Gregory v. Missouri Pacific Railroad

JOHNSON, Before BARKSDALE and DeMOSS, Judges. Cir.1993) BARKSDALE, (citing Lilly v. HAWKINS Grand Trunk Western RHESA R., 481, 486, R. 317 U.S. Judge: S.Ct. (1943)). “imposes 87 L.Ed. It ‘an abso Gregory’s principal issue in Allen C. continuing duty’ provide lute and to safe slip against employer, his Mis- and fall action equipment”. Richardson v. Consolidated (MOPAC), Company Railroad souri Pacific (7th Cir.1994) 213, Corp., Rail arising walkway of oil on the of its loco- out 163, (quoting Thompson, Urie motive, peremptory is the instruction that 93 L.Ed. 1282 presence of the oil violated the Boiler (1949)). provides The Act part: relevant Act, § Inspection 23. Because vio- U.S.C. It shall be unlawful for carrier to Act, non, lation of the vel was a for ... use locomotive unless said locomo- jury, we REVERSE and REMAND for ... parts tive and all and new trial.1 thereof are in condition and safe to operate in the service to which the same I. put, are employed the same be that, Gregory alleged January unnecessary peril ... without to life or MOPAC, by slipped employed limb_ while he on oil fell; locomotive and but § 45 U.S.C. 23. mid-1991, until culminat- action was filed instruction, In its the court ing day spring in a four trial in the of 1993.2 employed language from both the BIA and a being After instructed that oil on the walk- it, adopted under 49 C.F.R. (BIA), way Inspection violated the Boiler Act 229.119(c). It instructed that re- Gregory approximately awarded quired operation “without $362,000.3 limb”; and from the it, referencing instructed that II. “places Act an absolute ... ... to safety [prevent] BIA is a statute which is to “[T]he accumulation of oil on liberally protection passageway presents to afford construed to a hazard to employees”. Oglesby slipping, falling tripping by railroad employ- Southern its Transp. ees.”4 Pacific Accordingly, day, coming steps 1. we do not address MOPAC's con- his second as he was down the hand; that it engine, pain injured tention is entitled to a new trial because of an he had a in his excessive, damages were related railing standing con- that he released the and fell to a regarding proof back; tentions lack position, of causation and aggravating injured his healed; that his testimony Gregory's expert economist. completely ankle was and that his claim earning capacity for future loss of solely was based Gregory injuries testified about the as follows. January on the back caused fall, injured As a result of the he left his ankle 1989 fall. back; and lower because his ankle was hurt so ankle, previously injured Gregory had his left badly, pay he did not much attention to the back wrist, right working and lower back while for injury; physical therapy he received for his ankle September, MOPAC in and was off work months, prob- for several but continued to have $22,000 accepted for five months. He from MO- giving way, causing with it lems him to fall claims, signed PAC in settlement his week; May injured several times a he injuries release which stated that those were stepped yard; his ankle he when on a root in his trial, however, permanent. Gregory testified at July, and that he broke a bone in his hand when injuries permanent, that the 1987 were not gave way getting his ankle car, as he was out of his signed only that he had the release because he (MO- causing its door close on his hand. go was told MOPACthat he could not back to Gregory PAC introduced evidence that broke the work he unless did so. during bone in his when hand he hit a wall And, argument $62,000 with his ex-wife. it introduced Gregory approximately received for deposition testimony the ex-wife’s physical pain anguish, approximately and mental going $70,000 $230,000 told her that he tell the doctor that past wages, lost gave way, causing slip his ankle him to and fall earning capacity. future loss of door, get into the car so that he could a better railroad.) 4. The was instructed: settlement adopted protect testified further that he tried return 1990; light duty May employees by imposing for MOPAC in that on certain abso- light all

