                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                      WES C. DAVIS, Plaintiff/Appellant,

                                        v.

             BNSF RAILWAY COMPANY, Defendant/Appellee.

                             No. 1 CA-CV 13-0083
                              FILED 4-1-2014


           Appeal from the Superior Court in Maricopa County
                          No. CV2008-017741
                The Honorable J. Richard Gama, Judge

                                  AFFIRMED


                                   COUNSEL

Osborn Maledon PA, Phoenix
By Mark I. Harrison, Brandon A. Hale

And

St. John & Romero, Mesa
By Jason J. Romero

And

Hildebrand McLeod & Nelson, Oakland, CA
By Anthony S. Petru, Kristoffer S. Mayfield
Co-Counsel for Plaintiff/Appellant
Thorpe Shwer, Phoenix
By William L. Thorpe, Bradley D. Shwer and Adam T. Reich
Counsel for Defendant/Appellee



                     MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Jon W. Thompson joined.


G O U L D, Judge:

¶1            Wes C. Davis appeals from the jury’s verdict in his Federal
Employer’s Liability Act (“FELA”) action against BNSF Railway Company
(“BNSF”) awarding him $3 million in damages, but apportioning 95% of
fault to him. He argues the court should not have instructed the jury on
comparative fault, and the jury’s verdict is not supported by the evidence.
We determine there was sufficient evidence both to instruct the jury on
comparative fault and from which the jury could have reached its verdict,
and affirm.

                FACTS AND PROCEDURAL HISTORY

¶2           On September 11, 2005, Davis was working as a BNSF
conductor on an eastbound train heading to the Winslow, Arizona
terminal. The train was stopped due to traffic ahead. While the train was
stopped, a westbound train leaving Winslow approached on the adjacent
track.

¶3            BNSF General Code of Operating Rules (“GCOR”), require
conductors to detrain to perform a visual roll-by inspection of passing
trains whenever the conductor’s train is stopped and another train will
pass. In compliance with this rule, Davis detrained by climbing down the
ladder on the south side of the locomotive onto the mainline ballast below.
Mainline ballast, which consists of crushed rock approximately 2.5 inches
in diameter, is built up beneath the track and slopes about three or four
feet to the ground; Davis was required to traverse this slope to be in
position for the roll-by inspection.

¶4            As Davis released the handrail and began walking down the
slope, the ballast shifted beneath his weight. Davis turned back toward
the locomotive to try to catch himself; he felt a twist and popping in his


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                             DAVIS v. BNSF
                           Decision of the Court

ankle and fell to the ground. Davis reported the injury and received
medical attention. At the time of the accident, Davis was wearing all the
required safety equipment and he was not found to have violated any
company safety rules.

¶5            Davis filed a FELA action against BNSF. The jury awarded
Davis $3 million in damages; however, it attributed 95% of the fault to
Davis, and only 5% to BNSF. Following the verdict, Davis filed a motion
to alter or amend the judgment arguing the evidence did not support the
verdict and the court erred in excluding evidence of other mainline ballast
slip and fall injuries.1 The court denied Davis’ motion concluding that
substantial evidence supported the jury’s apportionment of fault and that
it had properly excluded evidence of prior incidents. Davis timely
appealed.

                               DISCUSSION

I.     Comparative Fault Jury Instruction

¶6            Davis argues the court erred by giving the jury an
instruction on comparative fault because there was no evidence from
which the jury could reasonably conclude Davis acted without due care.
As a preliminary matter, BNSF contends Davis waived his objection to the
court’s inclusion of the jury instruction because he did not properly object
to it. A party must object to a jury instruction “stating distinctly the
matter objected to and the grounds of the objection.” Ariz. R. Civ. P. 51(a).
A general objection will not satisfy this rule. Rhue v. Dawson, 173 Ariz.
220, 228, 841 P.2d 215, 223 (App. 1992). “An objection that the evidence
does not support the giving of the instruction is . . . a general objection
and is insufficient.” Spillios v. Green, 137 Ariz. 443, 447, 671 P.2d 421, 425
(App. 1983).

¶7            While discussing the final jury instructions, Davis indicated
that he did not feel an instruction on contributory negligence was
appropriate, stating:

       Frankly, we had submitted a jury instruction indicating, in
       this case, there’s no comparative fault. For the record, I do
       not believe that there is any evidence that Mr. Davis was
       negligent in any way, shape or form. In fact, there’s

1     In this appeal, Davis does not raise the trial court’s order
precluding evidence of prior injuries.



                                      3
                              DAVIS v. BNSF
                            Decision of the Court

       testimony from his managers that he’s committed no rule
       violations. And I don’t think a comparative fault instruction
       should be given.

