- 559 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

WALKER v. BNSF RAILWAY CO.

Cite as 306 Neb. 559

Teresa Walker, appellant, v. BNSF 

Railway Company, a Delaware 

corporation, appellee.

___ N.W.2d ___

Filed July 24, 2020. No. S-19-331.

1. Trial: Evidence: Appeal and Error. A trial court has the discretion to 

determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse 

of that discretion.

2. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings 

under the residual hearsay exception, an appellate court reviews for 

clear error the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the court’s ultimate determination to admit 

evidence over a hearsay objection or exclude evidence on hearsay 

grounds.

3. Evidence: Appeal and Error. In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a 

substantial right of the complaining party.

4. Judgments: Words and Phrases: Appeal and Error. An abuse of 

discretion, warranting reversal of a trial court’s evidentiary decision on 

appeal, occurs when a trial court’s decision is based upon reasons that 

are untenable or unreasonable or if its action is clearly against justice or 

conscience, reason, and evidence.

5. Trial: Evidence: Testimony. When the information is, for the most part, 

already in evidence from the testimony of witnesses, the exclusion of the 

evidence is not prejudicial.

Appeal from the District Court for Scotts Bluff County: 

Andrea D. Miller, Judge. Affirmed.

Kyle J. Long and Robert G. Pahlke, of Robert Pahlke Law 

Group, for appellant.

Nebraska Supreme Court Online Library

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

07/24/2020 08:07 AM CDT
- 560 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

WALKER v. BNSF RAILWAY CO.

Cite as 306 Neb. 559

Chad M. Knight and Nadia H. Patrick, of Knight, Nicastro 

& MacKay, L.L.C., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Per Curiam.

NATURE OF CASE

Theresa Walker was injured while working for BNSF 

Railway Co. (BNSF) when a forklift she was driving tipped 

over while she was lifting a locomotive traction motor onto 

a flatbed trailer. Walker filed this negligence action against 

BNSF in the district court for Scotts Bluff County under the 

Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. (2012). 

After the exclusion of some of her evidence about which she 

complains, the jury returned a verdict for BNSF. Because we 

conclude the exclusion of evidence did not unfairly prejudice 

Walker, we affirm.

FACTS

On November 4, 2010, Walker, a BNSF employee with forklift training, was associated with the BNSF facility in Alliance, 

Nebraska. She was injured when the forklift she was driving 

tipped over while she was lifting a load. Walker alleged that 

she drove the forklift into position; raised the traction motor 

into the air; leveled the forks; and was waiting to move over 

the final deposit point, when the forklift tipped forward. The 

forklift was a Taylor Big Red forklift (Big Red) owned by 

BNSF and manufactured to load, unload, and move locomotive 

traction motors. A traction motor is a large electric motor on 

each wheel of a locomotive.

Walker brought this action under the Federal Employers’ 

Liability Act, alleging BNSF was negligent. Specifically, she 

alleged that the railroad was negligent because it (1) provided 

equipment that was not in safe operating condition; (2) altered 

and modified Big Red by affixing a metal pallet attachment; 

(3) failed to remove Big Red from service; and (4) failed 
- 561 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

WALKER v. BNSF RAILWAY CO.

Cite as 306 Neb. 559

to provide reasonably safe tools, equipment, conditions, and 

methods to do the work.

Big Red was manufactured by Taylor to load, unload, and 

move locomotive traction motors with a capacity of 18,425 

pounds at a 24-inch load center. After receipt from Taylor, 

BNSF made and affixed a metal pallet attachment to Big Red, 

which caused the forklift to carry traction motors more than 64 

inches away from its mast and potentially changed the capacity 

and dynamics of the forklift.

Walker had worked for BNSF since 1997. She received 

training on forklift operations, and throughout her tenure at 

BNSF, she underwent periodic recertification in forklift operation that included practical application and testing. Walker 

had used Big Red to load traction motors onto truck beds on 

a daily basis since 2009. Walker returned to work at BNSF 

in September 2010 after a leave of absence, and she received 

mandatory recertification training on forklift operations. She 

also received training specific to Big Red.

