The principal issue in Allen C. Gregory's slip and fall action against his employer, Missouri Pacific Railroad Company (MOPAC), arising out of oil on the walkway of its locomotive, is the peremptory instruction that the presence of the oil violated the Boiler Inspection Act, 45 U.S.C. Sec. 23. Because violation of the Act, vel non, was a question for the jury, we REVERSE and REMAND for a new trial.1

Gregory alleged that, in January 1989, while employed by MOPAC, he slipped on oil on a locomotive walkway and fell; but this action was not filed until mid-1991, culminating in a four day trial in the spring of 1993.2 After being instructed that oil on the walkway violated the Boiler Inspection Act (BIA), the jury awarded Gregory approximately $362,000.3

"[T]he BIA is a safety statute which is to be liberally construed to afford protection to railroad employees". Oglesby v. Southern Pacific Transp. Co., 6 F.3d 603, 606 (9th Cir.1993) (citing Lilly v. Grand Trunk Western R.R., 317 U.S. 481, 486, 63 S. Ct. 347, 351, 87 L. Ed. 411 (1943)). It "imposes 'an absolute and continuing duty' to provide safe equipment". Richardson v. Consolidated Rail Corp., 17 F.3d 213, 216 (7th Cir.1994) (quoting Urie v. Thompson, 337 U.S. 163, 188, 69 S. Ct. 1018, 1033, 93 L. Ed. 1282 (1949)). The Act provides in relevant part:

It shall be unlawful for any carrier to use ... any locomotive unless said locomotive ... and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed ... without unnecessary peril to life or limb....

45 U.S.C. Sec. 23.

In its peremptory instruction, the court employed language from both the BIA and a regulation adopted under it, 49 C.F.R. Sec. 229.119(c). It instructed that the BIA required operation "without unnecessary peril to life or limb"; and from the regulation, without referencing it, instructed that the Act "places an absolute duty ... to ... [prevent] an accumulation of oil on ... the ... passageway which presents a hazard to slipping, falling or tripping by its employees."4A.

MOPAC contends that, because there was a factual dispute as to whether the oil presented a slipping hazard and thus constituted an "unnecessary peril to life or limb", the district court erred by peremptorily instructing the jury that MOPAC violated the BIA.5

The familiar standard adopted by our court in Boeing v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc) governs our review of the peremptory instruction. Simmons v. King, 478 F.2d 857, 860 (5th Cir.1973). If all of the evidence, considered in the light and with all reasonable inferences most favorable to MOPAC, points so strongly and overwhelmingly in favor of Gregory that reasonable jurors could reach only one conclusion--that the oil on the passageway presented an unnecessary peril to life or limb because it presented a slipping, falling or tripping hazard (unnecessary peril)--the instruction was appropriate. Boeing, 411 F.2d at 374. But, if there is "evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions", the question should have been submitted to the jury. Boeing, 411 F.2d at 374.6

There was conflicting evidence on whether the oil constituted an unnecessary peril. Photographs taken the day after the incident depict several spots of oil on the walkway. Gregory testified that he slipped in the "largest spot, or puddle", located next to the wall of the engine and two to three steps beyond the bottom of the locomotive steps which he had descended just before slipping. He described the size of the spot as "probably 12 inches, maybe, a little larger".

The oil, as photographed the day after the incident, covered approximately one-third of the width of the walkway. One of the photographs depicts a man with a broom, apparently sweeping the walkway. Gregory testified that the oil depicted in the photographs looked different from when he fell; and that, in the photographs, it appears that "oil dry" (a granular or powder substance placed on the oil to absorb it) has been placed on the oil. But MOPAC's manager of train operations, Larry Erwin, who saw the oil shortly after the incident, testified that a photograph of the walkway taken the day after the incident fairly and accurately represented what he saw on the day of the incident.

Gregory testified that the oil was wet and was absorbed into his clothing, boots, and radio; that he did not know he had fallen in the oil because he was sitting in it; and that, when he got up, the engineer told him that he had oil all over his pants. On cross-examination, Gregory testified that the oil was plainly visible, and that he would have seen it had he been looking down.

The conductor testified that he did not notice any oil on Gregory's clothing. On cross-examination, he admitted that, when he went to check on Gregory after the incident, he saw on the walkway a "puddle of oil" which measured about 18"' by 8". And, his report prepared on the date of the incident stated that Gregory "stepped in [a] puddle of oil".

