NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS 

DIVISION ONE

WES C. DAVIS, Plaintiff/Appellant,

v.

BNSF RAILWAY COMPANY, Defendant/Appellee.

No. 1 CA-CV 13-0083

Appeal from the Superior Court in Maricopa County

No. CV2008-017741

The Honorable J. Richard Gama, Judge

AFFIRMED

COUNSEL

Osborn Maledon PA, Phoenix

By Mark I. Harrison, Brandon A. Hale

And

St. John & Romero, Mesa

By Jason J. Romero

And

Hildebrand McLeod & Nelson, Oakland, CA

By Anthony S. Petru, Kristoffer S. Mayfield

Co-Counsel for Plaintiff/Appellant
2

Thorpe Shwer, Phoenix

By William L. Thorpe, Bradley D. Shwer and Adam T. Reich

Counsel for Defendant/Appellee

MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in 

which Judge Peter B. Swann and Judge Jon W. Thompson joined.

G O U L D, Judge:

¶1 Wes C. Davis appeals from the jury’s verdict in his Federal 

Employer’s Liability Act (“FELA”) action against BNSF Railway Company 

(“BNSF”) awarding him $3 million in damages, but apportioning 95% of 

fault to him. He argues the court should not have instructed the jury on 

comparative fault, and the jury’s verdict is not supported by the evidence. 

We determine there was sufficient evidence both to instruct the jury on 

comparative fault and from which the jury could have reached its verdict,

and affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On September 11, 2005, Davis was working as a BNSF 

conductor on an eastbound train heading to the Winslow, Arizona 

terminal. The train was stopped due to traffic ahead. While the train was 

stopped, a westbound train leaving Winslow approached on the adjacent 

track. 

¶3 BNSF General Code of Operating Rules (“GCOR”), require

conductors to detrain to perform a visual roll-by inspection of passing 

trains whenever the conductor’s train is stopped and another train will 

pass. In compliance with this rule, Davis detrained by climbing down the 

ladder on the south side of the locomotive onto the mainline ballast below. 

Mainline ballast, which consists of crushed rock approximately 2.5 inches 

in diameter, is built up beneath the track and slopes about three or four 

feet to the ground; Davis was required to traverse this slope to be in 

position for the roll-by inspection. 

¶4 As Davis released the handrail and began walking down the 

slope, the ballast shifted beneath his weight. Davis turned back toward 

the locomotive to try to catch himself; he felt a twist and popping in his 
DAVIS v. BNSF

Decision of the Court

3

ankle and fell to the ground. Davis reported the injury and received 

medical attention. At the time of the accident, Davis was wearing all the 

required safety equipment and he was not found to have violated any 

company safety rules. 

¶5 Davis filed a FELA action against BNSF. The jury awarded 

Davis $3 million in damages; however, it attributed 95% of the fault to 

Davis, and only 5% to BNSF. Following the verdict, Davis filed a motion 

to alter or amend the judgment arguing the evidence did not support the 

verdict and the court erred in excluding evidence of other mainline ballast 

slip and fall injuries.1 The court denied Davis’ motion concluding that 

substantial evidence supported the jury’s apportionment of fault and that 

it had properly excluded evidence of prior incidents. Davis timely 

appealed.

DISCUSSION

I. Comparative Fault Jury Instruction

¶6 Davis argues the court erred by giving the jury an 

instruction on comparative fault because there was no evidence from 

which the jury could reasonably conclude Davis acted without due care. 

As a preliminary matter, BNSF contends Davis waived his objection to the 

court’s inclusion of the jury instruction because he did not properly object 

to it. A party must object to a jury instruction “stating distinctly the 

matter objected to and the grounds of the objection.” Ariz. R. Civ. P. 51(a). 

A general objection will not satisfy this rule. Rhue v. Dawson, 173 Ariz. 

220, 228, 841 P.2d 215, 223 (App. 1992). “An objection that the evidence 

does not support the giving of the instruction is . . . a general objection 

and is insufficient.” Spillios v. Green, 137 Ariz. 443, 447, 671 P.2d 421, 425 

(App. 1983).

¶7 While discussing the final jury instructions, Davis indicated 

that he did not feel an instruction on contributory negligence was

appropriate, stating:

Frankly, we had submitted a jury instruction indicating, in 

this case, there’s no comparative fault. For the record, I do 

not believe that there is any evidence that Mr. Davis was 

negligent in any way, shape or form. In fact, there’s 

 

1 In this appeal, Davis does not raise the trial court’s order 

precluding evidence of prior injuries. 
DAVIS v. BNSF

Decision of the Court

4

testimony from his managers that he’s committed no rule 

violations. And I don’t think a comparative fault instruction 

should be given. 

