UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JUAN OSTEGUIN,

Plaintiff - Appellant,

v. No. 96-1473

SOUTHERN PACIFIC

TRANSPORTATION COMPANY,

a corporation,

Defendant - Appellee.

ORDER

Filed May 21, 1998

Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.

Appellee’s motion to publish the order and judgment filed on February 11,

1998, is granted. The published opinion is attached to this order.

Entered for the Court

Patrick Fisher

 Clerk
F I L E D

United States Court of Appeals

Tenth Circuit

FEB 11 1998

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JUAN OSTEGUIN,

Plaintiff - Appellant,

v. No. 96-1473

SOUTHERN PACIFIC

TRANSPORTATION COMPANY,

a corporation,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 95-WY-617-AJ)

Norman R. Mueller, Haddon, Morgan & Foreman, P.C., Denver, Colorado

(Rachel A. Bellis, Haddon, Morgan & Foreman, P.C., Denver, Colorado, and

Marc J. Kaplan, Rossi, Cox, Kiker & Inderwish, P.C., Aurora, Colorado, with him

on the briefs), for Appellant.

Steven E. Napper (Robert N. Belt with him on the briefs), Southern Pacific

Transportation Company, Denver, Colorado, for Appellee.

Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.

ANDERSON, Circuit Judge.
1The “deck” of the locomotive is essentially the oil pan, and is sometimes referred

to as a “sump” or “plate.” Appellee’s Answer Br. at 2 & n.1.

2At trial, Osteguin testified that he did not remember how he burned his foot, but

that it is impossible to wash the deck without getting water on your feet. Trial Tr. Vol. I,

Tab 3 at 6-7, 15-16. Pablo Mascarenas, the chairman of Osteguin’s local union, testified

in his deposition that Osteguin told him he was washing a part and got distracted, and the

wand came right over his boot. Trial Tr. Vol. II, Tab 16 at 8, 12. 

-2-

Juan Osteguin, a railroad worker employed by Southern Pacific

Transportation Company (“the railroad”), appeals from the district court’s order

denying him a new trial on his claims against the railroad under the Federal

Employers’ Liability Act (“the Act”), 45 U.S.C. §§ 51-60, for injuries he suffered

in two separate incidents while an employee of the railroad. We affirm.

BACKGROUND

On April 3, 1992, Osteguin was working as a laborer in the railroad’s

Denver repair facility, cleaning the decks of locomotives after the engine had

been removed. To clean the deck,1

 Osteguin would step down into it, shovel

debris and sludge into buckets, and carry the waste to a dumpster; then, he would

wash the deck with hot pressurized water using a “hotsy,” a manually-operated

wand much like that used in a self-service car wash. While using a hotsy and

wearing only leather work boots rather than rubber boots or booties, Osteguin

severely burned his left foot.2 Osteguin asserts that he reacted to this injury by

“jerking backwards” and thus injured his back as well.
3Although the railroad did provide rubber booties to employees cleaning the

locomotive decks, Osteguin asserts that none would fit over his size 12 boots. 

Appellant’s Br. at 5, 28.

-3-

After a recovery period, Osteguin was cleared for light duty and returned to

work. Because no light duty was available at the repair facility, he returned to his

job as a laborer. Then, on November 16, 1993, Osteguin suffered a second injury,

again while cleaning the deck of a locomotive but this time wearing rubber boots. 

As he attempted to unclog the deck’s drain prior to washing the deck, Osteguin

slipped and fell, re-injuring his back. Although he returned to work for a short

period after the accident, Osteguin now asserts that his medical condition

prevents him from continuing in his job as a laborer.

Mr. Osteguin brought an action against the railroad under the Act, asserting

that the railroad negligently caused the 1992 injury by failing to provide him with

protective footwear such as rubber boots or booties,

3

 and negligently caused the

1993 injury by failing to provide reasonably safe working conditions for the job

of washing the locomotive deck. In response, the railroad raised the affirmative

defense of contributory negligence and argued that Osteguin’s own inattention

caused his 1992 injury. As to the 1993 injury, the railroad admitted that the job

of cleaning the locomotive deck was dangerous but asserted there was no better

way to perform the job, and alleged that Osteguin’s own inattention and failure to

work in a careful manner caused the injury.
-4-

The case was tried to a jury, and, at the close of all evidence, Osteguin

moved for judgment as a matter of law on the affirmative defense of contributory

negligence as to the 1993 incident and also objected to the jury being instructed

on that defense as to the 1993 injury, arguing that the railroad had provided

insufficient evidence to justify submitting the issue to the jury. The district court

denied the motion and overruled Osteguin’s objection. The court also rejected

Osteguin’s proposed jury instructions regarding assumption of the risk and

negligent job assignment.

