The Honorable Lyle E. Strom, United States District Judge 1

for the District of Nebraska.

___________

No. 94-3904

 No. 94-4043

___________

Tracy J. Martinez, *

*

Appellee/Cross Appellant, *

*

v. * Appeals from the United States

* District Court for the District

Union Pacific Railroad Company, * of Nebraska.

*

Appellant/Cross Appellee. *

___________

 Submitted: October 20, 1995

 Filed: April 25, 1996

___________

Before McMILLIAN, ROSS and BOWMAN, Circuit Judges.

___________

ROSS, Circuit Judge.

Appellee Tracy J. Martinez, a former hostler/attendant at Union

Pacific Railroad Company, filed suit pursuant to the Federal Employers'

Liability Act, 45 U.S.C. §§ 51-60, (FELA), after he was injured when he

fell off the end of a ramp used to service locomotive engines. Martinez

claimed that Union Pacific was negligent for failing to install a

protective device or warning markings at the end of the ramp. A jury

returned a verdict in favor of Martinez for $260,000, but apportioned 25%

fault to him, for a net verdict of $195,000. We affirm the judgment of the

district court .

1
-2-

I.

The facts show that on January 10, 1990, Martinez was the subject of

a disciplinary hearing, which eventually resulted in the termination of his

employment with Union Pacific. Martinez's injury occurred within thirty

minutes of this meeting. At the time of the accident, Martinez was

directing the movement of a locomotive, and while his attention was

divided, he stepped off a ramp and fell five feet to the ground, injuring

his neck and back. Although the ramp had hand rails on its sides, it had

no warning markings around its perimeter, nor a rail on the end to prevent

such a fall. Martinez acknowledged at trial that he misjudged his position

on the ramp when he turned quickly, stepped off the ramp, and fell to the

ground.

Following a jury verdict and judgment for Martinez, Union Pacific

filed a joint Motion for Judgment as a Matter of Law and Motion for a New

Trial. On October 19, 1994, without considering the merits of Union

Pacific's motions, the district court dismissed the motions as untimely.

The district court had incorrectly calculated the filing deadline for these

post-trial motions. On October 28, 1994, Union Pacific moved the trial

court to recalculate the time allowed for post-trial motions and to

reconsider its ruling. On November 2, 1994, the district court

acknowledged its error, granted the Motion to Reconsider, and then denied

Union Pacific's original joint motions on their merits. Union Pacific then

filed this appeal on November 30, 1994. 

II.

Martinez contends Union Pacific's Notice of Appeal was filed after

the thirty-day period allowed under Rule 4(a)(4) of the Federal Rules of

Appellate Procedure and that, therefore, this court is now without

jurisdiction to consider the appeal. According to Martinez, the thirty-day

filing period under Rule 4(a)
-3-

was tolled only for thirty days following the district court's original

October 19 ruling, in which the court mistakenly dismissed the motions as

untimely. In effect, Martinez contends the Motion to Reconsider the

October 19 order, and the district court's subsequent correction of its

original ruling, had no effect on the calculation of the Rule 4(a)(4)

filing deadline. We disagree. 

Although not expressly stated, when the district court granted

reconsideration, it impliedly vacated its October 19 order, and in doing

so, revived Union Pacific's original motions. On November 2, 1994, once

recognizing the timeliness of the motions, the district court then

considered the motions for the first time on their merits, and denied them.

Because the court's original October 19 order was, in effect, vacated, the

entry date of the final dispositive order on November 2, 1994, became the

date that triggered a new thirty-day period within which the parties could

appeal from the underlying judgment. Union Pacific's appeal, filed on

November 30, 1994, was therefore timely. See Jusino v. Zayas, 875 F.2d

986, 990 (1st Cir. 1989) (thirty-day Rule 4(a) period began to run with

order correcting prior erroneous dismissal of Rule 59 motion as untimely).

Having thus established our jurisdiction, we turn to the substantive issues

raised in this appeal.

III.

Union Pacific challenges the district court's refusal to admit

testimony of two witnesses whose names were not listed on the pretrial

order. During the course of the trial, and after Martinez rested his case,

Union Pacific called Martinez as its first witness. During this

examination, Martinez admitted that he talked with other employees about

how to injure oneself in order to get "job insurance" payments for a

disability from the Railroad. He allegedly discussed with other employees

that the end ramp would be a good place to plan this type of accident.

During questioning,
 Nebraska Local Rule 16.2 appears to apply only to 2

plaintiff's witnesses; however, neither party raises this

limitation on appeal so we assume the practice in Nebraska is to

apply the rule to both plaintiffs and defendants.

