Present:   All the Justices

NORFOLK SOUTHERN RAILWAY COMPANY

v.   Record No. 982682    OPINION BY JUSTICE BARBARA MILANO KEENAN
                                          November 5, 1999
KENNETH LEE THOMAS, SR.


           FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                      Jonathan M. Apgar, Judge


      In this appeal of a judgment in an action brought under the

Federal Employers' Liability Act (the FELA), 45 U.S.C. §§ 51-60,

we consider whether the trial court erred in refusing to

instruct the jury on an issue of contributory negligence.

      In August 1995, Kenneth Lee Thomas, Sr., allegedly injured

his back while working as a student mechanic for Norfolk &

Western Railway Company (the railway). *   When the incident

occurred, Thomas was employed on the second shift in the

railway's car repair shop in Roanoke (the shop) where hopper

cars used for carrying coal were dismantled, reconditioned, and

reassembled.   As part of this procedure, employees in the shop

removed each car's wheel assemblies, which weighed about three

to four tons each, reconditioned them, and lowered them by crane



      *
      Following the trial of this action, Norfolk & Western
Railway Company merged with Norfolk Southern Railway Company.
The trial court substituted Norfolk Southern Railway Company in
the place of Norfolk & Western Railway Company in its final
order. The term "the railway" will be used in this opinion to
refer to either entity.
back into place.   Thomas's duties included guiding and aligning

the reconditioned wheel assemblies during this process.

     One evening, after working for about an hour and a half on

a floor area that was slippery from accumulated work debris,

Thomas slipped while guiding a reconditioned wheel assembly into

place.   Thomas immediately felt a "stabbing" pain in his lower

back and was taken by ambulance to the emergency room of a local

hospital.   After receiving a variety of medical treatments over

the course of two years, Thomas underwent spinal fusion surgery.

     Thomas filed this action against the railway under the

FELA, alleging, among other things, that the railway failed to

provide a safe workplace.   In response, the railway denied that

Thomas was injured and alternatively alleged that any injuries

he may have sustained were caused by his own negligence.

     At trial, the evidence established that the "burning"

process, used by workers on the first shift when dismantling the

wheel assemblies, caused a spray of molten metal particles,

described as "slag," to fall on the shop floor.   The slag, which

solidified after reaching the floor, left a slippery dust

residue on the floor.   Thomas testified that "if you had a

handful of salt and spread it on the [shop floor,] . . .

[t]hat's basically [how] it felt."

     There was evidence that bolts, rust particles, and other

debris also fell onto the shop floor during both the first and


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second shifts.   Thomas testified that due to these floor

conditions, slipping was "a normal part of the day," and that he

would slip frequently when guiding the reconditioned wheel

assemblies as they were lowered by crane.

     At the time Thomas was injured, the railway had in effect a

safety regulation, which provided that "[e]mployees must keep

premises subject to their control neat and clean."   The evidence

showed that the railway had placed brooms and shovels at

Thomas's work station.   When asked whether employees were

supposed to clean their work area at any particular time during

their shift, William J. East, the senior general foreman in the

shop, testified that the employees were given "discretion" in

determining when their work areas needed to be cleaned.     Thomas

and his co-worker, David Atkins, testified that they understood

that the railway's policy was that they were expected to clean

their work area only at the end of their shift.

     Various witnesses testified that workers on the second

shift frequently complained to the railway that employees on the

first shift had failed to clean the shop floor.    Atkins

testified that, in January 1995, he filed a written safety

complaint informing the railway of this problem.   In response to

Atkins's complaint, the senior general foreman instructed the

first shift supervisor to "insure work area is clean at end of

shift."


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     Thomas testified that on the day he was injured, the first

shift had not cleaned the shop floor in the area of his work

station, and that he did not clean the floor at any time prior

to his fall.   Thomas explained that he had slipped on other

occasions during his shift before the time he slipped and

injured his back, including instances while working on the same

wheel assembly.

