                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 10-1345


LARRY L. KOGER,

                  Plaintiff - Appellee,

          v.

NORFOLK SOUTHERN RAILWAY COMPANY,

                  Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Senior
District Judge. (1:08-cv-00909)


Submitted:   December 10, 2010              Decided:   January 3, 2011


Before WILKINSON, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John H. Mahaney, II, J. Jarrod Jordan, HUDDLESTON BOLEN, LLP,
Huntington, West Virginia, for Appellant.    James L. Farina,
Steven P. Garmisa, HOEY & FARINA, P.C., Chicago, Illinois, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Norfolk Southern Railway Company (“Norfolk Southern”)

appeals the district court’s judgment and $3,431,026 award to

Larry Koger, a former employee injured allegedly due to Norfolk

Southern’s     negligence.            Norfolk    Southern       argues   that   the

district court erred in its instructions to the jury and erred

by denying its motion for a new trial after Koger’s attorney

made   allegedly      improper       remarks    to    the    jury   during   closing

arguments.     We affirm.



                             I.      Jury Instructions

             Koger,    who    sued    Norfolk    Southern      under   the   Federal

Employers Liability Act (“FELA”), was a Norfolk Southern train

conductor who was injured when the locomotive he was riding in

derailed while leaving a Norfolk Southern train yard in West

Virginia.      Prior to trial, the district court concluded that

Norfolk Southern was negligent as a matter of law, but allowed

Norfolk     Southern     to       argue   that       Koger    was   contributorily

negligent.

            The court’s “statement of the case” to the jury read

as follows:

       Plaintiff Larry L. Koger claims damages under [FELA]
       for personal injuries alleged to have been suffered as
       a result of negligence by defendant Norfolk Southern
       Railway Company.


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      Defendant Norfolk Southern Railway Company asserts
      that plaintiff Larry L. Koger was not injured as a
      result of any negligence by defendant.

      . . .

      Since a corporation can act only through its officers,
      or employees, or other agents, any negligent act or
      omission of an officer, or employee, or other agent of
      a corporation, in the performance of that person’s
      duties, is held in law to be the negligence of the
      corporation.

Norfolk Southern claims that the jury could have misread the

final paragraph to allow them to impute Koger’s negligence, if

any, back to Norfolk Southern.             We do not agree.

              In   determining      whether      the    district       court   erred    in

instructing        the   jury,    we    review     the    district       court’s      jury

instructions “in their entirety and as part of the whole trial

and focus on whether the district court adequately instructed

the jury regarding the elements” of the tort and the defendant’s

defenses.          United      States    v.    Wilson,      198    F.3d        467,    469

(4th Cir. 1999)            (discussing        criminal      jury         instructions)

(citation omitted).            On review, jury instructions must be viewed

as a whole.         Hardin v. Ski Venture, Inc., 50 F.3d 1291, 1294

(4th Cir. 1995).           We review the instructions given by a district

court for abuse of discretion.                 United States v. Jeffers, 570

F.3d 557, 566 (4th Cir.), cert. denied, 130 S. Ct. 645 (2009).

              Norfolk Southern claims that the court’s instructions

to   the   jury     were    incorrect    as    a   matter   of     law,    and     highly

prejudicial        to    its    defense.         They    cite     to     pattern      jury
                                           3
instructions        that       would     have       included      a   caveat     that       the

negligence     of    employees,         other       than   the    plaintiff,     is    to    be

imputed to the employer.                 Reviewing the jury instructions as a

whole, though, we do not conclude that the court abused its

discretion.         In     other    instructions,           the   court   gave    detailed

information to the jury related to calculating the respective

fault of the parties and how those calculations affected their

verdict.        Accordingly,            the     court’s      instructions        were       not

erroneous.



                         II.     Improper Closing Statement

              Koger’s theory of the case was apparently that Norfolk

Southern’s       management             employees          falsified      evidence          and

misrepresented certain findings to the court.                          After discussing

this claim, in closing remarks, counsel for Koger told the jury

that they should “send a message” to Norfolk Southern.                                Norfolk

Southern objected before counsel could finish, and the court

sustained the objection.                Norfolk Southern moved, following the

verdict, for a new trial in part based on this improper remark.

The district court denied the motion.

              We review a district court’s denial of a motion for a

new   trial    for       abuse     of    discretion.           See    United     States      v.

Fulcher, 250 F.3d 244, 249 (4th Cir. 2001).                            Norfolk Southern

claims   that       Koger’s      statement          that    the   jury    must    “send       a

                                                4
message”   constituted    a   covert       request    for    punitive    damages,

which are not available in FELA actions.               Koger argues that his

remarks were not improper, and that in any event, the district

court sustained an objection to the remarks.

           We have reviewed the record, and we conclude that the

“send a message” comment was not a request for punitive damages,

and the district court did not abuse its discretion in denying

the motion for a new trial, especially in light of the fact that

an objection to the comments was sustained.

           Accordingly, we affirm the district court’s judgment.

We   dispense   with   oral   argument      because    the    facts     and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                         AFFIRMED




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