1 Accordingly, we do not address MOPAC's contention that it is

entitled to a new trial because the damages were excessive, or its

related contentions regarding lac k of proof of causation and the

testimony of Gregory's expert economist. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 93-4829

_____________________

ALLEN C. GREGORY,

Plaintiff-Appellee,

versus

MISSOURI PACIFIC RAILROAD

COMPANY, d/b/a Union Pacific

Railroad Company,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

_________________________________________________________________ (August 31, 1994)

Before JOHNSON, BARKSDALE, and DeMOSS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The principal issue in Allen C. Gregory's slip and fall action

against his employer, Missouri Pacific Rail road Company (MOPAC),

arising out of oil on t he walkway of its locomotive, is the

peremptory instruction that the presence of the oil violated the

Boiler Inspection Act, 45 U.S.C. § 23. Because violation of the

Act, v el non

, was a question for the jury, we REVERSE and R EMAND

for a new trial. 12 Gregory testified about the injuries as follows. As a result

of the fall, he injured his left ankle and lower back; because his

ankle was hurt so badly, he did not pay much attention to the back

injury; he received physical therapy for his ankle for several

months, but continued to have problems with it giving way, causing

him to fall several times a week; in May 1989, he injured his ankle

when he stepped on a root in his yard; and that July, he broke a

bone in his hand when his ankle gave way as he was getting out of

his car, causing its door to close on his hand. (MOPAC introduced

evidence that Gregory broke the bone in his hand when he hit a wall

during an arg ument with his ex-wife. And, it introduced the exwife's deposition testimony that Gregory told her that he was going

to tell the doctor that his ankle gave way, causing him to slip and

fall into the car door, so that he could get a better settlement

from the railroad.)

Gregory testified further tha t he tried to return to light

duty for MOPAC in May 1990 ; that on his second day, as he was

coming down the steps of an e ngine, he had a pain in his injured

hand; that he released the railing and fell to a standing position,

aggravating his injured back; that his ankle was completely healed;

and that his claim for future loss of earning capac ity was based

solely on the back injury caused by the January 1989 fall.

Gregory had previously injured his le ft ankle, right wrist,

and lower back while working for MOPAC in September, 1987, and was

off work for five months. He accepted $22,000 from MOPAC in

settlement of his claims, and signed a release which stated that

t hose injuries were permanent. Gregory testified at trial,

however, that the 1987 injuries were not permanent, and that he had

signed the release only because he was told by MOPAC that he could

not go back to work unless he did so.

3 Gregory received approximately $62,000 for physical pain and

mental anguish, approximately $70 ,000 for past lost wages, and

$230,000 for future loss of earning capacity.

- 2 - I.

Gregory alleged that, in January 1989, while employed by

MOPAC, he slipped on oil on a locomotive walkway and fell; but this

action was not filed until mid-1991, culminating in a four day

trial in the spring of 1993. 2 After being instructed that oil on

the walkway violated the Boiler Inspection Act (BIA), the jury

awarded Gregory approximately $362,000. 34 The jury was instructed:

The [BIA] was adopted to protect the safety of

railroad employees by imposing certain absolute

standards of maintenance for equipment used on

ra ilroads. The [BIA] makes it unlawful for any

railroad to use or permit to be used on its line

- 3 - II.

"[T]he BIA is a safety statute which is to be liberally

construed to afford protection to railroad employees". O glesby v.

Southern Pacific Transp. Co.

, 6 F.3d 603, 606 (9th Cir. 1993)

(citing Lilly v. Grand Trunk Western R.R.

, 317 U.S. 481, 486

(1943)). It "imposes `an absolute and continuing duty' to provide

safe equipment". Richardson v. Consolidated Rail Corp. , 17 F.3d

213, 216 (7th Cir. 1994) (quoting Urie v. Thompson , 337 U.S. 163,

188 (1949)). The Act provides in relevant part:

It shall be unlawful for any carrier to use

... any locomotive un less said locomotive ... and

all parts and appurten ances thereof are in proper

condition and safe to operate in the service to

which the same are put, that the same may be

employed

... without unne cessary peril to life or

limb....