Before July 2010, BNSF employees at the Alliance facility loaded only traction motors manufactured by EMD. In 

the months before the injury, BNSF started loading a traction 

motor manufactured by G.E. that was heavier. A traction motor 

manufactured by EMD weighed approximately 11,800 pounds, 

whereas a traction motor manufactured by G.E. weighed about 

13,500 pounds. BNSF claimed that Walker had used Big Red 

to transport the heavier G.E. motors before her injury. Walker 

testified that she did not know if she had ever loaded a heavier 

G.E. traction motor before her injury. She claimed that she was 

not told of the weight difference between G.E. and EMD traction motors until after her injury.

A BNSF internal personal injury report completed shortly 

after the incident concluded that Big Red was safe to operate and that the incident was the result of operator error by 

Walker. Soon after that report was completed, BNSF’s representatives contacted Big Red’s manufacturer, Taylor, to inquire 

about continued use of the attachment. In response to BNSF’s 
- 562 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

WALKER v. BNSF RAILWAY CO.

Cite as 306 Neb. 559

inquiry, an unidentified employee of Taylor stated that Big 

Red may become overloaded when it is used with the BNSF’s 

metal pallet loaded with a G.E. traction motor.

Bret Bridges, BNSF’s designee for purposes of a Neb. Ct. 

R. Disc. § 6-330(b)(6) (rev. 2016) deposition, testified regarding the investigation following Walker’s injury. Bridges stated 

that BNSF had determined that the forklift tipped over due 

to operator error. As relevant to this appeal, Bridges was also 

questioned at length about the metal pallet attachment and the 

potential to exceed the capacity of Big Red. Bridges agreed 

during his deposition that BNSF’s communications with Taylor 

“caused the BNSF to determine” that transporting G.E. traction motors with the metal pallet “could exceed the capacity” 

of Big Red, causing a risk of the forklift’s tipping. Below are 

several relevant portions of Bridges’ deposition testimony, 

which Walker claims are admissions relevant to her theory of 

recovery and formed the basis for which she sought similar 

testimony at trial. The deposition was received for the record 

after the district court ruled that Bridges’ challenged testimony 

would be excluded.

Q. Was the bracket found to be defective?

A. The bracket was not found to be defective. But if 

it’s used improperly or out away from the mast, it does 

change the center of gravity for the forklift.

Q. Did the BNSF find the bracket to be defective?

A. The bracket in and of itself is a piece of steel. But 

if you use the furthest pick point away from the mast, you 

can exceed the lifting capacity of the forklift.

. . . .

Q. Would you agree that the installation of the bracket 

on the Taylor Big Red forklift shifted the load center 

away from the mast?

A. Yes.

Q. And agree that the bracket that was used on the 

traction motor’s axles — agree that when the bracket was 

used, the traction motor’s axle rested more than 70 inches 

away from the mast?
- 563 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

WALKER v. BNSF RAILWAY CO.

Cite as 306 Neb. 559

A. Yes; but I don’t know that the axle is the center of 

gravity.

Q. Fair enough. And I’m not trying to say that it was; 

I’m just trying to identify that the axle was there.

A. Based on measurements, yes.

Q. And do you agree that when the traction motor was 

loaded in this position, the combined weight of the traction motor and the bracket exceeded the capacity of the 

Taylor forklift?

A. Yes, that is my belief.

. . . .

Q. And do you agree that when the bracket was used 

in a position that the traction motor was lifted using the 

bracket that a GE traction motor exceeded the capacity of 

the forklift?

. . . .

A. As we previously discussed, I do believe it exceeded 

the lifting capacity.

Q. . . . And you agree that every time an employee 

lifted a traction motor with that setup, he or she was 

exceeding the capacity of the forklift.

. . . .

A. Yes.

Q. . . . And so every time that an employee lifted a 

traction motor, because they were exceeding the capacity, 

there was risk of the forklift tipping.

