             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT
GARY MILLER,                                     )
                                                 )
                    Appellant,                   )
                                                 )
v.                                               )     WD82088
                                                 )
NORFOLK SOUTHERN RAILWAY                         )     Opinion filed: October 8, 2019
COMPANY,                                         )
                                                 )
                    Respondent.                  )

           APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY, MISSOURI
                    THE HONORABLE JANET L. SUTTON, JUDGE

                          Before Division Three: Gary D. Witt, Presiding Judge,
                        Edward R. Ardini, Jr., Judge and Thomas N. Chapman, Judge

           Gary Miller (“Miller”) appeals from a judgment entered in favor of Norfolk Southern

Railway Company (“Norfolk”) following a jury trial on Miller’s claim for damages under the

Federal Employers’ Liability Act (“FELA”).1 Miller, a former locomotive engineer employed by

Norfolk, alleged that Norfolk was negligent for providing “loose and wobbly” locomotive cab

seats that failed to protect him from excessive shock, jarring, and vibration, and that this negligence

caused him to suffer significant back injuries. The jury was instructed on two theories of recovery




1
    45 U.S.C. § 51 et seq.
for Miller under the FELA: general negligence and negligence per se for violation of the

Locomotive Inspection Act (“LIA”).2 The jury found in favor of Norfolk on both theories.

           Miller raises three points on appeal, each asserting instructional error. Specifically, Miller

argues that the trial court erred by: (1) refusing his proffered verdict director relating to his

negligence per se theory and submitting on an instruction that did not properly state the law

applicable to the claim; (2) refusing his proffered assumption of the risk withdrawal instruction;

and (3) submitting an improper contributory negligence instruction to the jury. Finding the trial

court’s refusal to give Miller’s proffered verdict director on his negligence per se theory was error,

we vacate the entry of judgment in favor of Norfolk on that claim and remand for a new trial on

that theory of recovery.

                                    Factual and Procedural Background

           Miller was hired by Norfolk in March 1993 as a switchman. Three years later, he began

working as a locomotive engineer3 in Norfolk’s North Kansas City/Claycomo yards.

           Miller started experiencing significant back pain in 2014. He underwent spinal surgery in

August 2014, and was cleared by his doctor to return to work on January 23, 2015, at which time

he resumed his previous duties as a locomotive engineer. By November 2015, Miller was again

experiencing back pain. He received epidural injections that failed to provide relief, and ultimately

underwent a second spinal surgery performed in December 2016. Following that surgery, Miller’s

doctor placed him on restrictions that prevented him from returning to work as a locomotive

engineer. Miller was approximately 51 years old.




2
    49 U.S.C. § 20701 et seq.
3
    A locomotive engineer operates the engine of the locomotive.

                                                          2
        Miller filed suit against Norfolk on November 17, 2014. Miller’s petition asserted one

negligence count under the FELA, through which he sought recovery under two theories: (1)

general negligence and (2) negligence per se based on Norfolk’s violation of the LIA. Miller

alleged that Norfolk failed to provide him reasonably safe locomotive cab seats and that such

conduct was “in violation of the [LIA], as [Norfolk] failed to provide [him] with locomotives that

did not pose an unnecessary danger of personal injury and was and is in violation of . . . 49 C.F.R.

§ 229.119 constituting negligence per se.”

        At trial, Miller testified that as an engineer, he spent 80 percent of his day seated in a

locomotive. The seats were mounted to the locomotive with steel poles, and did not use suspension,

shock absorbers, or springs to dampen the vibrations that inherently occurred in locomotive cabs.

Miller stated that “there was always vibration” in the cab when the engine was running, and the

seats were “constantly shaking with vibration.”

        Miller further testified that there were “quite a few” seats in the locomotive cabs that were

“loose and wobbly,” and that he encountered such seats 25 to 30 percent of the time. Other

witnesses confirmed that loose seats had existed in the locomotive cabs, although to a lesser extent

than testified to by Miller.

        Miller presented the testimony of two experts. Dr. Johanning, an occupational medical

physician, testified that Miller’s exposure to shock, jarring, and vibration while operating

locomotives caused or directly contributed to his back injuries. Dr. Johanning also opined that

riding on loose and wobbly seats 25 to 30 percent of the time would have caused or directly

contributed to Miller’s back injuries. Dr. Kress, a biomechanical and biomedical engineer, testified

that by riding in seats without protection from shock and vibration over the course of his career,

Miller was exposed to risk factors for the development of spinal degeneration.



                                                  3
        The evidence further established that Norfolk had a safety rule that required employees to

report unsafe or defective equipment; Miller acknowledged the rule and confirmed that he had

never reported a defective, unsafe, or loose or wobbly seat.