45 U.S.C. § 23.

In its peremptory instruction, the court employed language

from both the BIA and a regulation adopted under it, 49 C.F.R. §

229.119(c). It instructed that the BIA required operation "without

unnecessary peril to life or limb"; and from the regu lation,

without referencing it, instructed that the Act "places an absolute

duty

... to

... [prevent] an accumulation of oil on

... the

...

passageway which presents a hazard to slipping, falling or tripping

by its employees." 4any locomotive unless the entire locomotive and

it[]s appurtenances are in proper condition and

safe to operate w ithout unnecessary peril to life

or limb and i t has passed the mandatory daily

inspection.

This statute places a n absolute duty on the

railroad to, among other things, avoid the use of a

locomotive which has an accumulation of oil on its

floor of the cab or passageway which presents a

hazar d to slipping, falling or tripping by its

employees.

In connection with the violat ion of this law

you need not consider whether the railroad was negligent, whether the railroad exercised diligence

or due care, or whether the railroad knew of the

existence of an accumulation of oil on a walkway or some other defect in the equipment. These matters

are not relevant to the claim that [MOPAC] violated

the [BIA], since the act imposes an absolute duty

on the railroad for injuries caused in whole or in

part by violation of the act.

Since it is uncontested in this case that

there was an accumulation of oil on the walkway or

passageway that ... Gregory was using on January

the 19th, 198 9, you are instructed that on this

occasion [MOPAC] was in violation of the [BIA].

Under such circumstances, [MOPAC] is liable to

[Gregory] for any injuries which were brought about

in whole or in part by the violation.

(Emphasis added.)

5 Gregory maintains that MOPAC failed to pre serve this issue.

MOPAC's objections to the charge included the following:

[T]here's no evidence

... that this oil on the

walkway was

... perilous to life and limb; and

therefore, come under the parameters of the [BIA].

- 4 - A.

MOPAC contends that, because there was a factual dispute as to

whether the oil presented a slipping hazard and thus constituted an

"unnecessary peril to life or limb", the district court erred by

peremptorily instructing the jury that MOPAC violated the BIA. 5I think that that's what the [BIA] does require.

Although the docket sheet reflects that MOP AC submitted proposed

instructions, they are not in the record; nor is the charge

conference. Therefore, we do not know what transpired regarding

the formulation of the charge. After the jury was instructed, the

parties were given an opportunity to make their objections to the

charge. Gregory had none; MOPAC, several, including the one quoted

above. Certainly, for purposes of contesting the peremptory nature

of the in struction, the objection could have been more specific,

but it meets the minimal requirements of Fed. R. Civ. P. 51 . In

its objections to the charge, MOPAC did not c ontend specifically

that the oil did not constitute a slipping hazard under the

regulation. However, we consider that objection subsumed in its

objection to the instruction that it violated the BIA, inasmuch as

the charge did not differentiate between the statute and the

regulation, but stated that "[t]his statute [the BIA] places an

absolute duty on the railroad to

... avoid the use of a locomotive

which has an accumulation of oil on its floor of the cab or

passageway which presents a hazard to slipping, falling or tripping

by its employees".

- 5 - The familiar standard adopte d by our court in B oeing v.

Shipman

, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc) governs our

review of the peremptory instruction. S immons v. King

, 478 F.2d

857, 860 (5th Cir. 1973). If all of the evidence, considered in

the light and with all reasonable inferences most favorable to

MOPAC, points so strongly and overwhelmingly in favor of Gregory

that reasonable jurors could reach only one conclusion

-- that the

oil on the passageway presented an unnecessary peril to life or

limb because it presented a slipping, falling or tripping hazard

(unnecessary peril) -- the instruction was appropriate. B oei ng

,

411 F.2d at 374. But, if there is "evidence of such quality and

weight that reasonable an d fair-minded men in the exercise of6 The parties have not cited, nor have we found, any cases

addressing a peremptory instruc tion such as the one at issue.

Numerous cases imply, however, that whether a condition presents an

"unnecessary peril to life or limb" is an issue of fact for the

jury (assuming, of course, that the evidence is not so one-sided

that the jury could reach only one conclusion). See, e.g.

, Lilly

v. Grand Trunk Western R. Co. , 317 U.S. 481, 489 (1943) ("The use

of a tender, upon whose top an employee mus t go in the course of

h is duties, which is covered with ice seems to us to involve

`unnecessary peril to life or limb'

-- enough so as to permit a jury to find that the Boiler Inspection Act has been violated");

Topping v. CSX Transp., Inc.

