*2 BASS, Before HOLCOMB BILL COLLEY,1 JJ.
HOLCOMB, Justice. judgment on a appeal This is an from a jury brought verdict in a suit Liability Employers’ under the Federal (“FELA”), seq., 51 et U.S.C.A. Act, § 22 et seq. We will affirm. worked for the Missouri Brown “MOPAC”) (hereafter
Pacific Railroad brakeman and had worked for many years. years, he Over the devel- mostly oped lung problems, associated with smoking performing his his duties habit. MOPAC, the caboose of Brown rode in freight years trains. A few before Brown MOPAC, stopped working phased out the cabooses and thе use of quired in the cabs the brakemen to ride there was units. Sometimes room unit, but for all the in the forward crew crewmen, engi- other times other than the fireman, neer and had to ride In these consist.2 subjected units the diesel crewmen engines fumes from the that were lung them. There that Brown’s is evidence by fumes, prоblems aggravated became forcing working him stop for MOPAC. damages for
Brown sued to recover
injury
having to inhale
lungs
to his
injury
jury
diesel fumes. The
found that the
by
aggravated
the die-
lungs
to Brown’s
aggravation of
sel fumes and that
this
his
lung problems he had suffered
$184,000.
jury found that
responsi-
responsible and
30%
70%
jury
for the
But the
also found
ble
(Retired),
"engine
Colley,
consist"
Tyler
2. The railroad uses the term
Paul S.
Justice
Appeals, sitting by assignment
that are
Jus
describe the several
con-
the Chief
integrated
pow-
Supreme
source of
pursuant
tice
nected
as one
of the Texas
74.003(b) (Vernon 1988).
er to drive the train.
Tex.Gov't Code Ann.
to comply
termining
that MOPAC had failed
with the
of federal common
law to
thus
a federal
issue we are bound
subjecting
liability.
to strict
federal
law. Dice v.
Can-
decisional
Yоungstown
ton &
brings
MOPAC now
three
*3
312, 314,
72
96
398
S.Ct.
L.Ed.
arguing
subsequent
that
of
re-
the evidence
R.
Mitchell v. Missouri-Kansas-Texas
improperly
medial measures was
admitted
(Tex.1990). Further,
659,
786
661
S.W.2d
jury questions applying
and that
the
the
adopted by
rules
the
Commerce
Interstate
Inspection
Act should
have been
Commission,
authority un-
in the exercise of
the
22-34,
§§
acquire
der 45
the force
By
point
argues
its third
MOPAC
integral parts
of law and become
of the sec-
report
a
that
of certain remedial measures tо
R.
Lilly
tions.
v. Grand Trunk Western
the trailing
reduce smoke at the cabs of
units
481,
347,
411
consists should not have been ad
(1943).
adopted by
The rule
the Federal
mitted. On
occаsions
ob
several
MOPAC
Railroad Administration of the United States
jected when Brown indicated that he would Department
Transportation,
incorpo-
of
and
report
the
on
offer
into evidence.
jury charge
rated
the
reads:
into
report
finally
the occasion in
the
which
was
Battery
Exhaust and
Gаses
offered,
objection.
no
That
MOPAC made
( n )
Products of combustion shall be
only
objection
was the
time at which the
was
entirely
the
leased
outsidе the cab and
important
object,
and
failed to
MO-
compartments. Exhaust stacks shall be
appeal.
point
PAC has
on
waived error
The
pro-
height
or other means
sufficient
error is
of
overruled.
prevent entry
products
of
of
vided
its
of
first two
MO-
into the
com-
combustion
cab or other
argues
Inspection
PAC
that the Boiler
Act
partments
operating
under usual
condi-
apply
unit
does
to this case because each
tions.
sepаrately.
in a consist is to be considered
49 C.F.R.
229.43.