        Norfolk offered testimony from Dennis Mitchell, a certified professional ergonomist, who

tested the locomotives in Norfolk’s North Kansas City rail yard. This testing included participating

in a “run” that was representative of Miller’s regular work. Mitchell testified that the ride quality

of the locomotive was reasonably safe and that Miller was provided with “a reasonably safe [work]

environment from an ergonomic and ride quality standpoint.” Additionally, Dr. MacMillan, an

orthopedic surgeon who conducted an independent medical evaluation of Miller, offered his

opinion that Miller’s back condition was caused by “age- and obesity-related facet arthropathy,

facet syndrome, spinal stenosis.” Dr. MacMillan did not believe that Miller’s back condition was

attributable to exposure to vibrations while employed by Norfolk.

        The trial court instructed the jury on Miller’s two theories of recovery: general negligence

and negligence per se premised on Norfolk’s violation of the LIA. The jury additionally received

a contributory negligence instruction relating to Miller’s general negligence theory of recovery.

The jury found in favor of Norfolk on both theories, and the trial court entered judgment in

Norfolk’s favor.

        Miller appeals. Additional facts are discussed as necessary.

                                          The FELA and the LIA

        Prior to addressing the substance of Miller’s points on appeal, we will discuss the law

governing his claims.4 The FELA imposes liability on railroads for their employees’ injuries



4
 Although “FELA provides for concurrent jurisdiction of the state and federal courts,” “substantively FELA actions
are governed by federal law.” Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 165 (2007).


                                                        4
caused “in whole or in part from the negligence of the railroad or its employees.” Host v. BNSF

Ry. Co., 460 S.W.3d 87, 104 (Mo. App. W.D. 2015) (internal marks omitted). The 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, or by reason of any defect or insufficiency, due to its
         negligence, in its cars, engines, appliances, machinery . . . or other equipment.

45 U.S.C. § 51.

         “The LIA supplements FELA by imposing on interstate railroads an absolute and

continuing duty to provide safe equipment.” Host, 460 S.W.3d at 104 (internal marks omitted).

The LIA provides that a “railroad carrier may use or allow to be used a locomotive or tender on its

railroad line only when the locomotive or tender and its parts and appurtenances”:

         (1) are in proper condition and safe to operate without unnecessary danger of
             personal injury;

         (2) have been inspected as required under this chapter and regulations prescribed
             by the Secretary of Transportation under this chapter; and

         (3) can withstand every test prescribed by the Secretary under this chapter.

49 U.S.C. § 20701.5 “Pursuant to the LIA, the Federal Railroad Administration [‘FRA’], which

acts under the authority of the Secretary of Transportation, has promulgated regulations on the

governing standards of care for locomotive equipment, including seats.” Delaware & Hudson Ry.

Co., Inc. v. Knoedler Mfrs., Inc., 781 F.3d 656, 658-59 (3d Cir. 2015) (internal citations omitted).

The regulation relevant to this appeal is found at 49 C.F.R. § 229.119(a), and provides that all

locomotive cab seats “shall be securely mounted and braced.”


5
  The LIA was originally known as the Boiler Inspection Act (“BIA”), Kurns v. A.W. Chesterton Inc., 620 F.3d 392,
396 n.3 (3d Cir. 2010), and is referred to as such in some of the case law cited in this opinion. “We simply note that
this is a distinction without a difference, and both terms [(the LIA and the BIA)] refer to 49 U.S.C. § 20701, et seq.”
Id.

                                                           5
        “Violations of the [FRA’s] rules are violations of the [LIA.]” Urie v. Thompson, 337 U.S.

163, 191 (1949). “While the LIA and its regulations provide binding standards for the suppliers of

locomotives and locomotive equipment, as well as for railroad companies, the statute does not

provide a private right of action to employees injured by defective equipment.” Delaware &

Hudson Ry. Co., 781 F.3d at 659 (internal citations omitted). Rather, the LIA “allows a plaintiff to

treat a proven LIA violation as negligence per se in an action under FELA.” Host, 460 S.W.3d at

97. While a plaintiff seeking recovery for a violation of the LIA “is relieved of the burden of

establishing the defendant’s negligence, the plaintiff retains the burden to prove a causal relation

between a violation and the injury for which he is suing.” Id. at 104 (internal marks omitted). A

plaintiff need not elect to bring his FELA claim under either a general negligence or negligence

per se theory; rather, “a claim under the FELA can be asserted based both on a theory of general

negligence and on a theory of negligence per se because of a violation of the LIA.” Id. at 97 (citing

Urie, 337 U.S. at 189).