 The district court subsequently reversed this instruction 3

and directed the jury that it could consider Martinez's

admissions that he had participated in conversations with other

employees about staging an accident.

-4-

however, Martinez denied making more definitive statements about

orchestrating his own accident. Objection was made when it became clear

that Union Pacific planned to call two witnesses who would challenge the

credibility of Martinez's version of how the accident occurred because

those witnesses were not disclosed on the pretrial order. 

Based on Nebraska Local Rule 16.2, the express language of the

pretrial order required that, "except upon a showing of good cause, no

witness whose name and address does not appear [in the pretrial order]

shall be permitted to testify over objection for any purpose except

impeachment." Accordingly, the district court sustained the objection,

2

concluding that it was improper to call Martinez as a witness and set him

up for impeachment, in order to call two witnesses whose names had not been

disclosed in the pretrial conference order. Following Union Pacific's

offer of proof, the court instructed the jury to disregard Martinez's

testimony relating to any prior statements that he may have made to other

employees of the Railroad. The court denied Union Pacific's motion for

3

a continuance, ruling that a lengthy adjournment of the trial for the

purpose of allowing Union Pacific to develop a significant and inflammatory

issue such as fraud would impermissibly affect the jury's ability to retain

the information already presented.

Union Pacific now argues that the district court erred when it

refused to allow into evidence the crucial testimony of these two
-5-

witnesses. According to Union Pacific, the witnesses were called solely

for the purpose of calling into question Martinez's credibility and, as

such, the impeachment exception to Local Rule 16.2(c), which allows the

omission of impeachment witnesses from the pretrial order, should apply.

 

The trial court traditionally has broad discretionary power to decide

whether to allow the testimony of witnesses not listed prior to trial.

Citizens Bank v. Ford Motor Co., 16 F.3d 965, 966 (8th Cir. 1994). In

determining whether to exclude witnesses not made known in compliance with

the pretrial order, the court will consider: "(1) the prejudice or

surprise in fact of the party against whom the excluded witnesses would

have testified; (2) the ability of that party to cure the prejudice; (3)

the extent to which waiver of the rule against calling unlisted witnesses

would disrupt the orderly and efficient trial of the case or of other cases

in the court; (4) bad faith or willfulness in failing to comply with the

court's order." Morfeld v. Kehm, 803 F.2d 1452, 1455 (8th Cir. 1986). The

district court has considerable leeway in the application of its local

rules. This court has upheld strict compliance by trial courts with their

local rules, and will "review[] the trial court's ruling only for manifest

error amounting to an abuse of discretion." Id.

Our analysis in the present case turns on the appropriate

characterization of the witnesses' testimony. "Impeachment is an attack

on the credibility of a witness, whereas rebuttal testimony is offered to

explain, repel, counteract, or disprove evidence of the adverse party."

Sterkel v. Fruehauf Corp., 975 F.2d 528, 532 (8th Cir. 1992). The primary

purpose of the pretrial witness disclosure rule is to give parties notice

of who will be called to testify, thereby avoiding unfair surprise or

prejudice at trial. Morfeld, 803 F.2d at 1455. 

We agree with the district court that the testimony, though
-6-

presented under the guise of impeachment testimony, was in fact rebuttal

testimony meant to affirmatively prove fraud on the part of Martinez.

Rather than to generally attack Martinez's credibility through these

witnesses, Union Pacific sought to disprove Martinez's claim that he was

injured as a result of Union Pacific's negligence, by instead proving that

Martinez committed fraud on his employer. The issue of fraud was never

raised in the pleadings, nor was it presented during the pretrial

conference or incorporated in the pretrial order. Although Union Pacific

claims it was unaware of these witnesses prior to the conclusion of

discovery and the issuance of the pretrial order, it knew of these

witnesses months before trial commenced. Even though Union Pacific claims

the witnesses are listed in various pretrial documents, their identity is

still unknown. Therefore, Martinez had no opportunity to depose these

witnesses, nor to develop a defense to Union Pacific's allegations of

fraud. It is precisely this kind of "surprise" that Rule 16.2 was designed

to prevent. Accordingly, we conclude the district court did not err in

refusing to admit the testimony of these two witnesses. As with the

district court, we are troubled that this ruling may have impeded the

search for the truth, but to hold otherwise would have allowed the

injection into the middle of the trial a critical issue not previously

raised and would have served to defeat the purpose of the Rules to ensure

a fair trial without undue and prejudicial surprise to either party.

IV.

