                                   ___________

                                    No. 94-3904
                                   No. 94-4043
                                    ___________

Tracy J. Martinez,                       *
                                         *
     Appellee/Cross Appellant,           *
                                         *
     v.                                  *   Appeals from the United States
                                         *   District Court for the District
Union Pacific Railroad Company,          *   of Nebraska.
                                         *
     Appellant/Cross Appellee.           *


                                   ___________

                     Submitted:     October 20, 1995

                          Filed:   April 25, 1996
                                   ___________

Before McMILLIAN, ROSS and BOWMAN, Circuit Judges.

                                   ___________

ROSS, Circuit Judge.


     Appellee Tracy J. Martinez, a former hostler/attendant at Union
Pacific Railroad Company, filed suit pursuant to the Federal Employers'
Liability Act, 45 U.S.C. §§ 51-60, (FELA), after he was injured when he
fell off the end of a ramp used to service locomotive engines.              Martinez
claimed   that   Union   Pacific   was   negligent    for   failing   to   install   a
protective device or warning markings at the end of the ramp.                 A jury
returned a verdict in favor of Martinez for $260,000, but apportioned 25%
fault to him, for a net verdict of $195,000.         We affirm the judgment of the
                 1
district court .




     1
      The Honorable Lyle E. Strom, United States District Judge
for the District of Nebraska.
                                          I.


     The facts show that on January 10, 1990, Martinez was the subject of
a disciplinary hearing, which eventually resulted in the termination of his
employment with Union Pacific.         Martinez's injury occurred within thirty
minutes of this meeting.         At the time of the accident, Martinez was
directing the movement of a locomotive, and while his attention was
divided, he stepped off a ramp and fell five feet to the ground, injuring
his neck and back.     Although the ramp had hand rails on its sides, it had
no warning markings around its perimeter, nor a rail on the end to prevent
such a fall.    Martinez acknowledged at trial that he misjudged his position
on the ramp when he turned quickly, stepped off the ramp, and fell to the
ground.


     Following a jury verdict and judgment for Martinez, Union Pacific
filed a joint Motion for Judgment as a Matter of Law and Motion for a New
Trial.    On October 19, 1994, without considering the merits of Union
Pacific's motions, the district court dismissed the motions as untimely.
The district court had incorrectly calculated the filing deadline for these
post-trial motions.      On October 28, 1994, Union Pacific moved the trial
court to recalculate the time allowed for post-trial motions and to
reconsider     its   ruling.    On     November   2,    1994,   the   district     court
acknowledged its error, granted the Motion to Reconsider, and then denied
Union Pacific's original joint motions on their merits.           Union Pacific then
filed this appeal on November 30, 1994.


                                         II.


     Martinez contends Union Pacific's Notice of Appeal was filed after
the thirty-day period allowed under Rule 4(a)(4) of the Federal Rules of
Appellate    Procedure   and   that,    therefore,     this   court   is   now   without
jurisdiction to consider the appeal.       According to Martinez, the thirty-day
filing period under Rule 4(a)




                                         -2-
was tolled only for thirty days following the district court's original
October 19 ruling, in which the court mistakenly dismissed the motions as
untimely.     In effect, Martinez contends the Motion to Reconsider the
October 19 order, and the district court's subsequent correction of its
original ruling, had no effect on the calculation of the Rule 4(a)(4)
filing deadline.     We disagree.


        Although not expressly stated, when the district court granted
reconsideration, it impliedly vacated its October 19 order, and in doing
so, revived Union Pacific's original motions.              On November 2, 1994, once
recognizing    the   timeliness   of   the   motions,      the   district    court   then
considered the motions for the first time on their merits, and denied them.
Because the court's original October 19 order was, in effect, vacated, the
entry date of the final dispositive order on November 2, 1994, became the
date that triggered a new thirty-day period within which the parties could
appeal from the underlying judgment.           Union Pacific's appeal, filed on
November 30, 1994, was therefore timely.           See Jusino v. Zayas, 875 F.2d
986, 990 (1st Cir. 1989) (thirty-day Rule 4(a) period began to run with
order correcting prior erroneous dismissal of Rule 59 motion as untimely).
Having thus established our jurisdiction, we turn to the substantive issues
raised in this appeal.


                                        III.


        Union Pacific challenges the district court's refusal to admit
testimony of two witnesses whose names were not listed on the pretrial
order.   During the course of the trial, and after Martinez rested his case,
Union    Pacific   called   Martinez   as    its   first    witness.        During   this
examination, Martinez admitted that he talked with other employees about
how to injure oneself in order to get "job insurance" payments for a
disability from the Railroad.     He allegedly discussed with other employees
that the end ramp would be a good place to plan this type of accident.
During questioning,




                                        -3-
however,   Martinez   denied   making   more   definitive   statements   about
orchestrating his own accident.    Objection was made when it became clear
that Union Pacific planned to call two witnesses who would challenge the
credibility of Martinez's version of how the accident occurred because
those witnesses were not disclosed on the pretrial order.


