Kuhnel v. BNSF Railway Co.

Decisions of the Nebraska Court of Appeals
884 20 NEBRASKA APPELLATE REPORTS
have rehabilitated the testimony of Tiffany, Nancy, and Stacy
which had been impeached. The record on appeal is not suf-
ficient to review this claim, because it does not indicate why
the proposed additional witnesses were not included on the
original witness list, nor does the record disclose trial counsel’s
strategy in trial preparation.
V. CONCLUSION
We find that there was sufficient evidence to sustain the
convictions on all four counts. It was not an abuse of discretion
for the trial court to determine that evidence of prior sexual
assaults by Kelly against K.K. was inextricably intertwined
with the charged offenses and deny Kelly’s request for a rule
414 hearing. We conclude that the record is not sufficient to
review the grounds for Kelly’s ineffective assistance of coun-
sel claims.
Affirmed.
Edwin H. Kuhnel, appellant, v.
BNSF R ailway Company,
a corporation, appellee.
___ N.W.2d ___
Filed June 25, 2013. No. A-12-296.
1. Jury Instructions: Judgments: Appeal and Error. Whether jury instructions
given by a trial court are correct is a question of law. When dispositive issues on
appeal present questions of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the court below.
2. Appeal and Error. Plain error may be asserted for the first time on appeal or be
noted by an appellate court on its own motion.
3. Appeal and Error: Words and Phrases. Plain error exists where there is an
error, plainly evident from the record but not complained of at trial, which preju-
dicially affects a substantial right of a litigant and is of such a nature that to leave
it uncorrected would cause a miscarriage of justice or result in damage to the
integrity, reputation, and fairness of the judicial process.
4. Jury Instructions: Pleadings: Evidence. A trial court, whether requested to do
so or not, has a duty to instruct the jury on issues presented by the pleadings and
the evidence.
5. Jury Instructions: Appeal and Error. All the jury instructions must be read
together, and if, taken as a whole, they correctly state the law, are not misleading,
Decisions of the Nebraska Court of Appeals
KUHNEL v. BNSF RAILWAY CO. 885
Cite as 20 Neb. Ct. App. 884and adequately cover issues supported by the pleadings and the evidence, there is
no prejudicial error necessitating reversal.
6. Federal Acts: Railroads: Claims: Courts. In disposing of a claim controlled
by the Federal Employers’ Liability Act, a state court may use procedural rules
applicable to civil actions in the state court unless otherwise directed by the act,
but substantive issues concerning a claim under the act are determined by the
provisions of the act and interpretive decisions of the federal courts construing
the act.
7. Railroads: Employer and Employee. A railroad has a nondelegable duty to
provide its employees with a reasonably safe place to work.
8. Federal Acts: Railroads: Employer and Employee. Although not explicitly
stated in the statutes, a railroad’s duty to use reasonable care in furnishing
employees a safe place to work has become an integral part of the Federal
Employers’ Liability Act.
9. Verdicts: Juries: Presumptions: Words and Phrases: Appeal and Error. The
“general verdict” rule, which is also referred to as the “two issue” rule, is a policy
rule which provides that where a general verdict is returned for one of the parties,
and the mental processes of the jury are not tested by special interrogatories to
indicate which issue was determinative of the verdict, it will be presumed that all
issues were resolved in favor of the prevailing party, and, where a single determi-
native issue has been presented to the jury free from error, any error in presenting
another issue will be disregarded.
Appeal from the District Court for Scotts Bluff County:
Randall L. Lippstreu, Judge. Reversed and remanded for a
new trial.
Michael J. Wilson, of Schaefer Shapiro, L.L.P., and James L.
Cox, of Brent Coon & Associates, for appellant.
Nichole S. Bogen and Thomas C. Sattler, of Sattler &
Bogen, L.L.P., for appellee.
Inbody, Chief Judge, and Sievers and Riedmann, Judges.
Inbody, Chief Judge.
INTRODUCTION
Edwin H. Kuhnel appeals from a jury verdict in favor of
BNSF Railway Company (BNSF) on his claim of a workplace
injury under the Federal Employers’ Liability Act (FELA) and
the subsequent denial of his motion for a new trial on the basis
that the jury was not instructed properly. On appeal, Kuhnel
contends that the district court erred in failing to instruct
Decisions of the Nebraska Court of Appeals
886 20 NEBRASKA APPELLATE REPORTS
the jury on BNSF’s duty to provide a reasonably safe place
to work.