A. and with reasonable inferences MOPAC, points strongly most favorable to so contends because there MOPAC overwhelmingly favor of dispute as to whether the oil was a factual jurors reasonable could reach one con- presented slipping hazard and thus consti a passageway pre- clusion —that the oil on the limb”, “unnecessary peril to or an life tuted sented an to life or limb by peremptorily erred in the district court presented slipping, falling because it a or structing jury that violated the MOPAC tripping (unnecessary peril) in- hazard —the BIA.5 appropriate. Boeing, 411 struction was F.2d by adopted But, standard our The familiar at 374. if there is “evidence of such 365, Shipman, Boeing in 411 F.2d quality weight court that reasonable and fair- (5th Cir.1969) (en banc) governs impartial judg- 374-75 our minded men the exercise of conclusions”, peremptory might instruction. Sim review of ment reach different King, mons v. 478 F.2d Cir. should have been submitted to the 1973). evidence, jury. Boeing, If all of the considered 411 F.2d at 374.6 equipment charge. juiy lute standards of maintenance for the formulation of the instructed, After the parties given opportunity used on railroads. The makes it unlaw- were an permit objections ful for railroad to use or to be used charge. Gregory to make their to the none; MOPAC, several, line on its locomotive unless the entire including had the one and it[ ]s locomotive are in quoted Certainly, purposes above. of contest- condition safe instruction, ing peremptory nature of the unnecessary peril to or limh and it has objection specific, could have been more life but it passed mandatory daily inspection. requirements meets the minimal of Fed.RXiv.P. places duty This statute an absolute on the objections charge, 51. In its to the MOPACdid to, among things, other avoid use specifically not contend that the oil did not con- of a locomotive which has an accumulation of slipping regulation. stitute a However, hazard under the passageway oil its the cab or which floor of objection we consider subsumed presents slipping, falling tripping or hazard objection in its to the instruction that it violated employees. its charge inasmuch as the did not differen- In connection with the violation of this law tiate between the statute and the but you need not consider whether the railroad places stated that "[t]his [the BIA] statute an negligent, whether the railroad exercised duty absolute on the railroad avoid the use care, diligence or due or whether the railroad of a locomotive which has an accumulation of oil knew of the existence of an accumulation of oil passageway on its floor of the cab or walkway on a or some other defect in the presents slipping, falling tripping a hazard to or equipment. These matters are not relevant to employees”. [BIA], the claim that violated [MOPAC] imposes since the act an absolute on the cited, found, parties 6. The have not have we nor injuries part railroad for caused in whole or in addressing cases instruction by violation of the act. imply, such as the one at issue. Numerous cases Since it is uncontested in this case that there however, presents that whether a condition an was an accumulation of oil on the "unnecessary peril to life or limb” is an issue of passageway Gregory using course, jury (assuming, fact for the that the 19th, 1989, January you are instructed that evidence is not so one-sided that the could on this occasion [MOPAC]was violation of See, conclusion). e.g., Lilly reach one circumstances, [BIA]. Under such [MO- Co., Grand Trunk Western R. [Gregory] any injuries PAC] is liable to (1943) ("The 87 L.Ed. 411 use brought part which were about in whole or in tender, upon top employee of a whose must by the violation. duties, go in the course of his which is covered added.) (Emphasis 'unnecessary peril with ice seems to us to involve pre- maintains that MOPAC failed to enough permit so as to limb’— objections serve this issue. MOPAC's charge to the Inspection find that the Boiler Act has been following: included the violated”); Inc., Topping Transp., v. CSX 1 F.3d [Tjhere's (4th Cir.1993) ("It no evidence ... that this oil on the seems to us a classic limb; perilous walkway therefore, jury question was ... to life whether the of the loose parameters object come under the of the metal rendered the locomotive cab 'unsafe [BIA], "); I think that operate' Railway that's what the [BIA] does St. Louis Southwestern Williams, require. 147, 148-49, Co. v. Although 1968) (jury properly docket sheet reflects that MOPAC could find that instructions, proposed they step submitted are not in of oil on of locomotive constituted a viola record; BIA); York, charge the fore, nor is the conference. There- tion of the Calabritto v. New New transpired regarding (2d we do not know what Haven & R. Hartford conflicting report prepared There was evidence on whether on the date of the incident unnecessary peril. stated that “stepped puddle the oil constituted in [a] day oil”. Photographs taken the after the incident spots walkway. oil depict several on the Erwin, manager operations, of train testi- slipped “larg- that he testified fied also that immediately he met the train spot, puddle”, est located next to the wall incident, patch after the and saw “a of oil” engine steps beyond and two to three where it occurred. He described the oil as steps

the bottom of the locomotive which he follows: just slipping. had descended before He de- oil, say patch I [W]hen it wasn’t like spot “probably scribed the size of the as you just poured some oil out of a can of inches, maybe, larger”. a little oil, type motor it wasn’t that of oil. It ... oil, day photographed dirty as looked grease, greasy more like a after incident, approximately spot covered on engine walkway one-third of the side of the walkway. inspection photo- the width of the One of the next to the doors.... broom, graphs depicts appar- a man with a slip- Erwin testified that the oil did not look ently sweeping walkway. Gregory testi- rather, pery; crusty it was looking “kind of depicted photographs

