### 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.

App ellee Tracy J. Martinez, a former hostler/attendant at Unio n Pacifi c Railroad Company, filed suit pursuant to the Federal Employers ' Liability Act, 45 U.S.C. §§ 51-60, (FELA), after he was injured when h e fell off the end of a ramp used to service locomotive engines. Martinez claim ed that Union Pacific was negligent for failing to install a protectiv e device or warning markings at the end of the ramp. A jur y returned a verdict infavor of Martinez for $260,000, but apportioned 25% fault to him, for a net verdict of $195,000. We affirm the judgment of th e district court

. 1

### -2- I.
The facts show that on January 10, 1 990, Martinez was the subject of
a disciplinary hearing, which eventually resulted in the termination of hi s employment with Union Pacific. Martinez's injury occurred within thirty minutes o f this meeting. At the time of the accident, Martinez wa s directing the movement of a locomotive, and while his attention wa s divided, he stepped o ff a ramp and fell five feet to the ground, injuring his neck and back. A lthough 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 positio n on the ramp when he t urned quickly, stepped off the ramp, and fell to the ground.
Following a jury verdict and judgment for Martinez, Union Pacifi c filed a joint Motion for Judgment as a Matter of Law and Motion for a New Tria l. On October 19, 1994, without considering the merits of Unio n Pacific's motions, the district court dismissed the motions as untimely. The district court had incorrectly calculated the filing deadline for thes e post-trial motions. On October 28, 1994, Union Pacific moved the tria l court to recalculate the time allowed for post-trial motions and t o reconside r its ruling. On November 2, 1994, the district cour t acknowledged its erro r, granted the Motion to Reconsider, and then denied Union Pacific's original joint motions on their merits. Union Pacific the n filed this appeal on November 30, 1994.

II.

Martinez contends Union Pacific's Notice of Appeal was filed afte r the thirty-day period allowed under Rule 4(a)(4) of the Federal Rules of Appell ate Procedure and that, therefore, this court is now withou t jurisdiction to consider the appeal. According to Martinez, the thirty-da y filing period under Rule 4(a)

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was tolled only for thirty days following the district court's origina l October 19 ruling, inwhich the court mistakenly dismissed the motions as unti mely. In effect, Martinez contends the Motion to Reconsider th e Oct ober 19 order, and the district court's subsequent correction of it s original r uling, had no effect on the calculation of the Rule 4(a)(4 ) filing deadline. We disagree.

Althou gh not expressly stated, when the district court grante d reconsideration, it impliedly vacated its October 19 order, and in doing so, revived Union Pacific's original motions. On November 2, 1994, once recogn izing the timeliness of the motions, the district court the n considered the motions for the first time on their merits, and denied them

. Because the court's original October 19 order wa s, in effect, vacated, the entry date of the fin al dispositive order on November 2, 1994, became the date that triggered a new thirty-day period with in which the parties could appeal from the underlying judgment. Union Pacific's appeal, filed o n November 30, 1994, was therefore timely. See Jusino v. Zayas , 875 F.2 d 986, 990 (1st Cir. 1989) (thirty-day Rule 4(a) period began to run wit h order correcting prior erroneous dismissal of Ru le 59 motion as untimely). Having thus established our jurisdiction, we turn to the substantive issue s raised in this appeal.

III.

Union Pacific challenges the district court's refusal to admi t testi mony of two witnesses whose names were not listed on the pretria l order. During the course of the trial, and after Martinez rested his case , Un ion Pacific called Martinez as its first witness. During thi s 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 disc ussed 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- howev er, Martinez denied making more definitive statements abou t orchestrating his own accident. Objection was made when it became clear that Union Pacific planned to call two witnesses who would challenge the credib ilityof Martinez's version of how the accident occurred becaus e those witnesses were not disclosed on the pretrial order.

Based on Nebraska Local Rule 16.2, the express language of th e pretr ial order required that, "except upon a showing of good cause, n o witne ss whose name and address does not appear [in the pretrial order ] shall be permitted to testify over objection for any purpose excep t impeachment." Accordingly, the district court sustained the objection , 2 concluding that it wa s improper to call Martinez as a witness and set him up for impeachment, in order to call two witnesses whose names had not bee n disclo sed in the pretrial conference order. Following Union Pacific' s offer o f proof, the court instructed the jury to disregard Martinez' s testimony relating to any prior statements that he may have made to other employ ees of the Railroad. The court denied Union Pacific's motion fo r 3

a continua nce, ruling that a lengthy adjournment of the trial for th e purpose of allowing Union Pacific to develop a significant and inflammator y issue such as fraud would impermissibly affect the jury's ability to retai n the information already presented.

Union Pacific now argues that the district court erred when i t refused to allow into evidence the crucial testimony of these two

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witnesses. According to Union Pacific, the witnesses were called solely for the purpose of calling into question Martinez's credibility and, a s
suc h, the impeachment exception to Local Rule 16.2(c), which allows th e omission of impeachment witnesses from the pretrial order, should apply.