     Based on Nebraska Local Rule 16.2, the express language of the
pretrial order required that, "except upon a showing of good cause, no
witness whose name and address does not appear [in the pretrial order]
shall be permitted to testify over objection for any purpose except
impeachment."2   Accordingly, the district court sustained the objection,
concluding that it was improper to call Martinez as a witness and set him
up for impeachment, in order to call two witnesses whose names had not been
disclosed in the pretrial conference order.       Following Union Pacific's
offer of proof, the court instructed the jury to disregard Martinez's
testimony relating to any prior statements that he may have made to other
employees of the Railroad.3    The court denied Union Pacific's motion for
a continuance, ruling that a lengthy adjournment of the trial for the
purpose of allowing Union Pacific to develop a significant and inflammatory
issue such as fraud would impermissibly affect the jury's ability to retain
the information already presented.


     Union Pacific now argues that the district court erred when it
refused to allow into evidence the crucial testimony of these two




     2
      Nebraska Local Rule 16.2 appears to apply only to
plaintiff's witnesses; however, neither party raises this
limitation on appeal so we assume the practice in Nebraska is to
apply the rule to both plaintiffs and defendants.
     3
      The district court subsequently reversed this instruction
and directed the jury that it could consider Martinez's
admissions that he had participated in conversations with other
employees about staging an accident.

                                     -4-
witnesses.    According to Union Pacific, the witnesses were called solely
for the purpose of calling into question Martinez's credibility and, as
such, the impeachment exception to Local Rule 16.2(c), which allows the
omission of impeachment witnesses from the pretrial order, should apply.



     The trial court traditionally has broad discretionary power to decide
whether to allow the testimony of witnesses not listed prior to trial.
Citizens Bank v. Ford Motor Co., 16 F.3d 965, 966 (8th Cir. 1994).              In
determining whether to exclude witnesses not made known in compliance with
the pretrial order, the court will consider:              "(1) the prejudice or
surprise in fact of the party against whom the excluded witnesses would
have testified; (2) the ability of that party to cure the prejudice; (3)
the extent to which waiver of the rule against calling unlisted witnesses
would disrupt the orderly and efficient trial of the case or of other cases
in the court; (4) bad faith or willfulness in failing to comply with the
court's order."   Morfeld v. Kehm, 803 F.2d 1452, 1455 (8th Cir. 1986).        The
district court has considerable leeway in the application of its local
rules.   This court has upheld strict compliance by trial courts with their
local rules, and will "review[] the trial court's ruling only for manifest
error amounting to an abuse of discretion."         Id.


     Our     analysis   in   the   present   case   turns   on   the   appropriate
characterization of the witnesses' testimony.         "Impeachment is an attack
on the credibility of a witness, whereas rebuttal testimony is offered to
explain, repel, counteract, or disprove evidence of the adverse party."
Sterkel v. Fruehauf Corp.,     975 F.2d 528, 532 (8th Cir. 1992).      The primary
purpose of the pretrial witness disclosure rule is to give parties notice
of who will be called to testify, thereby avoiding unfair surprise or
prejudice at trial.     Morfeld, 803 F.2d at 1455.


     We agree with the district court that the testimony, though




                                       -5-
presented under the guise of impeachment testimony, was in fact rebuttal
testimony meant to affirmatively prove fraud on the part of Martinez.
Rather than to generally attack Martinez's credibility through these
witnesses, Union Pacific sought to disprove Martinez's claim that he was
injured as a result of Union Pacific's negligence, by instead proving that
Martinez committed fraud on his employer.            The issue of fraud was never
raised   in   the   pleadings,   nor   was   it   presented    during   the    pretrial
conference or incorporated in the pretrial order.             Although Union Pacific
claims it was unaware of these witnesses prior to the conclusion of
discovery and the issuance of the pretrial order, it knew of these
witnesses months before trial commenced.          Even though Union Pacific claims
the witnesses are listed in various pretrial documents, their identity is
still unknown.      Therefore, Martinez had no opportunity to depose these
witnesses, nor to develop a defense to Union Pacific's allegations of
fraud.   It is precisely this kind of "surprise" that Rule 16.2 was designed
to prevent.    Accordingly, we conclude the district court did not err in
refusing to admit the testimony of these two witnesses.                  As with the
district court, we are troubled that this ruling may have impeded the
search for the truth, but to hold otherwise would have allowed the
injection into the middle of the trial a critical issue not previously
raised and would have served to defeat the purpose of the Rules to ensure
a fair trial without undue and prejudicial surprise to either party.


                                        IV.


