Opinion issued August 21, 2014




                                 In The

                           Court of Appeals
                                 For The

                       First District of Texas
                        ————————————
                           NO. 01-12-01029-CV
                         ———————————
          UNION PACIFIC RAILROAD COMPANY, Appellant
                                   V.
  ESTATE OF GERONIMO GUTIERREZ, DECEASED, AND AMELIA
 GUTIERREZ AND ADRIAN GUTIERREZ, INDIVIDUALLY IN THEIR
    CAPACITIES AS DEPENDENTS OF GERONIMO GUTIERREZ,
   DECEASED, AND AMELIA GUTIERREZ, IN HER CAPACITY AS
 ADMINISTRATRIX OF THE ESTATE OF GERONIMO GUTIERREZ,
                        Appellees



                 On Appeal from the Probate Court No. 4
                         Harris County, Texas
                   Trial Court Case No. 380, 337-401



                             OPINION
      In this Federal Employers’ Liability Act (“FELA”) case,1 Union Pacific

Railroad Company appeals from the final judgment rendered on the jury’s verdict

in favor of the estate of Geronimo Gutierrez, deceased, Amelia Gutierrez and

Adrian Gutierrez, individually in their capacities as dependents of Geronimo

Gutierrez, deceased, and Amelia Gutierrez, in her capacity as administratrix of the

estate of Geronimo Gutierrez. In two issues, appellant contends that the trial court

erred by (1) denying its motion for judgment notwithstanding the verdict because

appellees failed to present legally sufficient evidence of causation and (2)

including an instruction in the jury charge on assumption of the risk. We affirm

the trial court’s judgment.

                                    Background

    A. Undisputed Facts

      In May 2007, Geronimo Gutierrez (“Gutierrez”), who had worked for Union

Pacific since 1979, was a carman responsible for repairing and maintaining railcars

in the repair track complex (“RTC”) of appellant’s Englewood Yard in Houston,

Texas. On May 12, 2007, at about 6:15 a.m., Gutierrez’s shift was about complete

when he fell from a railcar and broke his left leg. Paramedics transported him to

the hospital where he underwent three surgeries and, on May 20, 2007, was

released and sent home.        Gutierrez returned to the hospital three days later


1
      45 U.S.C. § 51 (2011).
                                          2
complaining of a headache at which point the doctors discovered that he had

suffered a complication from the anti-clotting medication, causing a brain

hemorrhage from which he died the next day.

      On December 12, 2009, appellees filed suit against appellant asserting

claims under FELA. Following the trial court’s denial of appellant’s traditional

and no-evidence motions for summary judgment, the case proceeded to trial on

June 19, 2012.

   B. Theories of the Case

      1. Appellees’ Theory

      Appellees argued that a longstanding drainage problem in Englewood Yard

had created muddy conditions between the tracks where Gutierrez was working on

the morning of his fall. In support of this position, other Union Pacific employees

testified regarding the history of poor drainage and resulting mud between the

tracks where Gutierrez worked and at the switches which he would have traveled

prior to his injury.   In particular, the jury heard testimony that the drainage

problem which had existed for decades was beyond “typical Houston”; “[Water]

stood everywhere. We referred to it as Lake Englewood”; and “We make fun of it.

Sometimes, we ask for boats instead of four wheelers.” A retired Union Pacific

frontline supervisor testified that “the drainage was always bad, you know,” and

that the employees he supervised complained at daily briefings of the

                                        3
inconvenience and safety concerns posed by the muddy conditions. When he

notified upper management of the employees’ complaints and of their request that

the road be paved, they responded that “it was just way too expensive to pave that

whole area.”

      The jury also heard from Alan Blackwell, a retired Union Pacific track

manager and expert in rail yard drainage and ground conditions, who testified that

an inadequate drainage system resulting in standing water causes “[the natural soil

underneath] to percolate up, and it’s going to cause soft track. And . . . it’s not

going to provide a safe walking surface. It’s going to be mud.” After reviewing

photographs taken during appellees’ onsite inspection of the RTC, Blackwell

testified that the conditions reflected in the photographs were consistent with the

testimony and statements of employees regarding a longstanding drainage

problem. He further testified that the RTC’s drainage and ground conditions

conformed neither to the standard of care in the railroad industry in general nor to

the standard of care adhered to by Union Pacific when he worked for the company.