The trial court traditionally has broad discretionary power to decide wheth er to allow the testimony of witnesses not listed prior to trial

. Citi zens Bank v. Ford Motor Co. , 16 F.3d 965, 966 (8th Cir. 1994). I n determining whether to exclude witnesses not mad e known in compliance with the pretr ial order, the court will consider: "(1) the prejudice o r surprise in fact of the party against whom the excluded witnesses woul d have testified; (2) the ability of that party to cure the prejudice; (3) the extent to which w aiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other case s 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). Th e district court has considerable leeway in the application of its loca l 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 appropriat e characterization of the witnesses' testimony. "Impeachment is an attack on the credibility of a witness, whereas rebuttal testimony is offered to explai n, repel, counteract, or disprove evidence of the adverse party. " Sterkel v. Fruehauf Corp. , 975 F.2d 528, 532 (8th Cir. 1992). The primar y purpose of the pretri al witness disclosure rule is to give parties notice of who wil l be called to testify, thereby avoiding unfair surprise o r prejudice at trial. Morfeld , 803 F.2d at 1455.
We agree with the district court that the testimony, though

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presented under the guise of impeachment testimony, was in fact rebuttal testimo nymeant to affirmatively prove fraud on the part of Martinez

. Ra ther than to generally attack Martinez's credibility through thes e witnesses, Union Pacific sought to disprove Martinez's claim that he was injured as a result of Union Pacific's negligenc e, by instead proving that Martinez committed fraud on his employer. The issue of fraud was neve r raise d in the pleadings, nor was it presented during the pretria l conference or incorpo rated in the pretrial order. Although Union Pacific claims it was unaware of these witnesses prior to the conclusion o f dis coveryand the issuance of the pretrial order, it knew of thes e witnesses months before trial commenced. Even t hough Union Pacific claims the witnesses are lis ted in various pretrial documents, their identity is still unknown. Therefore, Martinez had no opportunity to depose thes e witness es, nor to develop a defense to Union Pacific's allegations o f fraud. It is precisely this kind of "surprise" that Rule 16.2 was designe d to preven t. Accordingly, we conclude the district court did not err i n refusi ng to admit the testimony of these two witnesses. As with th e district c ourt, we are troubled that this ruling may have impeded th e
sea rch for the truth, but to hold otherwise would have allowed th e injec tion into the middle of the trial a critical issue not previousl y 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 th e Railroad's motion to exclude evidence of Martine z's lost wages and earning capacity and the court's refusal to allow Union Pacific to presen t test imonythat Martinez had been terminated from his job. The cour t allowed the jury to decide Martinez's damages for impaired earning capacit y based on the differen ce between his full Union Pacific salary and that of
a paralegal, his new chosen profession. According to the Railroad , Martinez's economic expert

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erroneouslycomputed his loss of future earning capacity on the fault y assump tion that, but for Martinez's accident, he would have continue d working as a trainman at Union Pacific until the age of 67. Union Pacific argues that its inability to present evidence of Martinez's dismissa l eliminated its ability to rebut the testimony of the expert.

The d istrict court did not err in allowing evidence of Martinez' s prior earnings at Union Pacific. The economic expert, using the Unio n Paci fic salary as a basis of comparison, testified that prior to hi s injury, Martinez coul d 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 o f work i n 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 wa y relevant to the issues presented at trial and thus was more prejudicia l than probative of the relevant issues in the case.
We also reject Union Pacific's argum ent that Martinez's lost earning capacity was speculat ive and conjectural at best and, therefore, that the jury should not have been instructed on this type of damages. Martinez's tr eating physician, Dr. Blum, testified that Martinez's injuries ar e permanent in nature and will prevent him from performing heavy labor in th e future. Union Pacific's expert also stated that, because of the surgery to his neck following the accident, Martinez should avoid activity tha t involves repetitive bending of the neck or that requires lifting heav y objects. Further, Dr. Blum stated that, with reasonable medical certainty , and even accounting for a prior injury to Martinez's neck, the injuries no w complain ed of are the result of the accident on January 10, 1990. Th e dis trict court did not err in instructing the jury on lost earnin g capacity.

### -8- V.

Union Pacific next argues that it was not negligent as a matter o f law and that the court erred in denying its Moti on for Directed Verdict or its Motion for Judgme nt as a Matter of Law, because Martinez did not meet the standard of provi ng a prima facie case of negligence under FELA. The Railroa d argues that Martinez was familiar with the dimensions of th e platfo rmand 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 wa s 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 a n ordinary, reasonable person would exercise in similar circumstances. Id

. If an employee is inj ured because of an unsafe condition, the employer is liable "if its negligence played any part, even the slightest, in producin g the employee's injury." Id . (citation omitted). It is without consequenc e that, from the other evidence, the jury may also attribute the accident to other causes, including the employee's own contributory negligence.

He re, the evidence showed that Union Pacific failed to place en d rails on the platform which was located over five feet above the ground, in spite of the fact that end rails were locatedon other platforms at the North Platte diesel shop. Further, evidence showed that Union Pacifi c failed to p lace warning paint at the end of the platform so that a n employe e would know that he or she was nearing the end of the platform

. It was reasonably for eseeable that an employee, distracted by performance of his or her job

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

We concl ude 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 Mo tions for Directed Verdict or Judgment as a Matter of Law.

VI.

In his cross-appeal, Martinez challenges the sufficiency of th e 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 in struction on contributory negligence if there is any evidence to support that theory. Hose v. Chicago N.W. Transp. Co. , 70 F.3 d 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 employmen t 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 fo r 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 jur y could reasonably conclude that Martinez did not exercise due care ; thus, Union Pacific was entitled to have this theory submitted to the jury

.

VII.

Bas ed on the foregoing, the judgment of the district court i s affirmed.

### -10- A true copy.

Attest:

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