During the course of the discussion Davis proposed the following 

instruction directing that he could be found contributorily negligent:

I think it could read – and I wouldn’t have any objection to 

this: If you find from the evidence that any negligence on the 

part of BNSF Railway Company or Plaintiff contributed, in 

any way or manner, towards any injury suffered by Plaintiff, 

then that injury was caused by . . . that party’s negligence. 

(Emphasis added.) 

¶8 Accordingly, taking the somewhat general nature of Davis’ 

original objection, with his later apparent withdrawal of his objection 

while at the same time offering a contributory negligence instruction, we 

conclude Davis did not sufficiently object and he has waived this issue 

absent fundamental error. Bradshaw v. State Farm Mut. Auto. Ins. Co., 157 

Ariz. 411, 420, 758 P.2d 1313, 1322 (1988) (concluding that because party 

did not object to the instruction it waived the issue unless giving the 

instruction was fundamental error). Because it is fundamental error to 

instruct the jury on contributory negligence “if no evidence is presented 

from which a jury could properly find a lack of due care by a plaintiff,” 

we will consider Davis’ claim. Wilson v. Burlington N., Inc., 670 F.2d 780, 

782 (8th Cir. 1982); see also Jones v. Consol. Rail Corp., 800 F.2d 590, 592 (6th 

Cir. 1986); Paluch v. Erie Lackawanna R. Co., 387 F.2d 996, 999 (3d Cir. 1968). 

¶9 Davis brought his FELA action in state court. “FELA cases 

adjudicated in state courts are subject to state procedural rules, but the 

substantive law governing them is federal.” St. Louis Sw. Ry. Co. v. 

Dickerson, 470 U.S. 409, 411 (1985). Whether or not a jury instruction is 

warranted “is an issue of ‘substance’ determined by federal law.” Id.

¶10 FELA entitles an employee to recover damages “if the 

employer’s negligence played any part in producing the injury, no matter 

how slight.” Taylor v. Burlington N. R. Co., 787 F.2d 1309, 1313 (9th Cir. 

1986). The comparative negligence scheme of FELA reduces a plaintiff’s 

recovery in proportion to his share of responsibility for the injury. 

Fashauer v. New Jersey Transit Rail Operations, Inc., 57 F.3d 1269, 1282 (3d 

Cir. 1995). The affirmative defense of contributory negligence is available; 

“it is not a complete bar to a plaintiff’s recovery but, rather, operates to 

diminish the recovery in proportion to the parties’ comparative fault.” 
DAVIS v. BNSF

Decision of the Court

5

Butynski v. Springfield Terminal R. Co., 592 F.3d 272, 276 (1st Cir. 2010). 

Moreover, while the burden of proof is on the defendant, a defendant is 

entitled to an instruction on contributory negligence “if there is any 

evidence at all of contributory negligence.” Taylor, 787 F.2d at 1314; see

Butynski, 592 F.3d at 277 (An “employer who has asserted a defense of 

contributory negligence in a FELA case is entitled to a jury instruction on 

that defense as long as the record contains some evidence from which 

contributory negligence can be inferred.”). 

¶11 To be sent to the jury, the weight of the evidence must be 

more than a scintilla, “but a string of circumstances may be enough for the 

submission of the issue.” Haines v. S. Pac. Co., 7 Ariz. App. 65, 70-71, 436 

P.2d 159, 164-65 (1968) (citing Brady v. Southern Ry. Co., 320 U.S. 476, 479 

(1943) and Daulton v. S. Pac. Co., 237 F.2d 710, 713 (9th Cir. 1956). An 

employer cannot reach the jury on the issue of the employee’s 

contributory negligence by attacking the plaintiff’s credibility alone; the 

employer must present other evidence. Dixon v. Penn Cent. Co., 481 F.2d 

833, 837 (6th Cir. 1973); see also Butynski, 592 F.3d at 276 (“[T]he employer 

must show that ‘the plaintiff’s own negligence played a part in causing the 

injury.’”). Once an employer produces evidence from which contributory 

negligence can be inferred, he “may be assisted in sustaining his burden 

by the jury’s disbelief of plaintiff’s testimony.” Dixon, 481 F.2d at 837.

¶12 Davis argues that there was no evidence to support the 

court’s decision to instruct the jury on contributory negligence. He claims 

his testimony that he stepped off the train carefully was uncontradicted, 

and the evidence presented by BNSF corroborated his statements that he 

was required to detrain to perform roll-by inspections, that he could not 

have prevented the accident, and that he did not add additional dangers 

to his workplace environment. 

