 838
(4th Cir. 1987), we affirm. The prior derailments are irrelevant to
Mandrgoc's case because their occurrence does not tend to make the
Railroad's negligence in connection with the instant derailment any
more or less probable. See Fed. R. Evid. 401. While a prior derail-
ment could be probative of the Railroad's negligence if it occurred
"under substantially the same conditions, at substantially the same
place" and "at a time not too remote therefrom," see Sears, Roebuck
& Co. v. Copeland, 110 F.2d 947, 948-49 (4th Cir. 1940), Mandrgoc
cannot make such a connection here. He cannot show, for example,
that any prior derailment occurred at the 229 switch or under similar
circumstances. Additionally, Mandrgoc agreed that the prior derail-
ments took place without any apparent negligence on the Railroad's
part. Moreover, he acknowledges that thousands of railroad cars
passed through the 229 switch uneventfully in the nine days prior to
the partial derailment at issue here and that sometimes, in railroading,
a derailment simply cannot be explained. The prior derailments thus
shed no light on the question of whether the Railroad failed in its duty
to maintain a safe workplace for Mandrgoc and therefore are irrele-
vant.

In addition, to conclude that the Railroad was negligent on the
basis of this evidence a jury first would have to determine that the
first four derailments resulted from the Railroad's negligence, a diver-
sion from the merits of the case that the district court properly sought
to avert under Rule 403. We therefore affirm the exclusion of this evi-
dence.

                    4
III.

Alternatively, Mandrgoc proposes to advance his claim under the
doctrine of res ipsa loquitur. Under this doctrine, he contends, a jury
could infer from the occurrence of the partial derailment itself that the
Railroad was negligent. In Mandrgoc's view, the Railroad exercised
exclusive control over the switch, track, terrain, and cars, and it pos-
sessed superior knowledge regarding the operation, repair, and main-
tenance of these instrumentalities. Given this exclusive control, he
argues the Railroad is presumptively liable and bears the burden of
producing an explanation for the derailment. The Railroad, on the
other hand, contends that the doctrine of res ipsa loquitur does not
apply in this case because derailments can occur in the absence of
negligence, Mandrgoc exercised a substantial degree of control over
the instrumentalities that caused his injury, and he may have been
negligent in performing his duties or in leaping from the car.

The district court held that the circumstances surrounding the par-
tial derailment did not warrant a jury instruction on the doctrine of res
ipsa loquitur. Rejecting Mandrgoc's suggestion, the district court
refused to apply a blanket rule that the res ipsa loquitur doctrine gov-
erns all derailment cases. Concluding that the unexplained derailment
standing alone is an insufficient basis under the FELA for a jury ver-
dict in Mandrgoc's favor, the district court entered judgment for the
Railroad.4

We review de novo a district court's denial or grant of judgment
as a matter of law, see Trandes Corp. v. Guy Atkinson Co., 996 F.2d
655, 661 (4th Cir.), cert. denied, 114 S. Ct. 443 (1993), and we like-
wise conduct a plenary examination of a res ipsa loquitur ruling, see
Stillman, 811 F.2d at 836. In so doing, we must view the evidence in
a light most favorable to Mandrgoc and draw all reasonable infer-
ences in his favor. See Tools USA & Equip. Co. v. Champ Frame
Straightening Equip., Inc., ___ F.3d #6D 6D6D#, 1996 WL 364747, at *1 (4th
_________________________________________________________________
4 The district court's pre-trial res ipsa loquitur ruling was dispositive of
the case because of the unexplained nature of the derailment. Mandrgoc
acknowledged that he could present no other evidence of negligence.
Without the benefit of an inference of negligence under the res ipsa
loquitur doctrine, Mandrgoc had no case to present to the jury.

                     5
Cir. July 2, 1996). The question we must ask is whether "`the only
conclusion a reasonable trier of fact could draw from the evidence is
in favor'" of the Railroad. Id. (quoting Winant v. Bostic, 5 F.3d 767,
774 (4th Cir. 1993)). We answer that question affirmatively. Because
a derailment can occur in the absence of negligence, and a party other
than the Railroad -- Mandrgoc himself -- was substantially in con-
trol of the instrumentalities that played a role in the injury, we affirm
the district court's decisions not to apply res ipsa loquitur in this case
and to enter judgment for the Railroad.

Under the FELA, a railroad owes a duty to maintain a reasonably
safe workplace for its employees. See Peyton v. St. Louis Southwest-
ern Ry. Co., 962 F.2d 832, 833 (8th Cir. 1992). A breach of that duty
results in liability for damages "for such injury or death resulting in
whole or in part from the [railroad's] negligence." 45 U.S.C.A. § 51
(West 1986). A remedial statute, the FELA creates a"light burden of
proof on negligence and causation," Estate of Larkins v. Farrell
Lines, Inc., 806 F.2d 510, 512 (4th Cir. 1986), cert. denied, 481 U.S.
1037 (1987), which an employee can meet if "employer negligence
played any part, even the slightest, in producing the injury," Rogers
v. Missouri Pac. R.R., 352 U.S. 500, 506 (1957). The FELA, how-
ever, is not a workers' compensation scheme under which an
employee may recover for injuries regardless of fault. See
Consolidated Rail Corp. v. Gottshall, 114 S. Ct. 2396, 2404 (1994).
Although liberally construed, the FELA imposes on an employee
seeking damages "the burden of proving some act of negligence by
the railroad." Hurley v. Patapsco & Back Rivers R.R., 888 F.2d 327,
329 (4th Cir. 1989) (per curiam).