[Objection.]

A. I think I have a two-part answer for that. I think 

that, one, it depends upon height and pitch of the traction motor. So when the load is — the mast is all the 

way against the forklift and it’s only this high . . . off the 

ground, I don’t believe that it would tip the traction motor. 

I think at a very elevated position with the forks tipped 

forward that obviously it will tip the traction motor.

BNSF filed a motion in limine seeking, inter alia, to 

exclude evidence of subsequent remedial measures to prove 
- 564 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

WALKER v. BNSF RAILWAY CO.

Cite as 306 Neb. 559

negligence, including “removal of the forklift and/or its rack 

from service, and . . . use of a different forklift and/or rack” 

following Walker’s accident. Walker stipulated to this exclusion, and the district court granted the motion with respect to 

evidence of subsequent remedial measures.

At trial, BNSF asserted that moving the GE traction motor 

with the attachment did not exceed Big Red’s capacity. In its 

opening statement, BNSF explained that “[y]ou have a 16,000 

capacity forklift carrying about 13,000 pounds of weight and 

you add in the weight of that metal pallet and you get maybe 

up to 14,000 pounds of weight. You are a ton underneath the 

load capacity of this forklift.” BNSF introduced evidence that 

the forklift was not over its capacity at the outset of moving a 

G.E. traction motor with the attachment.

Bridges, whose testimony is quoted above, was designated 

as BNSF’s representative at trial. Several times at trial, Walker 

attempted to elicit Bridges’ admissions that the combined 

weight of the attachment and G.E. traction motor exceeded 

Big Red’s capacity, causing an overloaded condition and risk 

of tipping. Walker asked him, “And, would you agree that 

BNSF and you as their corporate spokesman believe that the 

bracket caused or the attachment caused the overload[?]” 

BNSF objected, claiming that postinjury conversations with 

Taylor and conclusions drawn therefrom by BNSF were inadmissible evidence of subsequent remedial measures made to 

remedy flaws or failures in the forklift operations. BNSF also 

argued that Walker’s questions asked for hearsay, because 

they were attempts to relay statements from the manufacturer 

to BNSF and Bridges, all to the effect that BNSF had learned 

from the manufacturer that the forklift was overloaded. In 

response, Walker argued BNSF had ultimately concluded and 

believed that the attachment caused the overload condition 

and admitted to its understanding in the deposition of Bridges, 

its designee. The court sustained BNSF’s objection. Walker 

attempted to introduce evidence of BNSF’s postinvestigation conclusions regarding the overload issue several times, 
- 565 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

WALKER v. BNSF RAILWAY CO.

Cite as 306 Neb. 559

and the court continued to sustain BNSF’s objections. After 

the district court had excluded Bridges’ testimony, the court 

received the two volumes of the transcripts of Bridges’ depositions as an offer of proof.

Walker’s theory at trial was that BNSF had negligently 

modified Big Red, causing an overload condition and tipping 

leading to injury. Several witnesses for Walker testified that 

Big Red as modified by BNSF was overloaded. For example, 

David Danaher, a forensic mechanical engineer and certified 

professional engineer, opined that the forklift was overloaded 

regardless of the position of the forklift. Ken Tester, a safety 

trainer, testified at length about the “removable attachment” 

modification to the forklift and concluded that “it was just 

inevitable an accident would happen.” He explained that “[w]ith 

an attachment like an extension, like in the situation where we 

have here, the load would be different, [its] maximum would 

not be 18,425 pounds, it would be a lot less.” Tester opined 

that BNSF should have taken measures to prevent overloading 

prior to the incident and that had it done so, the incident may 

have been prevented.

BNSF’s theory at trial was that Walker operated the forklift in a dangerous manner and was the cause of its instability and accident. In support of its theory, BNSF called Paul 

Skelton, a truckdriver who was an eyewitness to the incident. 