     At the close of the evidence, the trial court granted

Thomas's motion to strike the railway's evidence of contributory

negligence and refused the railway's proffered jury instructions

on that issue.    The court ruled that the evidence was

insufficient to submit this issue to the jury, because the

railway's senior general foreman had testified that an employee

was given discretion in exercising his duty to keep his work

station clean during his shift.   In support of its ruling, the

court also noted that the railway had failed to present evidence

"as to what an abuse of that discretion or a negligent failure

to act on that discretion would be."

     The jury returned a verdict in favor of Thomas and awarded

him $1.5 million in damages.   The trial court entered judgment

on the jury's verdict.

     On appeal, the railway argues that the evidence at trial

presented an issue of contributory negligence for the jury's

determination.    The railway contends that this issue was


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supported by the evidence that each employee had a duty to keep

his work area clean, and that Thomas failed to use the brooms

and shovels provided by the railway to clean his floor area

despite his knowledge that the floor was slippery.

     In response, Thomas asserts that the railway failed to

produce any evidence from which a jury could have concluded that

Thomas was guilty of contributory negligence.   He contends that

there was no evidence establishing that he violated any duty, or

that he acted unreasonably under the circumstances.    Thomas

contends that the railway's evidence presented only an issue of

assumption of the risk, a defense that is not permitted under

the FELA.   We disagree with Thomas's arguments.

     In deciding this appeal, we apply federal decisional law,

because the issue whether negligence, or contributory

negligence, has been established under the FELA is a federal

question.   See Norfolk S. Ry. v. Trimiew, 253 Va. 22, 24, 480

S.E.2d 104, 106, cert. denied, 520 U.S. 1265 (1997); Norfolk &

W. Ry. v. Hodges, 248 Va. 254, 260, 448 S.E.2d 592, 595 (1994).

Since the defense of assumption of the risk has been abolished

under the FELA, a federal question also is presented in

determining whether evidence relates solely to assumption of the

risk and, thus, cannot support a jury instruction on

contributory negligence.   See Hose v. Chicago Northwestern

Transp., 70 F.3d 968, 978 (8th Cir. 1995); Fashaeur v. New


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Jersey Transit Rail Operations, 57 F.3d 1269, 1279-80 (3rd Cir.

1995); Birchem v. Burlington N. R.R., 812 F.2d 1047, 1049 (8th

Cir. 1987).

     A defendant has the burden of proving contributory

negligence and is entitled to a jury instruction on this issue

if there is any evidence to support that theory.     Hose, 70 F.3d

at 978; Gish v. CSX Transp., Inc., 890 F.2d 989, 992 (7th Cir.

1989); Taylor v. Burlington N. R.R., 787 F.2d 1309, 1316 (9th

Cir. 1986).   The fact that an employee may have been guilty of

contributory negligence does not bar him from recovering damages

under the FELA for the employer's negligence, but the damages

shall be reduced by the jury in proportion to the amount of

negligence attributable to the plaintiff employee.    45

U.S.C. § 53; Hodges, 248 Va. at 262, 448 S.E.2d at 596; Norfolk

S. Ry. v. Rayburn, 213 Va. 812, 816, 195 S.E.2d 860, 864 (1973).

Since issues of the plaintiff's conduct and of damages usually

are interwoven in FELA actions, the issue of damages is rarely

submitted to a jury without also allowing the jury to consider

the question of contributory negligence.   See Hodges, 248 Va. at

262, 448 S.E.2d at 596; Norfolk S. R.R. v. Ferebee, 238 U.S.

269, 273 (1915).

     Although there may be overlapping evidence pertinent to

both the defense of contributory negligence in a FELA action and

the abolished defense of assumption of the risk, there are


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important distinctions between the two theories that have been

addressed by the federal courts.       Assumption of the risk

consists of a plaintiff's implicit consent to known risks and

dangers necessary to the performance of his duties when he

undertakes a routine assignment in compliance with the

directives of his employer.   Fashaeur, 57 F.3d at 1278; Taylor,

787 F.2d at 1316; Rivera v. Farrell Lines, Inc., 474 F.2d 255,

257 (2d Cir.), cert. denied, 414 U.S. 822 (1973).       In contrast,

contributory negligence is a careless act or omission by the

plaintiff that tends to add new dangers to conditions that the

employer negligently created or allowed to exist.       Taylor, 57

F.3d at 1316; see also Gish, 890 F.2d at 991-92; Birchem, 812

F.2d at 1049; Rivera, 474 F.2d at 257; Hodges, 248 Va. at 262,

448 S.E.2d at 596.

     Evidence of contributory negligence cannot be excluded from

a jury's consideration merely because that evidence may also be

relevant to assumption of the risk.       Hose, 70 F.3d at 978;

