                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                    F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                          May 24, 2007

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                              No. 06-30747



     SAMUEL J. HOWARD,

                                                Plaintiff-Appellant,

           versus


     CANADIAN NATIONAL/ILLINOIS
     CENTRAL RAILROAD,

                                                Defendant-Appellee.




           Appeal from the United States District Court
               for the Middle District of Louisiana
                              (03-CV-366)



Before GARWOOD, SMITH and DEMOSS, Circuit Judges.

GARWOOD, Circuit Judge:*

     Plaintiff-appellant Samuel Howard (Howard) brought this suit

in May 2003 against defendant-appellee Canadian National/Illinois

Central   Railroad   (the   railroad)   under    the   Federal    Employers’

Liability Act (FELA), 45 U.S.C. §§ 51 et seq., for personal

injuries sustained on October 19, 2001, when, in the course of his

employment with the railroad, he allegedly injured his back while

     *
      Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
aligning or throwing one of the railroad’s switches which was

overly stiff and difficult to thus align or throw.

     The district court granted the railroad’s motion for summary

judgment, concluding that Howard had failed to present sufficient

summary judgment evidence that the switch was defective or not

properly functioning or had not been properly maintained or that

the railroad was negligent in that it knew or should have known of

or prevented that condition.              The district court accordingly

dismissed Howard’s suit with prejudice.

     Howard appeals that ruling.

     In     a   FELA   case   the   plaintiff’s    burden   of   proof   is

“featherweight” and “[o]ur precedents clearly establish that in

this Circuit, a judgment as a matter of law against the plaintiff

in a FELA suit is appropriate ‘only when there is a complete

absence of probative facts’ supporting the plaintiff’s position.”

Rivera v. Union R. Co., 378 F.3d 502, 506 (5th Cir. 2004) (citation

omitted).

     As we noted in Boeing Company v. Shipman, 411 F.2d 365 (5th

Cir. 1969) (en banc), overruled in other respects, Gautreaux v.

Scurlock Marine, 107 F.3d 331, 336 (5th Cir. 1997) (en banc), the

FELA “complete absence of probative facts” standard is in sharp

contrast to the more demanding test applicable in other civil

cases, namely that “[o]n motions for directed verdict . . . the

Court should consider all the evidence – not just that which


                                      2
supports the non-mover’s case – . . . A mere scintilla of evidence

is insufficient to present a question for the jury. . . . There

must be a conflict in substantial evidence to create a jury

question.”       Boeing   at    374-75.     On   the   other   hand,   “the

congressional intent in enacting the FELA was to secure jury

determinations in a larger proportion of cases than would be true

of ordinary common law actions . . . ‘trial by jury is part of the

remedy in FELA cases.’”        Id. at 371 (citation omitted).    Under the

FELA, “‘the jury’s power to engage in inferences must be recognized

as being significantly broader than in common law negligence

actions.’” Id. (quoting with approval Chicago, Rock Island and

Pacific Railroad Co. v. Melcher, 333 F.2d 996, 999-1000 (8th Cir.

1964). Moreover, in Boeing we observed “the test of sufficiency of

the evidence in FELA cases is very much like the Alabama rule which

provides that if there is a scintilla of evidence a jury question

is presented.”    Id. at 373 n.9.

     Having considered the arguments of counsel, the briefs of the

parties and the record, we conclude that there is not a complete

absence of evidence supporting Howard’s position, that Howard’s

affidavit and deposition include some such evidence (at least when

considered in connection with the railroad’s failure to produce any

relevant maintenance records and that its affidavits were somewhat




                                      3
impeached).1   With respect to the railroad’s complaints that the

district court erred in allowing Howard further discovery and in

not striking his affidavit, we find no abuse of discretion.

     The judgment is REVERSED and the cause is REMANDED for further

proceedings.

                      REVERSED and REMANDED.




     1
        We of course express no opinion as to the sufficiency or
effect of the evidence that may actually be admitted at trial as it
may vary from what the present record reflects.

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