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NORFOLK SOUTHERN RAILWAY CO.
November 5, 1999
Record No. 982682
NORFOLK SOUTHERN RAILWAY COMPANY
KENNETH LEE THOMAS, SR.
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Jonathan M. Apgar, Judge
Present: All the Justices
OPINION BY JUSTICE BARBARA MILANO KEENAN
In this appeal of a judgment in an action
brought under the Federal Employers’ Liability Act (the FELA), 45
U.S.C. ?? 51-60, we consider whether the trial court erred
in refusing to instruct the jury on an issue of contributory
In August 1995, Kenneth Lee Thomas, Sr.,
allegedly injured his back while working as a student mechanic
for Norfolk & Western Railway Company (the railway).*
When the incident occurred, Thomas was employed on the second
shift in the railway’s car repair shop in Roanoke (the shop)
where hopper cars used for carrying coal were dismantled,
reconditioned, and reassembled. As part of this procedure,
employees in the shop removed each car’s wheel assemblies, which
weighed about three to four tons each, reconditioned them, and
lowered them by crane back into place. Thomas’s duties included
guiding and aligning the reconditioned wheel assemblies during
One evening, after working for about an hour
and a half on a floor area that was slippery from accumulated
work debris, Thomas slipped while guiding a reconditioned wheel
assembly into place. Thomas immediately felt a
"stabbing" pain in his lower back and was taken by
ambulance to the emergency room of a local hospital. After
receiving a variety of medical treatments over the course of two
years, Thomas underwent spinal fusion surgery.
Thomas filed this action against the railway
under the FELA, alleging, among other things, that the railway
failed to provide a safe workplace. In response, the railway
denied that Thomas was injured and alternatively alleged that any
injuries he may have sustained were caused by his own negligence.
At trial, the evidence established that the
"burning" process, used by workers on the first shift
when dismantling the wheel assemblies, caused a spray of molten
metal particles, described as "slag," to fall on the
shop floor. The slag, which solidified after reaching the floor,
left a slippery dust residue on the floor. Thomas testified that
"if you had a handful of salt and spread it on the [shop
floor,] . . . [t]hat’s basically [how] it felt."
There was evidence that bolts, rust particles,
and other debris also fell onto the shop floor during both the
first and second shifts. Thomas testified that due to these floor
conditions, slipping was "a normal part of the day,"
and that he would slip frequently when guiding the reconditioned
wheel assemblies as they were lowered by crane.
At the time Thomas was injured, the railway had
in effect a safety regulation, which provided that
"[e]mployees must keep premises subject to their control
neat and clean." The evidence showed that the railway had
placed brooms and shovels at Thomas’s work station. When asked
whether employees were supposed to clean their work area at any
particular time during their shift, William J. East, the senior
general foreman in the shop, testified that the employees were
given "discretion" in determining when their work areas
needed to be cleaned. Thomas and his co-worker, David Atkins,
testified that they understood that the railway’s policy was that
they were expected to clean their work area only at the end of
Various witnesses testified that workers on the
second shift frequently complained to the railway that employees
on the first shift had failed to clean the shop floor. Atkins
testified that, in January 1995, he filed a written safety
complaint informing the railway of this problem. In response to
Atkins’s complaint, the senior general foreman instructed the
first shift supervisor to "insure work area is clean at end
Thomas testified that on the day he was
injured, the first shift had not cleaned the shop floor in the
area of his work station, and that he did not clean the floor at
any time prior to his fall. Thomas explained that he had slipped
on other occasions during his shift before the time he slipped
and injured his back, including instances while working on the
same wheel assembly.
At the close of the evidence, the trial court
granted Thomas’s motion to strike the railway’s evidence of
contributory negligence and refused the railway’s proffered jury
instructions on that issue. The court ruled that the evidence was
insufficient to submit this issue to the jury, because the
railway’s senior general foreman had testified that an employee
was given discretion in exercising his duty to keep his work
station clean during his shift. In support of its ruling, the
court also noted that the railway had failed to present evidence
"as to what an abuse of that discretion or a negligent
failure to act on that discretion would be."