Skelton testified that he had picked up traction motors at the 

Alliance facility “[a] few times” prior to the incident. On the 

day of the incident, he observed Walker loading the first traction motor onto his flatbed trailer, approximately 40 inches 

from ground level. He testified that her way of loading struck 

him as abnormally high because “[n]ormally, they don’t raise 

them that high.” He testified that he “expressed a little bit of 

concern about that” because the forklift had seemed to do “a 

teeter motion.” The first load came down on the trailer “a little 

hard,” and Skelton said he “was worried about the damage to 

the trailer because these are particularly expensive trailers that 

we have.” After Skelton asked Walker why she raised the load 
- 566 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

WALKER v. BNSF RAILWAY CO.

Cite as 306 Neb. 559

that high, she said she could not see him. Skelton moved so 

that they would be able to see each other during the following load.

According to Skelton, Walker brought in the second load 

high as well. Skelton testified that “it was still raised up considerably higher than it needed to be” but acknowledged it may 

have been a bit lower than it had been when Walker delivered 

the first load. He observed the load was higher than his head, 

and stated he is 5 feet 11 inches tall. Walker began lowering the 

load and tilting the mast forward to deposit the motor on the 

trailer. As the load got close to the deck, Skelton noticed there 

were “boards . . . out of position.” Skelton stopped Walker 

before she set the load down so he could reposition the boards. 

Walker raised the load back up to around the roof of the forklift 

cab, and she backed away, to allow Skelton to maneuver the 

boards. He testified that he observed that the forklift mast was 

still tipping forward and had not been brought back toward the 

forklift cab. Skelton was adjusting the boards when he heard 

the sound of a motor revving and turned and observed the traction motor roll off the front of the forklift and onto the ground. 

Skelton observed the forklift tilt backward “back down on all 

four wheels.” Skelton testified that Walker’s load positioning, 

including the load height and forward tilting of the mast, was 

contrary to what he had been taught and had observed in the 

past at the Alliance facility.

The jury rendered a verdict for BNSF, and the court accepted 

the verdict and entered judgment. Walker moved for a new 

trial, which was denied. Walker appeals.

ASSIGNMENT OF ERROR

Walker claims, summarized and restated, that the district 

court erred when it excluded evidence of BNSF’s admission 

that the forklift was overloaded and at risk for tipping.

STANDARDS OF REVIEW

[1] A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations 
- 567 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

WALKER v. BNSF RAILWAY CO.

Cite as 306 Neb. 559

will not be disturbed on appeal unless they constitute an abuse 

of that discretion. O’Brien v. Cessna Aircraft Co., 298 Neb. 

109, 903 N.W.2d 432 (2017).

[2] Apart from rulings under the residual hearsay exception, 

an appellate court reviews for clear error the factual findings underpinning a trial court’s hearsay ruling and reviews 

de novo the court’s ultimate determination to admit evidence 

over a hearsay objection or exclude evidence on hearsay 

grounds. Id.

[3] In a civil case, the admission or exclusion of evidence is 

not reversible error unless it unfairly prejudiced a substantial 

right of the complaining party. Id.

[4] An abuse of discretion, warranting reversal of a trial 

court’s evidentiary decision on appeal, occurs when a trial 

court’s decision is based upon reasons that are untenable or 

unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.

ANALYSIS

Exclusion of Walker’s Evidence 

and Walker’s Offers of Proof.

The central issue in this appeal is generally whether the 

district court erred when it excluded Walker’s evidence, which 

according to Walker would have shown that a postaccident 

investigation led BNSF to believe that Big Red as modified 

by BNSF had been overloaded, leading to the risk of tipping 

over. Walker specifically claims that Bridges should have been 

permitted to testify to that effect.

At trial, Walker attempted to question Bridges, BNSF’s designee at trial, regarding BNSF’s conclusions and belief that Big 

Red’s capacity was exceeded when lifting a G.E. traction motor 

using the attachment. Bridges was asked, “And, would you 

agree that BNSF and you as their corporate spokesman believe 

that the bracket caused or the attachment caused the overload[?]” BNSF objected, and the district court sustained the 

objection. This question launched subsequent offers of proof 

by Walker related to whether BNSF concluded and believed 
- 568 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

WALKER v. BNSF RAILWAY CO.

