                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-1396

                                      Kim T. Poole,
                                       Appellant,

                                           vs.

                   Soo Line Railroad Company d/b/a Canadian Pacific,
                                      Respondent.

                                  Filed June 13, 2016
                                       Affirmed
                                     Larkin, Judge

                             Hennepin County District Court
                               File No. 27-CV-13-22086


Randal W. LeNeave, Richard L. Carlson, Hunegs, LeNeave & Kvas, P.A., Wayzata,
Minnesota (for appellant)

Timothy R. Thornton, Jonathan P. Schmidt, Briggs and Morgan, P.A., Minneapolis,
Minnesota; and

Sally J. Ferguson, Noelle L. Schubert, Allison V. LaFave, Arthur, Chapman, Kettering,
Smetak & Pikala, P.A., Minneapolis, Minnesota (for respondent)



         Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Kirk,

Judge.
                          UNPUBLISHED OPINION

LARKIN, Judge

       In this case under the Federal Employers’ Liability Act, 45 U.S.C. §§ 51-60 (2012),

appellant challenges the district court’s denial of his requests for judgment as a matter of

law and a new trial on the issue of whether a fellow railroad employee was acting within

the scope of his employment when he injured appellant. We affirm.

                                           FACTS

       In December 2013, appellant Kim T. Poole sued respondent Soo Line Railroad

Company doing business as Canadian Pacific (Soo Line) for negligence under the Federal

Employers’ Liability Act (FELA). Poole’s allegations arose out of an incident that

occurred on May 3, 2012, while he was working as a signal maintainer for Soo Line. Poole

was part of a Soo Line crew assigned to remove a temporary section of rail at a crossing

and replace it with permanent rail. Poole was responsible for taking the railroad crossing

at that location out of service. If the railroad crossing is not out of service before a section

of rail is removed, the removal of the rail from the tracks breaks an electric circuit between

the rail and a nearby bungalow, causing the crossing gates to lower and disrupt traffic.

Poole was not allowed to take the crossing out of service without first contacting a

dispatcher at Soo Line.

       William Schmidt, a section foreman at Soo Line, was in charge of the crew assigned

to change the rail. Poole and Schmidt had a friendly working relationship. Schmidt and

other crew members were responsible for physically removing the rail. After Schmidt and

his crew had prepared the rail for removal, it began to rain. Schmidt and his crew waited

                                               2
out the rain for approximately 30 to 45 minutes. When the rain stopped, they went back to

removing the rail. A member of Schmidt’s crew drove a backhoe up to the tracks to take

out the rail.

       When Poole saw the backhoe pull up to the tracks, he attempted to contact the

dispatcher to get permission to take the crossing out of service, but Poole was unable to

reach the dispatcher. Around this time, Poole noticed Schmidt knocking the wires off of

the rail that was to be removed. This broke the circuit and caused a crossing gate to drop

onto Schmidt’s company truck. The crossing gate was stuck on the truck and could not

reach a 45-degree angle, which caused its motor to run continuously. Being stuck in this

position for an extended period of time can burn out the crossing gate’s motor and prevent

the gate from rising again until the motor is replaced.

       Immediately after the crossing gates dropped, Poole walked over to Schmidt to talk

to him about the gates. Poole said something to Schmidt about the crossing gates, and

Schmidt swung around and said, “What do you mean you haven’t got the crossing out of

service yet?” Schmidt was holding a shovel when he swung around, and the shovel struck

Poole’s head. The impact knocked Poole’s hardhat off of his head. Following the incident,

Schmidt returned to work, and Poole left the worksite.

       Later that afternoon, Robert Otis, a superintendent of engineering at Soo Line, held

a meeting regarding the incident. Poole, Schmidt, and their supervisors were present.

Schmidt apologized for hitting Poole with the shovel, and the two shook hands.

       A few weeks later, Otis conducted a hearing on behalf of Soo Line regarding the

incident. Poole, Schmidt, and their supervisors testified. During the hearing, Otis asked

                                             3
Schmidt if he had complied with a Soo Line rule that provides, “[e]mployees must not enter

into altercations with each other, play practical jokes, or wrestle while on duty or on

railroad property.”  Schmidt answered, “[w]ell, that’s misleading. I did not—I actually was

joking. I don’t know how to word it. But what happened was my fault. I hit—swung the

shovel jokingly around and hit someone. I mean, I can’t deny that.” After the investigation

of the incident, Soo Line disciplined Schmidt for violating certain Soo Line rules, including

the altercation rule.

