Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-6-2007

Maher v. DE Hudson
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1145




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 05-1145


                                  JOHN J. MAHER,
                                              Appellant

                                          v.

               DELAWARE AND HUDSON RAILWAY COMPANY


            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                            D.C. Civil No. 03-cv-00909
                 District Judge: The Honorable Edwin M. Kosik


                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 29, 2007


      Before: BARRY, ROTH, Circuit Judges, and DEBEVOISE,* District Judge

                          (Opinion Filed: February 6, 2007)


                                      OPINION


BARRY, Circuit Judge

      Appellant John Maher appeals from the District Court’s entry of final judgment



  *
   The Honorable Dickinson R. Debevoise, Senior District Judge, United States District
Court for the District of New Jersey, sitting by designation.
following a jury verdict in favor of Appellee Delaware and Hudson Railway Company,

Inc. d/b/a CP Rail System (“CP Rail”). He challenges two of the District Court’s rulings

on proposed points for charge. We will affirm.

                                              I.

       Because we write only for the parties, our recitation of the facts is brief. In late

2002, Maher worked as a conductor for CP Rail. At 5:30 A.M. on December 20, 2002,

Maher was working on a freight train traveling from Harrisburg, Pennsylvania to

Binghamton, New York. The train was passing over a section of tracks known as the

Sunbury Main when it struck a tree that had fallen diagonally across the tracks. As a

result of his diving to the floor immediately before the impact, Maher suffered injuries to

his shoulder, neck, and arms that prevented him from returning to work with the railroad.

       There is no dispute that the base of the fallen tree was outside the railroad’s 30-

foot right of way and that the tree had been growing on property not owned by CP Rail.

It is likewise undisputed that Maher sustained his injuries while in the cab of the train’s

locomotive as it traveled down CP Rail’s track. Maher contends, however, that CP Rail

owed a duty to its employees to inspect for and prevent foreseeable harm originating on

third-party property, that this particular harm was foreseeable, and that CP Rail failed to

make reasonable efforts to discharge its duty.

       In May of 2003, Maher filed a complaint against CP Rail in the United States

District Court for the Middle District of Pennsylvania, alleging a cause of action for

personal injuries under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51

                                              2
– 60 (2000). Trial before a jury commenced on December 13, 2003. The District Court

denied Maher’s proposed instructions on CP Rail’s duty to inspect third-party premises

and his general theory of negligence. On December 16, 2003, the jury returned a verdict

finding CP Rail not negligent. Maher timely appeals from the District Court’s entry of

final judgment, arguing that the Court erred by denying the two proposed instructions.

       The District Court had jurisdiction over this action pursuant to 28 U.S.C. § 1331.

We have jurisdiction to review the final judgment of the District Court pursuant to 28

U.S.C. § 1291.

                                              II.

       We review for abuse of discretion whether jury instructions are misleading or

inadequate, and we exercise plenary review over whether they misstate the law. Woodson

v. Scott Paper Co., 

, 929 (3d Cir. 1997). “As on all occasions when we

consider jury instructions[,] we consider the totality of the instructions and not a

particular sentence or paragraph in isolation.” United States v. Coyle, 

, 1245

(3d Cir. 1995). The touchstone is “whether, taken as a whole, they properly apprized the

jury of the issues and the applicable law.” United States v. Boone, 

, 326 (3d

Cir. 2006) (internal quotation marks omitted).

       The relevant provision of FELA states that every common carrier by railroad

       shall be liable in damages to any person suffering injury while he is
       employed by such carrier . . . for . . . injury or death resulting in whole or in
       part from the negligence of any of the officers, agents, or employees of such
       carrier, or by reason of any defect or insufficiency, due to its negligence, in
       its cars, engines, appliances, machinery, track, roadbed, works, boats,

                                              3
       wharves, or other equipment.

45 U.S.C. § 51. Under this provision, a railroad owes a “nondelegable duty to provide its

employees with a safe place to work even when they are required to go onto the premises

of a third party over which the railroad has no control.” Shenker v. Balt. & Ohio R.R.

