                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-09-00281-CV


ANDREW L. NELOMS, JR.                                              APPELLANT

                                        V.

BNSF RAILWAY COMPANY                                                APPELLEE


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          FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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                                  I. Introduction

      Appellant Andrew L. Neloms, Jr. appeals the take-nothing judgment

entered against him in his Federal Employers‘ Liability Act (FELA)2 suit against

BNSF Railway Company (BNSF). He contends in one issue that the trial court



      1
      See Tex. R. App. P. 47.4.
      2
      See 45 U.S.C. § 51 (2007).
committed reversible error by omitting jury instructions concerning the FELA

burden of proof. We affirm.

                                 II. Background

      On October 19, 2004, Neloms was working for BNSF as the conductor

bringing a stack train from Temple to Pearland. He arrived at the Clear Creek

yard that evening and exited the train in the dark. While walking toward a switch

in the yard, Neloms tripped over a partially buried tie plate and fell. Neloms

finished his duties that evening, but his hand began to throb.        By the next

morning, his hand was swollen, and he was not able to use it.

      Neloms filed suit against BNSF in September 2007, alleging negligence

and seeking damages for lost wages and physical injury. The case proceeded to

a jury trial in March 2009, and the jury rendered a verdict for BNSF. The trial

court signed a final judgment in accordance with the jury‘s verdict, and this

appeal followed.

                              III. Standard of Review

      We review a trial court‘s refusal to include an instruction in the jury charge

for an abuse of discretion. See In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000);

La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998). ―The trial court

has considerable discretion to determine necessary and proper jury instructions.‖

In re V.L.K., 24 S.W.3d at 341.          To establish an abuse of discretion, the

requested instruction must be necessary to enable the jury to render a proper

verdict so that the trial court‘s refusal probably caused the rendition of an

                                     2
improper verdict. Pitts v. Sabine River Auth. of Tex., 107 S.W.3d 811, 819 (Tex.

App.—Texarkana 2003, pet. denied). When a trial court refuses a requested jury

instruction, we examine whether the instruction was reasonably necessary to

enable the jury to render a proper verdict. See Tex. R. Civ. P. 277, 288; Cleaver

v. Cundiff, 203 S.W.3d 373, 379 (Tex. App.—Eastland 2006, pet. denied).

Because the jury should not be burdened with surplus instructions, not every

correct statement of the law belongs in the jury charge. Cleaver, 203 S.W.3d at

379.

                                  IV. Discussion

       In his sole issue, Neloms contends that the trial court committed reversible

error by omitting jury instructions concerning the FELA burden of proof. BNSF

responds that the trial court did not abuse its discretion because the court‘s

charge provided the jury with the information that Neloms contends was omitted.

A. Applicable Law

       FELA imposes liability on railroads for injuries to their employees ―resulting

in whole or in part from the negligence of any of the officers, agents, or

employees of such carrier, or by reason of any defect or insufficiency, due to its

negligence, in its cars, engines, appliances, machinery, track, roadbed, works,

boats, wharves, or other equipment.‖ 45 U.S.C. § 51. For FELA cases brought

in state court, federal law governs the parties‘ substantive rights, and state rules

govern procedural matters. Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 170




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(Tex. 2002); see Mitchell v. Mo.-Kan.-Tex. R.R. Co., 786 S.W.2d 659, 661 (Tex.

1990), overruled on other grounds by Williams, 85 S.W.3d at 168–69.

      ―To prevail on a FELA claim, a plaintiff must show that the defendant

railroad did not use reasonable care under the circumstances.‖ Williams, 85

S.W.3d at 165–66 (citing Davis v. Burlington N., Inc., 541 F.2d 182, 185 (8th Cir.

1976)). In other words, a FELA plaintiff must prove the traditional ―common law

components of negligence, including duty, breach, foreseeability, causation, and

injury.‖ Houghton v. Port Terminal R.R. Ass’n, 999 S.W.2d 39, 43 (Tex. App.—

Houston [14th Dist.] 1999, no pet.) (citing Adams v. CSX Transp., Inc., 899 F. 2d

536, 539 (6th Cir. 1990)). But the FELA causation standard differs from the

common law standard. Id. at 43–44 (citing Nicholson v. Erie R.R. Co., 253 F.2d

939, 940 (2d Cir. 1958)); see Diamond Offshore Mgmt. Co. v. Horton, 193

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

proximate cause, a FELA plaintiff must prove only that the defendant‘s

negligence ―‗played any part, even in the slightest, in producing the injury for

which damages are sought.‘‖ Williams, 85 S.W.3d at 168 (quoting Mitchell, 786

S.W.2d at 661); see 45 U.S.C. § 51; Rogers v. Mo. Pac. R.R., 352 U.S. 500, 506,

77 S. Ct. 443, 448 (1957).

B. Analysis

      Neloms argues that the court‘s charge did not inform the jury of the lesser

FELA causation standard, and he points to two instructions that the trial court




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refused to submit. We begin by addressing Neloms‘s contention that the federal

pattern jury charge must be submitted in FELA cases tried in state court.