        A railroad may assert contributory negligence as a defense to a plaintiff’s claim for general

negligence under the FELA. See id. at 98. If the jury finds that the plaintiff’s negligence

contributed to his injury, “the damages shall be diminished by the jury in proportion to the amount

of negligence attributable to [the plaintiff.]” 45 U.S.C. § 53. However, the railroad cannot assert

contributory negligence as a defense against a claim that the railroad committed negligence per se

by violating the LIA. See id. (No employee “shall be held to have been guilty of contributory

negligence in any case where the violation by [the railroad] of any statute enacted for the safety of

employees contributed to the injury or death of such employee.”); see also Lilly v. Grand Trunk

W. R.R. Co., 317 U.S. 481, 491 (1943) (“Since petitioner’s injuries were the result of respondent’s

violation of the [LIA], the partial defense of contributory negligence . . . [is] not available[.]”).



                                                   6
           Congress amended the FELA in 1939 to eliminate the defense of assumption of risk. See

Tiller v. Atl. Coast Line R.R. Co., 318 U.S. 54, 58 (1943); see also 45 U.S.C. § 54 (In an employee’s

action under the FELA, the “employee shall not be held to have assumed the risks of his

employment in any case where such injury or death resulted in whole or in part from the

negligence” of the railroad.). Thus, “case[s] tried under the [FELA] [are] to be handled as though

no doctrine of assumption of risk had ever existed.” Tiller, 318 U.S. 64.

           With this law in mind, we turn to Miller’s claims of instructional error.

                                                           Point I

           Miller’s first point on appeal asserts error relating to the verdict director applicable to his

negligence per se theory. Miller contends that Instruction 106 submitted his negligence per se

theory under 49 U.S.C. § 20701(1) by requiring him to establish that Norfolk breached its duty to

keep all parts and appurtenances in proper condition and safe to operate without unnecessary

danger of personal injury. Miller argues that the giving of Instruction 10 was improper because his

negligence per se claim was not based on that statutory subsection or the standard contained in the

instruction, but instead was founded on Norfolk’s violation of 49 U.S.C. § 20701(3) for its failure

to comply with 49 C.F.R. § 229.119(a). Miller asserts that the trial court erred in refusing his

proffered Instruction B7, and instead giving Instruction 10, explaining “that Instruction B properly


6
    Instruction 10 provided:

       On Plaintiff’s claim for violation of the Locomotive Inspection Act against Defendant, your verdict must
       be for Plaintiff if you believe:

       First, locomotives were not in proper condition and not safe to operate without unnecessary danger of
       personal injury, and

       Second, this condition resulted in whole or in part in injury to Plaintiff.

7
    Instruction B provided:

       Your verdict must be for plaintiff on his FRA regulation claim if you believe:


                                                               7
stated the federal substantive law applicable to [his] claim” and that his “claim was therefore not

submitted under his chosen theory, which was supported by the evidence.” We agree.

                                                    Preservation

        We first address Norfolk’s contention that this point of error was not properly preserved

for our review. To preserve a claim of instructional error, a party must object “on the record during

the instructions conference, stating distinctly the matter objected to and the grounds of the

objection” and must also raise the objection in a motion for new trial. Rule 70.03. At the conclusion

of Miller’s presentation of evidence, Miller’s counsel advised that it was Miller’s intention to

submit to the jury his negligence per se theory based on Norfolk’s failure to comply with 49 C.F.R.

§ 229.119 and not “submit on the general LIA language” found in 49 U.S.C. § 20701(1). The trial

court later conducted an off-the-record instructions conference that was followed by the trial court,

on the record, reading in sequence the instructions it intended to give to the jury. After the trial

court finished reading the instructions, Miller’s counsel offered Instruction B and argued that it

should be submitted instead of Instruction 10:

        Miller’s counsel: Last but not least, Your Honor, Plaintiff would offer Instruction
        B, which is a regulation - - the alternative to the MAI form submitted Locomotive
        Inspection Act.
                I know Your Honor’s using the Locomotive Inspection Act straight out of
        MAI, and I understand why you are, Your Honor.[8] We believe that Instruction B
        would be proper. It’s a regulation submission, would be a proper statement of the
        law, and should be used because under the Locomotive Inspection Act, the violation
        of the regulation is, in and of itself, liability.


    First, defendant failed to comply with the following:

        a) 49 CFR 219.119 [sic] which provides that locomotive seats shall be securely mounted and braced.

