Unpublished Disposition, 890 F.2d 420 (9th Cir. 1987)

MEMORANDUM^* 

Appellant Richard D. Lindell (Lindell) appeals from the judgment entered following a jury verdict in favor of Burlington Northern Railroad Company (Burlington Northern) finding it not negligent under the Federal Employers Liability Act (FELA) for injuries Lindell sustained at work. Lindell was injured when one of the spikes he was attempting to pound into a non-drilled hardwood tie flew up and struck him on the inside of his left knee. Lindell testified that " [i]t threw both my feet out from under me, spun me about halfway around, and I landed on the ground at the bottom of the track bed." Reporter's Transcript, Vol. 2, at 320 (October 22, 1987).

Lindell seeks a new trial on the following grounds:

One. The district court erred by failing to instruct the jury that under FELA, Burlington Northern had a duty to provide Lindell with reasonably safe tools and equipment.

Two. The district court erred by failing to instruct the jury that under FELA, as the danger that should reasonably be foreseen by Burlington Northern increases, the amount of care required by law increases.

Three. The district court erred by instructing the jury that the "defendant owed plaintiff no duty to exercise a higher degree of care for his safety than he owed to himself."

Four. The district court erred by failing to instruct the jury that assumption of risk is not a defense in a claim under FELA.

We disagree and affirm.

* We review a district court's formulation of an instruction for abuse of discretion. United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985). In reviewing the adequacy of jury instructions,

[t]he question ... is whether, viewing the jury instructions as a whole, the trial judge gave adequate instructions on each element of the case to insure that the jury fully understood the issues. A court is not required to use the exact words proposed by a party, incorporate every proposition of law suggested by counsel or amplify an instruction if the instructions as given allowed the jury to determine intelligently the issues presented.

Los Angeles Memorial Coliseum Comm'n v. National Football League, 726 F.2d 1381, 1398 (9th Cir.) (citations omitted), cert. denied, 469 U.S. 990 (1984).

We review independently and non-deferentially whether the jury was properly instructed on a question of law. 999 v. C.I.T. Corp., 776 F.2d 866, 871 (9th Cir. 1985). An error in instructing the jury in a civil case does not require reversal if it is more probable than not that the error is harmless. Coursen v. A.H. Robins Co., 764 F.2d 1329, 1337 (9th Cir.), corrected, 773 F.2d 1049 (9th Cir. 1985).

II

Lindell contends that the district court committed prejudicial error by failing to instruct the jury that Burlington Northern had a duty to provide reasonably safe tools and equipment to employees. Lindell requested that the district court instruct the jury as follows:

You are instructed that it is the duty of the defendant railroad to provide or make available to its employees, reasonably safe tools and equipment with which to safely and efficiently perform and complete their assigned duties. Any failure to perform this duty on the part of the defendant railroad may be considered by you as evidence of the defendant's negligence in this case.

The district court rejected Lindell's proposed instruction and instead admonished the jury as follows:

It was the continuing duty of the Defendant as an employer at the time and place in question to use ordinary care under the circumstances in furnishing the Plaintiff with a reasonably safe place in which to work and to use ordinary care under the circumstances to maintain and keep such place of work in a reasonably safe condition. This does not mean, of course, that the employer is a guarantor or insurer of the safety of the place to work. The extent of the employer's duty is to exercise ordinary care under the circumstances to see that the place in which to work is to be performed is reasonably safe under the circumstances shown by the evidence in the case.

An employer, such as the Defendant in this case, is under a continuing duty to institute and oversee reasonably safe methods and procedures for the performance of the work assigned to its employees.

Plaintiff claims damages under F-E-L-A [sic] for personal injuries alleged to have been suffered on September 3, 1985, as a result of negligence on the part of the Defendant, his employer, in the following particulars:

Number one: Failure to use due care for the health and safety of Plaintiff;

Number two: Failure to act reasonably and prudently with respect to Plaintiff's safety and well-being;

Number three: Failure to provide Plaintiff with a safe place to work; or,

Number four: Failure to provide Plaintiff with adequate and safe tools and equipment with which to work.

Lindell contends that this instruction did not explicitly inform the jury of Burlington Northern's duty to provide adequate and safe tools to its employees. In addition, Lindell argues that the district court erred when it merely listed his contentions in the jury instructions without further explanation. This argument is without merit.

The district court properly instructed the jury on the employer's duty under FELA to furnish Lindell with adequate and safe tools. Ragsdell v. Southern Pac. Transp. Co., 688 F.2d 1281, 1283 (9th Cir. 1982). It was "not required to use the exact words proposed by a party, incorporate every proposition of law suggested by counsel or amplify an instruction if the instructions as given allowed the jury to determine intelligently the issues presented." Los Angeles Memorial Coliseum Comm'n, 726 F.2d at 1398. When read as a whole, the instruction was adequate and "fairly present [ed] the issues to the jury." Carvalho v. Raybestos-Manhattan, Inc., 794 F.2d 454, 455 (9th Cir. 1986).

Lindell argues that our decision in Northern Pacific Railway v. Herman, 478 F.2d 1167 (9th Cir. 1973), compels reversal. In Northern Pacific Railway, we stated: " [e]rror in a specific instruction is not cured by general statements which set out the respective contentions." Id. at 1171. We reversed and remanded in Northern Pacific Railway because "even in the general instructions the trial court did not make it clear that either of plaintiff's theories would support recovery." Id. In the instant matter, the district court made it clear in its instructions that Burlington Northern owed a duty to Lindell to exercise reasonable care to provide "reasonably safe methods and procedures for the performance of work." The court then expressly informed the jury that Lindell's theory was that Burlington Northern was negligent in failing "to provide plaintiff with adequate and safe tools with which to work."