Co., 

, 7 (1963) (collecting cases). This duty requires the railroad to inspect

third-party premises before permitting its employees to work on them. 

(requiring

railroad to inspect third-party cars before permitting employees to work with them);

Cazad v. Chesapeake & Ohio Ry. Co., 

, 75 (4th Cir. 1980) (holding that

railroad had duty to inspect sidetrack owned by third party on which employees were

expected to work); Carter v. Union R.R. Co., 

, 211 (3d Cir. 1971) (holding

that where railroad arranged for its employees to use third party’s parking lot so that

employees could service third party’s plant, railroad had a nondelegable duty to ensure

that parking lot and path leading to the plant were reasonably safe). Courts have reasoned

that where a railroad would be liable for a defective condition existing on its own

property, it may not escape liability due to the mere fortuity that its employee was injured

on property owned by a third party. 

(quoting Balt. & Potomac

R.R. Co. v. Mackey, 

, 89 (1895), and Tex. & Pac. R.R. Co. v. Archibald, 

, 670 (1898)).

       A railroad’s broad duty under FELA requires it to take reasonable precautions to

protect employees working on its property against foreseeable dangers originating on

third-party premises. In Lillie v. Thompson, 

, 462 (1947), the Supreme

                                             4
Court held that a railroad “had a duty to make reasonable provision against” the

foreseeable danger of criminals entering onto the railroad’s property and causing injury to

its employees. Similarly, in Burns v. Penn Central Co., 

, 514 (2d Cir. 1975),

the Second Circuit held that a railroad was “obliged to take measures to ensure” that

employees working on trains passing through a dangerous area were not the victims of

sniper attacks originating on third-party premises. Although no court has expressly held

that a railroad has a duty to inspect third-party premises on which its employees are not

expected to work, and we do not so hold, such a duty may well fall within the ambit of

the railroad’s broad duty under FELA to provide a safe workplace.

       CP Rail does not dispute these principles, but argues that the harm caused by the

fallen tree was not foreseeable. The Supreme Court has recognized that “reasonable

foreseeability of harm is an essential ingredient of Federal Employers’ Liability Act

negligence.” Gallick v. Balt. & Ohio R.R. Co., 

, 117 (1963). Maher offered

evidence that for months prior to the accident, he and other employees periodically

complained to management concerning the danger posed by falling trees along this

particular section of CP Rail’s tracks. CP Rail in turn offered evidence that it inspected

its tracks at least two times per week—twice the frequency required by federal

regulations—and that it dispatched work crews to cut any trees or branches that could

come in contact with a passing train. The last such inspection occurred on the day before

the accident.

A.     Requested Jury Instruction 27

                                             5
       During trial, the parties submitted proposed points for charge. Maher’s Requested

Jury Instruction 27 stated as follows:

                              THIRD-PARTY PREMISES

       In considering that Mr. Maher’s injuries occurred on property possibly
       owned in part or controlled in part by a third party, I instruct you that CP
       Rail’s duty under the Federal Employer’s Liability Act to furnish its
       employees with a safe place to work extends beyond its own property and
       onto property which third person’s [sic] have a primary obligation to
       maintain. Specifically, CP Rail’s duty includes a responsibility to take
       reasonable precautions to protect CP Rail’s employees from possible
       dangers on another person or company’s property.

(Appellant’s App. vol. II at 163.) At the charge conference, the District Court expressed

concern over this proposed instruction, noting that all of Maher’s supporting cases

involved instances in which an employer required an employee to enter upon a third

party’s premises and the employee was subsequently injured. Here, the Court noted,

Maher was injured while on CP Rail’s property, thereby rendering the instruction

factually inaccurate and the caselaw inapposite. Indicating that it would adequately cover

this principle elsewhere in the charge, the Court denied the proposed instruction.

       Viewing the jury instructions in their totality, we find that the District Court did

not abuse its discretion in refusing to charge Maher’s Requested Jury Instruction 27. The

factual inaccuracy of this instruction was reason enough to justify the Court’s decision.