    Second, such failure resulted in whole or in part in injury to plaintiff.
8
 As will be discussed in further detail below, the Missouri Approved Instruction (“MAI”) for an FELA claim based
on an LIA violation only tracks the language in 49 U.S.C. § 20701(1), namely that a railroad has a duty to keep all
parts and appurtenances in “proper condition and safe to operate without unnecessary danger of personal injury.” See
MAI 24.02 [2016 Revision]. The MAIs do not provide a pattern instruction for when a plaintiff asserts the railroad
violated the LIA by failing to comply with an applicable regulation under 49 U.S.C. § 20701(3).

                                                            8
         The Court: I’ll show it’s marked as B and refused for the record.

The aforementioned confirms that Miller timely objected on the record at the instructions

conference to the giving of Instruction 10 over his proffered Instruction B. Miller renewed this

objection in his motion for new trial. Thus, we find Miller properly preserved this claim of

instructional error for our review. See Rule 70.03.

                                              Standard of Review

         “The trial court’s refusal to give a party’s proffered instruction is reviewed de novo,

evaluating whether the instructions were supported by the evidence and the law.” Cluck v. Union

Pac. R.R. Co., 367 S.W.3d 25, 32 (Mo. banc 2012) (citing Marion v. Marcus, 199 S.W.3d 887,

893 (Mo. App. W.D. 2006)). If we find instructional error, we reverse “only if such an error results

in prejudice and materially affected the merits of the action.” Id.

                                                     Analysis

         It is well-settled that a railroad “can violate [the] LIA either by: (1) breaching the broad

statutory duty to keep all parts and appurtenances of its locomotives in proper condition and safe

to operate without unnecessary danger of personal injury (the general statutory duty) or (2) failing

to comply with regulations issued by the FRA (a specific regulatory duty).”9 Straub v. BSNF Ry.

Co., 909 F.3d 1280, 1284 (10th Cir. 2018) (emphasis added); see also McGinn v. Burlington N.

R.R. Co., 102 F.3d 295, 299 (7th Cir. 1996); Mosco v. Baltimore & Ohio R.R., 817 F.2d 1088,

1091 (4th Cir. 1987); Satterlee v. St. Louis-San Fran. Ry. Co., 82 S.W.2d 69, 74 (Mo. 1935).

         Instruction 10 submitted negligence per se on the theory that Norfolk breached the general

statutory duty found subsection 1. Proving such a violation requires a plaintiff to establish: (1) the


9
  The LIA’s “general statutory duty” refers to the standard found in subsection 1 of 49 U.S.C. § 20701. The LIA also
requires a railroad comply with “specific regulatory duties” under subsection 3 of 49 U.S.C. § 20701. Throughout this
opinion we refer to “subsection 1” and “subsection 3” without additional reference to 49 U.S.C. § 20701.

                                                         9
railroad failed to keep its locomotive parts and appurtenances in proper condition and safe to

operate without unnecessary danger of personal injury and (2) such failure resulted in whole or in

part in injury to the plaintiff. MAI 24.02. By contrast, a claim of negligence per se based on

subsection 3, which Miller elected to submit to the jury, requires proof that: (1) the railroad failed

to comply with a regulation issued by the FRA and (2) such failure resulted in whole or in part in

injury to the plaintiff. See Payton v. Union Pac. R.R. Co., 405 S.W.3d 1, 6 (Mo. App. E.D. 2013)

(“Because plaintiff sought damages for a violation of 49 C.F.R. § 229.119(a), requiring seats to be

‘securely mounted or braced,’ plaintiff was required to show that the failure to ensure that the seats

were ‘securely mounted or braced’ was a cause of his injury.”).

       As the aforementioned reveals, the distinction between electing to proceed under a theory

that a railroad violated a specific regulatory duty as opposed to the general statutory duty is

substantively significant because under the latter theory, a plaintiff bears a heavier burden. A

violation of the LIA’s general statutory duty requires a plaintiff establish that the locomotive part

at issue was not “safe to operate without unnecessary danger of personal injury.” Importantly, such

proof is not required when a railroad is alleged to have violated a specific regulatory duty because

regulations “promulgated [by the FRA] under the [L]IA must be supported by a finding that the

[regulation] is necessary to remove unnecessary peril to life or limb.” Gregory v. Mo. Pac. R.R.

Co., 32 F.3d 160, 165 (5th Cir. 1994) (internal marks omitted); see also Lilly, 317 U.S. at 486. In

other words, through promulgation of the regulation, the FRA has already determined that its

violation would pose an “unnecessary danger of personal injury” rendering it unnecessary for the

plaintiff to make such a showing to the jury.