STATEMENT OF FACTS
In July 2009, Kuhnel filed a complaint against BNSF pursu-
ant to FELA, alleging that he injured his lower back when he
was thrown against a locomotive cab seat during the recoupling
of train cars. Kuhnel claimed that his injuries were caused, in
whole or in part, by BNSF’s negligent breach of its duty to
exercise ordinary care to provide its employees with a rea-
sonably safe place to work, in, among other things, failing to
properly train engineers regarding the operation of distributive
power; failing to provide an accurate car count to guard against
hard coupling of train cars; failing to comply with specific
federal regulations; and failing to comply with BNSF’s own
operating rules, safety rules, train handling rules, and gen-
eral code of operating rules. A jury trial was held. During the
jury instruction conference, both Kuhnel and BNSF tendered
several jury instructions and proposed jury verdict forms to
the district court and BNSF tendered requested verdict inter-
rogatories. Among the instructions tendered by Kuhnel was the
following instruction:
PLAINTIFF’S TENDERED
INSTRUCTION NO. 5
At the time and place in question, [BNSF] had a con-
tinuing duty as an employer to use ordinary care under
the circumstances in furnishing . . . Kuhnel . . . with
a reasonably safe place in which to work. It was also
[BNSF’s] continuing duty to use ordinary care under the
circumstances to maintain and keep such place of work in
a reasonably safe condition.
This does not mean that [BNSF] is a guarantor or
insurer of the safety of the place to work. The extent of
[BNSF’s] duty is to exercise ordinary care under the cir-
cumstances to see that the place in which the work is to
be performed is reasonably safe under the circumstances
shown by the evidence in the case.
[BNSF’s] duty to provide a safe place to work may
not be delegated to a third party. [BNSF] has a duty to
Decisions of the Nebraska Court of Appeals
KUHNEL v. BNSF RAILWAY CO. 887
Cite as 20 Neb. Ct. App. 884provide a safe place to work even when an employee’s
duties require the employee to enter property or use
equipment owned or controlled by a third party.
[BNSF’s] duty includes the responsibility to inspect the
premises where [its] employees will be working and their
equipment. [BNSF] must take reasonable precautions to
protect its employees from possible danger whether on
[its] own premises or on the premises of third parties
where [its] employees are required to work.
During the conference, the court stated that “both parties
have filed proposed instructions and the court will make a
finding that those will not be given so . . . if you think an
additional record is necessary that’s fine.” Although Kuhnel’s
attorney did state objections to the jury instructions both
before and after the court’s aforementioned comments, he
did not make any objections related to the instructions as
to BNSF’s duty as an employer to provide Kuhnel with
a reasonably safe place to work. At the conclusion of the
jury instruction conference, the court overruled all objections
raised by both parties and refused all instructions tendered by
both Kuhnel and BNSF, noting that “both parties . . . have
filed tendered instructions [and] all tendered jury instruc-
tions will not be given, right or wrong.” Instead, the court
adopted its own instructions which it gave the jury, including
the following:
INSTRUCTION NO. 2
I. CLAIMS OF THE PARTIES
A. Plaintiff’s Complaint
....
. . . Kuhnel further claims that his injuries were caused,
in whole or in part, by BNSF’s negligence, as follows:
a. Failing to provide Kuhnel with a reasonably safe
place to work[.]
....
C. BNSF’s Affirmative Defenses
BNSF claims that Kuhnel’s injuries were caused, in
whole or in part, by his own negligence as follows:
a. Failing to exercise reasonable care; and
b. Failing to maintain a proper lookout; and
Decisions of the Nebraska Court of Appeals
888 20 NEBRASKA APPELLATE REPORTS
c. Failing to utilize reasonable precautions for his own
safety; and
d. Failing to be alert and anticipate train move-
ments; and
e. Failing to employ safe work habits and procedures.
....
The claims of the parties are only allegations. Except
for admissions, the claims frame the issues you will
decide by your verdict, but they are not to be regarded as
evidence in the case.
II. BURDENS OF PROOF
A. Plaintiff’s Burden of Proof (Negligence)
Before Kuhnel can recover against BNSF he must
prove, by the greater weight of the evidence, all of the
following:
1. That at the time of the alleged accident Kuhnel was
working in the course and scope of his employment by
BNSF; and
2. That BNSF was negligent in one or more of the
ways claimed by Kuhnel; and
3. That BNSF’s negligence was a cause, in whole or in
part, to some damage to Kuhnel; and
4. The nature and extent of Kuhnel’s damages.
....