fied that the oil in the [;] just ... place it was a little that looked fell; that, looked different when he and like it had been there for a while and it photographs, appears dry” in the it that “oil looking”; wasn’t fresh that the oil did not (a granular powder placed or substance on appear hazard; slipping to be a that it) placed the oil to absorb has been on the walkway surface; had a nonskid that there manager oil. But opera- MOPAC’s of train footprints spot were no in the oil and “no tions, Erwin, Larry shortly who oil saw the apparent anybody slipping marks of in this incident, photograph after the testified that a grease”; oil or and that he did not oil see on walkway day taken the after the inci- Gregory’s clothing. fairly accurately represented dent what When asked on cross-examination whether day he saw on the of the incident. “[ijt’s pretty serious no-no on the railroad walkway”, replied: to have oil on the Erwin Gregory testified that the oil was wet and “ say depends I would it boots, on where the oil clothing, was absorbed into his ” radio; opined was.... He that the oil was that he did not know he had fallen in BIA violation.7 it; that, sitting the oil because he was got up, engineer

when he told him that quality Because there is “evidence of such pants. he had oil all over his On cross- weight that reasonable and fair-minded examination, Gregory that testified the oil impartial judgment men in the exercise of visible, plainly and that he would have might conclusions”, Boeing, reach different looking seen it had he been down. F.2d as to whether the oil consti- unnecessary peril, tuted an The conductor testified that he did not jury. presented should have been to the notice Gregory’s clothing. oil on On cross-examination, he admitted when he B. incident, went to check on after the “puddle he saw on the regulation of oil” counters that the refer- And, controls, charge which measured about 18" 8". his enced but takes a Cir.) ("the incident, engine using use of an whose surface has On the date of the the train was slippeiy by made been found sand and oil ... be engines. Gregory allegedly injured two by jury 'unnecessary peril to involve to unit, the second and he admitted that he was []BIA”), life or limb’ in violation of the cert. supposed opined to be on the lead unit. Erwin denied, that the oil did not violate the BIA because the (1961); Botts, Louisville N.R. & Co. unit, operates crew the lead and the oil was off (8th Cir.1949) ("trial clearly F.2d court unit; report- second and the crew had not was entitled to allow the to decide whether ed the oil. footboard, in the use which the switch engine put, was in condition and safe to life or limb”). 229.119(c).9 According Greg- language with both the 49 C.F.R.

position inconsistent something slipping, ory, “whether created a position court and the by the district used be raised alternative, tripping, or fire hazard would In he there. took ‘any only if resulted from obstruc- jury did find that the oil asserts specifically tion’ not listed the Act. violated oil, or In dis- i.e.—not from water waste”. court, however, opposition to MO- trict motion, Gregory interpreted PAC’s new trial peremptory defend the Gregory does not prohibiting pas- “oil on a as ground that the evidence instruction on the tripping sageway that creates a hazard only a conclusion that the oil was supported slipping”.10 “unnecessary In- peril limb”. quoted supra, instruc- As stead, prove had he maintains he position contrary Gregory’s tion took a regulations promulgated that the oil violated interpretation. It instructed that new found agrees that viola- under the Act.8 MOPAC BIA was violated if the “accumulation of regulation can a violation of tion of such a presented] slipping, fall- oil ... a hazard to regulations do but asserts that the ing tripping”, not that the mere provide that the mere of oil on not of oil constituted a violation.11 a violates the Act. Accordingly, interpretation Greg the regulation is said to MOPAC have ory takes now raises an issue that we cannot violated, law, provides: as a matter of may urge in appellee generally consider. An cabs, passageways, compart- any appearing Floors of support judgment of a matter oil, water, record, kept from e.g., City Safety ments shall free in v. Harbor of (5th any 1251, Birchfield, obstruction that creates a waste 529 F.2d 1254 1976), tripping slipping, applicable or fire hazard. Floors but that rule is not here for properly simple this provide shall be treated to secure obvious —reason that —and flooring. point was not raised in district court.12 Even Co., See, e.g., Lilly systems compo- v. Condition. All 8. Grand Trunk Western R. General 481, 488, 347, 352, 317 U.S. 63 S.Ct. 87 L.Ed. nents of a locomotive shall be free of condi- (a (1943) adopted endanger of crew ... 411 rule in the exercise of the tions that authority including] Interstate Commerce Commission's leaks and accumulations of oil equipment personal "acquires the force of law and becomes an inte on electrical that create a [BIA]”); gral part of the Givens v. Missouri- hazard.... Co., 225, (5th R. 195 F.2d 229 Kansas-Texas Cir.1952) ("A any particular Gregory's violation of cross-examination of reflects [the] Erwin requirements [promulgated by interpretation regulation is a vio ICC] the same of the as that [BIA]”); Gregory's urged response lation of the Mosco v. Baltimore & Ohio in to the new trial R., 1088, denied, (4th Cir.), 817 F.2d 1091 cert. motion. 851, 152, 484 108 S.Ct. U.S. 98 L.Ed.2d 108 (1987) ("[A] may carrier violate the in one appeal, Gregory 11. Even on seems to alternate First, ways. comply of two it fail to with the regulation on how the is to be read. At one regulations promulgated by the Federal Railroad instruction, point, he states that the which would Compliance regula Administration. with these quoted portion construing the above include however, not, only duty imposed by tions is regulation, "was a correct statement of the law”. imposes the Act. The Act also a broader keep parts all the carriers Railway 12. See also United States v. American of their locomotives in condition and safe Co., Express 265 U.S. 44 S.Ct. to limb”.). without to life or (1924) ("the appellee may, 68 1087 L.Ed. taking cross-appeal, urge support in of a decree record, regulatory authority appearing although any in the The ICC's under the BIA matter his upon Department Transporta- argument may was transferred to the involve an attack the rea- 1655(e)(1)(E). soning upon § tion. See 49 U.S.C. The Feder- of the lower court or an insistence it”); responsible ignored by al Railroad Administration is F.D.I.C. for car- matter overlooked or cf. LaGuarta, 1231, rying Secretary Transportation’s 1240 & n. 20 out duties v. (1994). Cir.1991) (summary generally judgment § under the BIA. See 49 U.S.C. 103 should grounds be affirmed on that were neither court). general regulation, also cites a more raised nor relied on in the district But 569, 229.45, provides: Hogan, 49 C.F.R. 584-85 & which see Schweiker

