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, by: James R. Ferguson, for appellant.
Friday, Eldredge & Clark, LLP, by: Joseph P. McKay,
Martin A. Kasten, and Joshua C. Ashley, for appellee.
MEREDITH B. SWITZER, JUDGE.
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 Pacific's 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 Pacific's
Jenks Shop. He alleges that he was injured at work while he
was testing an experimental device fabricated for use with a
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 manufacturer's
instructions and warnings.
job duties required use of a huck gun. Before Sanders's
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
and 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.
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 Sanders's 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 Sanders's 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 Sanders's idea to test the bracket with Sanders
stating that "we won't know [whether it works] until
we try." Additionally, the cause and extent of
Sanders's 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 sustained.
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
contributory-negligence instructions offered by Union
deliberations, the jury returned a verdict in favor of Union
Pacific, finding that it was not liable for Sanders's
alleged injuries. The verdict was reduced to judgment, and
Sanders's complaint was dismissed with prejudice.
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 Sanders's incident. Sanders also argued that
the jury's 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.
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
Pacific's objections to the introduction of the
mechanical alert. Sanders also argues that the jury's
verdict was clearly against the weight of the evidence and
that the circuit court erred by refusing to grant his motion
for new trial.
lawsuit is governed by the FELA, an act that governs the
liability of a railroad in all work-related injuries.
Pursuant to this act, a railroad has a duty to provide its
employees with a reasonably safe place to work at all times.
Ellis v. Union Pac. R.R. Co., 329 U.S. 649 (1947).
The FELA prohibits any attempt by a defendant to assert an
assumption-of-risk defense. See 45 U.S.C. § 54
(2009). In any action brought under the FELA to recover
damages for injuries to any employee, "such employee
shall not be held to have assumed the risks of his employment
in any case where such injury . . . resulted in whole or in
part from the negligence of any of the officers, agents, or
employees of the carrier." Id. However, an
employer defending a FELA claim has a right to argue that a
plaintiff was contributorily negligent if there is evidence
to support it. See, e.g., Ackley v. Chicago & N.W.
Transp. Co., 820 F.2d 263, 268 (8th Cir. 1987).
principal issue raised on appeal is whether Union Pacific
made an improper assumption-of-risk argument to the jury
under the guise of its being a contributory-negligence
argument. The distinction between the two legal concepts can
be nebulous. Assumption of risk is defined as a person
voluntarily exposing himself to a dangerous situation
inconsistent with his safety, knowing of the danger and risk
of injury from it. See AMI Civ. 306 (2018);
Capps v. McCarley & Co., 260 Ark. 839, 544
S.W.2d 850 (1976). Contributory negligence is defined as a
careless act or omission on a plaintiff's part tending to
add new dangers to conditions that the employer created or
permitted to exist. Paul v. Mo. Pac. R.R. Co., 963
F.2d 1058 (1992). A primary distinction between the two
theories is that assumption of risk is a matter of knowledge
of the danger and intelligent acquiescence in it, while
contributory negligence is a matter of some fault or
departure from the standard of conduct of the reasonable
person. "Knowledge of the risk is the watchword of
assumption of risk." William L. Prosser & Page
Keeton, Prosser and Keeton on the Law of Torts § 68 (5th
The Assumption-of-Risk Instruction
sought to have the jury instructed that assumption of risk
was not an available defense in this case. Sanders claimed he
was entitled to this instruction because Union Pacific
improperly defended the case against it by presenting