fact that the district judge gave instructions dealing with common law agency instead of instructions that were tailored to the feeler at the end of the trial both sides presented to the court instructions that were tailored to the field drawn primarily from bountiful brick in bountiful brecht the court case several criteria which involved home how long and under what circumstances a person remained within the scope of his employment after he was punched out after he was off the clock bottle brick was a worker's employed to perform we'll look at that phrase but it was not employed to commute to his home in the nevada he was employed to be a conductor so think it is and there are there's always going back to the most in case loud and and others even back further in history a reasonable time in distance going to and from work falls within  record from where the departure were you got on the train i don't know how many miles it was but it was about four hours i don't want to board the train shortly after midnight i'm not sure what time the train left further yesterday i think the question was to reno as long as he is either on call which he would have been available for calling another three hours or he is available to to handle an emergency as a train conductor then yes i think that there should not be an arbitrary limit of ten miles or twenty miles or one hundred miles as long as he is there to perform the work of his employer if a need arises least the jury should have been able to consider that yes yes i think so was that was there ever a request i don't have the entire record so i don't know the answer to this was there ever a request for a special verdict sense in what respect for our well people don't i mean why why should the railroad at all be responsible on a commuting theory for someone who's work station in salt lake city who goes home in quote to reno and then back to salt lake city i soon the same would be true in reverse that is when he gets on the next morning or the next i mean it's thirty six hours later in reno he's going to be on the employer's clock right until he gets to salt lake city i think that's the thrust of the cases and you know the one of the i don't see that that is i'm not quarreling with the notion that you had something to go to the jury but i'm just trying to the railroad he was doing that knowing that he would be available for service if they needed him and he was doing that if he needed to those things would be true if he had decided to go to miami  o play on south beach right i don't think so i think there's a distinction for people for employees who use a pass to go to their home because of the economic realities of the situation or it's the only practical way to get there and somebody who goes off to miami on a pleasure trip well he also said he chooses to live in nevada which is eight hundred some odd miles away from his duty station but there were other employees who did the same thing with the approval of the railroad is fairly connoted if you work on a railroad or an airplane or something like that if you going to live eight hundred miles away yet so you sure are because of the nature of the railroad business that south of the nature of air travel business itself there were at least the evidence of trial established there were at least three other conductors who did this just on the route between salt lake city and and the data and so i think  if you look at justice black's comments in one of the cases i can't remember which one right now he says this is a traditional aspect of being employed by the railroad i don't quarrel with that but the cases are like you know if you live in new york and you go into manhattan or you work in philadelphia or eight miles away from the tower where you work i mean there are all things that make sense i mean to the notion of  on the issue of the jury instruction at trial but you also have an issue about the common law negligence claim being dismissed exactly for trial and what i want to know relating to that was the boring case i don't believe it involved a commuting where about employee who was traveling to and from work and over doesn't it indicate that a person who travels on a free pass is presumed to know the conditions that that's my concern with that case that i don't it didn't seem to me like a very traditional application of assumption of risk doctoring but yet it's the supreme court in sitting there are a free pass given to a railroad employee makes him a passenger for hire instead of he's not a gratuitous traveller the way his wife who goes on a trip might be or if he's going on a vacation and using the free pass for that purpose how do you get around  the state of the law these cases are also now it's us supreme court law and in even if we might quarrel with its wisdom or its currency in today's world it is something we're in the new can take it up stairs and have them you know redo their own law and again i'm sorry your honor but i think the details of that case have escaped me as to whether he was within whether there was an argument that he was travelling on you know on a free pass an argument that did he know that about all right i will do that again in going back to the first issue if the trial judge had given either the battery instructions that had to do with feel or or if he'd given the new instruction the cac i instruction that dealt with that was more much broader and is in the alternative i think the jury could reasonably have concluded that because mr s a benefit on the railroad i mean after all this guy was a hero and he saved the railroad a lot of money and that is one of the aspects of his commute is to be available to render that light of the employer's business or the jobs for the employees job responsibilities to be in the place where he was when the d rail occurred and again it appears to me that this is a much broader expression jury instructions that would allow the jury to come to a totally different conclusion and so it is the instructional error that we really feel deprived mr sonner of his benefits under the  because it was so narrow it wiped out his rights i have a by the half minutes left thank you good morning my name is scott savage a representing amtrak or the apple e in this case the facts that bring us here today were never in dispute mr sattar reported for duty in salt lake city and went off duty in salt lake city he had to be on call to be available when called within two hours because of that he had a home in salt lake city a