The jury returned a verdict in favor of Thomas
and awarded him $1.5 million in damages. The trial court entered
judgment on the jury’s verdict.
On appeal, the railway argues that the evidence
at trial presented an issue of contributory negligence for the
jury’s determination. The railway contends that this issue was
supported by the evidence that each employee had a duty to keep
his work area clean, and that Thomas failed to use the brooms and
shovels provided by the railway to clean his floor area despite
his knowledge that the floor was slippery.
In response, Thomas asserts that the railway
failed to produce any evidence from which a jury could have
concluded that Thomas was guilty of contributory negligence. He
contends that there was no evidence establishing that he violated
any duty, or that he acted unreasonably under the circumstances.
Thomas contends that the railway’s evidence presented only an
issue of assumption of the risk, a defense that is not permitted
under the FELA. We disagree with Thomas’s arguments.
In deciding this appeal, we apply federal
decisional law, because the issue whether negligence, or
contributory negligence, has been established under the FELA is a
federal question. See Norfolk S. Ry. v. Trimiew,
253 Va. 22, 24, 480 S.E.2d 104, 106, cert. denied, 520
U.S. 1265 (1997); Norfolk & W. Ry. v. Hodges, 248 Va.
254, 260, 448 S.E.2d 592, 595 (1994). Since the defense of
assumption of the risk has been abolished under the FELA, a
federal question also is presented in determining whether
evidence relates solely to assumption of the risk and, thus,
cannot support a jury instruction on contributory negligence. See
Hose v. Chicago Northwestern Transp., 70 F.3d 968, 978
(8th Cir. 1995); Fashaeur v. New Jersey Transit Rail
Operations, 57 F.3d 1269, 1279-80 (3rd Cir. 1995); Birchem
v. Burlington N. R.R., 812 F.2d 1047, 1049 (8th Cir. 1987).
A defendant has the burden of proving
contributory negligence and is entitled to a jury instruction on
this issue if there is any evidence to support that theory. Hose,
70 F.3d at 978; Gish v. CSX Transp., Inc., 890 F.2d 989,
992 (7th Cir. 1989); Taylor v. Burlington N. R.R., 787
F.2d 1309, 1316 (9th Cir. 1986). The fact that an employee may
have been guilty of contributory negligence does not bar him from
recovering damages under the FELA for the employer’s negligence,
but the damages shall be reduced by the jury in proportion to the
amount of negligence attributable to the plaintiff employee. 45
U.S.C. ? 53; Hodges, 248 Va. at 262, 448 S.E.2d
at 596; Norfolk S. Ry. v. Rayburn, 213 Va. 812, 816, 195
S.E.2d 860, 864 (1973). Since issues of the plaintiff’s conduct
and of damages usually are interwoven in FELA actions, the issue
of damages is rarely submitted to a jury without also allowing
the jury to consider the question of contributory negligence. See
Hodges, 248 Va. at 262, 448 S.E.2d at 596; Norfolk S.
R.R. v. Ferebee, 238 U.S. 269, 273 (1915).
Although there may be overlapping evidence
pertinent to both the defense of contributory negligence in a
FELA action and the abolished defense of assumption of the risk,
there are important distinctions between the two theories that
have been addressed by the federal courts. Assumption of the risk
consists of a plaintiff’s implicit consent to known risks and
dangers necessary to the performance of his duties when he
undertakes a routine assignment in compliance with the directives
of his employer. Fashaeur, 57 F.3d at 1278; Taylor,
787 F.2d at 1316; Rivera v. Farrell Lines, Inc., 474 F.2d
255, 257 (2d Cir.), cert. denied, 414 U.S. 822 (1973). In
contrast, contributory negligence is a careless act or omission
by the plaintiff that tends to add new dangers to conditions that
the employer negligently created or allowed to exist. Taylor,
57 F.3d at 1316; see also Gish, 890 F.2d at
991-92; Birchem, 812 F.2d at 1049; Rivera, 474 F.2d
at 257; Hodges, 248 Va. at 262, 448 S.E.2d at 596.
