                           NOT FOR PUBLICATION

                   UNITED STATES COURT OF APPEALS
                                                                           FILED
                           FOR THE NINTH CIRCUIT
                                                                           DEC 16 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
KEVIN SMITH,                                     No.   15-15139

              Plaintiff-Appellant,               D.C. No.
                                                 2:12-cv-00656-TLN-CKD
 v.

UNION PACIFIC RAILROAD                           MEMORANDUM*
COMPANY,

              Defendant-Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                     Troy L. Nunley, District Judge, Presiding

                          Submitted December 14, 2016**
                             San Francisco, California

Before:      KOZINSKI, BYBEE and N.R. SMITH, Circuit Judges.


      The Federal Employers’ Liability Act (FELA) was enacted “to secure jury

determinations in a larger proportion of cases than would be true of ordinary


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                               page 2
common law actions.” Mendoza v. S. Pac. Transp. Co., 733 F.2d 631, 633 (9th

Cir. 1984). Only “‘slight’ or ‘minimal’ evidence is needed to raise a jury question

of negligence under FELA.” Id. at 632 (citations omitted). Smith identifies a

number of disputed factual issues: Did Union Pacific salt the parking lot on

January 15, 2009? Would snow spikes have been available to Smith? Would

Smith’s injuries have been prevented had he been wearing snow spikes? On this

record, it is “not outside the possibility of reason” that Union Pacific was

negligent. Id. at 633. Because the question of negligence should be decided by a

jury, S. Pac. Co. v. Guthrie, 180 F.2d 295, 300 (9th Cir. 1949), summary judgment

was not appropriate.


      REVERSED and REMANDED.