Thereafter, the jury returned a verdict on a special verdict form, a copy of

which is attached hereto. The jury found that the railroad was not negligent in

either the 1992 or the 1993 incident, and answered no questions on the verdict

form concerning causation or contributory negligence. After the jury returned its

verdict, Osteguin moved for a new trial pursuant to Fed. R. Civ. P. 59, which the

district court denied in September 1996. Osteguin filed a timely notice of appeal. 

On appeal, Osteguin asserts that the district court committed reversible

error in (1) instructing the jury on the issue of contributory negligence as to the

1993 incident; (2) refusing Osteguin’s tendered instruction that assumption of risk

is not a defense in FELA cases; (3) admitting the hearsay opinion of a

nontestifying witness in the guise of expert testimony regarding the interpretation

of MRI films of Osteguin’s injury; and (4) refusing Osteguin’s tendered
-5-

instruction that the railroad knew or should have known that its work assignment

of Osteguin exposed him to an unreasonable risk of harm.

DISCUSSION

The district court’s decision on a new trial motion is reviewed under an

abuse of discretion standard. Weese v. Schukman, 98 F.3d 542, 549 (10th Cir.

1996) (noting, however, that “when the district court’s decision [on a new trial

motion] turns on an issue of law, we review the district court’s determination on

that question de novo”). We review decisions to admit or exclude evidence for

abuse of discretion. K-B Trucking Co. v. Riss Int’l Corp., 763 F.2d 1148, 1155

(10th Cir. 1985). We also review a district court’s decision to give a particular

jury instruction for abuse of discretion, United States v. Wolny, 133 F.3d 758,

765 (10th Cir. 1998); ultimately, however, we apply a de novo standard of review

to determine the propriety of an individual jury instruction to which objection was

made at time of trial. United States v. Scarborough, 128 F.3d 1373, 1377 (10th

Cir. 1997).

We are unpersuaded by Osteguin’s first three arguments. The jury

specifically found that the railroad was not negligent; thus, even if one were to

assume that the district court erred in instructing the jury as to contributory

negligence, in rejecting Osteguin’s tendered instruction regarding assumption of
4Because the special verdict form was divided into clearly articulated subparts,

there is no reason to question the common sense assumption that the jury proceeded

logically to answer the questions in order, following the judge’s instruction. See United

States v. Hatatley, 130 F.3d 1399, 1405 (10th Cir. 1997) (“When reviewing a challenge to

jury instructions, we consider the instructions as a whole and presume the jury followed

those instructions.”). Osteguin’s assertion that the jury could not accurately answer the

question of the railroad’s negligence because it was confused by the inclusion of

inappropriate instructions is not supported by any authority directly on point. See

Appellant’s Br. at 15-16.

-6-

the risk, or in admitting the MRI testimony, Osteguin has suffered no

prejudice—hence, these three alleged errors are harmless.4

 See United States v.

Harmon, 996 F.2d 256, 258 (10th Cir. 1993) (“An erroneous jury instruction

requires reversal only if, after review of the record as a whole, we determine the

error to have been prejudicial.” (quotation omitted)); K-B Trucking Co., 763 F.2d

at 1156 (stating that even if the district court abuses its discretion by erroneously

admitting particular evidence, the error is harmless if it does not prejudicially

affect a substantial right of the party asserting error); see also Fed. R. Civ. P. 61.

Similarly, Osteguin’s last argument, that the court erroneously rejected his

tendered jury instruction that the railroad knew or should have known its work

assignment of Osteguin exposed him to an unreasonable risk of harm, fails. 

Osteguin argues that the railroad negligently assigned him to work in both the

1992 and the 1993 incidents. Appellant’s Br. at 28-29. First, as to the 1992

incident, Osteguin asserts that it was negligent for the railroad to assign him the

job of cleaning the locomotive deck without providing him protective footwear. 
-7-

Id. It is clear, however, that Osteguin suffered no prejudice by the court’s

rejection of his tendered instruction. In order to find that the railroad

unreasonably assigned him this job without rubber boots or booties, the jury

would have had to first find that it was unreasonable not to provide protective

footwear for this job. The jury squarely rejected this argument when it found the

railroad not negligent. See Appellant’s App. at 35, 43, 87-88. 