       In light of the above-discussed differences, it was error for the trial court to instruct the

jury on the LIA’s general statutory duty when Miller’s theory of negligence per se was based on



                                                 10
Norfolk’s violation of a specific regulation under subsection 3. See Satterlee, 82 S.W.2d at 73

(where the plaintiff’s theory is that the railroad violated a specific regulation, the jury should be

instructed on the specific standard set forth in the regulation, and an instruction on the LIA’s

general statutory duty standard does not sufficiently submit the plaintiff’s theory of negligence per

se to the jury).

         In reaching this conclusion, we recognize that the Missouri Approved Instruction for FELA

claims based on a negligence per se theory only contemplates violations of the LIA’s general

statutory duty, not specific regulations. See MAI 24.02. Understandably, this appears to have been

the basis for the trial court’s refusal of Instruction B. However, when a plaintiff asserts an FELA

claim, the propriety of jury instructions concerning the substantive law is “a federal question.” St.

Louis Sw. Ry. Co. v. Dickerson, 470 U.S. 409, 411 (1985). As described above, federal law—and

Missouri law—permits Miller to establish an LIA violation by showing that the railroad failed to

comply with a specific regulatory duty.10 See, e.g., Straub, 909 F.3d at 1284; Satterlee, 82 S.W.2d

at 73-74. Thus, the lack of MAI for an LIA violation based on a specific regulatory duty did not

bar Miller from submitting this theory to the jury or obviate the trial court’s duty to accurately

instruct the jury on the applicable standards. See Dickerson, 470 U.S. at 410-11 (reversing the trial

court’s refusal to give an instruction on present value in an FELA case, noting that the “petitioner’s

contention that it was entitled to a jury instruction on present value cannot be dismissed on the




10
  We note that the Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit (2019) contains
two pattern FELA instructions for a plaintiff seeking to prove negligence per se: one for the railroad’s violation of the
broad statutory duty stated in 49 U.S.C. § 20701(1) and another for the railroad’s violation of an FRA regulation.
Compare 8th Cir. Civil Jury Instr. § 15.41 Elements of Claim: Locomotive Inspection Act Violation, with 8th Cir. Civil
Jury Instr. § 15.43 Elements of Claim: Violation of Regulation Enacted for the Safety of Railroad Employees; see also
§ 15.41 Note on Use 5 (“If the plaintiff’s case is based on a violation of [an FRA] regulation, Model Instruction 15.43
should be used.”).


                                                          11
ground that such an instruction is not to be found in the Missouri Approved Instructions.”); see

also Kauzlarich v. Atchison, Topeka, & Santa Fe Ry. Co., 910 S.W.2d 254, 258 (Mo. banc 1995).

         Having determined it was error for the trial court to submit Instruction 10 to the jury, we

next examine whether the trial court should have instead given Miller’s proffered Instruction B. A

review of Instruction B reveals that it accurately stated the substantive law,11 could be readily

understood by the jury, and was supported by the evidence. See Kauzlarich, 910 S.W.2d at 260

(“When no instruction can be found in MAI, an appropriate instruction not in MAI must follow

the substantive law and be written so that it can be readily understood by a jury composed of

ordinary people.”).12 As a result, the trial court erred by refusing to give Instruction B.13 See Cluck,

367 S.W.3d at 33 (“[A] party is entitled to an instruction on any theory supported by the

evidence.”).




11
  Counsel for Norfolk conceded at oral argument that Miller’s proffered Instruction B accurately reflected the
substantive law.
12
   For example, in Host v. BNSF Railway Co., 460 S.W.3d 87, 104 (Mo. App. W.D. 2015), the plaintiff’s theory was
the railroad committed negligence per se by violating 49 C.F.R. § 229.119(c), which provides that “Floors of cabs,
passageways, and compartments shall be kept free from oil, water, waste or any obstruction that creates a slipping,
tripping or fire hazard” and “[f]loors shall be properly treated to provide secure footing.” The verdict director
submitted to the jury “required the jury to enter a verdict in favor of Host if it believed:”

      First, either:

      [The railroad] failed to keep its locomotive cab floors and passageways free from oil or water that
      created a slipping hazard, or

      [The railroad] failed to properly treat the locomotive floor to provide secure footing, and

      Second, this use resulted in whole or in part in injury to [Host].

Id. at 104-05. Although, the verdict director what not challenged on appeal, Host illustrates the practice we endorse
here: instructing the jury on the standard set forth in the regulation when the plaintiff’s theory is that the railroad
violated a specific regulatory duty.
13
  Although Instruction B contained a typographical error in the citation to 49 C.F.R. § 229.119, the standard in the
instruction tracked the wording of the regulation, therefore the error did not render the instruction improper.