Cite as 306 Neb. 559

that Big Red was over capacity when employees lifted G.E. 

traction motors with the forklifts with the BNSF attachments. 

BNSF objected to each offer of proof, and the court sustained 

the objections. Walker’s offers of proof submitted after the ruling included the questions and answers from Bridges’ deposition at which he had admitted the forklift as modified could 

cause an overload condition and risk of tipping.

Rules of Evidence.

At trial, BNSF made objections to Bridges’ testimony based 

both on the rules related to hearsay and on the prohibition 

against introduction of subsequent remedial measures, the latter of which is contained in Neb. Rev. Stat. § 27-407 (Reissue 

2016). Those rules are set forth below.

Hearsay is not admissible except as provided by the Nebraska 

Evidence Rules. O’Brien v. Cessna Aircraft Co., supra. See 

Neb. Rev. Stat. § 27-803 (Reissue 2016). Under Neb. Rev. Stat. 

§ 27-801(4) (Reissue 2016), set forth in relevant part, a statement is not hearsay if “(b) The statement is offered against a 

party and is . . . (iv) a statement by his agent or servant within 

the scope of his agency or employment . . . .” Section 27-407 

provides:

When, after an event, measures are taken which, if 

taken previously, would have made the event less likely to 

occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered 

for another purpose, such as proving ownership, control, 

or feasibility of precautionary measures, if controverted, 

or impeachment. Negligence or culpable conduct, as used 

in this rule, shall include, but not be limited to, the manufacture or sale of a defective product.

Admissibility Arguments.

On appeal, Walker contends that the evidence sought to be 

elicited from Bridges was not hearsay, because it represented 
- 569 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

WALKER v. BNSF RAILWAY CO.

Cite as 306 Neb. 559

the understandings of BNSF, and that the district court erred 

when it excluded the evidence on the basis of hearsay. In 

response, BNSF asserts that Bridges’ testimony was essentially 

a repeat of Taylor’s declarations and that the district court properly excluded Bridges’ statements because they are hearsay.

Walker further contends that the evidence sought to be 

elicited from Bridges reflected BNSF’s postaccident investigation and was part of an investigation, and not a statement, 

concerning a subsequent remedial measure and that the district court erred when it excluded the evidence on this basis. 

In contrast, BNSF asserts that Bridges’ testimony was properly excluded as evidence of subsequent remedial measures. 

See § 27-407.

Error, If Any, Was Not 

Unfairly Prejudicial.

As explained below, we determine that even if the Bridgesrelated evidence was erroneously excluded, such error was not 

prejudicial. We determine that reversal is not required because 

the evidence which was excluded attempted to establish the 

same fact particularly regarding causation that Walker successfully presented to the jury by other means.

[5] As we recited above, the admission or exclusion of 

evidence at trial is not reversible error unless it unfairly 

prejudiced a substantial right of the complaining party. See 

O’Brien v. Cessna Aircraft Co., 298 Neb. 109, 903 N.W.2d 

432 (2017). We have stated that when the information is, 

for the most part, already in evidence from the testimony of 

witnesses, the exclusion of the evidence is not prejudicial. 

See Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 

N.W.2d 816 (2015).

At trial, Walker presented evidence that Big Red was over 

capacity and argued that the overloaded forklift represented 

negligence by BNSF and was the cause of her injuries. Danaher, 

Walker’s expert certified professional engineer, opined that 

Big Red, outfitted with the attachment, was overloaded when 

carrying a G.E. motor regardless of its positioning. And Tester, 
- 570 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

WALKER v. BNSF RAILWAY CO.