During the course of the discussion Davis proposed the following
instruction directing that he could be found contributorily negligent:

       I think it could read – and I wouldn’t have any objection to
       this: If you find from the evidence that any negligence on the
       part of BNSF Railway Company or Plaintiff contributed, in
       any way or manner, towards any injury suffered by Plaintiff,
       then that injury was caused by . . . that party’s negligence.
       (Emphasis added.)

¶8             Accordingly, taking the somewhat general nature of Davis’
original objection, with his later apparent withdrawal of his objection
while at the same time offering a contributory negligence instruction, we
conclude Davis did not sufficiently object and he has waived this issue
absent fundamental error. Bradshaw v. State Farm Mut. Auto. Ins. Co., 157
Ariz. 411, 420, 758 P.2d 1313, 1322 (1988) (concluding that because party
did not object to the instruction it waived the issue unless giving the
instruction was fundamental error). Because it is fundamental error to
instruct the jury on contributory negligence “if no evidence is presented
from which a jury could properly find a lack of due care by a plaintiff,”
we will consider Davis’ claim. Wilson v. Burlington N., Inc., 670 F.2d 780,
782 (8th Cir. 1982); see also Jones v. Consol. Rail Corp., 800 F.2d 590, 592 (6th
Cir. 1986); Paluch v. Erie Lackawanna R. Co., 387 F.2d 996, 999 (3d Cir. 1968).

¶9            Davis brought his FELA action in state court. “FELA cases
adjudicated in state courts are subject to state procedural rules, but the
substantive law governing them is federal.” St. Louis Sw. Ry. Co. v.
Dickerson, 470 U.S. 409, 411 (1985). Whether or not a jury instruction is
warranted “is an issue of ‘substance’ determined by federal law.” Id.

¶10           FELA entitles an employee to recover damages “if the
employer’s negligence played any part in producing the injury, no matter
how slight.” Taylor v. Burlington N. R. Co., 787 F.2d 1309, 1313 (9th Cir.
1986). The comparative negligence scheme of FELA reduces a plaintiff’s
recovery in proportion to his share of responsibility for the injury.
Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F.3d 1269, 1282 (3d
Cir. 1995). The affirmative defense of contributory negligence is available;
“it is not a complete bar to a plaintiff’s recovery but, rather, operates to
diminish the recovery in proportion to the parties’ comparative fault.”



                                       4
                             DAVIS v. BNSF
                           Decision of the Court

Butynski v. Springfield Terminal R. Co., 592 F.3d 272, 276 (1st Cir. 2010).
Moreover, while the burden of proof is on the defendant, a defendant is
entitled to an instruction on contributory negligence “if there is any
evidence at all of contributory negligence.” Taylor, 787 F.2d at 1314; see
Butynski, 592 F.3d at 277 (An “employer who has asserted a defense of
contributory negligence in a FELA case is entitled to a jury instruction on
that defense as long as the record contains some evidence from which
contributory negligence can be inferred.”).

¶11           To be sent to the jury, the weight of the evidence must be
more than a scintilla, “but a string of circumstances may be enough for the
submission of the issue.” Haines v. S. Pac. Co., 7 Ariz. App. 65, 70-71, 436
P.2d 159, 164-65 (1968) (citing Brady v. Southern Ry. Co., 320 U.S. 476, 479
(1943) and Daulton v. S. Pac. Co., 237 F.2d 710, 713 (9th Cir. 1956). An
employer cannot reach the jury on the issue of the employee’s
contributory negligence by attacking the plaintiff’s credibility alone; the
employer must present other evidence. Dixon v. Penn Cent. Co., 481 F.2d
833, 837 (6th Cir. 1973); see also Butynski, 592 F.3d at 276 (“[T]he employer
must show that ‘the plaintiff’s own negligence played a part in causing the
injury.’”). Once an employer produces evidence from which contributory
negligence can be inferred, he “may be assisted in sustaining his burden
by the jury’s disbelief of plaintiff’s testimony.” Dixon, 481 F.2d at 837.

¶12           Davis argues that there was no evidence to support the
court’s decision to instruct the jury on contributory negligence. He claims
his testimony that he stepped off the train carefully was uncontradicted,
and the evidence presented by BNSF corroborated his statements that he
was required to detrain to perform roll-by inspections, that he could not
have prevented the accident, and that he did not add additional dangers
to his workplace environment.

