Jоhn Gillyard Monroe brought suit pursuant to the Federal Employer’s Liability Act (“FELA”), 45 USC § 53, to recover for injuries sustained while working for Sоuthern Railway Company (“Southern”). The jury returned a verdict in favor of Monroe in the amount of $65,000. Monroe, being dissatisfiеd with the amount of the verdict, appeals.
Monroe worked for Southern as a brakeman. His job involved walking the length of the train to inspect it and to correct any problems he detected. When Monroe reported for work on January 9, 1988, the ground in the railyard was covered with ice. The yard had not been salted or sanded tо improve footing. Monroe was wearing insulated boots while some of the other employees were wearing “ice creepers,” spikes worn over shoes to improve traction. Monroe was not issued any iсe creepers, although other workers had asked for and received them or had borrowed them from their co-workers. While Mdnroe was inspecting the train, he noticed air escaping from a brake line. In order to repair the brake line, Monroe placed one foot between the rails and the other foot on the sloping, icy walkway adjacent to the track. After he repaired the line, one of Monroe’s legs slipped and caused him to “do the splits” and fall. The fall resulted in a pulled hamstring and lower lumbar strain. There was no injury tо the bone structures and no disc herniation. Monroe’s physician estimated that Monroe suffered a ten to fifteen percent permanent partial impairment as a result of the injury.
1. Monroe contends that the trial court erred in instructing the jury on the principle of contributory negligence because there was no evidenсe of negligence by Monroe. We disagree.
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The defendant in a FELA case is entitled to a jury instruction on contributory negligence if there is
any
evidence to support that theory.
Hickox v. Seaboard System R.,
2. Monroе claims that the trial court erred in refusing to instruct the jury that Southern had the burden of proving contributory negligence because it is an affirmative defense. We agree that Southern had the burden of proof but do not agree that the omission of the requested charge constituted reversible error.
In FELA cases, contributory negligence is an affirmative defense and the burden of proof is on the defendant who relies upon the defense to prоve contributory negligence.
Hickox,
supra at 331. In charging the jury on contributory negligence, the trial court in this case made no reference to the burden of proof. However, “simply because a request to charge is apt, correct and pertinent, it is not necessarily error to fail to charge it. . . . [T]he test is whether the court substаntially covered the principles embodied therein or whether it was sufficiently or substantially covered by the gеneral charge.” (Citations and punctuation omitted.)
Seaboard Coast Line R. Co.,
supra at 718 (1). In other words, we look at the charge as a whole. Id. Here, the
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trial judge’s charge on contributory negligence was taken nearly verbatim from 45 USC § 53. It sufficiently and substantially covered the principle of contributory negligence. Even assuming, without deciding, that the omission did constitutе error, it does not require reversal. “Such an error in charge without a showing of prejudice does not cоnstitute reversible error. [Cit.]”
Seaboard Coastline R. Co. v. Delahunt,
3. Finally, Monroe argues that the court erred in not charging the jury that assumption of risk is not a defense in an action brought under the FELA. We recognize the fact that assumption of risk is not a defеnse to a FELA claim. See 45 USC § 54. However, Southern did not rely on an assumption of risk defense in its pleading or argument. Courts are discouraged from instructing on assumption of risk when the element is not pleaded. Almendarez v. Atchison, Topeka &c. R. Co., 426 F2d 1095, 1098 (3) (5th Cir. 1970). Therefore, the court did not err in refusing to give the charge.
Judgment affirmed.