According to Blackwell, if appellant had dedicated reasonable and adequate

resources and effort, it could have obtained adequate drainage and prevented the

standing water and muddy conditions in the RTC at Englewood Yard.

      With regard to Gutierrez’s injury, appellees presented the testimony of

Calvin Parker, the emergency medical technician (“EMT”) who attended to

                                         4
Gutierrez at the scene of the accident and transported him to the hospital. When

Parker arrived at the scene, he found Gutierrez under the ladder of the railcar.

Gutierrez told him that he had “slipped while climbing a ladder on a railcar” and

that he had fallen a distance of “around four [feet]” and landed “on his feet.” The

hospital records reflect that Gutierrez told medical providers that he had fallen

from a ladder.

      Parker further testified that there was mud on Gutierrez’s boots, and that he

was “sure” there was mud on the ground in the area between the ambulance and

Gutierrez. According to Parker, this was his first time to respond to a call inside

the rail yard and, despite the passage of time, it still “stood out in [his] mind.”

Specifically,

      I recall from taking the stretcher from the ambulance where it was
      parked to where Geronimo was and the process of doing so, a lot of
      the stretcher tires from the stretcher collected mud. We removed his
      boot to splint his leg or, technically, his leg. It seemed in line with the
      story he gave us about the fall in general and muddy boots. Put the
      boots on the stretcher, as we normally do. We left his right boot on.
      There was no reason to remove it. When we cleaned the sheets—
      every time we go to the hospital, we take off the sheets and put on a
      new pair of linens on the stretcher. And they were muddy in the area
      of the boots.

Parker further testified that he had to use a garden hose at the emergency room to

wash off the gurney. The jury also heard testimony that it had rained earlier in the

morning of Gutierrez’s shift before the accident.



                                          5
      Appellees also presented Dr. Tyler Kress, an expert in industrial engineering

safety and biomedical engineering and injury analysis, to testify regarding

Gutierrez’s injury. According to Dr. Kress, the type of tibia-fibula fracture that

Gutierrez sustained is most commonly the result of falling from a height. 2 He

testified that he has never seen this type of fracture pattern resulting from rolling

one’s ankle.

      2.       Appellant’s Theory

      At trial, appellant argued that Gutierrez had taken a prohibited shortcut to

descend the railcar causing him to fall and break his leg.3 Appellant presented

manager Ronny Lewis and foreman general Bob Williamson who investigated the

accident shortly after Gutierrez was transported to the hospital. Lewis testified that

all of the ladders leading to the handbrakes were still covered with dew and that

they noticed a trail of three boot prints beginning next to where they found

2
      The other two scenarios where this type of fracture is typically seen are motor
      vehicle accidents and explosions, neither of which is argued or raised by the
      evidence in this case.
3
      To release a handbrake on a railcar, a Union Pacific carman must climb a ladder
      attached to the side of the railcar using a three-point contact (i.e., keeping two
      hands and one foot or two feet and one hand on the ladder at all times). Once a
      carman climbs two steps up the ladder, he must step around the corner of the
      railcar and then onto a crossover platform on the back of the railcar. While
      standing on the platform, he then releases the handbrake. Once the handbrake is
      released, the carman reverses the process and maintains a three-point contact to
      descend the ladder. According to appellant, carmen occasionally take a prohibited
      shortcut to access the crossover platform—by stepping from the ground, to the
      rail, to a device called an angle cock at the back of the railcar—instead of using
      the ladder.
                                          6
Gutierrez and leading up to the crossover platform at the back of the railcar, from

which they concluded that Gutierrez had taken the shortcut to ascend and descend

from the crossover platform, causing him to fall.         Lewis and Williamson’s

photographs of the boot prints were admitted at trial. These photos depict no mud

on the railcar or the ground. Additionally, Gutierrez’s boots, which the hospital

returned in a plastic bag, were not muddy.