Lindell's reliance upon Lind v. Aetna Casualty & Surety Co., 374 F.2d 377 (5th Cir. 1967), is equally misplaced. In Lind, the Fifth Circuit reversed the judgment in an intersection automobile collision case because the trial judge failed to deliver any instruction on plaintiff's theory of the case. Id. at 379-80. In the matter before this court, the trial judge adequately instructed the jury concerning Burlington Northern's duty to exercise reasonable care by providing Lindell with adequate and safe tools and equipment.

III

Lindell also asserts that " [o]ne of the main thrusts of ... [his] case was that the railroad knew how extraordinarily dangerous flying spikes from non-drilled hardwood ties could be and what an enormous risk of harm they posed to ... [Burlington Northern's] employees." Brief for Appellant at 27. Relying upon this argument, Lindell contends that the district court committed error in rejecting the following proposed instruction:

Because the amount of care exercised by a reasonably careful person or corporation varies in proportion to the danger known to be involved in what is being done, it follows that the amount of caution required, in the use of ordinary care, will vary with the nature of what is being done, and all the surrounding circumstances shown by the evidence in the case. To put it another way, as the danger that should reasonably be foreseen increases, so the amount of care required by law also increases.

We disagree.

Although Lindell's proposed instruction appears to contain an accurate statement of the law, a party is not entitled to an instruction upon a theory that does not have factual support in the evidence. Los Angeles Memorial Coliseum Comm'n, 726 F.2d at 1398.

The evidence did not support the giving of Lindell's proposed instruction to the jury. No one testified that Burlington Northern had knowledge or that it was reasonably foreseeable that setting and driving good secondhand spikes into non pre-drilled hardwood ties was "extraordinarily dangerous" or involved an "enormous risk of harm." It is true that evidence was presented that it was easier to drive a spike into a pre-drilled hardwood tie. Reporter's Transcript, Vol. 2, at 221, 318 (October 22, 1987). There was also some conflicting testimony about whether it was also safer to do so. There is simply no testimony in the record that it was dangerous to drive good, secondhand spikes into non-pre-drilled hardwood ties. To the contrary, there was testimony that the primary cause of accidents with spikes was that they were improperly set by the employee. Id. at 384; Vol. 3, at 493, 590 (October 23, 1987).

Lindell's witness, Steve Miller, who was struck in the jaw by a flying spike, did not testify that it was dangerous to set and drive a spike in a non pre-drilled hardwood tie. Instead, he merely testified that it was easier to set and drive a spike into a pre-drilled hardwood tie. Id. at Vol. 2, 386. David Guptill, a foreman at Burlington Northern, corroborated this testimony. He did not testify that using hardwood ties that are not pre-drilled is a dangerous procedure. Id. at 262.

There is no evidence to support Lindell's theory that his employer had knowledge or could reasonably foresee that the use of secondhand spikes increased the amount of care owing to Lindell.

IV

Lindell contends that the district court committed prejudicial error in admonishing the jury as follows:

During all of the time he was working, including the time he was injured, the law imposed upon plaintiff the duty to exercise reasonable care for his own safety. Defendant owed Plaintiff no duty to exercise a higher degree of care for his safety than he owed to himself.

Lindell claims that this instruction was misleading and contained an incorrect statement of the law. This argument is unpersuasive.

Under the evidence in this record, the court's instruction was not misleading or incorrect. The instruction properly informed the jury that an employer has the duty to exercise reasonable care for an employee's safety and the employee must exercise the same degree of care to protect himself from injury. As discussed above, in other instructions, the trial court correctly informed the jury that Burlington Northern had the duty to provide Lindell with adequate and safe tools and equipment.

Ackley v. Chicago & North Western Transportation Co., 820 F.2d 263 (8th Cir. 1987), does not support a contrary conclusion. In Ackley, the evidence showed that the Railroad had actual knowledge that the only available ladder used by its employees was not equipped with safety shoes and did nothing to correct it. Under these circumstances, the Eighth Circuit concluded that it was error to instruct the jury that " [t]he Defendant has a right to assume that its employees will exercise reasonable care for their own safety." Id. at 266. The court in Ackley concluded that under the facts in that case, the Railroad could reasonably foresee that its employees would use the ladder in violation of safety rules and, therefore, had a duty to take steps to procure another safe ladder or order its employees not to use it. "Despite its awareness of the situation, the Railroad did nothing to remedy a potentially unsafe working condition." Id. at 268. In the matter sub judice, the evidence did not show that Burlington Northern was aware that its employees were using equipment in violation of safety rules. Accordingly, the court did not err in its instruction to the jury concerning the duty of an employer and his employee to exercise the same degree of reasonable care.

V

Lindell asserts further that the district court erred in refusing to instruct the jury that assumption of risk is not a defense to a claim under FELA. Lindell asserts that:

[Burlington Northern] argued and presumably the jury determined under the erroneous instructions given by the District Court that Lindell himself was at fault for causing this accident because he knew that pounding a dull spike into a non-drilled hardwood tie was dangerous.

Lindell is correct that assumption of risk is not a defense under FELA. Tiller v. Atlantic Coast Line R.R., 318 U.S. 54, 58 (1943). He was not entitled, however, to an instruction on a legal theory that was not even presented to the jury. Los Angeles Memorial Coliseum Comm'n, 726 F.2d at 1398. Burlington Northern did not rely on the defense of assumption of risk in its argument to the jury. Accordingly, the district court did not err in rejecting this instruction.

AFFIRMED.