      1. Federal Pattern Jury Charge

      Neloms argues that ―both the Texas Supreme Court and the United States

Supreme Court have unequivocally held that the federal pattern jury charge

instructions should be used in state court FELA cases.‖              To support his

contention, Neloms cites Norfolk Southern Railway Co. v. Sorrell, 549 U.S. 158,

168 n.2, 127 S. Ct. 799, 806 n.2 (2007), and Williams, 85 S.W.3d at 170.

However, Sorrell holds only that the same causation standard applies to both

employers and employees when determining the employee‘s comparative

negligence.3 Sorrell, 549 U.S. at 171, 127 S. Ct. at 808–09. Sorrell does not

require all courts to use identical jury charges in FELA cases.4 See id. at 173,

127 S. Ct. at 809. Neloms relies on Justice Ginsberg‘s concurrence in Sorrell,

      3
        The Sorrell Court expressly limited its opinion to the issue of ―whether
different standards for railroad and employee negligence [are] permissible‖ under
FELA. Sorrell, 549 U.S. at 164, 127 S. Ct. at 804. For procedural reasons,
Sorrell did not actually address the causation standard applicable to carriers in
FELA cases. See id. at 164–72, 127 S. Ct. at 805–09.
      4
       The Sorrell Court stated:

             As a review of FELA model instructions indicates, there are a
      variety of ways to instruct a jury to apply the same causation
      standard to railroad negligence and employee contributory
      negligence. Missouri has the same flexibility as the other States in
      deciding how to do so, so long as it now joins them in applying a
      single standard.

Id. at 173, 127 S. Ct. at 809 (citation omitted) (emphasis added).


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but even Justice Ginsberg‘s concurrence states only that ―sound jury instructions

in FELA cases would resemble the model federal charges.‖ Id. at 180, 127 S. Ct.

at 814 (Ginsberg, J., concurring) (emphasis added).       Thus, Sorrell does not

mandate submission of federal pattern jury charges in FELA cases brought in

state courts.

      Similarly, the Texas Supreme Court held in Williams that ―[s]tate courts

trying FELA cases must apply federal law about burdens of proof.‖ 85 S.W.3d at

170. Although Williams approved language from part of the Fifth Circuit‘s FELA

pattern jury charge and part of the Eighth Circuit‘s FELA pattern jury charge,

nothing in Williams requires Texas trial courts to submit federal pattern jury

charges in all FELA cases. See id. at 165–71; see also Mitchell, 786 S.W.2d at

662 (stating that a proper instruction ―may be had‖ by using the Fifth Circuit‘s

FELA Pattern Jury Instructions but not mandating submission of the pattern

instruction). Although the better practice in many cases may be the submission

of pattern jury charge instructions, neither Sorrell nor Williams mandates the

submission of federal pattern jury instructions in FELA cases tried in Texas state

courts. See Sorrell, 549 U.S. at 164–72, 127 S. Ct. at 805–09; Williams, 85

S.W.3d at 165–71; see generally Weeks Marine, Inc. v. Salinas, 225 S.W.3d 311,

319 (Tex. App.—San Antonio 2007, pet. dism‘d).




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      Legal Cause of Damage

      Neloms‘s first requested instruction states:

             Negligence is a legal cause of damage if it played any part, no
      matter how small, in bringing about or actually causing the injury or
      damage. If you find that the Defendant BNSF Railway Company,
      was negligent and that the Defendant‘s negligence contributed in
      any way toward any injury or damage suffered by the Plaintiff,
      Andrew L. Neloms, Jr., you must find that such injury or damage was
      legally caused by the Defendant BNSF Railway Company[‘s] acts or
      omissions.

Neloms argues that without this instruction, the jury was not informed of the

―feather weight‖ burden applicable to his FELA claim and that his proposed

instruction ―was the only source for the jury to know that the burden was

extremely loose‖ for him to show causation.