      The accident report that Gutierrez filled out in the hospital recites that he

was “[g]etting down [ladder] with hands and feet one step at a time, then having

reached ground with both feet on ground I turned to go East and fell.” As to the

specific cause of the injury, he wrote “[m]y ankle gave way and I fell.” Asked on

the report whether working conditions caused or contributed to the cause of his

accident, Gutierrez checked off the box indicating that they did not.

    C. Jury’s Verdict and Post-Judgment Proceedings

      At the conclusion of trial, the jury found appellant negligent and awarded

damages to appellees in the total amount of $1,192,000.00. 4 Appellant’s motion

for judgment notwithstanding the verdict and motion for new trial were both

denied. On August 7, 2012, the trial court signed the final judgment from which

appellant timely appealed.

4
      The jury awarded $100,000 for Gutierrez’s physical pain and mental anguish;
      $195,000 to Amelia for past pecuniary loss and $459,000 for future pecuniary
      loss; and $295,000 to Adrian for past pecuniary loss and $143,000 for future
      pecuniary loss.
                                          7
                                    Discussion

    A. Causation

      Appellant’s first issue contends that appellees failed to meet their burden to

present legally sufficient evidence of causation. Appellant argues that, contrary to

appellees’ theory that Gutierrez slipped off the ladder due to mud on his boots, the

conclusive evidence showed that mud neither caused nor contributed to the

accident. Appellees maintain that the evidence from which the jury could have

found that Gutierrez’s slip and fall from the railcar and subsequent injury was due

to mud on his boots was legally sufficient.

      1. Standard of Review

      Under FELA, railroads are liable for employees’ injuries occurring in the

course of their employment resulting from the railroad’s negligence. CSX Transp.,

Inc. v. McBride, ___ U.S. ___, ___, 131 S. Ct. 2630, 2634 (2011); 45 U.S.C. § 51.5

FELA’s causation burden is not the common law proximate cause standard; rather,

the causation standard is one derived from the language of the statute itself that

inquires “whether the proofs justify with reason the conclusion that employer

negligence played any part, even the slightest, in producing the injury or death for

5
      “Cognizant of the physical dangers of railroading that resulted in the death or
      maiming of thousands of workers every year, Congress crafted a federal remedy
      that shifted part of the ‘human overhead’ of doing business from employees to
      their employers.” Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 542, 114 S. Ct.
      2396, 2404 (1994) (internal quotation omitted).

                                          8
which damages are sought.” McBride, ___ U.S. at ___, 131 S. Ct. at 2636 (quoting

Rogers v. Missouri Pac. R.R. Co., 352 U.S. 500, 506, 77 S. Ct. 443, 506 (1957));

see Landry v. Oceanic Contractors, Inc., 731 F.2d 299, 302 (5th Cir. 1984);

Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998).6 This burden

has been termed “featherweight.” Johnson v. Offshore Exp., Inc., 845 F.2d 1347,

1352 (5th Cir. 1988); Ellis, 971 S.W.2d at 406; Diamond Offshore Mgmt. Co. v.

Horton, 193 S.W.3d 76, 79 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).

Nonetheless, despite FELA’s lower causation standard, “a plaintiff still bears the

burden of presenting evidence from which a jury could conclude the existence of a

probable or likely causal relationship as opposed to merely a possible one.”

Abraham v. Union Pac. R.R. Co., 233 S.W.3d 13, 17 (Tex. App.—Houston [14th

Dist.] 2007, pet. denied), cert. denied, 552 U.S. 1312 (2008). Although jurors can

draw reasonable inferences about causation “on the basis of common sense,

common understanding, and fair beliefs,” their ability to draw inferences is not

limitless. Huffman v. Union Pac. R.R., 675 F.3d 412, 421 (5th Cir. 2012).

      In addition to a less stringent burden of proof, the standard of appellate

review in FELA cases is also less stringent than under the common law. Texas &

P. Ry. Co. v. Roberts, 481 S.W.2d 798, 800 (Tex. 1972); Ellis, 971 S.W.2d at 406


6
      When FELA cases are brought in state court, federal law governs the substantive
      rights of the parties, and state rules govern procedural matters. St. Louis S.W. Ry.
      Co. v. Dickerson, 470 U.S. 409, 411, 105 S. Ct. 1347, 1348 (1985).
                                           9
(noting less stringent FELA standard of appellate review applicable to Jones Act

cases). In Roberts, the Texas Supreme Court held that “a jury’s verdict on liability

issues in FELA cases, whether for the employer or employee, cannot be reviewed

on appeal using local ‘weight and sufficiency standards.’” 481 S.W.2d at 801.