Beanland v. Chicago, Rock Island & Pac. R.R., 480 F.2d 109, 116

n.5 (8th Cir. 1973); Murray v. New York, New Haven & Hartford

R.R., 255 F.2d 42, 44 (2d Cir. 1958); see Sauer v. Burlington

Northern R.R., 106 F.3d 1490, 1496 (10th Cir. 1996).       However,

when evidence relates solely to assumption of the risk, such

evidence cannot support a jury instruction on contributory

negligence.   Hose, 70 F.3d at 978; see Birchem, 812 F.2d at


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1049; Taylor, 787 F.2d at 1316.   Thus, a plaintiff's damage

award under the FELA cannot be reduced on the basis that he or

she implicitly consented to the risks inherent in the employment

by performing a task in the manner directed by the employer.

Fashaeur, 57 F.3d at 1279; see Birchem, 812 F.2d at 1049;

Taylor, 787 F.2d at 1316.

     When there are reasonable alternatives to performing a task

in an unsafe way, a plaintiff must act with due care and will be

held responsible for acting unreasonably.     Combs v. Norfolk & W.

Ry., 256 Va. 490, 498, 507 S.E.2d 355, 360 (1998); Fashaeur, 57

F.3d at 1280.   Thus, an issue of contributory negligence is

presented based on evidence that an employee failed to follow a

specific safety instruction reasonably imposed to protect the

employee from the injury that occurred.     Fashauer, 57 F.3d at

1280; see Kendrick v. Illinois Cent. Gulf R.R., 669 F.2d 341,

343-44 (5th Cir. 1982); Chesapeake & O. Ry. v. Richmond, 217 Va.

258, 263-64, 227 S.E.2d 707, 711-12 (1976).

     In the present case, the railway presented evidence that

Thomas failed to follow the specific safety instruction that

"employees must keep premises subject to their control neat and

clean."   Thomas knew that the floor in his work area was

slippery and actually had slipped earlier during his shift while

working on the same wheel assembly.   Nevertheless, he did not




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clean his work area with a broom that the employer had placed at

his work station for his use.

     The fact that employees were given "discretion" in

determining when their work areas needed cleaning did not excuse

Thomas from the duty to use reasonable methods provided by the

employer as an alternative to performing a task in an unsafe

manner.   See Combs, 256 Va. at 498, 507 S.E.2d at 359; Fashaeur,

57 F.3d at 1280.   Thomas was still required to exercise

reasonable care for his own safety, and the question whether any

portion of his injury was attributable to his own acts or

omissions should have been decided by the jury.    See Sauer, 106

F.3d at 1496; Martinez v. Union Pac. R.R., 82 F.3d 223, 229 (8th

Cir. 1996); Hodges, 248 Va. at 262, 448 S.E.2d at 596.

     Thomas's acts or omissions at the time he was injured were

evidence of contributory negligence under the FELA, and not

solely evidence of assumption of the risk, because they would

support a conclusion that he caused dangers that were additional

to any hazardous conditions that the railway may have caused or

permitted to exist.    See Gish, 890 F.2d at 991-92; Birchem, 812

F.2d at 1049; Taylor, 787 F.2d at 1316; Hodges, 248 Va. at 262,

448 S.E.2d at 596.    Therefore, we hold that the trial court

erred in striking the railway's evidence of contributory

negligence and in refusing to submit the issue to the jury for

its determination.


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     For these reasons, we will reverse the trial court's

judgment and remand the case for a new trial on all issues

consistent with the principles expressed in this opinion.

                                           Reversed and remanded.




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