                                                          12
        A finding of instructional error does not end our analysis, however, because we will only

reverse if the error resulted in prejudice. As discussed above, Miller was entitled to submit his

negligence per se claim based on Norfolk’s violation of 49 C.F.R. § 229.119(a) and we are

persuaded that Miller was prejudiced by the trial court’s failure to instruct on this theory of

recovery. See Satterlee, 82 S.W.2d at 74 (although a plaintiff may proceed under subsection 1 or

subsection 3 to show negligence per se, a plaintiff’s ability to proceed under subsection 3 is

“paramount.”); see also Ploch v. Hamai, 213 S.W.3d 135, 142 (Mo. App. E.D. 2006) (the plaintiff

was prejudiced by the trial court’s refusal to submit the proffered instruction “by not allowing the

jury to consider [the defendant’s] potential liability on an issue sufficiently presented at trial”).

Although Norfolk contends that Miller did not suffer prejudice because 49 C.F.R. § 229.119 was

admitted into evidence at trial and Miller’s counsel was able to argue in closing that Norfolk

violated the regulation, we disagree that such evidence and argument was sufficient to cure the

prejudice resulting from the use of Instruction 10 which substantively deviated from the elements

required under Miller’s theory of recovery and, in fact, heightened his burden of proof. See Agri

Process Innovations, Inc. v. Envirotrol, Inc., 338 S.W.3d 381, 389 (Mo. App. W.D. 2011)

(“Argument by counsel is no substitute for proper direction from the trial court.”). Accordingly,

we find Miller was prejudiced by the trial court’s error.

                                      Conclusion as to Point I

       Because the trial court’s use of Instruction 10 to submit negligence per se to the jury was

error and prejudice resulted that materially affected the merits of the action, we vacate the entry of

judgment in Norfolk’s favor on the negligence per se claim and remand for a new trial on that

theory of recovery. Point I is granted.




                                                 13
                                                      Point II

           In Point II, Miller argues that the trial court erred in refusing his proffered Instruction A,

which would have removed from the jury’s consideration any evidence that Miller assumed the

risks of his employment.14 Miller asserts that Norfolk improperly injected the “abolished doctrine”

of assumption of risk into the case, and thus the trial court’s failure to give a withdrawal instruction

allowed the jurors to consider improper evidence and argument in reaching its verdict. We

disagree.

                                                Standard of Review

           “A trial court’s refusal of a withdrawal instruction will not be reversed absent an abuse of

discretion.” Wilson v. P.B. Patel, M.D., P.C., 517 S.W.3d 520, 523 (Mo. banc 2017). “A trial court

abuses its discretion when a ruling is clearly against the logic of the circumstances then before the

trial court and is so unreasonable and arbitrary that the ruling shocks the sense of justice and

indicates a lack of careful deliberate consideration.” Id. (internal marks omitted).

                                                      Analysis

           Miller argues that Norfolk injected the issue of assumption of risk into the case and directs

us to several specific parts of the trial record. These examples fall into broad categories relating to

Miller’s failure to report defective seats in violation of Norfolk’s safety rules, safety being a “two-

way street,” and Norfolk providing Miller a reasonably safe place to work. We disagree that such

evidence and argument injected the issue of assumption of risk.

                              Assumption of risk versus contributory negligence




14
     Instruction A, which was patterned after MAI 24.05 [2012 Revision], provided:

       Plaintiff does not assume any of the risks of his employment. This matter is withdrawn from the case
       and you are not to consider such evidence in arriving at your verdict.


                                                         14
        Although Congress amended the FELA to eliminate the defense of assumption of risk,

contributory negligence remains a viable defense to an FELA general negligence claim.15 See

Fashauer v. New Jersey Transit Rail Operations, 57 F.3d 1269, 1274 (3d Cir. 1995). Thus,

“because contributory negligence on the plaintiff’s part reduces his or her damages, while

assumption of risk does not, courts have the delicate job of separating out evidence on one theory

from evidence on the other.” Id. “[I]f no evidence of impermissible assumption of risk has reached

the jury, a correct instruction on contributory negligence will do.” Id. at 1280; see also MAI 24.05

Notes on Use (“This instruction [withdrawing the ‘matter’ of assumption of risk from the jury]

may only be given if the false issue of assumption of the risk is injected in the case.”).16

        In determining whether the issue of assumption of risk has been injected into the case, we

are guided by the principle that “an employee’s voluntary, knowledgeable acceptance of a

dangerous condition that is necessary for him to perform his duties constitutes an assumption of

risk.” Fashauer, 57 F.3d at 1275. “[A]ssumption of risk in the employment context describe[s] the

notion of implied consent—when an employee takes a job, he or she consents to assume the risk

of any danger he or she knows or should know necessarily is entailed in the job.” Id. at 1277.