, 1 F.3d 260, 261 (4th Cir. 1993) ("It

seems to us a classic jury question whether the presence of the

loose metal object rendered the locomotive cab `unsafe to

operate'"); St. Louis Southwestern Railway Co. v. Williams , 397

F.2d 147, 148-49, 151 (5th Cir. 1968) (jury could properly find

that presence of oil on step of locomotive constituted a violation

of the BIA); Calabritto v. New York, New Haven & Hartford R. Co.

, 287 F.2d 394, 395 (2d Cir.) ("the use of an engine whose surface

has been made slippery by sand and oil may ... be found by a jury

to involve `unnecessary peril to life or limb' in violation of the

[]BIA"), cert. denied , 366 U.S. 928 (1961); Louisville & N.R. Co.

v. Botts , 173 F.2d 164, 167 (8th Cir. 1949) ("trial court clearly

was entitled to allow the jury to decide whether the footboard, in

the use to which the switch engine was put, was in proper condition

and safe to operate without unnecessary peril to life or limb").

- 6 - impartial judgment might reach different conclusions", the question

should have been submitted to the jury. B oeing

, 411 F.2d at 374. 6

There was conflicting evidence on whether the oil constituted

an unnecessary peril. Photographs taken the day after the incident

depict several spots of oil on the walkway. Gregory testified that

he slipped in the "largest spot, or puddle", located next to the

wall of the engine and two to three steps beyond the bottom of the

locomotive steps which he had descended just before slipping. He

described the size of the spot as "probably 12 inches, maybe, a

little larger".

The oil, as photographed the day after the incident , covered

appro ximately one-third of the width of the walkway. One of the- 7 -

pho tographs depicts a man with a broom, apparently sweeping the

walkway. Gregory testified that the oil depicted in the

photographs looked different from when he fell; and that, in the

photographs, it appears that "oil dry" (a granular or powder

substance placed on the oil to absorb it) has been placed on the

oil. But MOPAC's manager of train operations, Larry Erwin, who saw

the oil shortly after the incident, testified that a photograph of

the walkway taken the day after the incident fairly and accurately

represented what he saw on the day of the incident.

Gregory testified that the oil was wet and was absorbed into

his clothing, boots, and radio; that he did not know he had fallen

in the oil because he was sitting in it; and that, when he got up,

the engineer told him that he had oil all over his pants. On

cross-examination, Gregory testified that the oil was plainly

visible, and that he would have seen it had he been looking down.

The conductor testified that he did not notice any oil on

Gregory's clothing. On cross-examination, he admitted that, when

he went to check on Gregory after the incident, he saw on the

walkway a "puddle of oil" which measured about 18" by 8". And, his

report prepared on the date of the incident stated that Gregory

"stepped in [a] puddle of oil".

Erwin, manager of train operations, testified also that he met

the train immediately after the incident, and saw "a patch of oil"

where it occurred. He described the oil as follows:

[W]hen I say a patch of oil, it wasn't like you just poured some oil out of a can of motor oil, it

wasn't that type of oil. It ... looked more like a7 On the date of the incident, the train was using two engines.

Gregory allegedly was injured on the second unit, and he admitted

that he was supposed to be on the lead unit. Erwin opined that the

oil did not violate the BIA because the crew operates off the lead

unit, and the oil was on the seco nd unit; and the crew had not

reported the oil.

- 8 -

dirty grease, greasy spot on the side of the engine

walkway next to the inspection doors....

Erwin testified that the oil did not look slippery; rather, it was

"kind of crusty looking

... [;] it was just a little place that

looked like it had been there for a while and it wasn't fresh

looking"; that the oil did not appear to be a slipping hazard; that

the walkway had a nonskid surface; that there were no footprints in

the oil spot and "no apparent marks of anybody slipping in this oil

or grease"; and that he did not see oil on Gregory's clothing.

When asked on cross-examina t ion whether "[i]t's a pretty

serious no-no on the railroad to have oil on th e walkway", Erwin

replied: "

... I wo uld say it depends on where the oil was ...."

He opined that the oil was not a BIA violation. 7

Because there is "evidence of such quality and weight that

reasonable and fair-minded men in th e exercise of impartial

judgment might reach different conc lusions", B oeing

, 411 F.2d at

374, as to whether the oil constituted an unnecessary peril, that

question should have been presented to the jury.