¶13 Davis’ testimony was not contradicted by any other direct 

evidence because he was the only witness to the accident; however, BNSF 

did offer circumstantial evidence from which Davis’ negligence could be 

inferred. See Lynch v. Northeast Reg. Commuter R.R. Corp., 700 F.3d 906, 917 

(7th Cir. 2012) (stating that a jury can make reasonable inferences based on 

circumstantial evidence “even where conflicting inferences are also 

appropriate and no direct evidence establishes which inference is 

correct”). 

¶14 There was sufficient evidence for the court to instruct the 

jury on comparative fault. BNSF presented evidence that mainline ballast 

is a reasonably safe surface on which to walk if one does so carefully. 
DAVIS v. BNSF

Decision of the Court

6

BNSF also presented testimony that the mainline ballast at the site of 

Davis’ accident was typical mainline ballast. Davis had training and 

experience walking on ballast; he testified he had performed hundreds of 

roll-by inspections from the ground without incident. Davis’ ankle was 

injured when, as the ballast shifted beneath his weight, he twisted and 

turned back to grab the locomotive behind him. There are two competing 

inferences the jury could have made from this evidence. One, that Davis’ 

twisting and turning back to catch himself on the locomotive was a 

reasonable reflex to avoid falling and hitting his head on the ballast. Two, 

that based on Davis’ training and experience it was negligent to twist and 

attempt to change his direction as the ballast shifted beneath his weight, 

rather than steadying himself and letting the ballast settle. Where a jury 

could choose among competing, evidence-based inferences, the issue must 

be sent to the jury. Butynski, 592 F.3d at 277; see also Meyers v. Union Pac. 

R. Co., 738 F.2d 328, 331 (8th Cir. 1984) (finding no error in instructing jury 

on contributory negligence where there was evidence from which the jury 

could reasonably conclude plaintiff did not exercise due care). 

II. 95% Apportionment of Fault

¶15 Davis next argues the court erred in denying his motion to 

amend the judgment because the evidence did not support the jury’s 

verdict that he was 95% at fault.

¶16 Following the verdict awarding Davis $3 million in damages 

but apportioning 95% of the fault to him, Davis filed a motion to alter or 

amend the judgment pursuant to Arizona Rule of Civil Procedure 59(a)(6), 

(8). He argued the evidence did not support the jury’s apportionment of 

fault and that the court erred in rejecting certain evidence. The court 

denied Davis’ motion stating that “there was substantial evidence 

presented to support the jury’s allocation of fault,” and that it properly 

excluded the evidence. Davis now argues the court erred in denying his 

motion because the record does not justify the verdict. 

¶17 The trial court has broad discretion to grant a new trial; the 

court has substantial latitude in deciding whether to upset the verdict 

because it has seen the witnesses, heard the testimony, and “has a special 

perspective of the relationship between the evidence and the verdict.” 

Reeves v. Markle, 119 Ariz. 159, 163, 579 P.2d 1382, 1386 (1978); see also 

Hutcherson v. City of Phx., 192 Ariz. 51, 53, ¶ 12, 961 P.2d 449, 451 (1998). 

However, the court “is not justified in setting aside a verdict and granting 

a new trial where there is substantial evidence to support the verdict or 

the evidence is ‘equiponderant.’” Joy v. Raley, 24 Ariz. App. 584, 585, 540 
DAVIS v. BNSF

Decision of the Court

7

P.2d 710, 711 (1975). A court has discretion to act when the verdict is “so 

‘manifestly unfair, unreasonable and outrageous as to shock the 

conscience.’” Hutcherson, 192 Ariz. at 55, ¶ 23, 961 P.2d at 453, citing 

Young Candy & Tobacco Co. v. Montoya, 91 Ariz. 363, 370, 372 P.2d 703, 707 

(1962).

¶18 In our review, we view the evidence in the light most 

favorable to upholding the jury verdict; “if any substantial evidence exists 

permitting reasonable persons to reach such a result, we will affirm the 

judgment.” Hutcherson, 192 Ariz. at 53, ¶ 13, 961 P.2d at 451. “[I]t is not 

contributory negligence to fail to discover a danger when there is no 

reason to apprehend one.” Paluch, 387 F.2d at 999 (injured worker who 

was totally inexperienced and relied on his superior’s statement that it 

was safe; no contributory negligence for failure to discover a danger his 

more-experienced superior did not detect). BNSF has a duty to provide a 

safe working environment; however, in determining whether a worker’s 

negligence contributed to his injury the jury can consider the manner in 

which the worker performed his job in that environment. See Birchem v. 