Erwin, manager of train operations, testified also that he met the train immediately after the incident, and saw "a patch of oil" where it occurred. He described the oil as follows:

[W]hen I say a patch of oil, it wasn't like you just poured some oil out of a can of motor oil, it wasn't that type of oil. It ... looked more like a dirty grease, greasy spot on the side of the engine walkway next to the inspection doors....

Erwin testified that the oil did not look slippery; rather, it was "kind of crusty looking ... [;] it was just a little place that looked like it had been there for a while and it wasn't fresh looking"; that the oil did not appear to be a slipping hazard; that the walkway had a nonskid surface; that there were no footprints in the oil spot and "no apparent marks of anybody slipping in this oil or grease"; and that he did not see oil on Gregory's clothing.

When asked on cross-examination whether "[i]t's a pretty serious no-no on the railroad to have oil on the walkway", Erwin replied: " ... I would say it depends on where the oil was...." He opined that the oil was not a BIA violation.7

Because there is "evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions", Boeing, 411 F.2d at 374, as to whether the oil constituted an unnecessary peril, that question should have been presented to the jury.

Gregory counters that the regulation referenced in the charge controls, but takes a position inconsistent with both the language used by the district court and the position Gregory took there. In the alternative, he asserts that the jury did find that the oil violated the Act.

Gregory does not defend the peremptory instruction on the ground that the evidence supported only a conclusion that the oil was an "unnecessary peril to life or limb". Instead, he maintains that he had only to prove that the oil violated regulations promulgated under the Act.8 MOPAC agrees that violation of such a regulation can be a violation of the BIA, but asserts that the regulations do not provide that the mere presence of oil on a walkway violates the Act.

The regulation MOPAC is said to have violated, as a matter of law, provides:

Floors of cabs, passageways, and compartments shall be kept free from oil, water, waste or any obstruction that creates a slipping, tripping or fire hazard. Floors shall be properly treated to provide secure flooring.

49 C.F.R. Sec. 229.119(c).9 According to Gregory, "whether something created a slipping, tripping, or fire hazard ... would be raised only if an injury resulted from 'any obstruction' not specifically listed in the regulation, i.e.--not from oil, water or waste". In district court, however, in opposition to MOPAC's new trial motion, Gregory interpreted the regulation as prohibiting "oil on a passageway that creates a hazard of tripping or slipping".10

As quoted supra, the peremptory instruction took a position contrary to Gregory's new found interpretation. It instructed that the BIA was violated if the "accumulation of oil ... present[ed] a hazard to slipping, falling or tripping", not that the mere presence of oil constituted a violation.11

Accordingly, the interpretation Gregory takes now raises an issue that we cannot consider. An appellee generally may urge in support of a judgment any matter appearing in the record, e.g., City of Safety Harbor v. Birchfield, 529 F.2d 1251, 1254 (5th Cir.1976), but that rule is not applicable here for the simple--and obvious--reason that this point was not raised in district court.12 Even more than that, as noted above, Gregory took the opposite position. Gregory cannot take one position before the district court and then take an inconsistent position here. See, e.g., Jett v. Zink, 474 F.2d 149, 154-55 (5th Cir.) (party who argued on first appeal that action was in personam was precluded from arguing on second appeal that the action was quasi in rem ), cert. denied, 414 U.S. 854, 94 S. Ct. 153, 38 L. Ed. 2d 104 (1973).

But, more important, for this challenge to the peremptory instruction, it is the language of the instruction that must control. And, in this regard, we agree with the district court's interpretation of the regulation.13

The regulation is not violated by the mere presence of any oil, water, or waste on a passageway; instead, the presence of such a substance is a violation only if it creates a slipping, tripping or fire hazard. To read the regulation otherwise is to impose an absurd result. For example, under Gregory's interpretation, the regulation would be violated every time a train operated in the rain.14 Obviously, such an interpretation is illogical. It goes without saying that, in construing a statute or regulation, we seek to avoid imposing such results. See, e.g., Forsyth v. Barr, 19 F.3d 1527, 1544 (5th Cir.1994); Brock v. City Oil Well Service Co., 795 F.2d 507, 510 (5th Cir.1986).