         Poole’s FELA suit was tried to a jury over the course of six days. After Soo Line

rested     its   case,   Poole   moved   for   a   directed   verdict   on   the   issue   of

Schmidt’s negligence, arguing that “[t]here is no evidence that [the incident] was

intentional,” “[t]here is no evidence that it was horseplay,” and that “all the evidence, the

overwhelming evidence is that this was in the course and scope—or the scope of

employment.” The district court denied Poole’s motion.

         The jury returned a special verdict finding that Schmidt was not acting in the scope

of his employment at the time of the incident. Poole moved for judgment as a matter of

law (JMOL) on the scope-of-employment issue and in the alternative for a new trial on the

ground that the jury’s finding on that issue was not justified by the evidence or was contrary

to law.1




1
  Poole also moved for a new trial based on the district court’s “Scope of Employment”
jury instruction and its submission of the scope-of-employment question to the jury. Poole
does not appeal the district court’s denial of his motion for a new trial on these grounds.
                                               4
       The district court denied Poole’s motions for JMOL and a new trial. The district

court reasoned that because “[t]here is overwhelming evidence that when Mr. Schmidt hit

Mr. Poole with the shovel, Mr. Schmidt was not acting in furtherance of Soo Line’s

business,” and thus Schmidt was not acting in the scope of his employment at the time of

the incident. The district court similarly found that the preponderance of the evidence

shows that Schmidt “was not attempting to benefit Soo Line or further Soo Line’s business

when he struck Mr. Poole with the shovel” and thus that the jury’s finding that Schmidt

was not acting in the scope of his employment was justified by the evidence.

       Poole appeals.

                                     DECISION

       FELA provides that:

              Every common carrier by railroad . . . shall be liable in
              damages to any person suffering injury while he is employed
              by such carrier . . . for such injury or death resulting in whole
              or in part from the negligence of any of the officers, agents, or
              employees of such carrier . . . .

45 U.S.C. § 51.

       Because FELA limits an employer’s liability to instances where an employee is

injured by the negligent conduct of another employee, courts have read into FELA the

requirement that both employees be acting within their respective scopes of employment

at the time of an injury for the railroad employer to be liable. Gallose v. Long Island R.R.

Co., 878 F.2d 80, 83 (2d Cir. 1989). “[N]o liability attaches when an employee acts entirely

upon his own impulse, for his own amusement, and for no purpose of or benefit to the

defendant employer.” Id. (quotation omitted). Thus, the dispositive issue in this case is

                                             5
whether Schmidt was attempting to further Soo Line’s interests when he swung his shovel

and hit Poole. See id. at 84 (describing the key scope-of-employment inquiry as whether

an employee was attempting to further the employer’s interests).

       “Normally, whether an employee is acting within the scope of employment is a

question to be resolved by the jury from all the surrounding circumstances.” Id. (quotation

omitted). This is especially true in negligence actions brought under FELA, “where the

role of the jury is significantly greater than in common law negligence actions, and where

the jury’s right to pass upon the question of the employer’s liability must be most liberally

viewed.” Id. (quotations omitted). “Consequently, the scope of employment issue may be

taken from the jury only when it is clear that reasonable men could not reach differing

conclusions.” Id. (quotation omitted).

                                             I.

       If a party moves for JMOL after a jury returns a verdict, the district court may

“(1) allow the judgment to stand, (2) order a new trial, or (3) direct entry of judgment as a

matter of law.” Minn. R. Civ. P. 50.02. “The jury’s verdict will not be set aside if it can

be sustained on any reasonable theory of the evidence.” Longbehn v. Schoenrock, 727

N.W.2d 153, 159 (Minn. App. 2007) (quotation omitted). “Courts must view the evidence

in the light most favorable to the nonmoving party and determine whether the verdict is

manifestly against the entire evidence or whether despite the jury’s findings of fact the

moving party is entitled to judgment as a matter of law.” Id. (quotation omitted). “JMOL

is appropriate when a jury verdict has no reasonable support in fact or is contrary to law.”

Id. Construing the evidence in the light most favorable to the verdict “does not mean that

                                             6
[courts] are precluded from actually examining the evidence to assess whether there is a

sufficient basis for the jury’s finding.” Kidwell v. Sybaritic, Inc., 784 N.W.2d 220, 229

(Minn. 2010).