Second, as to the 1993 incident, Osteguin argues that the railroad

negligently assigned him to return to work on the deck despite his injured back. 

Appellant’s Br. at 29. Osteguin failed to raise this issue at trial, however, see

Appellant’s App. at 322, and therefore, we decline to address the issue on appeal. 

See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992); Fed. R.

Civ. P. 51.

AFFIRMED.
SPECIAL VERDICT

We the jury duly empaneled and sworn to try the above entitled case

unanimously find as follows:

APRIL 3, 1992, OCCURRENCE

QUESTION NO. 1: On or about April 3, 1992, was Southern Pacific

Transportation negligent in one or more of the particulars alleged by the

plaintiff, Juan Osteguin?

_____________ Yes X No

If you have answered “No” to Question No. 1, go to Question No. 7. If you

have answered “Yes” to Question No. 1, please proceed to Question No. 2.

QUESTION NO. 2: Did the negligence of Southern Pacific

Transportation cause or contribute to injury or damage to Juan Osteguin?

____________ Yes ____________ No

If you have answered “No” to Question No. 2, go to Question No. 7. If you

have answered “Yes” to Question No. 2, please proceed to Question No. 3.

QUESTION NO. 3: On April 3, 1992, was the plaintiff Juan

Osteguin contributorily negligent?

___________ Yes ____________ No

If you have answered “No” to Question No. 3 and “Yes” to Question Nos. 1

and 2, please proceed to Question No. 6. If you have answered “Yes” to Question

3, please proceed to Question No. 4.

QUESTION NO. 4: Did the contributory negligence of Juan

Osteguin cause or contribute to injury or damage to him?

___________ Yes ____________ No
*Mistaken date in original.

If you have answered “No” to Question No. 4, go to Question No. 6. If you

have answered “Yes” to Question No. 4, please proceed to answer Question No. 5.

QUESTION NO. 5: Taking as 100% the combined negligence of all

parties you find were negligent on April 3, 1992, and whose negligence was

a cause of any of the plaintiff’s injuries, damages or losses, what

percentage of negligence for the occurrence on April 3, 1992, if any, was

that of the defendant, Southern Pacific Transportation, and of the plaintiff,

Juan Osteguin?

ANSWER:

Percentage attributable to Southern Pacific _______%

Percentage attributable to Juan Osteguin _______%

Must total 100%

Please proceed to the next question.

QUESTION NO. 6: What amount, if any, do you find without any

reduction for negligence, if any, on the part of Juan Osteguin will fairly and

adequately compensate Juan Osteguin for any injury or damages he

received in the occurrence on April 13, 1992?*

$ ___________________

Please proceed to Question No. 7.

NOVEMBER 16, 1993, OCCURRENCE

QUESTION NO. 7: On November 16, 1993, was defendant Southern

Pacific Transportation negligent in one or more of the particulars alleged

by the plaintiff, Juan Osteguin?

_____________ Yes X No
**“No.” omitted in original.

If you have answered “No” to Question No. 7, please sign the Special

Verdict and announce to the bailiff that you have reached a verdict. If you have

answered “Yes” to Question No. 7, please proceed to Question No. 8.

QUESTION NO. 8: Did the negligence of defendant Southern

Pacific Transportation cause or contribute to injury or damage to plaintiff

Juan Osteguin?

____________ Yes ____________ No

If you have answered “No” to Question No. 8, please sign the Special

Verdict and announce to the bailiff that you have reached a verdict. If you have

answered “Yes” to Question No. 8, please proceed to Question No. 9.

QUESTION NO. 9: On November 16, 1993, was the plaintiff Juan

Osteguin contributorily negligent?

___________ Yes ____________ No

If you have answered “No” to Question No. 9 and “Yes” to Question Nos. 7

and 8, please proceed to Question No. 12. If you have answered “Yes” to

Question No. 9, please proceed to Question No. 10.

QUESTION 10**: Did the contributory negligence of Juan

Osteguin cause or contribute to injury or damage to him?

___________ Yes ____________ No

If you have answered “No” to Question No. 10 and “Yes” to Questions 7 &

8, please proceed to Question No. 12. If you have answered “Yes” to Question

No. 10, please proceed to answer Question No. 11.

QUESTION NO. 11: Taking as 100% the combined negligence of all

parties you find were negligent on November 16, 1993 and whose
negligence was a cause of any of the plaintiff’s injuries, damages or losses,

if any, what percentage of negligence, if any, was that of the defendant

Southern Pacific Transportation and of the plaintiff Juan Osteguin?