Moreover, Gregory's interpretation calls into question the validity of the rule. In enacting the BIA, Congress recognized that "[t]he operation of an engine, however equipped, involves some 'danger to life or limb.' " United States v. Baltimore & O.R. Co., 293 U.S. 454, 462, 55 S. Ct. 268, 272, 79 L. Ed. 587 (1935) (emphasis added). The BIA does not address all perils associated with locomotives, only "unnecessary" perils; it "conferred authority to prescribe by rule specific devices, or changes in the equipment, only where these are required to remove 'unnecessary peril to life or limb' ". Id. at 463, 55 S.Ct. at 272 (emphasis added). Rules promulgated under the BIA must be supported by a finding that the rule is necessary "to remove 'unnecessary peril to life or limb' ". Id.; see also Lilly v. Grand Trunk Western R. Co., 317 U.S. at 486, 63 S.Ct. at 351 (the railroad regulator "is broadly authorized to set the standards of compliance by prescribing rules and regulations by which fitness for service [of locomotives, tenders and their appurtenances] shall be determined, provided that ... the Commission finds such are required to remove unnecessary peril to life or limb") (brackets in original; internal quotation marks and citation omitted).

Gregory has not cited, nor have we located, any indication that the Secretary of Transportation has found that any amount of oil on a locomotive constitutes an unnecessary peril to life or limb. We decline to interpret the regulation in a manner that would call into question its validity.15

In the alternative, Gregory contends that the jury determined implicitly that the oil was a peril when it answered "yes" to the first interrogatory, which asked: "Do you find, from a preponderance of the evidence, that the oil on the walkway played any part, no matter how slight, in bringing about an injury to [Gregory]....?" Gregory asserts that "[t]he fact that the oil puddle was sufficient to cause someone to slip and fall makes it a peril under the [BIA]". Once again, Gregory takes a position inconsistent with the one he took at trial. There, he took the case to the jury basking in the warmth of a peremptory instruction: the oil was a violation of the BIA. This was the roadmap for the jury; one that Gregory was no doubt delighted with. Now Gregory wants to change the rules, and seeks shelter under a special interrogatory that simply asked whether the oil--which the jury was instructed was a violation of the BIA--had any causative effect for Gregory's injury. In no way was the jury asked to decide whether the oil constituted a peril, under the Act or through the regulation; just the opposite. Its operating mandate was that the oil was a violation.

In any event, the Ninth Circuit rejected a similar contention in Oglesby v. Southern Pacific Transp. Co., 6 F.3d 603 (9th Cir.1993). Oglesby injured his back when he attempted to replace an engineer's seat in a locomotive. Id. at 604. The district court instructed the jury that

[t]o establish a violation of the [BIA] it is not necessary to show any negligence on the part of the ... railroad and it is not necessary to show a mechanical defect. Proof of the failure of an appliance to work efficiently, when used in its customary and proper manner, fastens liability on the railroad without a specific defect. Plaintiff need only establish that on the occasion in question the item covered by the [BIA] did not work properly.

Id. at 610 (emphasis in original). The railroad contended that the instructions improperly allowed the jury to find a BIA violation without finding that a defect in the seat posed a safety hazard. Id. at 609-10. The Ninth Circuit agreed that the instructions "improperly allow the jury to find a violation of the BIA merely because the seat was not in a proper condition rather than because it was unsafe, as the statute requires". Id. at 610. It rejected Oglesby's assertion that a BIA violation was established by a mere showing that the seat did not work efficiently, noting that it had "found no case in which a violation [of the BIA] was established without a showing that the alleged defect created a safety hazard". Id. at 610.

In the alternative, Oglesby contended that any error in the jury instructions was harmless because in finding that the defective seat caused his injury, the jury must also have found that it was unsafe. Id. The Ninth Circuit disagreed, stating that "the alleged defects themselves must first be found to be unsafe in order to constitute a violation of the BIA. Only once this finding has been made is a BIA violation established and an inquiry into whether the defective seat was the proximate cause of the injury relevant". Id.

We agree. An inquiry whether the oil caused Gregory to slip and injure himself was not relevant unless the jury found first that the oil violated the BIA. Under proper instructions, the jury could have found that the oil did not constitute a safety hazard.

