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296 Nebraska Report

WINDER v. UNION PACIFIC RR. CO.

Cite as 296 Neb. 557

Kevin M. Winder, appellant

Union Pacific Railroad C

a Delaware corporation, appel

___ N.W.2d ___

Filed May 5, 2017. No. S-15-1100.

1. 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.

2. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling on a motion for directed verdict, an appellate court must treat the 

motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such 

being the case, the party against whom the motion is directed is entitled 

to have every controverted fact resolved in its favor and to have the 

benefit of every inference which can reasonably be deduced from 

the evidence.

3. Directed Verdict: Evidence. A directed verdict is proper at the close of 

all the evidence only when reasonable minds cannot differ and can draw 

but one conclusion from the evidence, that is, when an issue should be 

decided as a matter of law.

4. Federal Acts: Railroads: Liability. Under 49 U.S.C. § 20302(a)(1)(B) 

(2012) of the federal Safety Appliance Acts, a railroad carrier may 

use a vehicle, including a railcar, only if it is equipped with efficient handbrakes.

5. Federal Acts: Railroads: Negligence: Proof. Under 49 U.S.C. 

§ 20302(a)(1)(B) (2012) of the federal Safety Appliance Acts, there 

are two ways an employee may show the inefficiency of handbrakes: 

(1) Evidence may be adduced to establish some particular defect in 

the handbrake or (2) inefficiency may be established by showing the 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/14/2017 01:10 AM CDT
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WINDER v. UNION PACIFIC RR. CO.

Cite as 296 Neb. 557

handbrake failed to function, when operated with due care, in the normal, natural, and usual manner.

6. Federal Acts: Railroads: Negligence: Words and Phrases. For purposes of 49 U.S.C. § 20302(a)(1)(B) (2012) of the federal Safety 

Appliance Acts, “efficient” means adequate in performance and producing properly a desired effect. “Inefficient” means not producing or not 

capable of producing the desired effect and thus incapable, incompetent, 

or inadequate.

7. Federal Acts: Railroads: Negligence. When there is conflicting evidence regarding whether a handbrake failed to function, when operated 

with due care, in the normal, natural, and usual manner, the question 

of inefficiency under 49 U.S.C. § 20302(a)(1)(B) (2012) of the federal 

Safety Appliance Acts is one for the jury.

Appeal from the District Court for Douglas County: 

Kimberly Miller Pankonin and Peter C. Bataillon,

Affirmed.

William Kvas and Richard L. Carlson, of Hunegs, LeNeave 

& Kvas, P.A., and Jayson D. Nelson for appellant.

Anne Marie O’Brien and Daniel J. Hassing, of Lamson, 

Dugan & Murray, L.L.P., and Andrew Reinhart for appellee.

Heavican, C.J., Wright, Cassel, Stacy, Kel

Funke, J

Stacy, 

Kevin M. Winder filed an action for damages against his 

employer, Union Pacific Railroad Company (UP), alleging he 

injured his back while turning a wheel to release the handbrake on a railcar. Winder asserted claims under the Federal 

Employers’ Liability Act (FELA)1 and the federal Safety 

Appliance Acts (FSAA).2 The jury returned a general verdict in 

favor of UP, and Winder appeals. We affirm.

1 45 U.S.C. §§ 51 to 60 (2012).

2 49 U.S.C. §§ 20301 to 20306 (2012).
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WINDER v. UNION PACIFIC RR. CO.

Cite as 296 Neb. 557

FACTS

On October 28, 2012, Winder was working as a conductor 

for UP in North Platte, Nebraska. Part of his job was to manually release the handbrakes on railcars. Handbrakes are used 

to secure railcars to the track when a train is not in motion. 

The handbrake is manually applied by using a brake wheel 

and turning it clockwise. The handbrake is manually released 

one of two ways: by either turning the brake wheel counterclockwise or using a quick-release lever. Not all handbrakes 

have quick-release levers, but the ones Winder was releasing 

did. Winder testified he was trained “to first try the quick 

release lever [and] [i]f that does not work, then you turn 

the wheel.”

Winder successfully released the handbrake on the first 

railcar. When he attempted to use the quick-release lever on 

the next railcar, the lever pulled easily but the brake did not 

release. Winder then began turning the wheel in a counterclockwise direction to release the brake. According to Winder, 

as he did so, he suddenly felt a sharp pain in his back and 

stopped working.