There is no dispute that Maher was injured in the cab of the locomotive while it traveled

down CP Rail’s track and therefore was not injured on third-party premises. The

requested instruction’s invitation for jurors to consider “that Mr. Maher’s injuries


                                              6
occurred on property possibly owned in part or controlled in part by a third party” (id.)

was not only misleading but demonstrably false. This statement, coupled with the

instruction that CP Rail had a duty to take reasonable precautions against “possible

dangers on another person or company’s property” (id.), would have invited jurors to

speculate based on facts not in evidence.

       We find, moreover, that the District Court adequately instructed the jury on the

relevant legal principles. Maher argues that without the instruction on third-party

premises, it was “impossible” for him to establish CP Rail’s negligence. We disagree.

The Court defined CP Rail’s duty broadly and without qualification as to the source of the

harm, noting that CP Rail had a “positive obligation to exercise reasonable care, and

provide plaintiff with reasonably safe routes and pathways upon which to travel during

the course of his employment.” (Id. at 143.) See 

. The Court

continued:

              Plaintiff alleges the defendant’s conduct at the time and place in
       question was negligent inasmuch as the defendant failed to maintain a safe
       work environment in areas required to be traversed by the plaintiff in the
       course of his employment, which failure to do so made it a menace and a
       hazardous condition to the safety of plaintiff and employees in like position
       and caused plaintiff’s injuries.
              We tell you that it’s a continuing duty of the defendant as an
       employer at the time and place in question to use ordinary care under the
       circumstances in furnishing the plaintiff with a reasonably safe place to
       work, and to use ordinary care under the circumstances to maintain and
       keep such place of work in a reasonably safe condition.
              . . . This duty of the employer is nondelegable, that is, it cannot be
       passed on to someone else.



                                             7
(Id. at 143-44.)1

       The District Court also instructed jurors on foreseeability, see 

, and charged that Maher could establish negligence by proving by a preponderance of

the evidence that CP Rail’s alleged “act or omission played any part, no matter how

small, in bringing about or actually causing the injury or damage.” (Id. at 145.) See

Rogers v. Mo. Pac. R.R. Co., 

, 506 (1957) (noting that the test of a case

under FELA is “whether the proofs justify with reason the conclusion that enployer [sic]

negligence played any part, even the slightest, in producing the injury or death for which

damages are sought”). Having instructed the jury on these principles, the Court

summarized the parties’ respective positions on the discharge of CP Rail’s duty:

              In this case we have had some disagreement as to the location of the
       tree which obstructed the path of plaintiff and the engineer. The defendant
       claims that it did everything reasonable to ascertain if obstructions from
       trees existed, having the area traversed and inspected twice weekly in
       excess of what the regulations required, including the day before the
       morning of this accident.
              Plaintiff claimed it makes little difference where the tree was located
       or where it came from, that the defendant, by use of reasonable care either
       knew or should have known from all of the circumstances that a special
       hazard existed and through the exercise of reasonable care defendant should
       have anticipated a continuing problem, thereby requiring more from the
       defendant.

(Appellant’s App. vol. II at 147-48.) Viewing these instructions in their totality, we find


   1
      Maher’s suggestion that jurors might have been confused into believing that CP Rail
could not be liable because the tree was growing on third-party premises is further belied
by the closing statement of CP Rail’s counsel: “The only evidence in this case is that the
tree that eventually fell was not on the railroad’s property. Is that determinative? No.”
(Supplemental App. at 23.)
                                             8
that they adequately described CP Rail’s broad duty to provide a safe place to work and

did not suggest any limitations on that duty inconsistent with caselaw. Accordingly, we

find that the Court did not abuse its discretion in refusing to deliver Maher’s Requested

Jury Instruction 27.