Cite as 306 Neb. 559

a safety trainer, also testified about the attachment to the 

forklift and concluded that “it was just inevitable an accident 

would happen.” He opined that under the standards set forth 

by the American National Standards Institute, such an attachment “[s]houldn’t have been used in the first place without 

expressed written approval by the manufacturer for them to do 

their testing on it to see if it was changing any of the stability of the forklift.” He explained to the jury that if BNSF had 

gone through industry standard protocol for adding an attachment, the forklift operators would have been apprised of the 

forklift’s new capacity through new tags and decals placed on 

the forklift. He testified that with respect to Big Red’s load, 

its “maximum would not be 18,425 pounds, it would be a 

lot less.”

However, in spite of Walker’s success eliciting evidence 

concerning the hazard presented by Big Red’s attachment, 

there was other evidence at trial to support the jury’s verdict 

that Walker had not met her burden of proof. BNSF’s case 

at trial was that Walker’s operation of the forklift was dangerous and was the cause of its instability and the accident. 

Indeed, Walker’s expert witness, Danaher, testified on crossexamination that based on his discussions with Walker, she had 

not followed the training she had received for depositing a load, 

and Skelton, who witnessed the accident, testified that Walker 

raised the load to an abnormal height and tilted the mast forward more than necessary to deposit the load. Further, BNSF 

introduced evidence of a commonly used “rule of thumb” metric under which, it argued, Big Red was not overloaded. Thus, 

there was ample evidence for the jury’s consideration in support of both Walker’s and BNSF’s theories. Given the record, 

we conclude that the district court’s exclusion of evidence did 

not prejudice a substantial right of Walker’s.

CONCLUSION

Although the district court excluded testimonial evidence of 

BNSF’s designee related to the company’s postaccident investigation, the exclusion did not unfairly prejudice a substantial 
- 571 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

WALKER v. BNSF RAILWAY CO.

Cite as 306 Neb. 559

right of Walker, because she was able to present other evidence 

showing the same facts, and there was sufficient evidence to 

support the jury’s verdict. We affirm the judgment of the district court.

Affirmed.

Miller-Lerman, J., concurring.

I concur with the court’s determination that this case should 

be affirmed. My analysis differs because I would find that 

the exclusion of the Bridges-related testimony was erroneous, 

although I agree its exclusion was not prejudicial. As I explain 

below, I believe Bridges’ testimony was not hearsay nor was it 

evidence of a subsequent remedial measure; hence, it should 

have been admitted. Further, I suggest this court adopt the distinction commonly made between postaccident investigations 

and subsequent remedial measures, the former of which are 

admissible under § 27-407.

HEARSAY

Contrary to BNSF’s assertion, I agree with Walker that 

admissions by BNSF’s corporate designee, Bridges, at trial 

and in his deposition, are not hearsay under § 27-801(4)(b)(iv). 

The admissions by a party to an action upon a material matter 

are admissible against him or her as original evidence. Ficke 

v. Wolken, 291 Neb. 482, 868 N.W.2d 305 (2015). Thus, as a 

general rule, any act or conduct on the part of a party which 

may fairly be interpreted as an admission against interest on 

a material issue may be shown in evidence against him or 

her. Id.

BNSF has attempted to characterize Bridges’ testimony as 

merely conveying the conclusion of Big Red’s manufacturers. 

However, the record shows that Bridges was asked about his 

beliefs and BNSF’s conclusions. BNSF’s representative was 

asked at trial if BNSF believed that the attachment caused an 

overload condition of the forklift and if he “agree[d] that every 

time an employee lifted a traction motor with that setup he or 

she was exceeding [the capacity].” Bridges’ testimony that he, 
- 572 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

WALKER v. BNSF RAILWAY CO.

Cite as 306 Neb. 559

on behalf of BNSF, believed that Big Red as modified exceeded 

capacity was an admission by a party regarding a material 

matter, which under § 27-801(4)(b)(iv) should not have been 

excluded as hearsay. Accordingly, I agree with Walker that the 

district court erred when it characterized Bridges’ testimony as 

hearsay and excluded it on this basis.

