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 judgmentfiled on February 11, 1998, is granted. The published opinion is attache d 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 br iefs), Southern Pacific Transportation Company, Denver, Colorado, for Appel lee.

Before ANDERSON , LOGAN , and MURPHY , Circuit Judges.

ANDERSON, Circuit Judge.1 The “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 Southe rn Pacific Transportation Company (“the railroad”), appeals fr om the district court’s order denying him a new trial on his claims against the r ailroad 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 laborerin the railroad’s Denver repair facility, cleaning the decks of locom otives 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 “h otsy,” 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 b y “jerking backwards” and thus injured his back as we ll.3 Although 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 l ight duty and returned to work. Because no light duty was available at the r epair facility, he returned to his job as a laborer. Then, on November 16, 1993, Oste guin suffered a second injury, again while cleaning the deck of a locomotive but t his 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 h e 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 labore r. Mr. Osteguin brought an action against the railroadunder 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 w orking conditions for the job of washing the locomotive deck. In response, the r ailroad 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 a sserted 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 affirm ative defense of contributory negligence as to the 1993 incident and also objecte d to the jury being instructed on that defense as to the 1993 injury, arguing thatthe railroad had provided insufficient evidence to justify submitting the iss ue to the jury. The district court denied the motion and overruled Osteguin’s objectio n. The court also rejected Osteguin’s proposed jury instructions regarding ass umption of the risk and negligent job assignment. Thereafter, the jury returned a verdict on a specia l 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 negligenc e. 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 courtcommitted reversible error in (1) instructing the jury on the issue of c ontributory negligence as to the 1993 incident; (2) refusing Osteguin’s tendered ins truction that assumption of risk is not a defense in FELA cases; (3) admitting the h earsay opinion of a nontestifying witness in the guise of expert testim ony 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 motionis reviewed under an abuse of discretion standard. Weese v. Schukman , 98 F.3d 542, 549 (10th Cir. 1996) (noting, however, that “when the district cou rt’s decision [on a new trial motion] turns on an issue of law, we review the dis trict court’s determination on that question de novo”). We review decisions to ad mit 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 St ates v. Wolny , 133 F.3d 758, 765 (10th Cir. 1998); ultimately, however, we applya de novo standard of review to determine the propriety of an individual jury in struction to which objection was made at time of trial. United States v. Scarboroug h , 128 F.3d 1373, 1377 (10th Cir. 1997). We are unpersuaded by Osteguin’s first three argume nts. The jury specifically found that the railroad was not neglig ent; 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 instru ction regarding assumption of4Because 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. SeeUnited 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, Ostegu in has suffered no prejudice—hence, these three alleged errors are har mless. 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 reco rd 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 ab uses its discretion by erroneously admitting particular evidence, the error is harmles s if it does not prejudicially affect a substantial right of the party asserting e rror); see also Fed. R. Civ. P. 61. Similarly, Osteguin’s last argument, that the courterroneously rejected his tendered jury instruction that the railroad knew orshould have known its work assignment of Osteguin exposed him to an unreasonab le risk of harm, fails. Osteguin argues that the railroad negligently assig ned 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 fo r the railroad to assign him the job of cleaning the locomotive deck without providi ng him protective footwear.-7-

Id. It is clear, however, that Osteguin suffered no p rejudice by the court’s rejection of his tendered instruction. In order to find that the railroad unreasonably assigned him this job without rubber b oots or booties, the jury would have had to first find that it was unreasonab le 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 th at the railroad negligently assigned him to return to work on the d eck despite his injured back. Appellant’s Br. at 29. Osteguin failed to raise th is 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 abo ve 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 part iculars 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 proce ed to Question No. 2.

QUESTION NO. 2: Did the negligence of Southern Pac ific Transportation cause or contribute to injury or dam age 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 proce ed to Question No. 3.

QUESTION NO. 3: On April 3, 1992, was the plaintif f Juan Osteguin contributorily negligent? ___________ Yes ____________ No If you have answered “No” to Question No. 3 and “Ye s” 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 proce ed to answer Question No. 5.