"[T]he seventh amendment preserves the right of parties to a jury trial unless there is 'no legally sufficient evidentiary basis for a reasonable jury to find for [the] party on th[e] issue' ". Lloyd v. Pendleton Land & Exploration, Inc., 22 F.3d 623, 626 (5th Cir.1994) (quoting Fed.R.Civ.P. 50(a)(1)). Viewing the evidence in the light most favorable to MOPAC, we conclude that it does not point so strongly and overwhelmingly in favor of Gregory that reasonable jurors could not find that the oil on the passageway did not present an unnecessary peril to life or limb. Accordingly, the jury should have been allowed to decide whether MOPAC violated the BIA. Therefore, we REVERSE the judgment and REMAND the case for a new trial.

REVERSED AND REMANDED.

The Boiler Inspection Act (BIA) was promulgated by Congress for the purpose of promoting safety for railroad employees and the public. Lilly v. Grand Trunk Western RR Co., 317 U.S. 481, 485, 63 S. Ct. 347, 350, 87 L. Ed. 411 (1943). Section 23 of the BIA makes it

... unlawful for any railroad to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such railroad without unnecessary peril to life or limb ...

45 U.S.C. Sec. 23. While recognizing this more general requirement, the Supreme Court and this Court have additionally made clear that violating any rules and regulations promulgated by the Department of Transportation will constitute more specific violations of the BIA. See Lilly, 317 U.S. at 488, 63 S.Ct. at 352; Givens v. Missouri-Kansas-Texas R. Co. of Texas, 195 F.2d 225, 228 (5th Cir.1952) (contrasting the instances where specific and definite violations of the BIA may occur, creating liability as a matter of law [much like specific and definite violations of the Safety Appliance Act], with the more general violations, creating jury issues). Lilly made clear that all Department of Transportation rules and regulations have the same force and authority as law. Lilly, 317 U.S. at 488, 63 S.Ct. at 352. Thus, a violation of a Department of Transportation regulation constitutes a violation of the BIA per se. See id.

Department of Transportation Regulation 43 C.F.R. Sec. 229.119(c) clearly states that the "[f]loors of cabs, passageways, and compartments shall be kept free from oil, water, waste or any obstruction that creates a slipping, tripping or fire hazard." 43 C.F.R. Sec. 229.119(c). Interpreting this regulation according to its plain meaning, the regulation prohibits the presence of the specific substances of oil, water, and waste and then goes on to make a more general prohibition of any other obstruction that creates a slipping, tripping, or fire hazard. See id. The undisputed evidence in this case establishes that there was an 18" by 8" conglomeration of oil on the passageway of the train when Mr. Gregory slipped. (R. III, 406-07). The presence of this oil violates the regulation, and in turn the BIA, on its face, thereby rendering the trial judge's instruction fully appropriate.

The majority holds Gregory's argument that the BIA combined with 49 C.F.R. Sec. 229.119 creates a strict duty on the part of railroads to keep their floors free of oil is an issue that the Court cannot consider. They reach this conclusion first on the basis that Gregory is estopped from making such an argument on the ground that he took an inconsistent position in the district court.1 Second, the majority presumes the district court was operating under the assumption that unnecessary peril to life or limb is an absolute prerequisite to any BIA violation. However, the fact that Gregory and the trial court may have referred to the hazard produced by the oil is not inconsistent with the position that violation of the Department of Transportation regulation results in strict liability under the BIA. Certainly, as the majority points out, a prime concern of the BIA was the prevention of unnecessary peril to the life and limb of its employees. This is precisely why Congress gave the Department of Transportation full legal authority to promulgate rules and regulations for the railroads. Additionally, this concern with personnel security is why Congress backed the Department of Transportation's authority with strict liability under the BIA. While strict liability statutes may be highly controversial, this Court and the Supreme Court have recognized their need and constitutionality. See, i.e., Gollust v. Mendell, 501 U.S. 115, 122, 111 S. Ct. 2173, 2178, 115 L. Ed. 2d 109 (1991); United States v. West of England Ship Owner's Mutual Protection & Indemnity Ass'n, 872 F.2d 1192, 1198 (5th Cir.1989). When Congress acts or authorizes such a strict liability statute for the protection of a specified group, it is the duty of this Court to support it in that decision.

Today the majority seeks to establish a defense where Congress intended there be none. As the majority recognizes, there is likely to be water and/or oil on trains due to a variety of reasons. Congress and the Department of Transportation also recognize this tendency through the BIA and Regulation 49 C.F.R. Sec. 229.119. They both also recognize that because of such conditions and the great dangers these conditions can present to railroad employees, the railroads have an absolute duty to either rectify such problems or cease operation of the train until such problems cease.

Accordingly, this dissent is respectfully tendered.