B.

Gregory counters that the regulation referenced in the charge

controls, but takes a position inconsistent with both the language

used by the district court and the position Gregory took there. In8 See

, e.g.

, Lilly v. Grand Trunk Western R. Co.

, 317 U.S. 481,

488 (1943) (a rule adopted in the exercise of the Interstate

Commerce Commission's authority "acquires the force of law and

becomes an integral part of the [BIA]"); Givens v. Missouri-KansasTexas R. Co.

, 1 95 F.2d 225, 229 (5th Cir. 1952) ("A violation of

any of [the] particular requirements [promulgated by the ICC] is a

violation of the [BIA]"); Mosco v. Baltimore & Ohio R. , 817 F.2d

1088, 1091 (4th Cir.), cert. denied

, 484 U.S. 851 (1987) ("[A]

carrier may violate the [BIA] in one of two ways. First, it may

fail to comply with the regulations promulgated by the Federal

Railroad Administration. Compliance with these regulations is not,

however, the only duty imposed by the Act. The Act also imposes a

broader duty on carriers to keep all the parts and appurtenances of

their locomotives in proper condition and safe to operate without

unnecessary peril to life or limb".).

The ICC's regulatory authority under the BIA was transferred

to the Department of Transportation. S ee 49 U.S.C. § 1655(e)(1)

(E). The Federal Railroad Administration is responsible for

carrying out the Secretary of Transportation's duties under the

BIA. See 49 U.S.C. § 103 (1994).

- 9 - the alternative, he asserts that the jury did find that the oil

violated the Act.

1.

Gregory does not defe nd the peremptory instruction on the

ground that the evidence supported only a conclusion that the oil

was an "unnecessary peril to life or limb". Instead, he maintains

that he had only to prove that the oil violated regulations

promulgated under the Act. 8 MOPAC agrees that violation of such a

regulat ion can be a violation of the BIA, but asserts that the

regulati ons do not provide that the mere presence of oil on a

walkway violates the Act.

The regulation MOPAC is said to have violated, as a matter of

law, provides:

Floors of cabs, passageways, and compartments shall

be kept free from oil, water, waste or any

obstruction that creates a slipping, tripping or9 Gregory also cites a more general regulation, 49 C.F.R. §

229.45, which provides:

General Condition

. All systems and components of a

locomotive shall be free of conditions that

endanger the safety of the crew

... includ[ing]

... leaks and accumulations of oil on electrical

equipment that create a personal injury hazard....

10 Gregory's cross-examination of Erwin reflects the same interpretation of the regulation as that urged in G regory's

response to the new trial motion.

11 Even on appe al, Gregory seems to alternate on how the

regulation is to be read. At one point, he states that the

i nstruction, which would include the above quoted porti o n construing the regulation, "was a correct statement of the law".

- 10 - fi re hazard. Floors shall be properly treated to

provide secure flooring.

49 C.F.R. § 229.119(c). 9 According to Gregory, "whether something

created a slipping, tripping, or fire hazard

... would be raised

only if an injury resulted from `any obstruction' not specifically

listed in the regulation, i.e.

- not from oil, water or waste". In

district court, however, in opposition to MOPAC's new trial motion,

Gregory interpreted the regulation as prohib iting "oil on a

passageway that creates a hazard of tripping or slipping". 10

As quote d supra , the peremptory instruction took a position

contrary to Gregory's new found interpretation. It instructed that

the BIA was violated if the "accumulation of oil

... present[ed] a

hazard to slipping, falling or tripping", not that the mere

presence of oil constituted a violation. 11

Accordingly, the interpretation Greg ory takes now raises an

issue that we cannot consider. An appellee generally may urge in

support of a judgment any matter appearing in the record, e.g.

,12 See also United States v. American Railwa y Express Co. , 265

U.S. 425, 435 (1924) ("the appellee may, without taking a crossappeal, urge in support of a decree any matter appea ring in the

record, although his argument may involve an attack upon the

reasoning of the lower court or an insistence upon matter

overlooked or ignored by it"); cf

. F.D.I.C. v. LaGuarta , 939 F.2d

1231, 1240 & n.20 (5t h Cir. 1991) (summary judgment generally

should not be affirmed on grounds that were neither raised nor

relied on in the district court). B ut see Schweiker v. Hogan

, 457

U.S. 569, 584-85 & n.24 (1982) (although appellees did not present

statutory argument in the district court, "they are not precluded

from assertin g it as a basis on which to affirm that court's

judgment"). Schweiker is distinguishable because, inter alia , it

dealt with a new contention rather than one that was inconsistent

with the appellees' position in the district court.