      Contrary to Neloms‘s assertion, the trial court did not fail to instruct the jury

on the ―feather weight‖ FELA causation standard. In this regard, the court‘s

charge included the following instructions:

             ―Negligence‖ is the failure to use reasonable care.
      Reasonable care is that degree of care which a reasonably careful
      person would use under like circumstances. Negligence may
      consist either in doing something that a reasonably careful person
      would not do under like circumstances, or in failing to do something
      that a reasonably careful person would do under like circumstances.

            Negligence is a “legal cause” of damage if it played any part,
      no matter how small, in bringing about or actually causing the injury
      or damage.‖ [Emphasis added.]

      In Mitchell, the Texas Supreme Court approved a jury instruction in FELA

cases that states, in part:




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             ―Negligence‖ is the failure to use reasonable care.
      Reasonable care is that degree of care which a reasonably careful
      person would use under like circumstances. Negligence may
      consist either in doing something that a reasonably careful person
      would not do under like circumstances, or in failing to do something
      that a reasonably careful person would do under like circumstances.

            For purposes of this action, negligence is a ―legal cause‖ of
      damage if it played any part, no matter how small, in bringing about
      or actually causing the injury or damage.

786 S.W.2d at 663.5 Other than omitting the phrase ―for purposes of this action,‖

the trial court‘s charge in this case is identical to that approved by the supreme

court in Mitchell.   See id.; see also Williams, 85 S.W.3d at 168 (reaffirming

Mitchell‘s FELA causation discussion and stating that ―a defendant is liable if its

negligence plays any part, however slight, in causing the injury‖). Therefore, we

hold that the trial court did not abuse its discretion by refusing to submit the first

requested instruction.

      3. Liability under FELA

      Neloms‘s second requested instruction states:

             The ―Federal Employers‘ Liability Act‖ provides in part that:

             Every common carrier by railroad while engaging in commerce
      between any of the several states . . . shall be liable in damages to
      any person suffering injuries while he is employed by such
      carrier . . . for such injury or death resulting in whole or in part from

      5
        Williams overruled Mitchell ―to the extent that it rejected a foreseeability
instruction when the evidence about that element of the railroad‘s duty was
disputed‖ and ―to the extent that it approved the Fifth Circuit‘s pattern instruction,
even though the railroad‘s knowledge was disputed, on the erroneous basis that
‗it does not place the issue of duty before the jury.‘‖ Williams, 85 S.W.3d at 169.
Foreseeability is not at issue in this appeal.


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      the negligence of such carrier, or by reason of any defect or
      insufficiency, due to its negligence, in its roadbed, machinery . . . or
      other equipment.

      We first note that this requested instruction is a quote from FELA section

51. See 45 U.S.C. § 51. We also note that the court‘s charge instructed the jury

that Neloms was a BNSF employee, informed the jury that it may find BNSF

liable for Neloms‘s injury if it was satisfied that BNSF had actual or constructive

notice of a defective condition in ―equipment or his place of work‖ and a

―reasonable opportunity to remove or repair the defect before the occurrence,‖

and provided the jury with a legally correct instruction concerning negligence as a

―legal cause‖ of Neloms‘s injury or damage. Thus, the court‘s charge included

instructions containing the same information Neloms sought to include in his

second requested instruction.      ―There is no error in refusing a requested

explanatory instruction when the substance of the matter contained therein is

included in the court‘s charge.‖ La. & Ark. R.R. Co. v. Blakely, 773 S.W.2d 595,

599 (Tex. App.—Texarkana 1989, writ denied) (citing Dixon v. Van Waters &

Rogers, 674 S.W.2d 479, 483 (Tex. App.—Fort Worth 1984, writ ref‘d n.r.e.)). In

other words, a trial court should refuse to submit unnecessary instructions, even

if they are correct statements of the law.      Id.; see Rigdon Marine Corp. v.

Roberts, 270 S.W.3d 220, 228 (Tex. App.—Texarkana 2008, pet. denied).

Because the information contained within Neloms‘s second requested instruction

was otherwise included within the court‘s charge, we hold that the trial court did




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not abuse its discretion by refusing to submit the second requested instruction.

We overrule Neloms‘s sole issue.

                                V. Conclusion

      Having overruled Neloms‘s sole issue, we affirm the trial court‘s judgment.




                                                  ANNE GARDNER
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER, J.; and DIXON W. HOLMAN (Senior
Justice, Retired, Sitting by Assignment).

DELIVERED: March 17, 2011




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