165 locomotives, above, only “unnecessary” perils; with took than as noted more authority prescribe by Gregory cannot take it “conferred rule opposite position. devices, specific changes equipment, the district court position before one See, only required position here. where these are to remove take an inconsistent then Zink, ‘unnecessary peril 154-55 to life or limb’ ”. Id. at e.g., Jett v. added). Cir.) (emphasis at argued appeal on first Rules (party who promulgated personam precluded sup- under the must be was in action appeal ported finding necessary that the action was that the rule is arguing on second denied, rem), ‘unnecessary peril “to remove quasi in cert. U.S. life or (1973). Id.; Lilly limb’”. see also Trunk Grand S.Ct. R. at Western U.S. S.Ct. But, challenge to important, for this more (the regulator broadly “is autho- instruction, language it is the compliance by rized to the standards of set And, that must control. of the instruction prescribing regulations by rules and regard, agree we with the district court’s locomotives, for service [of fitness tenders interpretation regulation.13 appurtenances] and their shall be deter- by the regulation is not violated mined, provided that the Commission oil, water, or waste mere required finds such are to remove unneces- instead, passageway; of such limb”) (brackets sary peril origi- only if it a substance is a violation creates nal; quotation internal marks and citation To slipping, tripping or fire hazard. read omitted). impose an regulation otherwise is to absurd cited, located, Gregory has not nor we have example, Gregory’s inter result. For under Secretary indication that the of Trans- be violated pretation, would portation has found that amount of oil on rain.14 every operated time a train a locomotive constitutes an interpretation illogical. Obviously, is such interpret to life or limb. We decline to the that, saying construing in goes It regulation in a manner that would call into impos we to avoid statute or seek question validity.15 its Barr, See, e.g., Forsyth ing such results. (5th Cir.1994); 1527, 1544 Brock v. 19 F.3d Co.,