     Union Pacific next challenges the district court's denial of the
Railroad's motion to exclude evidence of Martinez's lost wages and earning
capacity and the court's refusal to allow Union Pacific to present
testimony that Martinez had been terminated from his job.                     The court
allowed the jury to decide Martinez's damages for impaired earning capacity
based on the difference between his full Union Pacific salary and that of
a paralegal, his new chosen profession.               According to the Railroad,
Martinez's economic expert




                                        -6-
erroneously computed his loss of future earning capacity on the faulty
assumption that, but for Martinez's accident, he would have continued
working as a trainman at Union Pacific until the age of 67.    Union Pacific
argues that its inability to present evidence of Martinez's dismissal
eliminated its ability to rebut the testimony of the expert.


     The district court did not err in allowing evidence of Martinez's
prior earnings at Union Pacific.      The economic expert, using the Union
Pacific salary as a basis of comparison, testified that prior to his
injury, Martinez could have worked for an automotive body repair business
in North Platte and would have received the same wage he had earned at the
Railroad.     There was evidence that Martinez had engaged in this type of
work in the past and thus would have been qualified in the position.
Further, the court correctly limited the admission of evidence regarding
Martinez's dismissal from Union Pacific, as the dismissal was in no way
relevant to the issues presented at trial and thus was more prejudicial
than probative of the relevant issues in the case.


     We also reject Union Pacific's argument that Martinez's lost earning
capacity was speculative and conjectural at best and, therefore, that the
jury should not have been instructed on this type of damages.     Martinez's
treating physician, Dr. Blum, testified that Martinez's injuries are
permanent in nature and will prevent him from performing heavy labor in the
future.     Union Pacific's expert also stated that, because of the surgery
to his neck following the accident, Martinez should avoid activity that
involves repetitive bending of the neck or that requires lifting heavy
objects.    Further, Dr. Blum stated that, with reasonable medical certainty,
and even accounting for a prior injury to Martinez's neck, the injuries now
complained of are the result of the accident on January 10, 1990.        The
district court did not err in instructing the jury on lost earning
capacity.




                                     -7-
                                     V.


     Union Pacific next argues that it was not negligent as a matter of
law and that the court erred in denying its Motion for Directed Verdict or
its Motion for Judgment as a Matter of Law, because Martinez did not meet
the standard of proving a prima facie case of negligence under FELA.     The
Railroad argues that Martinez was familiar with the dimensions of the
platform and thus his own contributory negligence caused the accident.
Further, because no other employees had complained of or been injured on
the platform, Union Pacific could not have foreseen the injury, and thus
was not negligent as a matter of law.


     To establish Union Pacific's negligence under FELA, Martinez was
required to show that Union Pacific breached its duty to provide him with
a reasonably safe workplace.    Peyton v. St. Louis S.W. Ry. Co., 962 F.2d
832, 833 (8th Cir. 1992).    FELA does not require an employer to exercise
the highest degree of care, but only the same degree of care as an
ordinary, reasonable person would exercise in similar circumstances.     Id.
If an employee is injured because of an unsafe condition, the employer is
liable "if its negligence played any part, even the slightest, in producing
the employee's injury."   Id. (citation omitted).   It is without consequence
that, from the other evidence, the jury may also attribute the accident to
other causes, including the employee's own contributory negligence.


     Here, the evidence showed that Union Pacific failed to place end
rails on the platform which was located over five feet above the ground,
in spite of the fact that end rails were located on other platforms at the
North Platte diesel shop.     Further, evidence showed that Union Pacific
failed to place warning paint at the end of the platform so that an
employee would know that he or she was nearing the end of the platform.
It was reasonably foreseeable that an employee, distracted by performance
of his or her job




                                    -8-
duties, would be at risk of injury on such platforms.


     We conclude that a reasonable jury could find that Union Pacific's
negligence played some part, even the slightest, in producing Martinez's
injury.   The court did not err in denying the Motions for Directed Verdict
or Judgment as a Matter of Law.


                                     VI.


     In his cross-appeal, Martinez challenges the sufficiency of the
evidence to support the district court's instruction on his contributory
negligence.   Under FELA, the burden of proof is on the defendant, who is
entitled to a jury instruction on contributory negligence if there is any
evidence to support that theory.   Hose v. Chicago N.W. Transp. Co., 70 F.3d
968, 978 (8th Cir. 1995).


     Union Pacific offered evidence that Martinez injured himself when he
fell off a ramp that he walked on many times each day during his employment
and that he was familiar with the dimensions of the ramp and knew the ramp
did not have end rails.     Further, Martinez admitted that he fell when he
misjudged his position on the ramp.        While Martinez was responsible for
directing the movement of a locomotive, he also had a duty to be alert and
attentive when performing his duties and to exercise reasonable care for
his own safety.   We conclude there was evidence presented from which the
jury could reasonably conclude that Martinez did not exercise due care;
thus, Union Pacific was entitled to have this theory submitted to the jury.



                                    VII.


     Based on the foregoing, the judgment of the district court is
affirmed.




                                     -9-
A true copy.


     Attest:


           CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                            -10-