Once the appellate court determines that some evidence about which reasonable

minds could differ supports the verdict, the appellate court’s review is complete.

Id. at 800; see also Mason v. Southern Pac. Transp. Co., 892 S.W.2d 115, 118

(Tex. App.—Houston [1st Dist.] 1994, writ denied).

       In reviewing the denial of a motion for judgment notwithstanding the

verdict, we review the evidence in the light most favorable to the jury findings,

considering only the evidence and inferences that support them, and disregarding

all evidence and inferences to the contrary. Navarette v. Temple Indep. Sch. Dist.,

706 S.W.2d 308, 309 (Tex. 1986). If there is more than a scintilla of evidence to

support the findings, the motion was properly denied. Mancorp, Inc. v. Culpepper,

802 S.W.2d 226, 227–28 (Tex. 1990).

      2. Analysis

      Appellant contends that appellees’ evidence of causation was legally

insufficient because they failed to prove that muddy conditions played a part—no

matter how small—in bringing about Gutierrez’s injury.         In support of their

contention, appellant argues that (1) Gutierrez admitted in the accident report that

                                        10
working conditions did not cause him to fall; (2) the physical evidence proved that

mud did not cause Gutierrez to fall; and (3) appellees built their case around

incompetent evidence and speculative theories.

      (a) Accident Report

      At trial, appellant introduced the accident report that Gutierrez completed at

the hospital. In response to the questions which asked how the accident occurred

and the specific cause of the injury, Gutierrez wrote “[g]etting down [ladder] with

hands and feet one step at a time, then having reached ground with both feet on

ground I turned to go East and fell,” and “[my] ankle gave way and I fell.” Asked

on the report whether working conditions caused or contributed to the cause of his

accident, Gutierrez checked off the box indicating that they did not. Appellant

argues that there is no evidence that Gutierrez told anyone that mud caused or

contributed to his injury. Thus, it claims, appellees did not close the gap between

their theory that Englewood Yard had a drainage problem and Gutierrez’s injury.

      Although it is undisputed that Gutierrez wrote on the report that his injury

was caused by his ankle giving way after he had reached the ground, this evidence

was not uncontradicted. 7 EMT Parker testified that when he arrived at the accident


7
      Although appellant relies on the portion of Gutierrez’s report stating that his injury
      was caused by his ankle giving way and that working conditions had not caused
      the accident as support for its theory of the case, it discounts his statement in the
      same report that he fell after descending the ladder, contending that he “did not
      admit that he had taken a prohibited shortcut.”
                                            11
scene, he found Gutierrez at the bottom of the ladder, that Gutierrez had told him

that he had “slipped while climbing a ladder on a railcar,” and that he had fallen a

distance of “around four feet” and landed “on his feet.” There was also evidence

that Gutierrez had given the same account of the accident to his managers as well

as to medical providers at the hospital. Additionally, Dr. Kress testified that the

type of fracture Gutierrez sustained is most commonly the result of falling from a

height, and that he had never seen that type of fracture pattern as a result of rolling

one’s ankle.

      (b) Physical Evidence

      Appellant next argues that the physical evidence itself indicates that the

injury was not caused by muddy conditions. Specifically, Gutierrez’s boots were

mud-free when returned to his family, and the photographs Williamson and Lewis

took after the fall showed no mud on the ground. Appellant further notes the

testimony of Gutierrez’s co-worker and managers that there was no mud in the area

where Gutierrez had been working.         Thus, it argues, the undisputed physical

evidence conclusively proved that mud did not contribute to Gutierrez’s accident.

We disagree.

      Evidence that Gutierrez’s boots were mud-free when returned to his family

does not prove that they were without mud when he fell. The jury heard testimony

from Gutierrez’s wife, Amelia, that while still in the hospital, her husband asked

                                          12
her to tell their son, Adrian, to clean the boots “because they were full of mud.”