ANSWER:

Percentage charged to Southern Transportation _______%

Percentage charged to Juan Osteguin _______%

Must Total 100%

Please proceed to the next question.

QUESTION NO. 12: What amount do you find without reduction for

negligence, if any, on the part of the plaintiff, will fairly and adequately

compensate Juan Osteguin for any injury or damages he received in the

occurrence on November 16, 1993?

$ ___________________

Appellant’s App. at 87-90.
*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 11 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JUAN OSTEGUIN,

Plaintiff - Appellant, No. 96-1473

v. (D. Colorado)

SOUTHERN PACIFIC

TRANSPORTATION COMPANY, a

corporation,

Defendant - Appellee.

(D.C. No. 95-WY-617-AJ) 

ORDER AND JUDGMENT*

Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.

Juan Osteguin, a railroad worker employed by Southern Pacific

Transportation Company (“the railroad”), appeals from the district court’s order

denying him a new trial on his claims against the railroad under the Federal

Employers’ Liability Act (“the Act”), 45 U.S.C. §§ 51-60, for injuries he suffered

in two separate incidents while an employee of the railroad. We affirm.
1The “deck” of the locomotive is essentially the oil pan, and is sometimes referred

to as a “sump” or “plate.” Appellee’s Answer Br. at 2 & n.1.

2At trial, Osteguin testified that he did not remember how he burned his foot, but

that it is impossible to wash the deck without getting water on your feet. Trial Tr. Vol. I,

Tab 3 at 6-7, 15-16. Pablo Mascarenas, the chairman of Osteguin’s local union, testified

in his deposition that Osteguin told him he was washing a part and got distracted, and the

wand came right over his boot. Trial Tr. Vol. II, Tab 16 at 8, 12. 

-2-

BACKGROUND

On April 3, 1992, Osteguin was working as a laborer in the railroad’s

Denver repair facility, cleaning the decks of locomotives after the engine had

been removed. To clean the deck,1

 Osteguin would step down into it, shovel

debris and sludge into buckets, and carry the waste to a dumpster; then, he would

wash the deck with hot pressurized water using a “hotsy,” a manually-operated

wand much like that used in a self-service car wash. While using a hotsy and

wearing only leather work boots rather than rubber boots or booties, Osteguin

severely burned his left foot.2

 Osteguin asserts that he reacted to this injury by

“jerking backwards” and thus injured his back as well.

After a recovery period, Osteguin was cleared for light duty and returned to

work. Because no light duty was available at the repair facility, he returned to his

job as a laborer. Then, on November 16, 1993, Osteguin suffered a second injury,

again while cleaning the deck of a locomotive but this time wearing rubber boots. 

As he attempted to unclog the deck’s drain prior to washing the deck, Osteguin

slipped and fell, re-injuring his back. Although he returned to work for a short
3Although the railroad did provide rubber booties to employees cleaning the

locomotive decks, Osteguin asserts that none would fit over his size 12 boots. 

Appellant’s Br. at 5, 28.

-3-

period after the accident, Osteguin now asserts that his medical condition

prevents him from continuing in his job as a laborer.

Mr. Osteguin brought an action against the railroad under the Act, asserting

that the railroad negligently caused the 1992 injury by failing to provide him with

protective footwear such as rubber boots or booties,

3

 and negligently caused the

1993 injury by failing to provide reasonably safe working conditions for the job

of washing the locomotive deck. In response, the railroad raised the affirmative

defense of contributory negligence and argued that Osteguin’s own inattention

caused his 1992 injury. As to the 1993 injury, the railroad admitted that the job

of cleaning the locomotive deck was dangerous but asserted there was no better

way to perform the job, and alleged that Osteguin’s own inattention and failure to

work in a careful manner caused the injury.

The case was tried to a jury, and, at the close of all evidence, Osteguin

moved for judgment as a matter of law on the affirmative defense of contributory

negligence as to the 1993 incident and objected to the jury being instructed on

that defense as to the 1993 injury, arguing that the railroad had provided

insufficient evidence to justify submitting the issue to the jury. The district court

denied the motion and overruled Osteguin’s objection. The court also rejected
-4-

Osteguin’s proposed jury instructions regarding assumption of the risk and

negligent job assignment.

Thereafter, the jury returned a verdict on a special verdict form, a copy of

which is attached hereto. The jury found that the railroad was not negligent in

either the 1992 or the 1993 incident, and answered no questions on the verdict

form concerning causation or contributory negligence. After the jury returned its

verdict, Osteguin moved for a new trial pursuant to Fed. R. Civ. P. 59, which the

district court denied in September 1996. Osteguin filed a timely notice of appeal. 