is,
unit,
That
he
Brown was
second
promulgated
Act
and the rules
to enforce
injured by
had to show that he was
smokе
light
should
of its
be
construed
fumes
the
unit
en
and
from
second
which
primary
protection
is
purpose, which
the
cab,
the
matter how much
tered
no
exhaust
use of
requiring
and others
unit entered the
from forward
cab
Lilly
equipment.
safe
v. Grand Trunk West-
trailing unit
The issue
he was in.
is critical
486,
at
ern
the railroad
the Boiler
bеcause
evidence admitted at trial reveals
“imposes
on
45 U.S.C.A.
the carri
that
lead
the consist
smoke from
continuing duty
er an absolute and
to main
and that
trailing
entered the
units
locomotive,
ap
all
tain the
and
and
trailing
smoke
units sometimes entered
thereof,
condition,
from
purtenancеs
proper
units,
ar
trailing
depending
those
on the
operate
in active service without un
safe
rangement
that unit. That
if a
necessary peril
Ry
limb.”
to life or
Southern
unit
“cab forward” its smoke did
Lunsford,
56
U.S.
S.Ct.
cab,
trailing”
if it
its
enter
was “cab
its
оf causation or the extent argues that this is no evidence that of 45 the issue U.S.C.A. MOPAC Therefore, trailing units from entered § 23 is before in de- smoke this Court. they operate all of the units regulation. control over in violation of cabs they operate together is That sepa together. unit treated arguеs that each is also fact, they may discon support of this that regulation. important rately produced a letter treats several The railroad argument MOPAC nected. McBride, the Assistant “AN consist” Gregory B. connected Safety the Federal meet the statu consist must Chief Counsel and as such the indicаting operate that Railroad Administration safe to tory requirement interpretation unnecessary peril of the rule is administrative active service in which combus applies that it “to situations limb. life or locomotive gases enter ‘the cab’ of the tion Therefore, there evidence wе find that MO- actually releasing the exhaust fumes.”3 safe to engine consists were not interpre argues an administrative PAC *4 the same operate in serviсe to which “controlling weight un given tation is to be or unnecessary peril to life put inconsistent plainly it is erroneous or less Inspection Act. in violаtion of the limb v. regulation.” Bowles Seminole ques- properly court allowed The trial 410, 65 Rock part of the tions as argues that this L.Ed. 1700 affirmed. judgment of the triаl court is judge in by a federal district letter was used grant a defendant the District of Nebraska to OPINION ON MOTION summary judgment on facts partial REHEARING FOR interlocutory, An unre similar to this ease. atten Appellant directs this Court’s court is
ported decision of a federal district fact the decision tion to the binding on this Court under the rule оf has been District Court Nebraska Federal Y. R. The current C. & Burlington v. Northern published as Dixon product of a 1980 con Section 229.48 is (D.Neb.1992). F.Supp. regulations. older Railroad solidation of earlier These interlocutory unappealable order preceded of cabooses It is still an regulations thе removal prece- persuasive, limited to placing of brakemen and it is from trains and dential, rehearing is designated ‘enginemen’s The motion for рreviously areas force. details an compartments.’ McBride’s letter denied. comprehend nei
interpretation that would on an consist
ther additional crewmen compartment other
or crewmen compartment.” The “enginemen’s
than the
interpretation urged by MOPAC fails to con REPUBLIC INSURANCE that сrewmen would be in other OLD
sider COMPANY, Appellant, or that smoke and fumes would of the consist This is kept out of units. need regu interpretation of a plainly erroneous SCOTT, Appellee. Lola designed promulgated under a statute lation operators 12-90-00244-CV. No. public large. Appeals of Rock Bowlеs v. Seminole 1215, L.Ed. 1700 June Act is to be The Aug. Rehearing Denied employees. protect We construed to “operating locomotive” is observe in the consist but all just one of the units engineer has in the consist. The
of the units positions represented the authorized court that court would not allow the letter 3. The trial Department Transporta- United States explanation of the it as an evidence or consider tion. because MOPAC could not convince law