trailer in salt lake city and he had a trailer in carson city he kept horses in carson city had worked a trip conductors don't work shifts they work trip it worked a trip from salt lake city to grand junction came back from grand junction to salt lake city my recollection is the train was in about three am in the morning or shortly before then left about three am to proceed on true or reno here's the key threat mr sattar testified he was off duty not being paid twenty minutes after the train arrived in salt lake city and even morkie he then took his luggage off the train and put it in his truck that was parked in the parking lot at the station in salt lake city presumably at that point in time he would have finished his commute if we're looking at this is a commuter case by driving back to his trailer in salt lake city instead he decided to go check with the dispatcher and see how many days off he would have coming because he is on a rotation board and he has now finished the trip he goes from the top of the board to the bottom everybody above him has to be called and work or shift or trip before he gets called again or violates the collective bargaining agreement and therefore can tell by how many people are ahead of him about how many days off he's going to have he determined he had enough time off to go to his home in c  don't understand how the instructions came out the way the dia and crane it's bizarre because neither party wished often and and cathy if that's the way it's now pronounced i long i don't know any way to nine to six actually dresses itself up as a feel of instruction yes but it's not a feeler commuter instruction i think it is more clearly  eight a vicarious liability type instruction out of the restatement without giving its attendant factors instruction which is the most restrictive possible of scope of employment to apply to an act for the law says it's supposed to be liberally construed in response to your your question the court at the in ruling on the summary judgment denying us or summary judgment on scope of employment i indicated to the parties that he was inclined to follow bountiful brick for jury instructions and invited the parties to reconsider the instructions they had previously submitted and each tailor a bountiful brick construction in both parties did that bountiful brick in my view never was a relevant case number one bountiful brick is not an  it's a workman's comp case number two the issue in bountiful brick wasn't scope of employment in the sense of what you were doing it's a scope of employment that is it's a famous case for extending the all three of the facts ok ok that's that's that's true but and are under it also would you know is it is it reasonably related to the kinds of task he was sleeping on his way to leisure activity at the time this happened he was i didn't finish on the facts but that follows with the instruction he decides every has that extra time he goes and gets his luggage puts it back on the train goes in a sleeping car and goes to sleep now two very important factors also it was illegal for him to work as a matter of federal law he has to have paid our stress they could not call him back out to work if there was an emergency or for any other reason there was testimony in the case  one occasion that have happened and a union grievance had been filed because it also violates the union contract to call somebody out who's now at the bottom of the list and that grievance was still pending at the time of trial so it was illegal as a matter of contract law illegal as a matter federal law for him to be called back into service and he was on his way to several days off at a place of his choice and his employer didn't even know he was on the train so what under that context or  even the cac instruction recently related to the kinds of tasks an employee was hired to perform you know he was sleeping on his way to leisure activity reasonably foreseeable my employer's business or the employees job responsible he testified he never slept on the instruction was proper the instruction after all i mean we're talking about scope of employment and the judge gives verbatim a statement from the reader from the restatement of the yes but without the attendan drafted was much more research if well and and really that was following the cases if you looked in brief there's eight or ten cases there is not a single commuter case under  the employee was women found within the scope of his employment and several of them are as a matter of law the employee simply not within the scope of his employment while commuting unless the employer tells him that's the means he has to use or it's otherwise reasonably necessary and incidental to his employment which i think is what they're arguing but if you take an instruction from the actual language of the cases on f l a commuter's which khaki does not do or even come close to you get the instruction that i presented to the judge when we withdrew our bountiful burke instruction and he declined to give that one declined to give they had about ten or eleven instructions by then and went to the restatement of agency and came up with his own i think that a i think the instruction is appropriate i think under any instruction the plaintiff loses and scope of employment in this case and i think as a matter of law he was not within the scope of his employer he was on his way to be five six seven hundred miles from his place of employment when he asked to be on call in two hours he would have to it some point in time well in advance when he would be called back return to his home in salt lake city so he would be available to be their employment they found that it was an exception to the free pass for them to have been commuting and it was not free because it was part of their employment was part of employment they were within the scope of their employment and they would have been covered by feel so the assassin and metropolitan cold cases are the only ones that support the plaintiffs position and even they don't support planes physician on any of the commute being covered by feel or there are no cases where a commute was covered by feeling the plaintiffs are citing cases such as a mosque in or they're at a work camp whether the employer requires them to stay at a work camp it's a remote site there on steel gangs and there are several cases actually apply bountiful berkeley pay lip service to it and say if the employee is traversing the property or even traversing adjacent property to get