When Adrian pulled the boots from the hospital bag, however, he noticed they

were already clean. Further, the testimony by Gutierrez’s co-worker and managers

that there was no mud in the area or on Gutierrez’s boots was directly contradicted

by EMT Parker’s testimony as to mud on the boots, the area between the

ambulance and the accident site, on the wheels and sheets of the gurney, and his

need to hose off the mud from the gurney.

      With regard to the mudless photographs taken by Williamson and Lewis,

appellees argued at trial that the area between the tracks where Gutierrez worked

had been altered after the injury but before the photos were taken.          Three

witnesses—two of Gutierrez’s co-workers and a retired supervisor—testified that

the ground conditions before his fall were different than those afterwards.

Specifically, they testified that the area was cleaned up, leveled off, and much

smoother after the accident.     They further testified that within hours after

Gutierrez’s injury they witnessed a front-end loader dumping rocks between the

tracks and smoothing out the road.

      (c) Appellees’ Evidence

      Appellant also asserts that appellees’ entire case is built upon incompetent

evidence and speculative theories and, as such, a reasonable jury could not

conclude that mud caused the injury. Specifically, appellant argues that Parker’s

                                        13
testimony did not establish that mud was the cause, and that appellees’ theory of

the case was nothing more than unsupported suspicion.

      According to appellant, Parker’s testimony as to mud on Gutierrez’s boots

and on the wheels and sheets of the gurney is legally insufficient evidence of

causation because it was incompetent in light of the physical evidence. Appellant

argues that Parker’s memory, while “understandably hazy,” could not be

reconciled with the physical evidence in the case, i.e., the lack of mud on

Gutierrez’s boots and on the railcar.        However, as previously noted, that

Gutierrez’s boots were mud-free when delivered to his family is not evidence that

there was no mud on them at the time of the accident. Further, appellees’ evidence

of a decades-old drainage problem and resulting muddy conditions in the area,

Gutierrez’s fall from the ladder, and mud on his boots when he fell, comprises a

body of evidence from which a reasonable jury could find liability.

      Appellant also argues that appellees’ theory required the jury to speculate

and pile inference upon inference to conclude that mud played a part in Gutierrez’s

accident. It concludes that, in the absence of actual evidence that negligence

caused Gutierrez’s accident, the trial court erred when it denied appellant’s motion

for judgment notwithstanding the verdict.

      With regard to whether a jury is permitted to draw multiple inferences to

reach a finding of a causal connection in a FELA case, several United States

                                        14
Supreme Court decisions prove instructive. In Tennant v. Peoria & Pekin Union

Railway Co., the plaintiff sued under FELA for the death of her husband during the

course of his employment as a member of a switching crew in one of the

defendant’s railroad switching yards. 321 U.S. 29, 30, 64 S. Ct. 409, 410 (1944).

The jury rendered a verdict in favor of the plaintiff but the appeals court reversed,

concluding that although there was evidence of negligence by the defendant, there

was no substantial proof that the negligence was the proximate cause of the

employee’s death. See id. In reaching its conclusion, the appellate court noted that

the plaintiff’s theory of the decedent’s death, which required the jury to draw

multiple inferences in order to support its inference as to causation, amounted to

impermissible speculation. See Tennant v. Peoria & Pekin Union Ry. Co., 134

F.2d 860, 868 (7th Cir. 1943), rev’d, 321 U.S. 29, 64 S. Ct. 409 (1944) (“This

unreasonable inference, if accepted, to be of benefit to the plaintiff must be

supplemented by the further inference, even more unreasonable, that the cause of

the deceased’s injury, as he stood in this known place of danger with knowledge

that the engine was shortly to be moved in his direction, was defendant’s failure to

ring the bell as a warning.”)

      The Supreme Court reversed, concluding that the “[t]he ultimate inference

that [the decedent] would not have been killed but for the failure to warn him is . . .