SUBSEQUENT REMEDIAL MEASURES

The rule pertaining to the exclusion of the subsequent remedial measures is codified in Nebraska in § 27-407. The rule as 

it relates to postevent investigations or reports has been much 

discussed in jurisprudence across the country. See, Brazos 

River Authority v. GE Ionics, Inc., 469 F.3d 416 (5th Cir. 

2006); Complaint of Consolidation Coal Co., 123 F.3d 126 (3d 

Cir. 1997); Prentiss & Carlisle v. Koehring-Waterous, 972 F.2d 

6 (1st Cir. 1992); Specht v. Jensen, 863 F.2d 700 (10th Cir. 

1988); Rocky Mountain Helicopters v. Bell Helicopters, 805 

F.2d 907 (10th Cir. 1986); Maddox v. City of Los Angeles, 792 

F.2d 1408 (9th Cir. 1986); Westmoreland v. CBS Inc., 601 F. 

Supp. 66 (S.D.N.Y. 1984); Alimenta (U.S.A.), Inc. v. Stauffer, 

598 F. Supp. 934 (N.D. Ga. 1984); Bullock v. BNSF Ry. Co., 

306 Kan. 916, 399 P.3d 148 (2017); Martel v. Mass. Bay 

Transp. Authority, 403 Mass. 1, 525 N.E.2d 662 (1988).

The view I would find applicable and would adopt is that 

evidence of a postaccident investigation which is distinguishable from a remedial undertaking is not excluded by § 27-407. 

By its text, § 27-407 is explicitly limited to measures taken 

after an event “which, if taken previously, would have made 

the event less likely to occur.” This does not mean that “competent evidence resulting from an internal investigation of a 

mishap must also be excluded.” Westmoreland, 601 F. Supp. 

at 67. One treatise observes that “such reports or inspections 

are not themselves remedial measures, and do not themselves 

even reflect decisions to take or implement such measures.” 

2 Christopher B. Mueller & Laird C. Kirkpatrick, Federal 

Evidence § 4:50 at 75 (4th ed. 2013).
- 573 -

Nebraska Supreme Court Advance Sheets

306 Nebraska Reports

WALKER v. BNSF RAILWAY CO.

Cite as 306 Neb. 559

It is well recognized that the policy of excluding subsequent 

remedial measures attempts to avoid discouraging steps to 

further safety. See, e.g., Dusenbery v. United States, 534 U.S. 

161, 122 S. Ct. 694, 151 L. Ed. 2d 597 (2002); Wollenhaupt 

v. Andersen Fire Equip. Co., 232 Neb. 275, 440 N.W.2d 447 

(1989). However, “the policy considerations that underlie Rule 

407, such as encouraging remedial measures, are not as vigorously implicated where investigative tests and reports are 

concerned.” Rocky Mountain Helicopters, 805 F.2d at 918. 

Extending the rule to exclude evidence of all postaccident 

investigations “fails to credit the social value of making available for trial what is often the best source of information.” 

Westmoreland, 601 F. Supp. at 67. The fruits of these investigative tests and reports are “one of the best and most accurate sources of evidence and information.” Id. at 68. I agree 

with the observation that “[i]t would strain the spirit of the 

remedial measure prohibition in Rule 407 to extend its shield 

to evidence contained in post-event tests or reports.” Rocky 

Mountain Helicopters, 805 F.2d at 918.

Walker’s attempted examination of Bridges and her offers of 

proof at issue here did not touch on BNSF’s decision to implement remedial measures after Walker’s accident. Conclusions 

drawn by BNSF’s agents regarding the forklift’s capacity with 

the attachment were competent evidence resulting from an 

internal investigation of Walker’s incident and were not, on 

their own, evidence of remedial measures taken to prevent 

future injuries. Accordingly, I agree with Walker that the district court erred when it characterized Walker’s propounded 

evidence as subsequent remedial measures and excluded postaccident investigations, tests, and reports on this basis.

Although I believe the Bridges-related postaccident investigation evidence was wrongly excluded, viewing the record as 

a whole, I agree with this court’s conclusion in this case that 

such exclusion was not prejudicial.