III. EFFECT OF FINDINGS
1. If you find that Kuhnel failed to meet his burden
of proof, then your verdict must be for BNSF on Verdict
Form No. 1, and you will NOT complete any of the other
verdict forms.
2. If you find that Kuhnel has met his burden of
proof and that BNSF has not established its claim that
Kuhnel was also negligent, then your verdict must be for
Kuhnel and using these instructions you must determine
the amount of damages suffered by Kuhnel and complete
only Verdict Form [No.] 2.
3. If you find that both Kuhnel and BNSF have met
their respective burdens of proof regarding negligence
and contributory negligence, then you must determine
Decisions of the Nebraska Court of Appeals
KUHNEL v. BNSF RAILWAY CO. 889
Cite as 20 Neb. Ct. App. 884to what extent Kuhnel’s negligence and BNSF’s negli-
gence contributed to Kuhnel’s damages, expressed as
a percentage of 100 percent. You will first determine
Kuhnel’s total damages in accordance with Instruction
No. 3 without regard to Kuhnel’s own negligence. You
will then reduce those damages by the percentage of
Kuhnel’s own negligence. For example, if Kuhnel’s total
damages were $100.00 and Kuhnel’s percent of the total
negligence was 25%, you would reduce his damages by
25% of $100.00, or $25.00. You will do all of this by
completing only Verdict Form No. 3.
During deliberations, the jury submitted a question to the
court which stated: “Can the lack of a rule or rules address-
ing standing in the cab of a locomotive while coupling
operations are taking place be considered negligence on the
part of BNSF[?]” The court’s response stated: “You must
decide the case on the court’s written instructions and the
evidence received during trial.” The jury returned a verdict
for BNSF, using verdict form No. 1, finding that Kuhnel had
not met his burden of proof. Kuhnel filed a motion for a new
trial, alleging that none of the jury instructions given by the
court properly addressed BNSF’s duty of care under FELA
to provide a safe place to work and that the omission erro-
neously left the jury without guidance as to BNSF’s duty of
care. Kuhnel’s motion for a new trial also alleged that he had
tendered a proposed jury instruction relating to BNSF’s duty
under FELA and that the court had declined to so instruct
the jury.
On March 16, 2012, citing the same portions of jury
instruction No. 2 as quoted above, the district court overruled
Kuhnel’s motion for a new trial. The court concluded that
although “Kuhnel’s suggested jury instruction is well taken
. . . the instructions given to the jury, taken as a whole, suf-
ficiently instructed the jury on the law of the case and did
not prejudice [Kuhnel].” The court concluded that its instruc-
tions “included the substance of Kuhnel’s requested instruc-
tion regarding BNSF’s duty to provide a reasonably safe place
to work.”
Decisions of the Nebraska Court of Appeals
890 20 NEBRASKA APPELLATE REPORTS
ASSIGNMENT OF ERROR
Kuhnel contends that the district court committed reversible
error when it failed to instruct the jury on BNSF’s duty to pro-
vide a reasonably safe place to work.
STANDARD OF REVIEW
[1] Whether jury instructions given by a trial court are cor-
rect is a question of law. State v. Payne-McCoy, 284 Neb.
302, 818 N.W.2d 608 (2012); State v. Nolan, 283 Neb. 50,
807 N.W.2d 520 (2012). When dispositive issues on appeal
pre­ent questions of law, an appellate court has an obligation
s
to reach an independent conclusion irrespective of the deci-
sion of the court below. State v. Payne-McCoy, supra; State v.
Nolan, supra.
ANALYSIS
Kuhnel contends that the district court committed revers-
ible error when it failed to instruct the jury on BNSF’s duty
to provide a reasonably safe place to work. However, because
Kuhnel did not object to the jury instructions based upon a
failure to instruct the jury on BNSF’s duty to provide a rea-
sonably safe place to work, our review of the jury instruc-
tions is limited to plain error review. See Tolliver v. Visiting
Nurse Assn., 278 Neb. 532, 771 N.W.2d 908 (2009) (failure to
object to jury instruction after it has been submitted to coun-
sel for review precludes raising objection on appeal absent
plain error).
[2,3] Plain error may be asserted for the first time on appeal
or be noted by an appellate court on its own motion. Worth v.
Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007); Centurion
Stone of Nebraska v. Trombino, 19 Neb. Ct. App. 643, 812 N.W.2d
303 (2012). Plain error exists where there is an error, plainly
evident from the record but not complained of at trial, which
prejudicially affects a substantial right of a litigant and is of
such a nature that to leave it uncorrected would cause a miscar-
riage of justice or result in damage to the integrity, reputation,
and fairness of the judicial process. Worth v. Kolbeck, supra;
Centurion Stone of Nebraska v. Trombino, supra.