13 We address Gregory's interpretation of the regulation in the

interest of judicial economy, should Gregory take his present

position on remand.

- 11 - City of Safety Harbor v. Birchfield

, 529 F.2d 1251, 1254 (5th Cir.

1976), but that rule is not applicable here for the simple -- and

obvious

-- reason that this point was not raised in district

court. 12 Even more than that, as noted above, Gregory took the

opposite position. Gregory cannot take one position before the

district court and then take an inconsistent position here. See,

e.g.

, Jett v. Zink

, 474 F.2d 149, 154-55 (5th Cir.) (pa rty who

argued on first appeal that action was in personam was precluded

from arguing on second ap peal that the action was q uasi in rem ),

cert. denied , 414 U.S. 854 (1973).

But, more important, for this challen ge to the peremptory

instruction, it is the language of the instruction th at must

control. And, in this regard, we agree with the district court's

interpretation of the regulation. 13

The regulation is not violated by the mere presence of any

oil, water, or waste on a passageway; instead, the presence of such14 Erwin testified that, as is well known, locomotives operate in

all kinds of weather, 24 hours a day, seven days a week, and that

in wet weather, water cannot be kept off the passageways.

- 12 - a substance is a violation only if it creates a slipping, tripping

or fire hazard. To read the regulation otherwise is to impose an

a bsurd result. For example, under Gregory's interpretation, the

regulation would be violated every time a train operated in the

rain. 14 Obviously, such an interpretation is illogical. It goes

without saying that, in construing a statute or regulation, we seek

to avoid imposing such results. S ee , e.g.

, F orsyth v. Barr

, 19

F.3d 1527, 1544 (5th Cir. 1994); B rock v. City Oil Well Service

Co. , 795 F.2d 507, 510 (5th Cir. 1986).

Moreover, Gregory's interpretation calls into question the

validity of the rule. In enacting the BIA, Congress recognized

that "[t]he operation of an engine, however equipped, involves some

`danger to life or limb.'" U nited States v. Baltimore & O.R. Co.

,

293 U.S. 454, 462 (1935) (emphasis added). The BIA does not

address all perils associated with locomotives, only "unnecessary"

perils; it "conferred authority to prescribe by rule specific

devices, or changes in the equipment, only where these are required

to remove ` unnecessary peril to life or limb'". I d

. at 463

( emphasis added). Rules promulgated under the BIA must be

supported by a finding that the rule is necessary "to remove

`unnecessary peril to life or limb'". I d .; see also Lilly v. Grand

Trunk Western R. Co. , 317 U.S. at 486 (the railroad regulator "is

broadly authorized to set the sta ndards of compliance by

prescribing rules and regulations by which fitness for service [of15 As discussed supra , because there was "evidence of such

quality and weight that reasonable and fair- minded men in the

exercise of impartial judgment might reach different conclusions",

w hether the oil constituted a slipping hazard, and thus viola ted

the BIA, was a question for the jury.

- 13 - locomotives, tenders and their appurtenances] shall be determined,

provided that

... the Commission finds such are required to remove

unnecessary peril to life or limb") (brackets in original; internal

quotation marks and citation omitted).

Gregory has not cited, nor have we located, any indication

that the Secretary of Transportation has found that any amount of

oil on a locomotive constitutes an unnecessary peril to life or

limb. We decline to interpret the regulation in a manner that

would call into question its validity. 15

2.

In the alternative, Gregory contends that the jury determined

implicitly that the oil was a peril when it answered "yes" to the

first interrogator y, which asked: "Do you find, from a

preponderance of the evidence, that the oil on the walkway played

any part, no matter how slight, in bringing about an injury to

[Gregory]....?" Gregory asserts that "[t]he fact that the oil

puddle was sufficient to cause someone to slip and fall makes it a

peril under the [BIA]". Once again, Gregory takes a position

inconsistent with the one he took at trial. There, he took the

case to the jury basking in the warmth of a peremptory instruction:

the oil was a violation of the BIA. This was the roadmap for the

jury; one that Gregory was no doubt delighted with. Now Gregory

wants to change the rules, and seeks shelter under a special- 14 -

interrogatory that simply asked whether the oil -- which the jury

was instructed was a violation of the BIA

-- had an y causative

effect for Gregory's injury. In no way was the jury asked to

decide whether the oil constituted a peril, under the Act or

through the regulation; just the opposite. Its operating mandate

was that the oil was a violation.