On appeal, Osteguin asserts that the district court committed reversible

error in (1) instructing the jury on the issue of contributory negligence as to the

1993 incident; (2) refusing Osteguin’s tendered instruction that assumption of risk

is not a defense in FELA cases; (3) admitting the hearsay opinion of a

nontestifying witness in the guise of expert testimony regarding the interpretation

of MRI films of Osteguin’s injury; and (4) refusing Osteguin’s tendered

instruction that the railroad knew or should have known that its work assignment

of Osteguin exposed him to an unreasonable risk of harm.

DISCUSSION

The district court’s decision on a new trial motion is reviewed under an

abuse of discretion standard. Weese v. Schukman, 98 F.3d 542, 549 (10th Cir.

1996) (noting, however, that “when the district court’s decision [on a new trial
4Because the special verdict form was divided into clearly articulated subparts,

there is no reason to question the common sense assumption that the jury proceeded

logically to answer the questions in order, following the judge’s instruction. See United

States v. Hatatley, 130 F.3d 1399, 1405 (10th Cir. 1997) (“When reviewing a challenge to

jury instructions, we consider the instructions as a whole and presume the jury followed

those instructions.”). Osteguin’s assertion that the jury could not accurately answer the

question of the railroad’s negligence because it was confused by the inclusion of

inappropriate instructions is not supported by any authority directly on point. See

(continued...)

-5-

motion] turns on an issue of law, we review the district court’s determination on

that question de novo”). We review decisions to admit or exclude evidence for

abuse of discretion. K-B Trucking Co. v. Riss Int’l Corp., 763 F.2d 1148, 1155

(10th Cir. 1985). We also review a district court’s decision to give a particular

jury instruction for abuse of discretion, United States v. Wolny, ___ F.3d ___,

No. 96-4169, 1998 WL 2480, at *8 (10th Cir. Jan. 6, 1998); ultimately, however,

we apply a de novo standard of review to determine the propriety of an individual

jury instruction to which objection was made at time of trial. United States v.

Scarborough, 128 F.3d 1373, 1377 (10th Cir. 1997).

We are unpersuaded by Osteguin’s first three arguments. The jury

specifically found that the railroad was not negligent; thus, even if one were to

assume that the district court erred in instructing the jury as to contributory

negligence, in rejecting Osteguin’s tendered instruction regarding assumption of

the risk, or in admitting the MRI testimony, Osteguin has suffered no

prejudice—hence, these three alleged errors are harmless.4 See United States v.
4

(...continued)

Appellant’s Br. at 15-16.

-6-

Harmon, 996 F.2d 256, 258 (10th Cir. 1993) (“An erroneous jury instruction

requires reversal only if, after review of the record as a whole, we determine the

error to have been prejudicial.”(quotation omitted)); K-B Trucking Co., 763 F.2d

at 1156 (stating that even if the district court abuses its discretion by erroneously

admitting particular evidence, the error is harmless if it does not prejudicially

affect a substantial right of the party asserting error); see also Fed. R. Civ. P. 61.

Similarly, Osteguin’s last argument, that the court erroneously rejected his

tendered jury instruction that the railroad knew or should have known its work

assignment of Osteguin exposed him to an unreasonable risk of harm, fails. 

Osteguin argues that the railroad negligently assigned him to work in both the

1992 and the 1993 incidents. Appellant’s Br. at 28-29. First, as to the 1992

incident, Osteguin asserts that it was negligent for the railroad to assign him the

job of cleaning the locomotive deck without providing him protective footwear. 

Id. It is clear, however, that Osteguin suffered no prejudice by the court’s

rejection of his tendered instruction. In order to find that the railroad

unreasonably assigned him this job without rubber boots or booties, the jury

would have had to first find that it was unreasonable not to provide protective
-7-

footwear for this job. The jury squarely rejected this argument when it found the

railroad not negligent. See Appellant’s App. at 35, 43, 87-88. 

Second, as to the 1993 incident, Osteguin argues that the railroad

negligently assigned him to return to work on the deck despite his injured back. 

Appellant’s Br. at 29. Osteguin failed to raise this issue at trial, however, see

Appellant’s App. at 322, and therefore, we decline to address the issue on appeal. 

See Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992); Fed. R.

Civ. P. 51.

AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge
SPECIAL VERDICT

We the jury duly empaneled and sworn to try the above entitled case

unanimously find as follows:

APRIL 3, 1992, OCCURRENCE

QUESTION NO. 1: On or about April 3, 1992, was Southern Pacific

Transportation negligent in one or more of the particulars alleged by the

plaintiff, Juan Osteguin?

_____________ Yes X No

If you have answered “No” to Question No. 1, go to Question No. 7. If you

have answered “Yes” to Question No. 1, please proceed to Question No. 2.

QUESTION NO. 2: Did the negligence of Southern Pacific

Transportation cause or contribute to injury or damage to Juan Osteguin?

____________ Yes ____________ No

If you have answered “No” to Question No. 2, go to Question No. 7. If you

have answered “Yes” to Question No. 2, please proceed to Question No. 3.

QUESTION NO. 3: On April 3, 1992, was the plaintiff Juan

Osteguin contributorily negligent?

___________ Yes ____________ No

If you have answered “No” to Question No. 3 and “Yes” to Question Nos. 1

and 2, please proceed to Question No. 6. If you have answered “Yes” to Question

3, please proceed to Question No. 4.

QUESTION NO. 4: Did the contributory negligence of Juan

Osteguin cause or contribute to injury or damage to him?

___________ Yes ____________ No
5Mistaken date in original.

If you have answered “No” to Question No. 4, go to Question No. 6. If you

have answered “Yes” to Question No. 4, please proceed to answer Question No. 5.

QUESTION NO. 5: Taking as 100% the combined negligence of all

parties you find were negligent on April 3, 1992, and whose negligence was

a cause of any of the plaintiff’s injuries, damages or losses, what

percentage of negligence for the occurrence on April 3, 1992, if any, was

that of the defendant, Southern Pacific Transportation, and of the plaintiff,

Juan Osteguin?

ANSWER:

Percentage attributable to Southern Pacific _______%

Percentage attributable to Juan Osteguin _______%

Must total 100%

Please proceed to the next question.

QUESTION NO. 6: What amount, if any, do you find without any

reduction for negligence, if any, on the part of Juan Osteguin will fairly and

adequately compensate Juan Osteguin for any injury or damages he

received in the occurrence on April 13, 1992?5

$ ___________________

Please proceed to Question No. 7.

NOVEMBER 16, 1993, OCCURRENCE

QUESTION NO. 7: On November 16, 1993, was defendant Southern

Pacific Transportation negligent in one or more of the particulars alleged

by the plaintiff, Juan Osteguin?

_____________ Yes X No
If you have answered “No” to Question No. 7, please sign the Special

Verdict and announce to the bailiff that you have reached a verdict. If you have

answered “Yes” to Question No. 7, please proceed to Question No. 8.

QUESTION NO. 8: Did the negligence of defendant Southern

Pacific Transportation cause or contribute to injury or damage to plaintiff

Juan Osteguin?

____________ Yes ____________ No

If you have answered “No” to Question No. 8, please sign the Special

Verdict and announce to the bailiff that you have reached a verdict. If you have

answered “Yes” to Question No. 8, please proceed to Question No. 9.

QUESTION NO. 9: On November 16, 1993, was the plaintiff Juan

Osteguin contributorily negligent?

___________ Yes ____________ No

If you have answered “No” to Question No. 9 and “Yes” to Question Nos. 7

and 8, please proceed to Question No. 12. If you have answered “Yes” to

Question No. 9, please proceed to Question No. 10.

QUESTION 10: Did the contributory negligence of Juan Osteguin

cause or contribute to injury or damage to him?

___________ Yes ____________ No

If you have answered “No” to Question No. 10 and “Yes” to Questions 7 &

8, please proceed to Question No. 12. If you have answered “Yes” to Question

No. 10, please proceed to answer Question No. 11.

QUESTION NO. 11: Taking as 100% the combined negligence of all

parties you find were negligent on November 16, 1993 and whose

negligence was a cause of any of the plaintiff’s injuries, damages or losses,

if any, what percentage of negligence, if any, was that of the defendant

Southern Pacific Transportation and of the plaintiff Juan Osteguin?
ANSWER:

Percentage charged to Southern Transportation _______%

Percentage charged to Juan Osteguin _______%

Must Total 100%

Please proceed to the next question.

QUESTION NO. 12: What amount do you find without reduction for

negligence, if any, on the part of the plaintiff, will fairly and adequately

compensate Juan Osteguin for any injury or damages he received in the

occurrence on November 16, 1993?

$ ___________________

Appellant’s App. at 87-90.