                                          15
supportable.” Tennant, 321 U.S. at 34, 64 S. Ct. at 412 (emphasis added). In so

holding, the Court noted

      It is not the function of a court to search the record for conflicting
      circumstantial evidence in order to take the case away from the jury
      on a theory that the proof gives equal support to inconsistent and
      uncertain inferences. The focal point of judicial review is the
      reasonableness of the particular inference or conclusion drawn by the
      jury. It is the jury, not the court, which is the fact-finding body. It
      weighs the contradictory evidence and inferences, judges the
      credibility of witnesses, receives expert instructions, and draws the
      ultimate conclusion as to the facts. The very essence of its function is
      to select from among conflicting inferences and conclusions that
      which it considers most reasonable. . . . That conclusion, whether it
      relates to negligence, causation or any other factual matter, cannot be
      ignored. Courts are not free to reweigh the evidence and set aside the
      jury verdict merely because the jury could have drawn different
      inferences or conclusions or because judges feel that other results are
      more reasonable.

Id.

      In Lavender v. Kurn, a switchman died after being struck in the head while

operating a switch in the defendant’s rail yard. 327 U.S. 645, 648, 66 S. Ct. 740,

742 (1946). The administrator of the decedent’s estate sued under FELA and the

jury rendered a verdict in favor of the plaintiff. See id. at 646–47, 66 S. Ct. at 741.

The state supreme court reversed the judgment, however, holding that there was no

substantial evidence of negligence to support submission of the case to the jury.

See id. at 647, 66 S. Ct. at 741.

      At trial, the parties presented conflicting theories of causation: the plaintiff

asserted that the decedent was struck in the back of the head by a mail hook that
                                          16
was protruding from the side of the mail car whereas the railroad claimed that he

had been murdered. See id. at 649, 66 S. Ct. at 742. In order to accept the

plaintiff’s theory, the court noted that the jury first had to infer that the hook was

sufficiently extended so as to reach the decedent and, assuming this fact, the jury

then had to infer that the decedent had been standing on a dirt mound located near

the track at just the right moment so that the hook would have struck him. See

Lavender v. Kurn, 189 S.W.2d 253, 255–56 (Mo. 1945), rev’d, 327 U.S. 645, 66 S.

Ct. 740 (1946).8 Concluding that “it would be mere speculation and conjecture to

say that [the decedent] was struck by the mail hook,” the court held that there was

insufficient evidence of negligence to warrant submission of the case to the jury.

Id. at 259.

      The Supreme Court reinstated the jury’s verdict. See Lavender, 327 U.S. at

652, 66 S. Ct. at 743. The Court explained that even though the evidence tended to

indicate that it was “physically and mathematically impossible for the hook to

strike [the decedent],” this evidence was irrelevant upon appeal, since there was “a

reasonable basis in the record for inferring that the hook struck [him].”               Id.

Responding to the Missouri Supreme Court’s characterization of the plaintiff’s

evidence, the Court stated:


8
      The hook in question was affixed to the train at a height about a foot taller than the
      decedent. See Lavender v. Kurn, 189 S.W.2d at 254, rev’d, 327 U.S. 645, 66 S.
      Ct. 740 (1946).
                                            17
      It is no answer to say that the jury’s verdict involved speculation and
      conjecture. Whenever facts are in dispute or the evidence is such that
      fair-minded men may draw different inferences, a measure of
      speculation and conjecture is required on the part of those whose duty
      it is to settle the dispute by choosing what seems to them to be the
      most reasonable inference. Only when there is a complete absence of
      probative facts to support the conclusion reached does a reversible
      error appear. But where, as here, there is an evidentiary basis for the
      jury’s verdict, the jury is free to discard or disbelieve whatever facts
      are inconsistent with its conclusion. And the appellate court’s
      function is exhausted when that evidentiary basis becomes apparent, it
      being immaterial that the court might draw a contrary inference or feel
      that another conclusion is more reasonable.

Id. at 653, 66 S. Ct. at 744.