        “Contributory negligence, in contrast, is a careless act or omission on the plaintiff’s part

tending to add new dangers to conditions that the employer negligently created or permitted to

exist.” Id. at 1275. “Contributory negligence involves the notion of some fault or breach of duty

on the part of the employee.” Id. at 1277.




15
  However, contributory negligence is no defense to a claim the railroad committed negligence per se by violating
the LIA. See 45 U.S.C. § 53; Lilly, 317 U.S. at 491. We emphasize this because our remand is limited to a retrial on
the negligence per se theory only.
16
  See also MAI 34.01(A) [2012 Revision] (“A withdrawal instruction is only to be given when during the course of
the trial a false issue, improper evidence, or evidence of an abandoned issue has been injected.”).

                                                        15
        Assimilating the above, “[a] plaintiff’s recovery under the FELA never can be reduced on

the basis that he or she implicitly consented to the risk by accepting employment with the railroad

or by performing a task in a manner which the employer directed.” Id. at 1280. “But all other

actions of plaintiff are to be handled as though no doctrine of assumption of risk ever existed, and

if they are evidence of negligence they should be admitted to show contributory negligence.” Id.

(internal marks and citation omitted). “Thus, when reasonable alternatives besides quitting or

refusing to perform the task in an unsafe way are available, a plaintiff is charged with acting with

due care and will be held responsible for acting unreasonably.” Id.

        “Examples of evidence of contributory negligence include failing to follow specific safety

instructions reasonably calculated to protect the employee from the injury that occurred; failing to

report a defect when the evidence establishes that such reporting would be productive; and failing

to act prudently in performing the task.” Id.

                                             Application

        Applying these principles, the evidence and argument cited by Miller did not inject issues

of assumption of the risk into the trial, but rather was evidence relevant to establishing contributory

negligence by Miller. For example, evidence that Miller violated Norfolk’s safety rules by failing

to report defective locomotive seats was, in the context of this case, relevant to the jury’s evaluation

of Miller’s contributory negligence. See Fashauer, 57 F.3d at 1280 (“Examples of evidence of

contributory negligence include failing to follow specific safety instructions reasonably calculated

to protect the employee from the injury that occurred [and] failing to report a defect when the

evidence establishes that such reporting would be productive[.]”). Similarly, evidence elicited by

Norfolk that safety was a “two-way street” was proper to illustrate that Miller had a duty to act

with due care and to argue that Miller breached that duty by failing to act prudently in performing



                                                  16
his job. See id. (evidence of contributory negligence includes evidence that the plaintiff failed to

act prudently in performing a task). Finally, evidence that Norfolk gave Miller a reasonably safe

place to work did not impermissibly inject the issue of assumption of risk. Rather, such evidence

was relevant to rebut Miller’s general negligence claim, under which Miller was required to prove

that Norfolk “failed to provide reasonably safe conditions for work.”

         Upon a review of the record, we find the trial court did not abuse its discretion by refusing

Miller’s proffered withdrawal instruction concerning the issue of assumption of risk. See Rowe v.

Norfolk & W. Ry. Co., 787 S.W.2d 751, 755 (Mo. App. E.D. 1990) (the trial court did not abuse

its discretion by failing to give an instruction withdrawing assumption of risk where the defendant

did not raise the issue).

                                            Conclusion as to Point II

         Because Norfolk did not inject the issue of assumption of risk into the trial, the trial court

did not abuse its discretion in refusing Instruction A. Point II is denied.

                                                      Point III

         In Point III, Miller argues that the “trial court erred in giving Instruction 9 submitting

Plaintiff’s comparative fault, because the instruction injected the abolished defense of assumption

of risk, was replete with roving commissions and was unsupported by the evidence[.]” Instruction

9 charged the jury on contributory negligence17 as follows:

         In your verdict you must assess a percentage of fault to Plaintiff if you believe:

         First, Plaintiff failed to report defective seats including but not limited to loose and
         wobbly seats, failed to follow railroad safety rules, or failed to operate the
         locomotive in a safe manner, and



17
  The reduction in a plaintiff’s damages in proportion to his fault is often referred to as “comparative fault,” however
the FELA—and thus the MAIs for an FELA claim—refer to this concept as “contributory negligence.”


                                                          17
       Second, Plaintiff in any one or more of the respects submitted in Paragraph First,
       was thereby negligent; and

       Third, such negligence of Plaintiff resulted in whole or in part in Plaintiff’s injury.