[4,5] In considering whether plain error exists in the instant
case, we are cognizant of the requirement that the trial court,
Decisions of the Nebraska Court of Appeals
KUHNEL v. BNSF RAILWAY CO. 891
Cite as 20 Neb. Ct. App. 884whether requested to do so or not, has a duty to instruct
the jury on issues presented by the pleadings and the evi-
dence. Centurion Stone of Nebraska v. Trombino, supra. See,
Nguyen v. Rezac, 256 Neb. 458, 590 N.W.2d 375 (1999); Sand
Livestock Sys. v. Svoboda, 17 Neb. Ct. App. 28, 756 N.W.2d 299(2008). In our review, we must read all the jury instructions
together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover issues supported by
the pleadings and the evidence, there is no prejudicial error
necessitating reversal. Nguyen v. Rezac, supra. See Centurion
Stone of Nebraska v. Trombino, supra.
[6-8] In considering whether the jury instructions as given
by the trial court in the instant case were adequate, we look to
the substantive federal law—FELA—which formed the basis
of Kuhnel’s lawsuit. In disposing of a claim controlled by
FELA, a state court may use procedural rules applicable to
civil actions in the state court unless otherwise directed by the
act, but substantive issues concerning a claim under FELA are
determined by the provisions of the act and interpretive deci-
sions of the federal courts construing FELA. Ballard v. Union
Pacific RR. Co., 279 Neb. 638, 781 N.W.2d 47 (2010). “‘A
railroad has a non-delegable duty to provide its employees with
a reasonably safe place to work.’” Deviney v. Union Pacific
RR. Co., 18 Neb. Ct. App. 134, 138-39, 776 N.W.2d 21, 26 (2009),
quoting Pehowic v. Erie Lackawanna Railroad Company, 430
F.2d 697 (3d Cir. 1970). Although not explicitly stated in the
statutes, the railroad’s duty to use reasonable care in furnishing
employees a safe place to work has become “an integral part”
of FELA. Ragsdell v. Southern Pacific Transp. Co., 688 F.2d
1281, 1283 (9th Cir. 1982).
The jury instructions given by the district court set forth that
Kuhnel claimed that BNSF was negligent, inter alia, for failing
to provide him with a reasonably safe place to work, and the
jury instructions specifically informed the jury that the claims
of the parties were only allegations and were not to be regarded
as evidence in the case. Rather than properly instructing the
jury that BNSF had a nondelegable duty under federal law to
provide Kuhnel with a reasonably safe place to work, the jury
instructions as given erroneously left it up to the jury to decide,
Decisions of the Nebraska Court of Appeals
892 20 NEBRASKA APPELLATE REPORTS
as a factual determination, whether BNSF had a duty to pro-
vide a reasonably safe place to work.
A similar situation was considered by the Seventh Circuit
in Schmitz v. Canadian Pacific Ry. Co., 454 F.3d 678 (7th
Cir. 2006). In Schmitz, a railroad worker who was walking
alongside the railroad tracks late at night inspecting his train’s
brakes with a lantern was injured when he stepped into a hole
obscured by vegetation. The worker sued under FELA, alleg-
ing that the railroad negligently allowed trackside vegetation to
grow so tall that he could not see the hole. A federal regula-
tion imposed a duty on the railroad to control vegetation, and,
although the trial judge agreed during the jury instruction
conference to give an instruction on the duty created by the
regulation, the reference to the duty was removed before the
court instructed the jury. The Seventh Circuit found that by
failing to instruct the jury on the federal regulation, the trial
court erroneously left it up to the jury to decide whether the
railroad had a duty to keep the vegetation trimmed, when the
question had already been answered affirmatively by federal
regulation. The court noted that “there is a world of difference
between telling the jury that [the plaintiff] alleged the railroad
should have taken a particular precaution and telling the jury
that the federal law required the railroad to take that very
precaution.” Schmitz v. Canadian Pacific Ry. Co., 454 F.3d at
684 (emphasis in original). The Seventh Circuit found that the
jury’s role should have been limited to deciding whether the
railroad violated the regulation and whether the violation was a
cause of the plaintiff’s injury and that the plaintiff’s case was
prejudiced by the court’s withdrawal of the instruction on the
federal regulation, requiring that the case be remanded for a
new trial on liability.