B.     Requested Jury Instruction 13

       Maher also contends that the District Court abused its discretion by denying his

Requested Jury Instruction 13, which stated as follows:

                              SPECIFIC ALLEGATIONS

              Turning to Mr. Maher’s specific allegations, Mr. Maher contends
       that [CP Rail] was negligent because it required him to work on the
       Sunbury Main which had become an area of disrepair. There was testimony
       of numerous trees falling in this area for sometime prior to this accident.
       This problem was known to the defendant and even on the trip before this
       incident, Mr. McLane [the engineer] and Mr. Mahre [sic] complained to
       supervision about the problems with falling trees. Once [CP Rail]
       instructed Mr. Maher’s crew to work in this area, Mr. Maher was expected
       to operate a train through the Sunbury Main but the defendant failed to take
       reasonable steps to see that the area was safe. More specifically, Mr. Maher
       avers that [CP Rail] should have: (1) not allowed Mr. Maher to perform
       work in an area where there was such a known and repeated problems [sic]
       with fallen trees; (2) made reasonable effort to inspect the areas for
       hazardous and unsafe trees; (3) trained its track inspectors to inspect for
       problems with trees; (4) [CP Rail] should have made some reasonable effort
       to clear the vegetation in the area of the tracks.
              Mr. Maher avers that as a result of [CP Rail’s] failure to take the
       above actions, the area he had to work, to perform his job was not safe
       because, among other things: (1) the area had insufficient clearance; (2) [CP
       Rail] failed to use safe work methods by dispatching workers in this unsafe
       area; and (3) [CP Rail] failed to properly inspect or maintain the area
       allowing it to become unsafe.

(Id. at 161.) According to Maher, the Court had an obligation to instruct as to the


                                             9
circumstances surrounding his theory of negligence.

       Even if we overlook the misleading phrasing that suggests a judicial finding that

CP Rail knew of the “problem” of falling trees and “failed to take reasonable steps to see

that the area was safe” (id.), the District Court did not abuse its discretion by denying the

proposed instruction. A district court is under no general obligation to summarize a

FELA plaintiff’s evidence and allegations for the jury. The cases on which Maher relies

found reversible error only where a district court’s failure to charge on the circumstances

surrounding an employee’s injuries had the effect of limiting jurors to considering only

the proximate cause of those injuries and foreclosed them from considering potential

contributing causes established by the evidence. See Idzojtic v. Pa. R.R. Co., 

, 1033-34 (3d Cir. 1970); Hoyt v. Cent. R.R., 

, 844 (3d Cir. 1957). We

find no such error here. The Court amply instructed the jury on those of Maher’s

allegations that were supported by the evidence:

               Plaintiff alleges the defendant’s conduct at the time and place in
       question was negligent inasmuch as the defendant failed to maintain a safe
       work environment in areas required to be traversed by the plaintiff in the
       course of his employment, which failure to do so made it a menace and a
       hazardous condition to the safety of plaintiff and employees in like position
       and caused plaintiff’s injuries.
               ....
               In this case, plaintiff claims the defendant’s negligence [sic] because
       it knew or should have known from the conduct and reports plaintiff and
       other employees made that the route they traversed from Harrisburg to
       Binghamton was on numerous occasions obstructed by falling trees. And
       that with the exercise of ordinary care, the defendant should have rendered
       it safe to traverse, and its failure on the part of the defendant to do so
       constituted a failure on the defendant to provide a safe working
       environment.

                                             10
(Appellant’s App. vol. II at 143, 147.) As noted above, the Court also described the

parties’ respective positions on the discharge of CP Rail’s duty. (Id. at 147-48.) We find

that these instructions adequately described Maher’s theory of the case, and that the Court

did not abuse its discretion by denying Requested Jury Instruction 13.2

                                             III.

       For the reasons discussed, we will affirm the order of the District Court.




   2
     Maher contends that the District Court should have instructed the jury on his theory
that CP Rail was negligent for failing to train track inspectors to inspect for problem trees.
Although a track inspector did testify that he was never trained to inspect standing trees,
he also testified that he cut trees that were leaning or were likely to touch a passing train
in any way. Because the evidence does not establish that any failure to train caused
Maher’s injuries, we do not find that the Court abused its discretion by failing to mention
CP Rail’s alleged negligent failure to train in its instructions. See 

(requiring district court to charge on surrounding circumstances only where plaintiff
offered sufficient proof of those circumstances).
                                             11