Instruction 9 was patterned after MAI 24.04(B) [2012 Revision]. We find no error in the trial

court’s use of Instruction 9.



                                        Standard of Review

       Whether the jury was properly instructed regarding the plaintiff’s contributory negligence

“is a question of law this Court reviews de novo.” See Hayes v. Price, 313 S.W.3d 645, 650 (Mo.

banc 2010). “This Court reviews the record in the light most favorable to submission of the

instruction.” Id. “Any issue submitted to the jury in an instruction must be supported by substantial

evidence from which the jury could reasonably find such issue.” Id. (internal marks omitted).

“Substantial evidence is evidence which, if true, is probative of the issues and from which the jury

can decide the case.” Id.

                                              Analysis

       Miller first claims that Instruction 9 was erroneous because it improperly allowed the jury

to consider whether Miller assumed the risks of his employment. However, as discussed in Point

II, each of the contributory negligence submissions in the first paragraph of Instruction 9 were

proper statements of the law.

       Miller next argues that “each of the separate disjunctive submissions in Instruction 9

constitutes a roving commission for the jury.” We disagree.

       “An instruction is a roving commission if it assumes a disputed fact or submits an abstract

legal question that allows the jury to roam freely through the evidence and choose any facts which

suit[] its fancy or its perception of logic to impose liability.” Duren v. Union Pac. R.R. Co., 980

                                                 18
S.W.2d 77, 79 (Mo. App. E.D. 1998) (quoting Seitz v. Lemay Bank & Trust, 959 S.W.2d 458, 463

(Mo. banc 1998)) (internal marks omitted). “If the instruction fails to advise the jury what acts or

omissions of the party, if any, found by them from the evidence, would constitute liability, then it

may be considered a roving commission.” Id. “In such a case, the instruction is considered too

general, submitting a question to the jury in a broad, abstract way without being limited to any

issues of fact or law developed in the case.” Id.

        Here, each of the disjunctive submissions advised the jury what acts or omissions of Miller

would constitute liability: a failure to report defective seats, a failure to follow railroad safety rules,

or a failure to operate the locomotive in a safe manner. Each submission was equally, if not more,

narrow and specific than the submission contained in the general negligence verdict director,

which asked the jury to find Norfolk liable if it “failed to provide reasonably safe conditions for

work.” Courts have repeatedly upheld this phrase—or one substantially similar—as adequately

submitting the defendant’s liability in an FELA case. See, e.g., Dunn v. St. Louis-San Fran. Ry.

Co., 621 S.W.2d 245, 255 (Mo. banc 1981) (rejecting the railroad’s argument that a negligence

verdict director charging that the railroad “failed to provide reasonably safe methods of work” was

a roving commission; the instruction submitted only the ultimate issue and avoided evidentiary

detail). Accordingly, we find the submissions in Instruction 9 did not constitute “roving

commissions.” See Rule 70.02(b) (“Where an MAI must be modified to fairly submit the issues in

a particular case, . . . then such modifications or such instructions shall be simple, brief, impartial,

free from argument, and shall not submit to the jury or require findings of detailed evidentiary

facts.”).

        Finally, Miller argues that Instruction 9 was unsupported by the evidence. We again

disagree. The jury heard evidence that Norfolk’s safety rules required employees to report



                                                    19
defective equipment and that Miller failed to report defective or “loose or wobbly” seats.

Regarding Miller’s failure to operate the locomotive in a safe manner, one of his theories was that

the “coupling impacts” and jerking from “slack action” contributed to his back injuries.18 Evidence

was presented that Miller was trained to control the amount of slack action on the locomotive and

that locomotive engineers are taught how to appropriately couple cars and avoid rough coupling.

From this evidence, it was proper for the jury to consider whether Miller’s operation of Norfolk’s

locomotives contributed to his injuries.

         In sum, we find that Instruction 9 properly stated the law, was supported by the evidence,

and did not constitute a roving commission for the jury.

                                           Conclusion as to Point III

         The trial court did not err in giving Instruction 9 submitting Miller’s contributory

negligence. Point III is denied.

                                                   Conclusion

         We reverse and vacate the entry of judgment in favor of Norfolk on Miller’s claim of

negligence per se and remand for a new trial on that theory of recovery only. The judgment is

affirmed in all other respects.




                                                      __________________________________________
                                                      EDWARD R. ARDINI, JR., JUDGE

All concur.




18
  Slack action is the movement between railcars that are coupled together. Coupling involves linking railcars together
to “mak[e] up trains.”

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