       An appellate court reviews a district court’s decision to grant or deny JMOL de

novo. See Longbehn, 727 N.W.2d at 159 (applying de novo standard in reviewing grant of

JMOL). We therefore independently determine whether there is “any competent evidence

reasonably tending to support” the jury’s verdict, without deferring to the district court’s

ruling. Janke v. Duluth & Ne. R.R. Co., 489 N.W.2d 545, 548 (Minn. App. 1992), review

denied (Minn. Oct. 28, 1992).

       Poole contends that “the evidence supports only one reasonable conclusion—that

Schmidt’s act, although misguided and overzealous, was done in furtherance of his

employment and out of frustration with the work.” He argues that “there was no evidence

presented at trial that supports a reasonable conclusion that Schmidt’s conduct was

motivated by personal amusement, horseplay, animus or any other act taking him outside

the scope of his employment.”

       We begin our analysis of Poole’s argument by noting the particular circumstances

of this case. This is not a case in which the challenged conduct is that of a supervisor who,

by his own admission, was disciplining an employee or attempting to control the work of

an employee. Such circumstances may tend to directly establish that challenged conduct

was in furtherance of the employer’s interests and therefore in the scope of employment.

See Lancaster v. Norfolk & W. Ry. Co., 773 F.2d 807, 811, 819 (7th Cir. 1985) (concluding

that a railroad’s vicarious liability was plain with regard to supervisors’ assaults of an

                                             7
employee stemming from exasperation with the employee’s job performance). Here,

however, Schmidt was not Poole’s supervisor and there is not an admission that he swung

the shovel to discipline Poole or to improve Poole’s job performance. Nor is this a case in

which the challenged conduct occurred during the performance of a task that furthered the

goals or interests of an employer. For example, if Schmidt had accidentally hit Poole with

the shovel while digging dirt off of railroad ties in preparation for replacement of the rail,

that would tend to show that the challenged conduct was in furtherance of Soo Line’s

interests and therefore within the scope of employment. See id. at 811, 819 (noting that

the “railroad’s liability would be even plainer” if an employee who struck another

employee while swinging a sledgehammer at a pin stuck on a locomotive being repaired

was merely careless). But there is not a basis to conclude that Schmidt swung the shovel

as part of the employment task at hand.

         The relevant inquiry is whether the act of swinging the shovel furthered Soo Line’s

interests. The only evidence of Schmidt’s purpose for swinging the shovel was his

testimony that he did so jokingly. At the Soo Line hearing in May 2012, Schmidt stated “I

actually was joking. I don’t know how to word it. But what happened was my fault. I

hit—swung the shovel jokingly around and hit someone.”2 When asked if this was still his

position at trial, Schmidt answered “Yes.” Other witnesses testified at trial that Schmidt

had described his swinging the shovel around as something done jokingly or in a joking

manner.      Acceptance of Schmidt’s testimony that he jokingly swung the shovel is



2
    The transcript of the Soo Line hearing was received as evidence at trial.
                                               8
inconsistent with a conclusion that he was attempting to further his employer’s interests

and therefore acting within the scope of his employment.

       Given the circumstances in this case, the jury could have rejected Schmidt’s

explanation for his action. The jury could have concluded that Schmidt acted out of loyalty

to Soo Line and a desire to ensure that he and his co-workers completed their work in a

manner that met Soo Line’s expectations. However, the jury’s verdict indicates that it

credited Schmidt’s testimony, and “[i]t is the jury’s function to determine credibility.”

Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982). “Because it is the jury’s function to

determine credibility, review of a jury verdict is even more limited when the decision rests

upon weighing the credibility of witnesses.” Covey v. Detroit Lakes Printing Co., 490

N.W.2d 138, 141 (Minn. App. 1992). We defer to the jury’s implicit determination that

Schmidt’s proffered motivation for his action was credible.

       Poole contends that “Schmidt’s testimony that he ‘swung around jokingly’ because

he ‘wasn’t happy with the fact that [the crossing] wasn’t out of service’ is a non sequitur.”

Poole essentially argues that the “jokingly” language that Schmidt used at the Soo Line

hearing and affirmed at trial does not accurately describe his actual motivation for swinging

the shovel at Poole, which was frustration with the progress of the removal of the rail on

the day of the incident. But the jury weighed the evidence and its verdict indicates that it

determined that Schmidt’s “jokingly” language fairly characterized his motivation in

swinging the shovel.