Like the situation in Schmitz v. Canadian Pacific Ry. Co.,
supra, the jury instruction given in the instant case erroneously
left it up to the jury to decide whether BNSF had a duty to
provide Kuhnel with a reasonably safe place to work. Because
FELA already answered that question affirmatively—BNSF
had the duty to provide a reasonably safe workplace—the jury
instructions, as given by the district court, did not correctly
state the law. By submitting the question of whether BNSF had
Decisions of the Nebraska Court of Appeals
KUHNEL v. BNSF RAILWAY CO. 893
Cite as 20 Neb. Ct. App. 884a duty to provide a safe work environment for its employees, a
legal issue that was controlled by federal law, the district court
erroneously turned this legal issue into a threshold question
of fact for the jury, resulting in prejudice to Kuhnel. Despite
this, BNSF contends that this court may ignore the error com-
mitted by the district court when it failed to instruct the jury
as to BNSF’s duty to provide a reasonably safe place to work,
because of the “general verdict” rule announced in Lahm v.
Burlington Northern RR. Co., 6 Neb. Ct. App. 182, 571 N.W.2d
126 (1997).
[9] A general verdict by a jury “pronounce[s], generally,
upon all or any of the issues either in favor of the plaintiff or
defendant.” Neb. Rev. Stat. § 25-1122 (Reissue 2008). The
“general verdict” rule, which is also referred to as the “two
issue” rule, is a policy rule which provides that where a gen-
eral verdict is returned for one of the parties, and the mental
processes of the jury are not tested by special interrogatories
to indicate which issue was determinative of the verdict, it
will be presumed that all issues were resolved in favor of the
prevailing party, and, where a single determinative issue has
been presented to the jury free from error, any error in present-
ing another issue will be disregarded. See Lahm v. Burlington
Northern RR. Co., supra.
This court applied the “general verdict” rule in Lahm v.
Burlington Northern RR. Co., supra, wherein we considered
whether a general verdict returned by a jury could stand
where one issue was submitted to the jury without error and
where another issue may have been submitted upon errone-
ous instructions. In Lahm, the jury was instructed on both the
merits of the plaintiff’s FELA claim and the statute of limita-
tions. The defendant railroad requested a special verdict form
requiring the jury to answer whether the action violated the
statute of limitations, but the plaintiff resisted and the trial
court ultimately gave the jury only a general verdict form.
The jury delivered a general verdict in favor of the defendant.
We found that in a case such as Lahm, where the defendant
had specifically requested a special verdict form, which was
resisted by the plaintiff, application of the “general verdict”
rule was appropriate. We upheld the jury’s verdict in favor of
Decisions of the Nebraska Court of Appeals
894 20 NEBRASKA APPELLATE REPORTS
the defendant on the basis that the statute of limitations issue
had been properly submitted to the jury free from error and
there was sufficient evidence to support a finding in favor of
the defendant on that determinative issue.
Unlike Lahm v. Burlington Northern RR. Co., supra, in
which the “general verdict” rule was applied where the case
had been submitted to the jury on two independent alternatives
upon which the jury could have based its decision (FELA and
the statute of limitations) and a single determinative issue had
been properly presented to the jury free from error, the instant
case has a substantial, and crucial, difference. In the instant
case, the case was submitted to the jury on Kuhnel’s negligence
claim against BNSF, which could be proved in one or more dif-
ferent ways, and BNSF’s affirmative defense that Kuhnel was
contributorily negligent, which also could be proved in one or
more different ways. However, the jury never reached BNSF’s
affirmative defense, as evidenced by its return of verdict form
No. 1 finding that Kuhnel had not met his burden of proof.
Since the only issue upon which the jury could have reached its
verdict was Kuhnel’s claim of negligence, upon which it was
erroneously instructed, there was no independent issue, free
from error, upon which the jury could have reached its deci-
sion. Therefore, the “general verdict” rule is not applicable to
the instant case.
CONCLUSION
Having viewed the jury instructions given as a whole,
we find that the district court’s failure to instruct the jury of
BNSF’s duty to provide a safe place to work prejudiced Kuhnel
because the jury was required to decide whether BNSF had a
duty to provide a safe place to work, rather than being limited
to the factual questions of whether BNSF violated its duty to
provide a safe place to work and whether the violation resulted
in Kuhnel’s injury. Because of this failure and the resulting
prejudice, we reverse the jury verdict in favor of BNSF and
remand the cause for a new trial.
R eversed and remanded for a new trial.