QUESTION NO. 5: Taking as 100% the combined neglig ence of all parties you find were negligent on April 3, 1992, a nd whose negligence was a cause of any of the plaintiff’s injuries, damages or losses, what percentage of negligence for the occurrence on Apri l 3, 1992, if any, was that of the defendant, Southern Pacific Transportat ion, 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 w ithout any reduction for negligence, if any, on the part of Ju an 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 r eached 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 So uthern 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 r eached 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 plai ntiff Juan Osteguin contributorily negligent? ___________ Yes ____________ No If you have answered “No” to Question No. 9 and “Ye s” to Question Nos. 7 and 8, please proceed to Question No. 12. If you h ave 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 “Y es” 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 negli gence of all parties you find were negligent on November 16, 199 3 and whosenegligence was a cause of any of the plaintiff’s in juries, damages or losses, if any, what percentage of negligence, if any, was that of the defendant Southern Pacific Transportation and of the plaintif f 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 r eduction for negligence, if any, on the part of the plaintiff, w ill 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 Southe rn Pacific Transportation Company (“the railroad”), appeals fr om the district court’s order denying him a new trial on his claims against the r ailroad 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.1 The “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 laborerin the railroad’s Denver repair facility, cleaning the decks of locom otives 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 “h otsy,” 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 b y “jerking backwards” and thus injured his back as we ll. After a recovery period, Osteguin was cleared for l ight duty and returned to work. Because no light duty was available at the r epair facility, he returned to his job as a laborer. Then, on November 16, 1993, Oste guin suffered a second injury, again while cleaning the deck of a locomotive but t his 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 h e returned to work for a short3 Although 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 labore r. Mr. Osteguin brought an action against the railroadunder 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 w orking conditions for the job of washing the locomotive deck. In response, the r ailroad 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 a sserted 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 affirm ative 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 th e railroad had provided insufficient evidence to justify submitting the iss ue to the jury. The district court denied the motion and overruled Osteguin’s objectio n. The court also rejected-4-

Osteguin’s proposed jury instructions regarding ass umption of the risk and negligent job assignment. Thereafter, the jury returned a verdict on a specia l 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 negligenc e. 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 courtcommitted reversible error in (1) instructing the jury on the issue of c ontributory negligence as to the 1993 incident; (2) refusing Osteguin’s tendered ins truction that assumption of risk is not a defense in FELA cases; (3) admitting the h earsay opinion of a nontestifying witness in the guise of expert testim ony 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 motionis reviewed under an abuse of discretion standard. Weese v. Schukman , 98 F.3d 542, 549 (10th Cir. 1996) (noting, however, that “when the district cou rt’s decision [on a new trial4Because 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. SeeUnited 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 dis trict court’s determination on that question de novo”). We review decisions to ad mit 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 St ates 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 tim e of trial. United States v. Scarborough , 128 F.3d 1373, 1377 (10th Cir. 1997). We are unpersuaded by Osteguin’s first three argume nts. The jury specifically found that the railroad was not neglig ent; 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 instru ction regarding assumption of the risk, or in admitting the MRI testimony, Ostegu in has suffered no prejudice—hence, these three alleged errors are har mless. 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 reco rd 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 ab uses its discretion by erroneously admitting particular evidence, the error is harmles s if it does not prejudicially affect a substantial right of the party asserting e rror); see also Fed. R. Civ. P. 61. Similarly, Osteguin’s last argument, that the courterroneously rejected his tendered jury instruction that the railroad knew orshould have known its work assignment of Osteguin exposed him to an unreasonab le risk of harm, fails. Osteguin argues that the railroad negligently assig ned 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 fo r the railroad to assign him the job of cleaning the locomotive deck without providi ng him protective footwear. Id. It is clear, however, that Osteguin suffered no p rejudice by the court’s rejection of his tendered instruction. In order to find that the railroad unreasonably assigned him this job without rubber b oots or booties, the jury would have had to first find that it was unreasonab le 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 th at the railroad negligently assigned him to return to work on the d eck despite his injured back. Appellant’s Br. at 29. Osteguin failed to raise th is 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 JudgeSPECIAL VERDICT

We the jury duly empaneled and sworn to try the abo ve 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 part iculars 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 proce ed to Question No. 2.

QUESTION NO. 2: Did the negligence of Southern Pac ific Transportation cause or contribute to injury or dam age 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 proce ed to Question No. 3.

QUESTION NO. 3: On April 3, 1992, was the plaintif f Juan Osteguin contributorily negligent? ___________ Yes ____________ No If you have answered “No” to Question No. 3 and “Ye s” 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 ____________ No5Mistaken 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 proce ed to answer Question No. 5.

QUESTION NO. 5: Taking as 100% the combined neglig ence of all parties you find were negligent on April 3, 1992, a nd whose negligence was a cause of any of the plaintiff’s injuries, damages or losses, what percentage of negligence for the occurrence on Apri l 3, 1992, if any, was that of the defendant, Southern Pacific Transportat ion, 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 w ithout any reduction for negligence, if any, on the part of Ju an 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 NoIf you have answered “No” to Question No. 7, please sign the Special

Verdict and announce to the bailiff that you have r eached 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 So uthern 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 r eached 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 plai ntiff Juan Osteguin contributorily negligent? ___________ Yes ____________ No If you have answered “No” to Question No. 9 and “Ye s” to Question Nos. 7 and 8, please proceed to Question No. 12. If you h ave 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 “Y es” 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 negli gence of all parties you find were negligent on November 16, 199 3 and whose negligence was a cause of any of the plaintiff’s in juries, damages or losses, if any, what percentage of negligence, if any, was that of the defendant Southern Pacific Transportation and of the plaintif f 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 r eduction for negligence, if any, on the part of the plaintiff, w ill 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.