¶13           Davis’ testimony was not contradicted by any other direct
evidence because he was the only witness to the accident; however, BNSF
did offer circumstantial evidence from which Davis’ negligence could be
inferred. See Lynch v. Northeast Reg. Commuter R.R. Corp., 700 F.3d 906, 917
(7th Cir. 2012) (stating that a jury can make reasonable inferences based on
circumstantial evidence “even where conflicting inferences are also
appropriate and no direct evidence establishes which inference is
correct”).

¶14          There was sufficient evidence for the court to instruct the
jury on comparative fault. BNSF presented evidence that mainline ballast
is a reasonably safe surface on which to walk if one does so carefully.


                                     5
                              DAVIS v. BNSF
                            Decision of the Court

BNSF also presented testimony that the mainline ballast at the site of
Davis’ accident was typical mainline ballast. Davis had training and
experience walking on ballast; he testified he had performed hundreds of
roll-by inspections from the ground without incident. Davis’ ankle was
injured when, as the ballast shifted beneath his weight, he twisted and
turned back to grab the locomotive behind him. There are two competing
inferences the jury could have made from this evidence. One, that Davis’
twisting and turning back to catch himself on the locomotive was a
reasonable reflex to avoid falling and hitting his head on the ballast. Two,
that based on Davis’ training and experience it was negligent to twist and
attempt to change his direction as the ballast shifted beneath his weight,
rather than steadying himself and letting the ballast settle. Where a jury
could choose among competing, evidence-based inferences, the issue must
be sent to the jury. Butynski, 592 F.3d at 277; see also Meyers v. Union Pac.
R. Co., 738 F.2d 328, 331 (8th Cir. 1984) (finding no error in instructing jury
on contributory negligence where there was evidence from which the jury
could reasonably conclude plaintiff did not exercise due care).

II.    95% Apportionment of Fault

¶15           Davis next argues the court erred in denying his motion to
amend the judgment because the evidence did not support the jury’s
verdict that he was 95% at fault.

¶16          Following the verdict awarding Davis $3 million in damages
but apportioning 95% of the fault to him, Davis filed a motion to alter or
amend the judgment pursuant to Arizona Rule of Civil Procedure 59(a)(6),
(8). He argued the evidence did not support the jury’s apportionment of
fault and that the court erred in rejecting certain evidence. The court
denied Davis’ motion stating that “there was substantial evidence
presented to support the jury’s allocation of fault,” and that it properly
excluded the evidence. Davis now argues the court erred in denying his
motion because the record does not justify the verdict.

¶17          The trial court has broad discretion to grant a new trial; the
court has substantial latitude in deciding whether to upset the verdict
because it has seen the witnesses, heard the testimony, and “has a special
perspective of the relationship between the evidence and the verdict.”
Reeves v. Markle, 119 Ariz. 159, 163, 579 P.2d 1382, 1386 (1978); see also
Hutcherson v. City of Phx., 192 Ariz. 51, 53, ¶ 12, 961 P.2d 449, 451 (1998).
However, the court “is not justified in setting aside a verdict and granting
a new trial where there is substantial evidence to support the verdict or
the evidence is ‘equiponderant.’” Joy v. Raley, 24 Ariz. App. 584, 585, 540


                                      6
                             DAVIS v. BNSF
                           Decision of the Court

P.2d 710, 711 (1975). A court has discretion to act when the verdict is “so
‘manifestly unfair, unreasonable and outrageous as to shock the
conscience.’” Hutcherson, 192 Ariz. at 55, ¶ 23, 961 P.2d at 453, citing
Young Candy & Tobacco Co. v. Montoya, 91 Ariz. 363, 370, 372 P.2d 703, 707
(1962).

¶18            In our review, we view the evidence in the light most
favorable to upholding the jury verdict; “if any substantial evidence exists
permitting reasonable persons to reach such a result, we will affirm the
judgment.” Hutcherson, 192 Ariz. at 53, ¶ 13, 961 P.2d at 451. “[I]t is not
contributory negligence to fail to discover a danger when there is no
reason to apprehend one.” Paluch, 387 F.2d at 999 (injured worker who
was totally inexperienced and relied on his superior’s statement that it
was safe; no contributory negligence for failure to discover a danger his
more-experienced superior did not detect). BNSF has a duty to provide a
safe working environment; however, in determining whether a worker’s
negligence contributed to his injury the jury can consider the manner in
which the worker performed his job in that environment. See Birchem v.
Burlington N. R. Co., 812 F.2d 1047, 1049 (8th Cir. 1987). To arrive at its
verdict, the jury necessarily concluded that BNSF’s negligence contributed
to Davis’ injury; yet, it determined that Davis’ own actions caused the
majority of the harm he suffered.