Union Pacific next challenges the district court's denial of the

Railroad's motion to exclude evidence of Martinez's lost wages and earning

capacity and the court's refusal to allow Union Pacific to present

testimony that Martinez had been terminated from his job. The court

allowed the jury to decide Martinez's damages for impaired earning capacity

based on the difference between his full Union Pacific salary and that of

a paralegal, his new chosen profession. According to the Railroad,

Martinez's economic expert
-7-

erroneously computed his loss of future earning capacity on the faulty

assumption that, but for Martinez's accident, he would have continued

working as a trainman at Union Pacific until the age of 67. Union Pacific

argues that its inability to present evidence of Martinez's dismissal

eliminated its ability to rebut the testimony of the expert. 

The district court did not err in allowing evidence of Martinez's

prior earnings at Union Pacific. The economic expert, using the Union

Pacific salary as a basis of comparison, testified that prior to his

injury, Martinez could have worked for an automotive body repair business

in North Platte and would have received the same wage he had earned at the

Railroad. There was evidence that Martinez had engaged in this type of

work in the past and thus would have been qualified in the position.

Further, the court correctly limited the admission of evidence regarding

Martinez's dismissal from Union Pacific, as the dismissal was in no way

relevant to the issues presented at trial and thus was more prejudicial

than probative of the relevant issues in the case. 

We also reject Union Pacific's argument that Martinez's lost earning

capacity was speculative and conjectural at best and, therefore, that the

jury should not have been instructed on this type of damages. Martinez's

treating physician, Dr. Blum, testified that Martinez's injuries are

permanent in nature and will prevent him from performing heavy labor in the

future. Union Pacific's expert also stated that, because of the surgery

to his neck following the accident, Martinez should avoid activity that

involves repetitive bending of the neck or that requires lifting heavy

objects. Further, Dr. Blum stated that, with reasonable medical certainty,

and even accounting for a prior injury to Martinez's neck, the injuries now

complained of are the result of the accident on January 10, 1990. The

district court did not err in instructing the jury on lost earning

capacity. 
-8-

V.

Union Pacific next argues that it was not negligent as a matter of

law and that the court erred in denying its Motion for Directed Verdict or

its Motion for Judgment as a Matter of Law, because Martinez did not meet

the standard of proving a prima facie case of negligence under FELA. The

Railroad argues that Martinez was familiar with the dimensions of the

platform and thus his own contributory negligence caused the accident.

Further, because no other employees had complained of or been injured on

the platform, Union Pacific could not have foreseen the injury, and thus

was not negligent as a matter of law.

To establish Union Pacific's negligence under FELA, Martinez was

required to show that Union Pacific breached its duty to provide him with

a reasonably safe workplace. Peyton v. St. Louis S.W. Ry. Co., 962 F.2d

832, 833 (8th Cir. 1992). FELA does not require an employer to exercise

the highest degree of care, but only the same degree of care as an

ordinary, reasonable person would exercise in similar circumstances. Id.

If an employee is injured because of an unsafe condition, the employer is

liable "if its negligence played any part, even the slightest, in producing

the employee's injury." Id. (citation omitted). It is without consequence

that, from the other evidence, the jury may also attribute the accident to

other causes, including the employee's own contributory negligence. 

Here, the evidence showed that Union Pacific failed to place end

rails on the platform which was located over five feet above the ground,

in spite of the fact that end rails were located on other platforms at the

North Platte diesel shop. Further, evidence showed that Union Pacific

failed to place warning paint at the end of the platform so that an

employee would know that he or she was nearing the end of the platform.

It was reasonably foreseeable that an employee, distracted by performance

of his or her job
-9-

duties, would be at risk of injury on such platforms.

We conclude that a reasonable jury could find that Union Pacific's

negligence played some part, even the slightest, in producing Martinez's

injury. The court did not err in denying the Motions for Directed Verdict

or Judgment as a Matter of Law. 

 

VI.

In his cross-appeal, Martinez challenges the sufficiency of the

evidence to support the district court's instruction on his contributory

negligence. Under FELA, the burden of proof is on the defendant, who is

entitled to a jury instruction on contributory negligence if there is any

evidence to support that theory. Hose v. Chicago N.W. Transp. Co., 70 F.3d

968, 978 (8th Cir. 1995). 

Union Pacific offered evidence that Martinez injured himself when he

fell off a ramp that he walked on many times each day during his employment

and that he was familiar with the dimensions of the ramp and knew the ramp

did not have end rails. Further, Martinez admitted that he fell when he

misjudged his position on the ramp. While Martinez was responsible for

directing the movement of a locomotive, he also had a duty to be alert and

attentive when performing his duties and to exercise reasonable care for

his own safety. We conclude there was evidence presented from which the

jury could reasonably conclude that Martinez did not exercise due care;

thus, Union Pacific was entitled to have this theory submitted to the jury.

 

VII.

Based on the foregoing, the judgment of the district court is

affirmed.
-10-

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.