Evidence of contributory negligence cannot be
excluded from a jury’s consideration merely because that evidence
may also be relevant to assumption of the risk. Hose, 70
F.3d at 978; Beanland v. Chicago, Rock Island & Pac. R.R.,
480 F.2d 109, 116 n.5 (8th Cir. 1973); Murray v. New York, New
Haven & Hartford R.R., 255 F.2d 42, 44 (2d Cir. 1958); see
Sauer v. Burlington Northern R.R., 106 F.3d 1490, 1496
(10th Cir. 1996). However, when evidence relates solely to
assumption of the risk, such evidence cannot support a jury
instruction on contributory negligence. Hose, 70 F.3d at
978; see Birchem, 812 F.2d at 1049; Taylor,
787 F.2d at 1316. Thus, a plaintiff’s damage award under the FELA
cannot be reduced on the basis that he or she implicitly
consented to the risks inherent in the employment by performing a
task in the manner directed by the employer. Fashaeur, 57
F.3d at 1279; see Birchem, 812 F.2d at 1049; Taylor,
787 F.2d at 1316.
When there are reasonable alternatives to
performing a task in an unsafe way, a plaintiff must act with due
care and will be held responsible for acting unreasonably. Combs
v. Norfolk & W. Ry., 256 Va. 490, 498, 507 S.E.2d 355,
360 (1998); Fashaeur, 57 F.3d at 1280. Thus, an issue of
contributory negligence is presented based on evidence that an
employee failed to follow a specific safety instruction
reasonably imposed to protect the employee from the injury that
occurred. Fashauer, 57 F.3d at 1280; see Kendrick
v. Illinois Cent. Gulf R.R., 669 F.2d 341, 343-44 (5th Cir.
1982); Chesapeake & O. Ry. v. Richmond, 217 Va. 258,
263-64, 227 S.E.2d 707, 711-12 (1976).
In the present case, the railway presented
evidence that Thomas failed to follow the specific safety
instruction that "employees must keep premises subject to
their control neat and clean." Thomas knew that the floor in
his work area was slippery and actually had slipped earlier
during his shift while working on the same wheel assembly.
Nevertheless, he did not clean his work area with a broom that
the employer had placed at his work station for his use.
The fact that employees were given
"discretion" in determining when their work areas
needed cleaning did not excuse Thomas from the duty to use
reasonable methods provided by the employer as an alternative to
performing a task in an unsafe manner. See Combs,
256 Va. at 498, 507 S.E.2d at 359; Fashaeur, 57 F.3d at
1280. Thomas was still required to exercise reasonable care for
his own safety, and the question whether any portion of his
injury was attributable to his own acts or omissions should have
been decided by the jury. See Sauer, 106 F.3d at
1496; Martinez v. Union Pac. R.R., 82 F.3d 223, 229 (8th
Cir. 1996); Hodges, 248 Va. at 262, 448 S.E.2d at 596.
Thomas’s acts or omissions at the time he was
injured were evidence of contributory negligence under the FELA,
and not solely evidence of assumption of the risk, because they
would support a conclusion that he caused dangers that were
additional to any hazardous conditions that the railway may have
caused or permitted to exist. See Gish, 890 F.2d at
991-92; Birchem, 812 F.2d at 1049; Taylor, 787 F.2d
at 1316; Hodges, 248 Va. at 262, 448 S.E.2d at 596.
Therefore, we hold that the trial court erred in striking the
railway’s evidence of contributory negligence and in refusing to
submit the issue to the jury for its determination.
For these reasons, we will reverse the trial
court’s judgment and remand the case for a new trial on all
issues consistent with the principles expressed in this opinion.
Reversed and remanded.
*Following the trial of this action,
Norfolk & Western Railway Company merged with Norfolk
Southern Railway Company. The trial court substituted Norfolk
Southern Railway Company in the place of Norfolk & Western
Railway Company in its final order. The term "the
railway" will be used in this opinion to refer to either