[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTEENTH DIVISION
[NO. 60CV-12-585], HONORABLE MACKIE M. PIERCE, JUDGE
Law Firm, PA, by: Chester H. Lauck III; and Law Office of H.
Chris Christy, PA, North Little Rock, by: James R. Ferguson,
Eldredge & Clark, LLP, Little Rock, by: Joseph P. McKay,
Martin A. Kasten, and Joshua C. Ashley, for appellee.
B. SWITZER, Judge.
Appellant Thomas Sanders sued his employer, appellee Union
Pacific Railroad Company (Union Pacific), pursuant to the
Federal Employers Liability Act (FELA) for injuries he
claims he sustained while he was working at Union Pacifics
Jenks Shop, a locomotive-rebuild facility in North Little
Rock, Arkansas. The case ultimately proceeded to a jury
trial, and a Pulaski County Circuit Court jury returned a
verdict in favor of Union Pacific. Sanders appeals raising
several arguments in support of reversal. We affirm.
Sanders was employed as a machinist at Union Pacifics Jenks
Shop. He alleges that he was injured at work while he was
testing an experimental device fabricated for use with a huck
gun is used to assemble gear cases for locomotive-traction
motors. When a huck gun is used, a threaded steel pin that is
similar to a bolt is placed through holes in gear casings.
Then an aluminum collar is placed over the threaded end of
the pin. The collar and the pin are inserted into the huck
gun, which uses hydraulic pressure to squeeze the collar onto
the pin. Once the collar is secure, the jaws of the huck gun
grab the pin and pull on it until it breaks off at a groove
positioned near the end of the collar. The protective collar
is required pursuant to the huck-gun manufacturers
instructions and warnings.
Sanderss job duties required use of a huck gun. Before
Sanderss incident, several employees had operated the huck
gun without the use of the protective collar, which created a
potentially dangerous scenario. When that happened, the pin
would recoil when it broke and shoot across the shop floor in
the opposite direction of the operator. As a result of this
improper usage, several Union Pacific employees at the Jenks
Shop, including Sanders, decided to develop a bracket that
could be placed over the end of the pin to prevent it from
shooting out in the event the collar was not attached.
morning of October 27, 2010, Foreman General Raymond Burke
Safety Implementation Leader Gerry Billson took the
experimental bracket to the shop floor, and Sanders tested
the bracket by operating a huck gun without the protective
collar in place. A few hours after the test, Sanders reported
to Billson that he had injured himself.
Sanders sued Union Pacific alleging that he was ordered and
directed by his supervisors to test the experimental bracket.
Sanders further alleged that when he tested the bracket, the
force of the huck bolt was transferred so that the huck gun
recoiled and struck him, causing serious, disabling injuries
to his neck, back, shoulder, inner ears, brain, and head.
Pacific denied liability. It also raised the affirmative
defense of contributory negligence. As the litigation
progressed, Sanders filed a motion in limine, seeking to
preclude Union Pacific from making any argument that he
assumed the risk related to the testing of the bracket for
the huck gun because assumption of risk is not an available
defense in a FELA case. Union Pacific responded to the motion
in limine, asserting that it had no intention of arguing
assumption of risk but that it was entitled to argue that
Sanders was contributorily negligent, and it intended to do
so. The circuit court did not rule on Sanderss motion in
limine, and throughout the litigation, the parties continued
to dispute whether Union Pacific was improperly arguing
assumption of risk disguised as contributory negligence.
Pacific filed its own motion in limine. In it, Union Pacific
requested that the circuit court exclude evidence relating to
a mechanical alert issued by Union Pacific manager Gene
Delahunt one week after the incident. Its motion was based on
Arkansas Rule of Evidence 407, which governs subsequent
remedial measures. The alert was designated as a safety
alert, and it included a description of corrective action
taken after Sanderss alleged injury. The circuit court took
the matter under advisement at a pretrial hearing.
Ultimately, the circuit court refused to allow the
introduction of the mechanical alert into evidence.
trial was held on September 6, 7, 8, 11, and 12, 2017. Facts
relating to how Sanders came to test the bracket were
disputed at trial. Sanders and James Brian Kelley testified
that Raymond Burke and Gerry Billson instructed Sanders to
test the bracket. Alternatively, Billson testified that it
was Sanderss idea to test the bracket with Sanders stating
that "we wont know [whether it works] until we
try." Additionally, the cause and extent of Sanderss
alleged injuries were sharply disputed. Sanders alleged that
the recoil of the gun was so severe that it caused him to
stumble and lose his hard hat and glasses. By contrast, other
witnesses claimed that Sanders showed no immediate signs of
physical injury when he tested the bracket. Witnesses also
testified that the recoil of the huck gun was less than that
of a twelve-gauge shotgun and that Sanders had used an
improper stance when he tested the bracket, which Union
Pacific claims caused any injuries Sanders may have
it came time to prepare the jury instructions, the parties
disagreed on the use of instructions relating to assumption
of risk and contributory negligence. Sanders presented an
assumption-of-risk instruction that Union Pacific opposed.
Union Pacific presented contributory-negligence instructions
that Sanders opposed. The circuit court ultimately declined
to instruct the jury using the assumption-of-risk instruction
proposed by Sanders, and it instructed the jury using the
instructions offered by Union Pacific.
Following deliberations, the jury returned a verdict in favor
of Union Pacific, finding that it was not liable for
Sanderss alleged injuries. The verdict was reduced to
judgment, and Sanderss complaint was dismissed with
Sanders filed a motion for new trial pursuant to Arkansas
Rule of Civil Procedure 59(a)(1), (6), and (8). In his
motion, Sanders argued that the circuit court committed
prejudicial error by refusing an assumption-of-risk
instruction, allowing contributory-negligence instructions,
and excluding evidence relating to the mechanical alert
issued after Sanderss incident. Sanders also argued that the
jurys findings were against the weight of the evidence.
Union Pacific responded and objected to the motion for new
trial. The circuit court did not rule on the motion, and it
was deemed denied after thirty days.
Sanders timely appealed from the judgment and the denial of
his motion for new trial. In this appeal, Sanders seeks
reversal on several bases. He contends that the judgment
should be reversed because the circuit court erred by (1)
refusing to instruct the jury on assumption of risk; (2)
instructing the jury on contributory negligence; and (3)
sustaining Union Pacifics objections to the introduction of
the mechanical alert. Sanders also argues that the jurys