City Service Oil Well (5th Cir.1986). alternative, Gregory In the contends

Moreover, jury implicitly that the Gregory’s interpretation calls that the determined “yes” peril In it answered to the question validity the of the rule. oil was a when into you BIA, recognized interrogatory, asked: “Do enacting Congress the that first find, evidence, engine, preponderance from a of the operation of an however “[t]he any walkway played part, on ‘danger some that the oil the equipped, involves ” bringing in slight, no matter how about an v. Baltimore & O.R. limb.’ United States Co., Gregory injury [Gregory]....?” asserts 55 S.Ct. (1935) added). puddle fact that the oil was suffi (emphasis “[t]he L.Ed. that slip and fall makes perils associated cient to cause someone BIA does not address all known, 14. Erwin testified as is well locomo- n. 2607 & n. (1982) weather, (although appellees present 227 statutory argument did not tives in all kinds of 24 hours a court, "they week, weather, in the district day, days a and that in wet seven asserting precluded are it as a basis on not kept passageways. cannot be off the water judgment”). which to affirm that court's because, alia, distinguishable inter it Schweiker is supra, because there was "evi- 15. As discussed than one that dealt with a new contention rather quality weight that reasonable dence of such position appellees' was inconsistent with the impartial men in the exercise of and fair-minded the district court. conclusions”, judgment might reach different hazard, slipping constituted a whether the oil interpretation Gregory's of the 13.We address the and thus violated the for judicial economy, regulation in the interest of jury. Gregory present position take his on re- should mand. peril again, alternative, it a under the Once In Oglesby [BIA]”. the contended position takes inconsistent with jury in the error instructions was harm- There, the one he took at trial. finding he took the less because that the defective seat jury basking to the ease the warmth of a injury, jury caused his must also have peremptory instruction: the oil was a viola- found that it was unsafe. Id. The Ninth roadmap of the BIA. This was the tion disagreed, stating alleged that “the jury; that Gregory one was no doubt defects themselves must first be to be found delighted with. Now wants to unsafe in order to constitute a violation of the rules, change the and seeks shelter under a Only BIA. finding once this has made been special interrogatory simply asked is a BIA violation inquiry established and an jury whether oil—which the was instruct- into prox- whether defective seat ed was a violation of the BIA —had caus- imate cause of the relevant”. Id. Gregory’s injury. way ative effect In no agree. inquiry We An the oil whether jury asked to decide whether oil slip injure caused himself peril, constituted a under through the Act or was not relevant jury unless the found first regulation; just opposite. operat- Its that the oil violated the BIA. Under ing mandate was that the oil was a violation. instructions, jury could have found that event, rejected In Ninth Circuit the oil did not constitute a hazard. contention in Oglesby similar v. Southern Transp. F.3d Cir. Pacific III. 1993). injured Oglesby his back when he seventh preserves “[T]he amendment attempted replace engineer’s seat in a right parties jury to a trial unless there is locomotive. Id. 604. The district court legally ‘no evidentiary sufficient basis for a instructed party reasonable to find for [the] establish a violation [t]o it is Lloyd th[e] issue’”. Land & Pendleton necessary to any negligence show Inc., Exploration, part of the ... it railroad and is not 1994) 50(a)(1)). (quoting Fed.R.Civ.P. View necessary to show a mechanical defect. ing the light evidence most favorable Proof of the failure of an appliance to work AC, to MOP we conclude that it does not efficiently, when used in customary point strongly so overwhelmingly in fa manner, proper liability fastens on the rail- vor of jurors that reasonable could specific road without a defect. Plaintiff not find that the oil on the passageway did need establish that on the occasion in present not unnecessary peril to life or item by the covered did limb. Accordingly, jury should have properly. work been to decide allowed whether MOPAC vio (emphasis original). Id. at 610 rail- The Therefore, lated the BIA we REVERSE that improp- road contended the instructions judgment and REMAND the for a case erly jury allowed the to find a BIA violation new trial. finding that a defect in the seat REVERSED AND REMANDED. posed safety a hazard. Id. at 609-10. The agreed Ninth Circuit that the instructions JOHNSON, Judge, dissenting: “improperly allow the to find a violation Inspection (BIA) The Boiler pro- Act was merely of BIA because the seat was not mulgated by Congress purpose for the of in proper a condition rather than because it promoting safety for employees railroad unsafe, requires”. as the statute Id. at public. Lilly v. Grand Trunk Western rejected Oglesby’s 1't assertion that a RR U.S. violation BIA was established a mere (1943). L.Ed. Section 23 BIA showing that the seat did not work efficient- makes it ly, noting that it had “found no case which a [of violation BIA] established with- unlawful for use or showing a that alleged out permit defect created to be used on its line any locomo- a hazard”. Id. at locomotive, boiler, tive unless said ten- passageway der, parts of oil on the of the