Winder immediately notified UP of his injury, and he sought 

medical attention. He received significant treatment, including 

surgery, and was unable to return to work at UP.

Winder eventually brought this action against UP, alleging 

claims under FELA and FSAA. FSAA does not by its terms 

confer a right of action on injured parties, but if a plaintiff 

proves a violation of FSAA, he or she may recover under 

FELA without further proof of negligence by the railroad.3

“In short, [FSAA] provide[s] the basis for the claim, and . . . 

FELA provides the remedy.”4 As will be explained in more 

detail later, FSAA requires that railroads may use a vehicle, 

3 See Urie v. Thompson, 337 U.S. 163, 69 S. Ct. 1018, 93 L. Ed. 1282 

(1949).

4 Beissel v. Pittsburgh and Lake Erie R. Co., 801 F.2d 143, 145 (3d Cir. 

1986).
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WINDER v. UNION PACIFIC RR. CO.

Cite as 296 Neb. 557

including a railcar, only if it is equipped with “efficient 

hand brakes.”5 Winder alleged UP violated this provision 

of FSAA, because the quick-release lever on the handbrake 

was inefficient.

The case was tried to a jury. At the close of the evidence, 

Winder moved for a directed verdict in his favor on the question of whether UP violated FSAA. The district court overruled 

the motion, and the jury returned a general verdict in favor of 

UP. Winder filed this timely appeal, which we moved to our 

docket pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state.6

ASSIGNMENT OF ERROR

Winder’s sole assignment of error is that the court erred in 

failing to direct a verdict in his favor on the FSAA claim.

STANDARD OF REVIEW

[1] 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 decisions of the 

federal courts construing FELA.7

[2,3] In reviewing a trial court’s ruling on a motion for 

directed verdict, an appellate court must treat the motion as 

an admission of the truth of all competent evidence submitted 

on behalf of the party against whom the motion is directed; 

such being the case, the party against whom the motion is 

directed is entitled to have every controverted fact resolved 

in its favor and to have the benefit of every inference which 

can reasonably be deduced from the evidence.8 A directed 

5 49 U.S.C. § 20302(a)(1)(B).

6 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).

7 Ballard v. Union Pacific RR. Co., 279 Neb. 638, 781 N.W.2d 47 (2010).

8 Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d 248 (2013). 
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WINDER v. UNION PACIFIC RR. CO.

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verdict is proper at the close of all the evidence only when 

reasonable minds cannot differ and can draw but one conclusion from the evidence, that is, when an issue should be 

decided as a matter of law.9

ANALYSIS

[4] The relevant portion of FSAA provides that railroad 

carriers may use a vehicle, including a railcar, only if it is 

“equipped with . . . efficient hand brakes.”10 The U.S. Supreme 

Court has interpreted this provision to impose “an absolute and 

unqualified prohibition against [a railroad’s] using or permitting to be used, on its line, any car not equipped with ‘efficient 

hand brakes.’”11

[5,6] In Myers v. Reading Co.

12 the U.S. Supreme Court 

analyzed FSAA’s efficient handbrake requirement. Myers held 

there are two ways an employee may show the inefficiency of 

handbrakes: (1) Evidence may be adduced to establish some 

particular defect in the handbrake or (2) inefficiency may be 

established by showing the handbrake failed to function, when 

operated with due care, in the normal, natural, and usual manner.13 Myers established that “‘[e]fficient means adequate in 

performance; producing properly a desired effect. Inefficient 

means not producing or not capable of producing the desired 

effect; incapable; incompetent; inadequate.’”14

Winder makes no claim in this appeal that the handbrake 

had any particular defect. Instead, he points to undisputed 

evidence that when he pulled the quick-release lever, it 

failed to release the handbrake. He argues this evidence was 

9 Id.

10 49 U.S.C. § 20302(a)(1)(B).

11 Myers v. Reading Co., 331 U.S. 477, 482, 67 S. Ct. 1334, 91 L. Ed. 1615 

(1947).

12 Myers v. Reading Co., supra note 11.

13 Id.

14 Id., 331 U.S. at 483.
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WINDER v. UNION PACIFIC RR. CO.

Cite as 296 Neb. 557

sufficient as a matter of law to prove the handbrake failed to 

function in the normal, natural, and usual manner.