to his place to work he would be covered but if they're commuting there are no cases that  think wrap that up the i don't think it or any instruction what he was doing would have fallen within the scope of employment and the any reasonable instruction and the khaki when i find to be very brief and very  holding specifically the supreme court of history on the same areas is quite expensive one thousand know for the adams case a lawyer not employed fell off the train writing on a free pass court held at the exculpatory clause and the free pass it was binding that he had accepted the free pass in return for green not to claim any negligence in the event it occurred the next case the again the free pass she never saw she never saw the ticket it was always in her husband's possession she had no knowledge of the exculpatory language that the pass was given in exchange for an agreement never to sue in the event of negligence she was injured the us supreme court said it didn't matter the duty is on the person who has the privilege rights of free pass for free to find out the provisions and that's what the trial judge turned upon in deciding summary judgment in our favor on the common law claim that case was followed by charleston versus thompson all over one of the homes in that case the argument was made the same one as in  they said but it's not really for free because it's part of the employment and it's a perk it's part of the employment package as to an employer this was an employee case just as holmes said no  even if it has something to do with the motivation of the person who goes to work it is not a conventional type of remuneration in return for the services they don't have to do anything more if they get it they don't have do anything less if they turn it down the employer can ticket and somebody has the ticket pretty easy it's one thing they say they're bound by it if they don't have any knowledge of it it's a little different and boring seems to say even though the wife didn't have any congressmen were getting offered these free passes and maybe some got better passes and others but they decided to pass legislation outlawing the giving of free passes to anybody other than employees family and interestingly enough drovers of livestock they get free passes as part of the the fair for the livestock so you have somebody to take care of the animals on the train but in after act they have burnett did not address anything wrong with these exculpatory provisions and not address borings decision by trying to change the law and then you had van sant where the state where the accident occurred at outlawed these kinds of exposure to tory clauses you could not agree it was against public policy to agree in advance to not sue somebody for negligence that hadn't occurred yet it was also outlawed in the state where the trip began and the state where the boring but does it involve upholding this type of condition against a person who wasn't aware of it doesn't say one way or the other it doesn't really address that as far as i know only boring addresses that issue well there's a lower court case we may well come to a different conclusion but the the fact of the supreme court thore has been so long and so clear and the fact that congress has had two chances to change it and didn't do so made justice douglas feel compelled i just as black wrote a scathing dissent and i think there were two other justices who join in but francis is the law of the land these these clauses are are still valid and nothing has changed boring not pick up the ticket yeah they all have these passes they all know they have the passes and if they're not taking a pain passenger seat they can just get on having gone to the taken officers and noticed posted there saying you write this  on condition you waive any negligence it's posted in the ticket office it came with the past so on the website it was not he did not get the tickets he did and it's not written on the past itself it's on the materials that how do they expect people to get well he had a truck and i think they expected him to use his truck to go back to his place in salt lake city or drive it to reno if he wants he could get there faster in his truck than on the train but you obviously want to sleep and uses free i think i take issue with the notion that that the plaintiff knew or had knowledge of the exculpatory clause that supposedly was attached to this past because the trial  recall the railroad admitted that it didn't know whether this material was ever given to the bank that i think on this record we have i thought we have to assume that he did not know on this record i agree boring boring at least if it's good law well the why it's you know it was making the claim that her husband got the conditions and i thought the supreme court said she didn't know anything about the conditions but it was a bailable to her on the ticket and i think that's the distinction you know if she just had husband i'll carry my own ticket would have been available to her here the plaintiff had no idea about this exculpatory clause because that material had never been provided to him and i think that's the distinction between this case and boring because without knowledge of a condition how are you supposed to know that you're supposed to ferret out something that you don't know and i think that's the distinction again between this and i think the hard dr doctrinal area knowledge no notice i've actually read the case and i'm sorry i could be wrong on that but i think that returning to the first issue off duty simply in fewer cases just not mean with out that you're outside the scope of employment the fact that he took his luggage off the train and then returned it i think is irrelevant because according to the record he took the luggage off the train because these the train was not secured and things happen to go missing  and the other point i would make is that yes he could have been called into this into service while on that commute in case of an emergency so record firmly establishes that in an emergency all rules are suspended you are expected to go into service the other thing he could have driven to his home in in the reno area i think not because he just come off a twelve hour shift getting into a truck and making that drive really doesn't make sense when the railroad encouraged encourages their employees and gives them a free pass and so on and says you know ride ride it well i would hope that the court would find that this jury instruction