           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 3, 2009

                                       No. 08-10917                    Charles R. Fulbruge III
                                                                               Clerk

KEVIN RAINS

                                                   Plaintiff-Appellant
v.

BNSF RAILWAY COMPANY, doing business as The Burlington Northern
and Santa Fe Railroad Company

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:06-CV-858


Before JONES, Chief Judge, and HIGGINBOTHAM and HAYNES, Circuit
Judges.

PER CURIAM:*
       Kevin Rains sued his employer, BNSF Railway Company (“BNSF”), under
the Federal Employer’s Liability Act (“FELA”), 45 U.S.C. § 51, for injuries he
suffered from falling while inspecting a train stopped on a bridge. The district
court granted summary judgment for BNSF after finding no evidence that
BNSF’s negligence caused Rains’s fall and injuries. Rains appeals.


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                 No. 08-10917

      We find that the district court erred in construing the complaint to include
only allegations that BNSF’s negligence caused Rains’s fall. Rains adequately
pled the theory that BNSF’s negligence increased his injuries, and the district
court should have considered this in analyzing BNSF’s motion for summary
judgment.
      Having reviewed the briefs, pertinent portions of the record, and oral
argument, and mindful of the weakened proximate-cause standard applied in
FELA cases, a genuine issue of material fact exists as to whether BNSF’s
negligence played a part in producing Rains’s injuries. We therefore reverse the
grant of summary judgment and remand for trial.
      REVERSED AND REMANDED.




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