      These cases make clear that a jury may draw multiple reasonable inferences

in order to reach its ultimate inference as to causation in a case brought under

FELA. Appellees presented evidence of a longstanding drainage problem and

generally muddy conditions at Englewood Yard, that the area in which Gutierrez

worked was muddy on the day of the accident, that it had rained earlier in the

morning of Gutierrez’s shift, that there was mud on Gutierrez’s boots, that he

slipped and fell from the ladder, and that the nature of his injury was consistent

with a fall from a height. When faced with alternative theories of causation, it is

not our job to decide which theory is more plausible; instead, as long as there is an

evidentiary basis to support the jury’s conclusion, its verdict must stand. See

Lavender, 327 U.S. at 652–53, 66 S. Ct. at 744; see also Roberts v. So. Pac.

Transp. Co., 44 S.W.3d 183, 187 (Tex. App.—Houston [14th Dist.] 2001, pet.

                                         18
denied) (noting courts are not free in FELA cases to set aside jury verdict merely

because inference are weak, one inference appears more reasonable than another,

or same inference may support contrary conclusions); St. Louis Sw. Ry. Co. v.

Greene, 552 S.W.2d 880, 883 (Tex. Civ. App.—Texarkana 1977, no writ) (stating

it was jury’s role to weigh credibility of witnesses, draw conclusions as to facts

proved, and select inferences it considered most reasonable). Here, the jury chose

to believe appellees’ version of events. Having reviewed the evidence in the light

most favorable to the jury findings, we conclude that there was a reasonable basis

in the record for it to do so. As such, the trial court did not err in denying

appellant’s motion for judgment notwithstanding the verdict.          Culpepper, 802

S.W.2d at 227–28. We overrule appellant’s first issue.

    B. Jury Instruction

      Appellant’s second issue contends that the trial court erred by instructing the

jury about the doctrine of assumption of the risk. 9 It argues that the instruction was

not raised by the pleadings or evidence and was an improper comment on the

weight of the evidence that likely tipped the scales in favor of appellees. Appellees


9
      The jury instruction stated as follows:

      A railroad employee does not assume the risks of employment. A railroad
      employee is not negligent simply because he, upon the request or direction
      of the defendant, worked at a dangerous job, or in a dangerous place, or
      under dangerous conditions.

                                           19
contend that the trial court’s instruction was proper because appellant injected the

issue of assumption of the risk into the trial and, thus, the instruction was necessary

to avoid unfair prejudice that might result.

       1. Applicable Law

      Assumption of the risk is a common law doctrine that allowed an employer

to escape liability for damages resulting from its negligence if its employee, by

accepting or continuing his employment with notice of such negligence, “assumed

the risk.” Tiller v. Atl. Coast Line R.R. Co., 318 U.S. 54, 69, 63 S. Ct. 444, 452

(1943) (Frankfurter, J., concurring). In 1939, Congress amended FELA to abolish

the defense of assumption of the risk in cases brought under the Act. Id. at 58, 63

S. Ct. at 446.    Although the defense has been eliminated, a trial court may

nevertheless instruct a jury that assumption of the risk is not a defense if there are

“facts strongly suggesting assumption of the risk.” Pyles v. Am. Trading & Prod.

Corp., 372 F.2d 611, 614–15 (5th Cir. 1967).

      We review the trial court’s charge decision under the abuse of discretion

standard. Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990).

The trial court has wide discretion in determining the sufficiency and

appropriateness of definitions and instructions. Plainsman Trading Co. v. Crews,

898 S.W.2d 786, 791 (Tex. 1995).




                                          20
       2. Analysis

      Appellant argues that it neither pleaded nor argued the theory of assumption

of the risk, nor could such an argument have been inferred from the evidence.

Instead, it maintains that its position at trial was that Gutierrez’s job was not

dangerous when carmen maintain three-point contact on a ladder as Union

Pacific’s rules require, and called several witnesses who testified that they had

never heard of any carmen falling from a ladder at the RIP track 10 at Englewood

Yard. Appellant concludes that because it argued that Gutierrez’s job was not

dangerous, assumption of the risk was never implicated by the pleadings or the

evidence.