In any event, the Ninth Circuit rejected a similar contention

in Oglesby v. Southern Pacific Transp. Co.

, 6 F.3d 60 3 (9th Cir.

1993). Oglesby injured his back when he attempted to replace an

engineer's seat in a locomotive. Id . at 604. The district court

instructed the jury that

[t]o establish a v iolation of the [BIA] it is not

necessary to show any negligence on the part of the

... railroad and it is not necessary to show a

mechanical defect. Proof of the failure of an

appliance to work effici ently, when used in its

customary and proper manner, fastens liability on the railroad without a specific defect. Plaintiff

need only establish that on the occasion in

question the item covered by the [BIA] did not work

properly

.

Id

. at 610 (emphasis in original). The railroad contended that the

instructions im properly allowed the jury to find a BIA violation

without finding that a defect in the seat posed a s afety hazard.

Id

. at 609-10. The Ninth Circuit agreed that the instructions

"improperly allow the jury to find a violation of the BIA merely

because the seat was not in a proper condition rather than because

it was unsafe, as the statute requires". I d

. at 610. It rejected

Oglesby's assertion that a BIA violation was established by a mere

showing that the seat did not work efficiently, noting that it had

"found no case in which a violation [of the BIA ] was established- 15 -

without a showing that the alleged defect created a safety hazard".

Id . at 610.

In the alternative, Oglesby contended that any error in the

jury instructions was harmless because in finding that the

defective seat caused his injury, the jury must also have found

that it was unsafe. I d

. The Ninth Circuit disagreed, stating that

"the alleged defects themselves must first be found to be unsafe in

order to constitute a violation of the BIA. Only once this finding

has been made is a BIA vi olation established and an inquiry into

whether the defective seat was the proximate cause of the injury

relevant". Id

.

We agree. An inquiry whether the oil caused Gregory to slip

and injure himself was not relevant unless the jury found first

that the oil violated the BIA. Under proper instructions, the jury

could have found that the oil did not constitute a safety hazard.

III.

"[T]he seventh amendment preserves the right of parties to a

jury trial unless there is `no legally sufficient evidentiary basis

for a reasonable jury to find for [the] party on th[e] issue'".

Lloyd v. Pendleton Land & Exploration, Inc.

, 22 F.3d 623, 626 (5th

Cir. 1994) (quoting Fed. R. Civ. P. 50(a)(1)). Viewing the

evidence in the light most favorable to MOPAC, we conclude that it

does not point so strongly and overwhelmingly in favor of Gregory

that reasonable jurors could not find that the oil on the

passageway did not present an unnecessary peril to life or limb.

A ccordingly, the jury should have been allowed to decide whet her- 16 -

MOPAC violated the BIA. Therefore, we R EVERSE the judgment and

REMAND the case for a new trial.

REVERSED AND REMANDED

JOHNSON, Circuit Judge, dissenting:

The Boiler Inspection Act (BIA ) was promulgated by Congress

for the purpose of promoting safety for railroad employees and the

public. L illy v. Grand Trunk Western RR Co.

, 317 U.S. 481, 485

(1943). Section 23 of the BIA makes it

. . . unlawful for any railro ad to use or permit to be

used on its line any locomotive unless said locomotive,

i ts boiler, tender, and all parts and appurtenances

there of are in proper condition and safe to operate in

the service to which the same are put, that the same may

be employed in the active service of such railroad

without unnecessary peril to life or limb. . .