Burlington N. R. Co., 812 F.2d 1047, 1049 (8th Cir. 1987). To arrive at its 

verdict, the jury necessarily concluded that BNSF’s negligence contributed 

to Davis’ injury; yet, it determined that Davis’ own actions caused the 

majority of the harm he suffered. 

¶19 Davis’ theory throughout the case was that BNSF’s policy of 

requiring its workers to detrain in order to perform roll-by inspections on

mainline ballast was negligent. “[W]hen an employee carries out his 

supervisor’s general order in an unsafe manner, he is responsible under 

FELA for his own contributory negligence. But when an employee carries 

out a direct order, even if he has reason to know the order exposes him to 

danger, he is not contributorily negligent.” Jenkins v. Un. Pac. R. Co., 22 

F.3d 206, 211 (9th Cir. 1994). The critical distinction is between a general 

order and a direct one. Id. Davis characterizes the GCOR requiring that 

he detrain to perfom a roll-by inspection as a direct order that he was 

required to follow, even if doing so exposed him to danger. The language 

of the rule indicates that an inspection must be performed when a train is 

stopped and met or passed by another train. However, the rule only 

requires the inspection be made from the ground if there is a safe location, 

and Davis would only be required to cross the track to perform the 

inspection if it was safe to do so. From this evidence, the jury could have 

concluded that the roll-by inspection was a general order and that Davis 

was responsible to exercise due care in carrying it out.
DAVIS v. BNSF

Decision of the Court

8

¶20 Davis argues the evidence indicated he complied with all 

safety rules and his testimony that he stepped off the train in the proper 

manner was uncontradicted. He relies on Dixon, 481 F.2d 833, in arguing 

that BNSF improperly relied only on his alleged lack of credibility without 

producing any other evidence that his conduct fell below the normal 

standard of care. 

¶21 However, Dixon’s discussion of Domany v. Otis Elevator Co., 

369 F.2d 604 (6th Cir. 1966), is more applicable to this case. Dixon, 481 

F.2d at 837. In Domany, the “plaintiff fell on an escalator that stopped 

suddenly, and the issue of her contributory negligence turned on whether 

she was holding the handrail as she claimed.” Dixon, 481 F.2d at 837. The 

defendant introduced evidence that other people who were holding the 

handrail did not fall and evidence of “tests indicating that people who 

hold on to the handrail will not fall when an escalator stops.” Id. This 

evidence was a permissible basis from which the jury could infer the 

plaintiff’s testimony that she was holding the handrail was untrue. Id. 

¶22 Here, BNSF introduced evidence that although mainline 

ballast is likely to shift underfoot it does not pose a hazard of injury if a 

person is paying attention. Davis testified that he had performed 

hundreds of roll-by inspections from the ground and he had slipped on 

shifting ballast without injury before. BNSF also introduced a video 

showing individuals walking on the mainline ballast in the area near 

where Davis was injured performing various tasks without the ballast 

shifting or injury. Davis testified that as the ballast shifted, he twisted 

back toward the train and injured his ankle. As identified in Dixon, this is 

sufficient evidence from which the jury could infer that Davis’ decision to 

twist and turn towards the train, given his training and experience, was 

not reasonable under the circumstances and that his testimony that he 

detrained carefully and safely and was injured despite exercising due care 

was untrue. See supra, at ¶ 14.

¶23 Davis argues the evidence BNSF presents in support of an 

inference of Davis’ contributory negligence is actually evidence of an 

impermissible assumption of risk defense. “Defenses once embraced 

substantially within the concept of assumption of risk are barred under 

the FELA and may not be revived in the form of contributory negligence. 

Where an act of alleged contributory negligence is but the practical 

counterpart of assumption of risk, it does not constitute a defense.” 

Taylor, 787 F.2d at 1316. Assumption of risk is “an employee’s voluntary, 

knowledgeable acceptance of a dangerous condition that is necessary for 

him to perform his duties.” Id. “In contrast, contributory negligence 
DAVIS v. BNSF

Decision of the Court

9

arises out of any ‘careless act or omission on the plaintiff’s part tending to 

add new dangers to [existing] conditions.’” Butynski, 592 F.3d at 279, 

citing Taylor, 787 F.2d at 1316. The court properly instructed the jury that 

it could not find that Davis assumed the risks of his employment. Further, 

the evidence presented was sufficient to show that walking on mainline 

ballast could be performed safely and it was Davis’ “careless act or 

omission” that caused to him injure his ankle as the ballast shifted and he 

fell.

CONCLUSION

¶24 We find there was sufficient evidence to send the issue of 

contributory negligence to the jury, and there was substantial evidence 

from which the jury could apportion 95% of the fault to Davis. 

Accordingly, we affirm.