train when and all (R. 406-07). Ill, and safe to Gregory slipped. condition Mr. thereof are the same operate in the service to which of this oil violates the employed in may same be put, face, are that the thereby and in turn the on its of such railroad without the active service rendering judge’s fully the trial instruction unnecessary limb ... peril to life or appropriate. recognizing § this more 45 U.S.C. 23. While majority Gregory’s argument holds Supreme Court and general requirement, the the BIA combined with 49 C.F.R. additionally this have made clear Court § part 229.119 creates a strict of regulations promul- violating any rules and keep railroads to their of floors free oil is Transportation gated by Department of They issue that the Court cannot consider. specific more violations of the will constitute first, reach this conclusion on the basis that Lilly, 63 S.Ct. at BIA. See U.S. estopped making is such an 352; R. Givens v. Missouri-Kansas-Texas argument ground on the that he took an Cir.1952) Texas, Co. of position inconsistent in the district court.1 specific and (contrasting the instances where Second, majority presumes the district occur, may of the BIA definite violations operating assumption court was under the liability of creating [much as a matter law to life or limb is an specific and definite violations of the like prerequisite absolute BIA violation. Act], general Safety Appliance with the more However, the fact that and the trial issues). violations, Lilly creating made may pro- court have referred the hazard Transportation Department all of clear that duced the oil is not inconsistent with the regulations have the same force rules and 488, position Department that violation of the of authority Lilly, as law. 317 U.S. at Thus, Transportation regulation of a De- results strict lia- 63 S.Ct. at 352. violation bility Certainly, Transportation regulation of consti- under the BIA. as the ma- partment out, per jority points prime of the BIA se. See id. tutes violation concern of the unnecessary prevention peril of Department Transportation Regulation employees. the life and limb of its This is 229.119(e)clearly § states that the C.F.R. precisely why Congress gave Depart- cabs, passageways, compart- “[flloors Transportation legal authority full ment of oil, water, kept ments shall be free from promulgate regulations rules and for the rail- slip- that creates waste or obstruction Additionally, per- roads. this concern with ping, tripping or fire hazard.” 43 C.F.R. why security Congress is backed the 229.119(c). sonnel Interpreting regulation this authority Department Transportation’s according plain meaning, to its liability BIA. with strict under the While prohibits specific sub- liability highly contro- oil, water, strict statutes stances of and waste and then versial, Supreme and the Court Court general prohibition goes on to make a more recognized have their need and constitution- slip- of other obstruction that creates a i.e., Mendell, See, ality. v. Gollust U.S. ping, tripping, or fire hazard. See id. The undisputed in this S.Ct. evidence ease establishes (1991); conglomeration England that there was an 18” 8” United States West of judge consistency quirement adequately stringent required is alert the trial of 1. The of laxity majority potential is itself inconsistent with so that he or she can make the error granted by majority way to MOPACin the necessary v. Anheu corrections. See McDaniel preservation requirements. major- appellate ser-Busch, Inc., every ity willing is to exercise benefit of the 1993). objection made in this case could not holding vague doubt in favor of MOPAC adequately pointed out the now-asserted have disjointed objection specific enough to be correction; judge error to the trial for his since Majority Opinion preserve error. See at Note 5. purpose of Rule 51 has not been at all fur expressly Federal Rule of Civil Procedure 51 thered, this writer does not feel that error has requires objections instructions state very sufficiently preserved At the been here. "distinctly objected ground the matter and the allowances least this writer feels that same objection." Fed.R.Civ.P. 51. The funda- given Gregory. given MOPAC must also be goal the Rule 51 re- mental distinctiveness Ship Mutual Protection & Indemni- Owner’s Cir.1989). Ass’n,

ty Congress acts or authorizes such a

When liability protection for the of a

strict statute duty

specified group, it is the of this Court to

support it in that decision. majority seeks to establish a

Today the Congress where intended there be

defense majority recognizes, there is

none. As the

likely oil on trains due to to be water and/or variety Congress of reasons. and the De-

partment Transportation recognize also tendency through Regula- .and They

tion 49 C.F.R. 229.119. both also

recognize that because of such conditions and great dangers pres- these conditions can employees,

ent to railroad the railroads have rectify prob- such absolute to either operation

lems or cease of the train until problems

such cease.

Accordingly, respectfully this dissent is

tendered. America,

UNITED STATES

Plaintiff-Appellee, PARADA-TALAMANTES,

Rogelio

Defendant-Appellant.

No. 93-8539. Appeals,

United States Court of

Fifth Circuit.

Aug.

Case Details

Case Name: Gregory v. Missouri Pacific Railroad

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 1, 1994

Citation: 32 F.3d 160

Docket Number: 93-04829

Court Abbreviation: 5th Cir.