       Poole heavily relies on Lancaster and Taylor v. Burlington N. R.R. Co., 787 F.2d

1309 (9th Cir. 1986). Poole notes that “Lancaster and Taylor make clear that the key

                                             9
inquiry into whether an employee is acting within the scope of his or her employment is

motivation,” and he formulates the relevant inquiry as follows: “Is the employee acting due

to issues involving the workplace or is the employee acting due to some personal reason or

gain?” But Poole’s formulation of the relevant standard is broader than the holdings of

Lancaster and Taylor. Although the federal circuit courts in Lancaster and Taylor noted

that the complained-of conduct was committed by supervisors in response to poor job

performance, the courts did not hold that a railroad employer is liable for any acts related

to workplace issues. Taylor, 787 F.2d at 1312-13, 1315; Lancaster, 773 F.2d at 819. The

courts focused on whether the complained-of conduct was in furtherance of the employer’s

goals or interests. Taylor, 787 F.2d at 1314-15; Lancaster, 773 F.2d at 819.

       In conclusion, the evidence at trial arguably supported each party’s case theory. The

jury considered the evidence, including Schmidt’s testimony regarding his motivation, and

determined that Schmidt was not acting in the scope of his employment when he swung

the shovel that struck Poole. Viewing the evidence in the light most favorable to the

verdict, as this court must, we conclude, de novo, that the jury’s determination was not

manifestly contrary to the evidence. We therefore affirm the district court’s denial of

Poole’s motion for JMOL.

                                               II.

       Under Minn. R. Civ. P. 59.01(g), a district court may grant a motion for a new trial

if “[t]he verdict . . . is not justified by the evidence, or is contrary to law.” “On appeal from

a denial of a motion for a new trial, an appellate court should not set aside a jury verdict

unless it is manifestly and palpably contrary to the evidence viewed as a whole and in the

                                               10
light most favorable to the verdict.” Raze v. Mueller, 587 N.W.2d 645, 648 (Minn. 1999)

(quotations omitted). While the new trial standard is less rigorous than the standard for

granting JMOL, it is still a demanding standard. See Clifford v. Geritom Med, Inc., 681

N.W.2d 680, 687 (Minn. 2004) (noting that the new-trial standard is a demanding standard,

though it is less rigorous than the standard for granting judgment notwithstanding the

verdict).

        Because the district court is in a better position to determine whether the verdict is

justified by the evidence, this court will not reverse its decision to deny a motion for a new

trial absent a clear abuse of discretion. See Baker v. Amtrak Nat’l R.R. Passenger Corp.,

588 N.W.2d 749, 753 (Minn. App. 1999) (“Granting a new trial is left largely to the

discretion of the [district] court, and a [district] court’s decision will be reversed only for a

clear abuse of discretion.”); see also Clifford, 681 N.W.2d at 687 (“A district court is in a

better position than an appellate court to assess whether the evidence justifies the verdict

and [appellate courts] usually defer to that court’s exercise of the authority to grant a new

trial.”).

        The district court, after properly weighing the evidence, found that the

“preponderance of evidence shows that Mr. Schmidt was not attempting to benefit Soo

Line or further Soo Line’s business when he struck Mr. Poole with the shovel.” It thus

concluded that “[t]he preponderance of evidence supports the jury’s finding that

Mr. Schmidt did not act within the scope of his employment,” that the jury’s verdict was

justified by the evidence, and that Poole was not entitled to a new trial.



                                               11
       Poole’s arguments for reversing the district court’s denial of his new trial motion

are similar to his arguments for reversing the district court’s denial of his motion for JMOL.

He contends that “[a]lthough Mr. Schmidt testified at both the formal investigation and at

trial that the act [of swinging the shovel] was done as a joke or in a jokingly manner, his

testimony did not support his conclusion.” Poole points out that Schmidt also testified that

there was no joke and that he carelessly swung the shovel without realizing a co-worker

was within striking distance. Poole argues that “[a]lthough Schmidt and other witnesses

claimed his act was done in a joking manner or as horseplay, there was no corroborating

evidence admitted at trial supporting such a claim or conclusion.”

       Although this may have been a close case at trial, it is not an exceptional case in

which the jury’s finding “is contradicted by logic and [the] evidence at almost every point.”

Cf. Lamb v. Jordan, 333 N.W.2d 852, 856 (Minn. 1983) (concluding that evidence did not

justify jury verdict in case where key witness’s story was inconsistent with complaint, did

not appear credible, and was not supported by other evidence). Schmidt testified that he

swung his shovel jokingly. That testimony shows that Schmidt was not acting to further

Soo Line’s interest, and it therefore supports the jury’s verdict. Viewing the evidence in

the light most favorable to the verdict, as we must, we conclude that the district court did

not clearly abuse its discretion by denying Poole’s new trial motion.

       Affirmed.




                                             12
