John J. BOROUGH, Appellee, v. DULUTH, MISSABE & IRON RANGE RAILWAY COMPANY, a corporation, Appellant.
No. 84-5099.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 15, 1985. Decided May 13, 1985.
When title II ([OASDI]) benefits are paid to a representative payee on behalf of a member of the assistance unit and the payee lives in the same household as the assistance unit, the title II benefits must be counted as income. When the representative payee does not live in the household, the title II benefits are included only to the extent that the payee makes them available for the support of the beneficiary.
Thus, according to the discussion section accompanying the regulations implementing
We therefore modify the order entered by the district court. If the representative payee lives in the same household as the OASDI beneficiary and the dependent child, appellants must consider the OASDI benefits as income available for the purpose of AFDC eligibility and grant amount determinations. If the representative payee does not live in the same household as the OASDI beneficiary and the dependent child, appellants must consider the OASDI benefits as income available for the purpose of AFDC eligibility and grant amount determinations only to the extent that the representative payee makes the OASDI benefits available for the support of the OASDI beneficiary.
Accordingly, the order of the district court as modified is affirmed and the case is remanded to the district court for further proceedings, including consideration of the constitutional claim which has not yet been addressed.
John J. Naughton, Chicago, Ill., for appellee.
Before LAY, Chief Judge, and HEANEY and FAGG, Circuit Judges.
LAY, Chief Judge.
John J. Borough was a conductor and brakeman for the Duluth, Missabe & Iron Range Railroad in Duluth, Minnesota. On the morning of September 9, 1979, Borough was the head brakeman on a train consisting of approximately one hundred fully loaded ore cars. The train was running from the Procter Yard to Dock Five in the Duluth harbor. Borough‘s duties included setting the brakes at the Procter Yard for the downhill run and riding the locomotive to the dock where he would signal the engineer to stop the locomotive short of a cross-over switch, disconnect the locomotive, and release the brakes on the ore cars.
About 7:40 a.m. the train arrived at Dock Five and approached the cross-over switch at a speed of one or two miles per hour. Borough stepped off the front platform of the locomotive to position himself to signal the engineer when to stop. As he stepped onto the walkway beside the train, Borough‘s left foot landed on taconite pellets and he slipped and fell on his back. Despite injury to his lower back, plaintiff continued with his work that day. An injury report was promptly filed and Borough was subsequently examined by a number of doctors.
Despite treatment, Borough found himself unable to perform his duties and eventually quit the railroad. In the fall of 1982, plaintiff filed a complaint under the Federal Employers’ Liability Act,
On appeal the railroad contends the district court erred in (1) directing a verdict on behalf of Borough on the question of contributory negligence; (2) failing to set aside the damage award as excessive; (3) excluding from evidence a film offered by the railroad; and (4) allowing the jury to examine the taconite pellets. We affirm the judgment of the district court.
I. Contributory Negligence
The trial court refused to instruct upon and submit the issue of contributory negligence. We find no error in this ruling.
Apparently it is the railroad‘s position that Borough acted negligently, and that the jury could have disbelieved plaintiff‘s testimony and inferred, from the fact the accident occurred, that Borough failed to exercise due care. The railroad had the burden of proving its affirmative defense of contributory negligence. Wilson v. Burlington Northern, Inc., 670 F.2d 780, 782 (8th Cir.), cert. denied, 457 U.S. 1120, 102 S.Ct. 2934, 73 L.Ed.2d 1333 (1982). In a similar situation the Sixth Circuit found error in submitting the issue of contributory negligence to the jury:
[A] defendant is not entitled to reach the jury on an issue on which he bears the burden of proof on nothing but the incredibility of the plaintiff‘s testimony. Other evidence of the matter to be proved must be adduced. Thereafter, defendant may be assisted in sustaining his burden by the jury‘s disbelief of plaintiff‘s testimony.
We have searched carefully for some evidence of contributory negligence because an appellate court should be reluctant to conclude from afar that the trial judge on the scene erred in a factual determination. Nevertheless, we find no evidence of contributory negligence here, and conclude it was error to submit that issue to the jury. Plaintiff‘s request for a peremptory instruction eliminating contributory negligence should have been granted. Dixon v. Penn Central Co., 481 F.2d 833, 837 (6th Cir.1973). In this case, the district court was correct in directing a verdict for plaintiff on the issue of contributory negligence.
II. Damage Award
The railroad argues the jury‘s award of $309,024 is excessive and was the result of passion and prejudice. No evidence giving rise to passion or prejudice is cited. The railroad simply argues Borough‘s injury stems from an unrelated 1977 domestic accident, rather than the work-related fall on September 9, 1979. This overlooks, however, that the source of the injury and calculation of damages are questions of fact and peculiarly within the province of the jury.
On appeal the railroad admits “[t]he issue of damages for a pre-existing condition was submitted to the jury in proper form.” The testimony of doctors Goff, Lundquist, and Pollard supports the jury verdict. While the calculation of damages is difficult, given the changing working conditions on the railroad and the element of pain and
III. Evidentiary Rulings
The district court made two evidentiary rulings which the railroad argues were erroneous and an abuse of discretion. First, the district court refused to allow the railroad to show a film to the jury which demonstrated the proper method of stepping off a moving locomotive. We agree that the film was properly excluded under
Second, the district court allowed the jury to take plaintiff‘s exhibit # 14, a jar of taconite pellets which had been admitted without objection, to the jury room during deliberations. The court declined to give an instruction telling the jury to refrain from experimenting with the pellets. The railroad argued the jury had no need to consider or examine the pellets because they related to the issue of negligence and the court had already directed a verdict for plaintiff. Plaintiff argued the pellets were relevant to the jury‘s consideration of the severity of Borough‘s injury. On appeal plaintiff urges there is no evidence the jury experimented with the pellets or made any use of them which might have been prejudicial to the railroad. We agree. The decision to allow the jury to examine the pellets was within the discretion of the district court and, even if the court abused its discretion, there is no showing of prejudice. Any error must be deemed harmless.
The judgment of the district court is affirmed.
FAGG, Circuit Judge, dissenting.
Because I believe that the district court committed error in refusing to submit the issue of contributory negligence to the jury, I respectfully dissent.
The railroad has the burden of proving contributory negligence of an employee. Wilson v. Burlington Northern, Inc., 670 F.2d 780, 782 (8th Cir.), cert. denied, 457 U.S. 1120, 102 S.Ct. 2934, 73 L.Ed.2d 1333 (1982). It is entitled to have its contributory negligence theory submitted to the jury if there is any support for the theory in evidence. Id. The court, looking to the uncontradicted evidence of record that Borough alighted from the moving train in the manner prescribed by the railroad, holds that there was no evidence of contributory negligence on the part of Borough. I disagree.
Railroad Safety Rule D3 specifically provides that “[w]hen getting on or off moving equipment, watch the ground closely to avoid any condition that would cause falling, slipping, tripping or turning of an ankle. If necessary, stop movement, so you may alight safely.” In response to a question from defense counsel as to whether it was a very bad situation as he saw it that day, Borough responded, “Yes.” Thus, in spite of Borough‘s admitted awareness of the pellets, the dangerous situation, and a safety rule instructing employees to stop movement of equipment if necessary to alight safely, Borough stepped off the moving train onto the taconite pellets. While Borough may have believed it was impractical to wait to step off until the train stopped moving, the railroad was entitled to have the jury evaluate the reasonableness of Borough‘s conduct. Accordingly, I dissent.