In an appropriate FELA case, an employee may rely on the doc-
trine of res ipsa loquitur to meet this light burden of proof. See
Stillman, 811 F.2d at 836. To obtain the benefit of an inference of
negligence under the doctrine, the employee must satisfy three ele-
ments:

          (1) the injury for which the [employee] seeks recovery must
          be of a kind that ordinarily does not occur in the absence of
          negligence; (2) the injury must have been caused by some
          agency or instrumentality within the exclusive control of the
          [Railroad]; and (3) the injury must not have been due to any

                     6
          contribution or voluntary activity on the part of the
          [employee].

Id. at 836-37. Thus, although the "mere happening of an accident"
will not warrant a res ipsa loquitur instruction, see Estate of Larkins,
806 F.2d at 512, the doctrine is appropriate if the circumstances sur-
rounding an unexplained accident would permit a reasonable jury to
infer that the Railroad was negligent, see Jesionowski v. Boston &
M.R.R., 329 U.S. 452, 457-58 (1947).

In Jesionowski, for example, the administratrix of a railroad
employee's estate was entitled to a res ipsa instruction because she
adduced evidence that a train derailment would not have occurred in
the absence of negligence on the Railroad's part. Id. at 458. Jesio-
nowski's estate elicited testimony that a "frog operated with a spring
mechanism," which was located about seventy-five feet from the
switch, may have caused the derailment. Id. at 455. Once the jury
found that the deceased employee's throwing of the switch and sig-
nalling to the engineer did not contribute to the derailment that killed
him, the jury was free to infer from the circumstances surrounding the
derailment that the Railroad was negligent. Id. at 458. Because these
facts warranted the res ipsa loquitur instruction that the trial court
delivered in Jesionowski, the Supreme Court reinstated a jury verdict
for Jesionowski. Id.

In contrast, Mandrgoc cannot point to "facts of the occurrence
[that] warrant the inference of negligence" on the Railroad's part. Id.
at 457 (quoting Sweeney v. Erving, 228 U.S. 233, 240 (1913)). First,
he failed to show this derailment ordinarily would not have occurred
in the absence of negligence. While the derailment in Jesionowski
may have been of an "extraordinary" sort, there is no evidence in the
record from which we can draw that conclusion here. Moreover, Man-
drgoc proffered no expert witnesses regarding any inadequacy in the
Railroad's operation, repair, or maintenance of the 229 switch. See
Hurley, 888 F.2d at 329 (noting that railroad employee failed to pro-
duce expert testimony or other evidence to support his claim that the
railroad maintained inadequate lighting for the safe operation of a
lathe). He also failed to show how the Railroad could have foreseen
or prevented the accident. See Peyton, 962 F.2d at 834 (finding that
railroad employee could not prove that railroad"could have discov-

                     7
ered the defect in the crow's foot," a tool that"fractured unexpect-
edly" and injured the employee). Indeed, thousands of cars safely had
passed through the 229 switch in the weeks before the partial derail-
ment that allegedly injured Mandrgoc, including at least two trains
immediately before. While an employee is not required to show affir-
mative proof of negligence to invoke the res ipsa loquitur doctrine, at
a minimum he must show that the specific circumstances surrounding
the unexplained accident show that it was likely the result of negli-
gence. See Jesionowski, 329 U.S. at 457. Here, however, the record
contains no hint of negligence comparable to the evidence of a defec-
tive frog and spring in Jesionowski.

Second, Mandrgoc has not demonstrated that the Railroad alone
controlled the switch and cars involved in the incident. As the brake-
man on the crew, Mandrgoc was responsible for throwing the switch,
verifying that it was latched properly, and signalling the engineer to
proceed. Before the district court, the parties stipulated that Mandrgoc
would testify that the switch looked safe to him when he gave the sig-
nal. Moreover, Mandrgoc elected to jump from the car in anticipation
of the derailment. Thus, Mandrgoc personally exerted partial control
over the instrumentalities that caused his injury. See Santa Maria v.
Metro-North Commuter R.R., 81 F.3d 265, 272 (2d Cir. 1996) (hold-
ing res ipsa loquitur instruction was inappropriate because employee
had partial control over a cot, supplied by the Railroad, which col-
lapsed while employee was sleeping on it); Stillman, 811 F.2d at 837
(holding the railroad did not have exclusive control over the forklift
whose blades fell onto the employee because the employee had placed
himself under the blades). Although an employee's participation in
the accident that caused his injuries does not per se bar the application
of res ipsa loquitur, see Jesionowski, 329 U.S. at 457, Mandrgoc's
significant role in the events leading to his injury demonstrates that
the Railroad did not exclusively control the instrumentalities.

Thus, Mandrgoc is unable to fulfill two elements for submitting his
case to a jury under the doctrine of res ipsa loquitur. Because he could
present no other evidence of negligence, a jury"could have reached
a verdict in [Mandrgoc's] favor only by speculating" as to the cause
of this accident. Hurley, 888 F.2d at 329. Even in view of his light
burden of showing that the Railroad's negligence played a slight part

                    8
in his injury, we agree with the district court that Mandrgoc's case is
insufficient as a matter of law.

IV.

Because Mandrgoc could not show a sufficient similarity between
the four prior derailments and the one that allegedly caused his inju-
ries, the district court did not abuse its discretion in excluding the evi-
dence of prior accidents. Moreover, the district court correctly entered
judgment as a matter of law for the railroad because Mandrgoc failed
either to satisfy the prerequisites of a res ipsa loquitur instruction or
to forecast other evidence of negligence. Accordingly, we affirm.

AFFIRMED

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