45 U.S.C. § 23. While recognizing this more general requirement,

the Supreme Court and this Court have additionally made clear that

violating any rules and regulations promulgated by the Department

of Transportation will constitute more specific violations of the

BIA. See Lilly , 317 U.S. at 488; Givens v. Missouri-Kansas-Texas

R. Co. of Texas

, 195 F.2d 225, 228 (5th Cir. 1952) (contrasting the

instances where specific and definite v iolations of the BIA may

occur, creating liability as a matter of law [much like specific

and definite violations of the Safety Appliance Act], with the more

general violations, creating jury issues). Lilly made clear that

all Department of Transportation rules and regulations have the

same force and authority as law. L illy

, 317 U.S. at 488. Thus, a

violation of a Department of Transportation regulation constitutes

a violation of the BIA per se

. See id.16 The stringent consistency required of Gregory by the majority is

itself inconsistent with laxity granted by the majority to MOPAC in

the way of appellate preservation requirements. The majority is

willing to exercise every benefit of the doubt in favor of MOPAC in

holding its vague and disjointed objection to be specific enough to

preserve error. See Majority Opinion at Note 5. Federal Rule of

Civil Procedure 51 expressly requires that objections to jury

instructions state "distinctly the matter objected to and the

ground of the objection." F E D

. R. C IV

. P. 51. The fundamental goal

of the Rule 51 distinctiveness requirement is to adequately alert

the trial judge of the potential error so that he or she can make Department of Transportation Regulation 43 C.F.R. § 229.119(c)

clearly states that the " [f]loors of cabs, passageways, and

compartments shall be kept free from oil, water, waste or any

obstruction that creates a slipping, tripping or fire hazard." 43

C.F.R. § 229.119(c). Interpreting this regulation according to its

plain meanin g, the regulation prohibits the presence of the

specific substanc es of oil, water, and waste and then goes on to

make a more general prohibition of any other obstruc tion that

creates a slippin g, tripping, or fire hazard. S ee id. The

undisputed evidence in this case establishes that there was an 18"

by 8" conglomeration of oil on the passageway of the train when Mr.

Gregory slipped. (R. III, 406-07). The presence of this oil

violates the regulation, and in turn the BIA, on its face, thereby

rendering the trial judge's instruction fully appropriate.

The majority holds Gregory' s argument that the BIA combined

with 49 C.F.R. § 229.119 creates a strict duty on the part of

railroads to keep their floors free of oil is an issue that the

Court cannot consider. They reach this conclusion first on the

basis that Gregory is estopped from making such an argument on the

ground that h e took an inconsistent position in the district

court. 16 Second, the majority presumes the district court wasthe necessary corrections. See McDaniel v. Anheu ser-Busch, Inc.

,

987 F.2d 298, 306 (5th Cir. 1993). The objection made in this case

could not have adequately pointed out the now-asserted error to the

trial judge for his correction; since the purpose of Rule 51 has

not been at all furthered, this writer does not feel that error has

been sufficiently preserved here. At the very least this writer

feels that the same allowances given MOPAC must also be given to

Gregory.

- 18 - operating under the assumption that unnecessary peril to life or

limb is an absolute prerequisite to any BIA violation. However,

the fact that Gregory and the trial court may have referred to the

hazard produced by the oil is not inconsistent with the position

that violation of the Department of Transportation regula t ion

results in strict liability under the BIA. Certainly, as the

majority points out, a prime concern of the BIA was the prevention

of unnecessary peril to the life and limb of its employees. This

is precisely why Congress gave the Department o f Transportation

f ull legal authority to promulgate rules and regulations for the

railroads. Additionally, this concern with personnel security is

why C ongress backed the Department of Transportation's authority

with strict liability under the BIA. While strict liability

statutes may be highly controversial, this Court and the Supreme

Court have recognized their need and constitutionality. S ee, i.e.,

Gollust v. Mendell

, 501 U.S. 115, 122 (1991); United States v. West

of England Ship Owner's Mutual Protection & Indemnity Ass 'n , 872

F.2d 1192, 1198 (5th Cir. 1989). When Congress acts or authorizes

such a strict liability statute for the protection of a specified

group, it is the duty of this Court to support it in that decision.

Today the majority seeks to establish a defense where Congress- 19 -

intended there be none. As the majority recognizes, there is

likely to be water and/or oil on trains due to a variety of

reasons. Congress and the Department of Transportation also

recognize this tendency through the BIA and Regulation 49 C.F.R. §

229.119. They both also recognize that because of such conditions

and the great dangers these conditions can present to railroad

employees, the ra ilroads have an absolute duty to either rectify

such problems or cease operation of the train until such problems

cease.

Accordingly, this dissent is respectfully tendered.