      Appellees, however, argue that appellant injected the issue of assumption of

the risk by repeatedly telling the jury that Gutierrez had chosen to work the job on

which he was injured, in the location where he was injured, and under the

conditions existing at the time, despite there being no requirement for him to do so

because his seniority allowed him to choose a different job. In support of their

position, appellees point to several exchanges in voir dire during which appellant’s

counsel asked venire members how they responded to unsafe working conditions

in their job, suggesting that stopping work in such conditions was “good sense”

and assuming “personal responsibility.” In opening statements, appellant’s counsel


10
      “RIP” stands for “repair, inspection, paint.”
                                            21
referred several times to Gutierrez’s seniority, that it allowed him to bid on any job

he wanted, and that he picked the RIP track because that was his preferred

location. Appellees also point to co-workers’ testimony elicited by appellant that

Gutierrez chose to work the job on which he was injured, despite seniority that

allowed him to choose any position.11 Appellees argue that given these examples,

and the fact that appellant claimed that Gutierrez had been contributorily negligent

in causing his injury, 12 an instruction that assumption of the risk is not a defense

was warranted.

      As noted above, a trial court may instruct a jury that assumption of the risk

is not a defense if there are “facts strongly suggesting assumption of the risk.”

Pyles, 372 F.2d at 614. Here, appellant’s counsel reminded the jury numerous

times—in voir dire, in opening statements, and through witness testimony—of the

fact that Gutierrez’s seniority allowed him to choose any job he wanted but that he

had chosen the job and location where he worked. See, e.g., CSX Transp., Inc. v.
11
      Appellant’s counsel asked Willy Bilbo, Gutierrez’s co-worker operating the car
      mover at the time of the accident, the following:

      Q:     So, if Geronimo wanted to, he could have been the operator of the car
             mover?
      A:     Yes.
      Q:     But he gets to pick?
      A:     Exactly.
12
      When evidence is adduced at trial implicating the doctrine of assumption of risk,
      the trial court must adequately distinguish conduct constituting contributory
      negligence from conduct covered by the doctrine of assumption of risk. See
      Jenkins v. Union Pac. R.R. Co., 22 F.3d 206, 212 (9th Cir. 1994).
                                          22
Bickerstaff, 978 A.2d 760, 782–83 (Md. Ct. Spec. App. 2013) (finding evidence

introduced by defendants at trial regarding employee’s choice of work or work site

injected issue of assumption of risk into trial requiring an instruction); Vandaveer

v. Norfolk & W. Ry. Co., 222 N.E.2d 897, 906 (Ill. App. Ct. 1966) (finding

evidence of employee’s ability to request other jobs could have led jury to infer

that employee assumed risks associated with current job and thus warranted

instruction).

      Further, we note that a defendant’s intentions in presenting such evidence is

not the proper focus; rather, it is the potential impact on the jury that governs

whether an instruction is given. See Jenkins v. Union Pac. R.R. Co., 22 F.3d 206,

212 (9th Cir. 1994) (concluding “[i]t is the evidence itself, not the defendant’s

characterization of it, that drives our analysis”); see also Collins v. Nat’l R.R.

Passenger Corp., 9 A.3d 56, 71 (Md. 2010) (concluding that “it is not purpose, but

the impact of the evidence and argument of counsel on the fact finder that was and

is at issue”); Hamrock v. Consol. Rail Corp., 501 N.E.2d 1274, 1279 (Ill. App. Ct.

1986) (concluding instruction is properly given when issue of assumption of risk is

expressly or implicitly before jury, even though not explicitly raised at trial). At

the charge conference, the trial court expressed its concern regarding the potential

impact of the evidence on the jury:

      [T]he defendant did bring out the point to the jury that Mr. Gutierrez
      had a lot of seniority. So, he could have chosen pretty much what he
                                        23
      did. And that was really emphasized in the case. And so, it worries
      me that the jury might say, well, he chose this particular job. And he
      really had his choice of jobs in the yard.

      Given the evidence and counsel’s arguments noted above, and in light of the

trial court’s wide discretion in determining the sufficiency and appropriateness of

definitions and instructions, we conclude that the court did not abuse its discretion

by instructing the jury on assumption of the risk. Crews, 898 S.W.2d at 791. We

overrule appellant’s second issue.

                                     Conclusion

      We affirm the trial court’s judgment.


                                              Jim Sharp
                                              Justice

Panel consists of Justices Jennings, Higley, and Sharp.




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