No party disputes that when Winder pulled the quickrelease lever it failed to release the brake, requiring him to 

use the wheel to release the brake. The question is whether 

this evidence entitled Winder to a directed verdict that as a 

matter of law, the handbrake failed to function, when operated with due care, in the normal, natural, and usual manner. 

On this record, we find no error in denying the motion for 

directed verdict.

[7] Case law from other jurisdictions demonstrates that 

when there is conflicting evidence regarding whether a handbrake failed to function in the normal, natural, and usual 

manner, the question of inefficiency is one for the jury. In 

Strickland v. Norfolk Southern Ry. Co.,15 a railroad worker 

attempted to release a handbrake by using the quick-release 

lever. The quick-release lever did not release the brake, which 

the record showed was not “‘an out-of-the-blue thing.’”16 The 

worker then attempted to release the handbrake using the brake 

wheel, which would not turn. He injured himself attempting to 

exert more pressure on the wheel. The district court granted 

summary judgment in favor of the railroad, in effect finding 

the handbrake was not inefficient as a matter of law. The 11th 

Circuit reversed, finding the worker’s testimony about the 

level of force exerted in turning the wheel created a fact issue 

for the jury to resolve in determining whether the handbrake 

was inefficient.

An unpublished opinion from the U.S. District Court for 

the District of Nebraska also illustrates that when there is 

conflicting evidence on whether a handbrake failed to function 

normally, the question of inefficiency cannot be decided as a 

matter of law. In Chapp v. Burlington Northern Santa Fe R. 

15 Strickland v. Norfolk Southern Ry. Co., 692 F.3d 1151 (11th Cir. 2012).

16 Id. at 1155.
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Cite as 296 Neb. 557

Co.,17 a railroad worker attempted to release a handbrake by 

pulling the quick-release lever. When the quick-release lever 

failed, he attempted to release the brake by turning the wheel 

and alleged he was injured while doing so. The worker moved 

for summary judgment on his FSAA claim, arguing, among 

other things, that the handbrake was inefficient as a matter of 

law. The court denied the motion, reasoning there was conflicting evidence on whether the handbrake failed to function in the 

normal, natural, and usual manner, and inefficiency could not 

be determined as a matter of law.18

Here, there was conflicting evidence at trial regarding 

whether it was common or usual for a quick-release lever 

to fail to release a handbrake. Winder testified that in his 

work as a conductor, he recalled only two occasions when 

the quick-release lever failed to release the handbrake. And 

an expert witness called on Winder’s behalf testified that if 

a quick-release lever failed to work, the handbrake operation was inefficient. But a UP trainman testified that quickrelease levers fail to release the handbrake “on a fairly regular 

basis,” and he opined they worked about “half the time.” He 

testified it was very common and usual in the industry for 

the quick-release levers not to work. Another witness, a UP 

supervisor, testified that quick-release levers failed to work 

“quite a bit.” And a railroad consultant hired by UP testified 

17 Chapp v. Burlington Northern Santa Fe R. Co., No. 4:04CV3021, 2005 

WL 1331157 (D. Neb. June 2, 2005) (unpublished memorandum and 

order).

18 Id. See, also, Rogers v. Norfolk Southern Ry. Co., No. 3:13 cv 798, 2015 

WL 4191147 (N.D. Ohio July 10, 2015) (unpublished opinion) (conflicting 

evidence on why handbrake failed to release and whether it failed to 

function in normal, natural, and usual manner presented questions for trier 

of fact and prevented summary judgment); Ditton v. BNSF Ry. Co., No. 

CV 12-6932 JGB (JCGx), 2013 WL 2241766 (C.D. Cal. May 21, 2013) 

(unpublished opinion) (conflicting evidence on failure of quick-release 

lever to release and evidence that handbrakes commonly become stuck 

presented factual questions for jury under FSAA).
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it was “not at all uncommon” for the quick-release lever not 

to work.

A directed verdict is proper at the close of all the evidence 

only when reasonable minds cannot differ and can draw but 

one conclusion from the evidence, that is, when an issue 

should be decided as a matter of law.19 Here, there was conflicting evidence on whether the handbrake failed to function 

in the normal, natural, and usual manner, and the district court 

properly denied the motion for directed verdict and submitted 

that issue to the jury.

CONCLUSION

We find no merit to Winder’s assignment of error and affirm 

the judgment of the district court.

Affirmed

Miller-Lerman, J., not participati

19 Wulf v. Kunnath, supra note 8.