Unpublished Disposition, 844 F.2d 792 (9th Cir. 1988)

MEMORANDUM^* 

Roberto Caro Mora appeals a jury verdict in favor of Southern Pacific Transportation Company. Mora sued Southern Pacific, his employer, under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51-60, to recover damages for personal injuries he suffered while moving a railroad tie. Mora contends that the district court erred by refusing to give a jury instruction on a FELA employer's duty to use ordinary care to provide employees with reasonably safe and suitable tools, machinery, and appliances with which to work. We reverse the jury verdict. See Hasbrouck v. Texaco, Inc., No. 85-4225, slip op. at 3375 (9th Cir. Mar. 17, 1988) (a district court's failure to give a requested jury instruction is reviewed de novo and for harmless error).

A party is entitled to a jury instruction on a legal theory having a basis in law and in the record. See Id. at 1522-23. A FELA employer has a duty to exercise ordinary care under the circumstances to provide workers with reasonably safe and suitable tools, machinery, and appliances with which to work. Ragsdell v. Southern Pacific Transp., 688 F.2d 1281, 1283 (9th Cir. 1982) The record in this case supports an instruction on that duty.

The district court's error was not rendered harmless by its other instruction describing a FELA employer's duty to exercise ordinary care to provide a safe workplace. The district court's error was not cured because Mora's counsel stated, during closing argument to the jury, that Southern Pacific failed to provide Mora with reasonably safe and suitable tools. It is the district court, not the attorney, that is responsible for stating the law to the jury. See United States v. Bernard, 625 F.2d 854, 857 (9th Cir. 1980).

REVERSED.

BRUNETTI, Circuit Judge, dissenting:

I would affirm. The court's jury instruction on the continuing duty of the defendant employer to furnish the plaintiff employee with a reasonably safe place in which to work was sufficient. This is not a "tool" or a "reasonably safe and suitable tool" case as no tools were being used to move the railroad tie. The requested jury instruction No. 25 would be irrelevant and confusing. Jury instruction No. 23, as given, provided the jury with a sufficient explanation of plaintiff's case and, unlike the instruction in Ragsdell, supra, 688 F.2d at 1283, was not argumentative, too long or repetitious. " [W]hen the issue is properly raised and an instruction is requested, the FELA requires jury instructions on the duty to provide a reasonably safe place to work." Id. In this case, nothing more than that was required.