¶19            Davis’ theory throughout the case was that BNSF’s policy of
requiring its workers to detrain in order to perform roll-by inspections on
mainline ballast was negligent. “[W]hen an employee carries out his
supervisor’s general order in an unsafe manner, he is responsible under
FELA for his own contributory negligence. But when an employee carries
out a direct order, even if he has reason to know the order exposes him to
danger, he is not contributorily negligent.” Jenkins v. Un. Pac. R. Co., 22
F.3d 206, 211 (9th Cir. 1994). The critical distinction is between a general
order and a direct one. Id. Davis characterizes the GCOR requiring that
he detrain to perfom a roll-by inspection as a direct order that he was
required to follow, even if doing so exposed him to danger. The language
of the rule indicates that an inspection must be performed when a train is
stopped and met or passed by another train. However, the rule only
requires the inspection be made from the ground if there is a safe location,
and Davis would only be required to cross the track to perform the
inspection if it was safe to do so. From this evidence, the jury could have
concluded that the roll-by inspection was a general order and that Davis
was responsible to exercise due care in carrying it out.




                                     7
                             DAVIS v. BNSF
                           Decision of the Court

¶20           Davis argues the evidence indicated he complied with all
safety rules and his testimony that he stepped off the train in the proper
manner was uncontradicted. He relies on Dixon, 481 F.2d 833, in arguing
that BNSF improperly relied only on his alleged lack of credibility without
producing any other evidence that his conduct fell below the normal
standard of care.

¶21             However, Dixon’s discussion of Domany v. Otis Elevator Co.,
369 F.2d 604 (6th Cir. 1966), is more applicable to this case. Dixon, 481
F.2d at 837. In Domany, the “plaintiff fell on an escalator that stopped
suddenly, and the issue of her contributory negligence turned on whether
she was holding the handrail as she claimed.” Dixon, 481 F.2d at 837. The
defendant introduced evidence that other people who were holding the
handrail did not fall and evidence of “tests indicating that people who
hold on to the handrail will not fall when an escalator stops.” Id. This
evidence was a permissible basis from which the jury could infer the
plaintiff’s testimony that she was holding the handrail was untrue. Id.

¶22            Here, BNSF introduced evidence that although mainline
ballast is likely to shift underfoot it does not pose a hazard of injury if a
person is paying attention. Davis testified that he had performed
hundreds of roll-by inspections from the ground and he had slipped on
shifting ballast without injury before. BNSF also introduced a video
showing individuals walking on the mainline ballast in the area near
where Davis was injured performing various tasks without the ballast
shifting or injury. Davis testified that as the ballast shifted, he twisted
back toward the train and injured his ankle. As identified in Dixon, this is
sufficient evidence from which the jury could infer that Davis’ decision to
twist and turn towards the train, given his training and experience, was
not reasonable under the circumstances and that his testimony that he
detrained carefully and safely and was injured despite exercising due care
was untrue. See supra, at ¶ 14.

¶23           Davis argues the evidence BNSF presents in support of an
inference of Davis’ contributory negligence is actually evidence of an
impermissible assumption of risk defense. “Defenses once embraced
substantially within the concept of assumption of risk are barred under
the FELA and may not be revived in the form of contributory negligence.
Where an act of alleged contributory negligence is but the practical
counterpart of assumption of risk, it does not constitute a defense.”
Taylor, 787 F.2d at 1316. Assumption of risk is “an employee’s voluntary,
knowledgeable acceptance of a dangerous condition that is necessary for
him to perform his duties.” Id. “In contrast, contributory negligence


                                     8
                             DAVIS v. BNSF
                           Decision of the Court

arises out of any ‘careless act or omission on the plaintiff’s part tending to
add new dangers to [existing] conditions.’” Butynski, 592 F.3d at 279,
citing Taylor, 787 F.2d at 1316. The court properly instructed the jury that
it could not find that Davis assumed the risks of his employment. Further,
the evidence presented was sufficient to show that walking on mainline
ballast could be performed safely and it was Davis’ “careless act or
omission” that caused to him injure his ankle as the ballast shifted and he
fell.

                              CONCLUSION

¶24          We find there was sufficient evidence to send the issue of
contributory negligence to the jury, and there was substantial evidence
from which the jury could apportion 95% of the fault to Davis.
Accordingly, we affirm.




                                      :MJT




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