96-582

 No. 96-582

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

 1998 MT 120

 EUGENE F. BEVACQUA, 

 

 Plaintiff and Appellant,

 v. 

 UNION PACIFIC RAILROAD COMPANY, 

 

 Defendant and Respondent.

APPEAL FROM: District Court of the Second Judicial District,

 In and for the County of Silver Bow,

 The Honorable Frank M. Davis, Judge presiding.

 COUNSEL OF RECORD:

 For Appellant:

 Alexander (Zander) Blewett, III, Hoyt & Blewett, Great Falls,

Montana

 For Respondent:

 Ausey H. Robnett, III, Paine, Hamblen, Coffin, Brooke &

Miller, Coeur D'Alene, Idaho; Dolphy O. Pohlman, Corette,

Pohlman, Allen, Black & Carlson, Butte, Montana

 Submitted on Briefs: June 12, 1997

 Decided: May 7, 1998

 Filed:

 __________________________________________

 Clerk

Justice James C. Nelson delivered the Opinion of the Court.

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¶1 Eugene F. Bevacqua (Bevacqua) filed a claim in the District Court for

the Second Judicial District, Silver Bow County, against Union Pacific

Railroad Company (UP) alleging that UP had negligently injured him on three

occasions while he was employed by UP. A jury found UP partially liable and

Bevacqua was awarded judgment in the amount of $320,000. The District

Court denied UP's motion for a new trial, but granted its motion to amend the

judgment, thereby reducing the judgment to $40,000. Bevacqua appeals from

the District Court's order reducing the judgment and UP cross-appeals from the

District Court's order denying UP's motion for a new trial. We affirm in part,

reverse in part and reinstate the $320,000 verdict. 

¶2 Bevacqua raised the following issue on appeal: 

¶3 Whether the District Court erred in granting UP's motion to amend the

judgment by reducing it from $320,000 to $40,000.

¶4 UP raised nine issues in its cross appeal; we consolidate and restate

them as follows:

¶5 1. Whether the District Court erred in holding that UP was estopped

from relying on the statute of limitations for the 1973 and 1980 claims.

¶6 2. Whether the District Court erred in instructing the jury that the

physicians who examined Bevacqua were agents of UP.

¶7 3. Whether the District Court erred in concluding that the release and

settlement agreements executed by the parties following the 1973 and 1980

incidents were invalid.

¶8 4. Whether the District Court erred in instructing the jury that a

violation of the federal regulations applicable to locomotive noise emissions

constitutes negligence per se.

¶9 5. Whether the District Court erred in denying UP's motion for

judgment as a matter of law on the issue of foreseeability as to the negligence

claim arising from the 1990 incident.

¶10 6. Whether the District Court erred in granting judgment as a matter of

law in favor of Bevacqua on the issue of apportioning damages.

¶11 7. Whether the special verdict form submitted to the jury was

inherently confusing and misleading.

 Factual and Procedural Background

¶12 Bevacqua is a brakeman for UP in Spokane, Washington. He has

worked for UP since March 30, 1973. On October 15, 1973, Bevacqua was

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injured attempting to release a hand brake on a boxcar. As he was descending

the ladder of the car, his coat caught on a jagged piece of metal causing him

to fall to the ground and injure his left knee. He was taken to a hospital in

Kellog, Idaho. Bevacqua reported the injury to his immediate supervisor and

submitted a written statement. UP directed him to see a Dr. Tousey. 

Bevacqua contended that UP did not give him a choice as to which doctor to

see for his injury. Dr. Tousey examined Bevacqua's knee, advised him that he

had a simple sprain with no permanent injury, and released him to return to

work after only a week.

¶13 The pain in Bevacqua's knee went away after a month. He continued

to perform his duties as a brakeman with UP, however, he noticed an

occasional "popping" in his knee. On December 24, 1973, Henry Lorring, a

UP claims agent, paid Bevacqua $850 and presented him with a release of all

claims which Bevacqua signed. The release stated that it covered all claims

"INCLUDING CLAIMS FOR INJURIES, IF ANY, WHICH ARE

UNKNOWN TO ME AT THE PRESENT TIME. . . ."

¶14 Bevacqua was required to present himself for a physical examination

to various doctors recommended by UP every two or three years to insure that

he was physically capable of performing his job. In 1975, UP directed

Bevacqua to see Dr. Tousey again. Dr. Tousey examined Bevacqua and

cleared him to work as a brakeman with no restrictions. In his report, Dr.

Tousey did not mention the condition of Bevacqua's left knee. In 1978, UP

directed Bevacqua to see Dr. Maxwell Kepl. Dr. Kepl examined Bevacqua

and cleared him to return to his brakeman duties with no restrictions. 

¶15 On March 31, 1980, Bevacqua was walking from the UP depot to the

parking lot to take an evening meal break. The area was not lighted and,

unbeknownst to Bevacqua, UP had stored a pile of blackened railroad ties next

to the designated walkway. Bevacqua tripped over two of the ties that jutted

out into the walkway causing him to re-injure his left knee. He immediately

reported the incident to UP whereupon he was taken to the hospital emergency

room for treatment. Bevacqua was directed to undergo a physical examination

by Dr. Kepl before he could return to work. Dr. Kepl advised Bevacqua that

he had a simple sprain and cleared him to return to work after one week.

¶16 After returning to work, Ray McDeid, another UP claims agent, told

Bevacqua that his knee had healed. McDeid had Bevacqua sign another

release and paid him $750. This release contained language identical to that

of the 1973 release regarding unknown injuries. The pain from this injury

subsided within a month, however, Bevacqua continued to have an occasional

"popping" sensation in his knee. After this second injury, UP required

Bevacqua to see Dr. R. E. Elston on July 13, 1981, November 1, 1983,

September 10, 1984, and March 30, 1987. On each occasion, Dr. Elston

determined that Bevacqua had no physical conditions which would restrict his

work activities.

¶17 The third injury to Bevacqua's knee occurred on May 21, 1990. United

States Customs officials at the United States-Canada border crossing in

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Eastport, Idaho had been complaining for a long period of time about the trains

that were parked on the tracks near the customs' office. The engines were left

idling due to the remoteness of the area and the possibility that the engines

could not be restarted if shut down. Customs officials contended that the noise

from the engines disrupted their business. UP failed to respond to the

complaints and, on May 19, 1990, Customs Officer Keith Barnhart threatened

UP with inspections if UP did not remedy the noise problem. 

¶18 Two days later, on May 21, 1990, Barnhart inspected the train on which

Bevacqua was working. When Barnhart requested that the crew produce their

driver's licenses for identification purposes, Bevacqua was uncooperative. 

Barnhart lost his temper with Bevacqua and, in an effort to force Bevacqua to

spread his legs so that Barnhart could frisk him, Barnhart kicked Bevacqua's

left leg. This action caused Bevacqua's third injury to his left knee. 

¶19 Bevacqua was sent by UP to Dr. Thomas Osten. After examining

Bevacqua's knee, Dr. Osten referred him to Dr. Richard Treloar, an orthopedic

surgeon in Spokane. Dr. Treloar's examination of Bevacqua's knee revealed

that the anterior cruciate ligament (ACL), the primary stabilizer in the human

knee, had ruptured. This rupture to the ACL caused significant stresses on the

meniscus, the weight-bearing structures which cushion and stabilize the knee

and act as shock absorbers. Both the lateral and the medial meniscus in

Bevacqua's knee were severely torn. Dr. Treloar performed arthroscopic

surgery in June 1990 to remove the torn meniscus and a second surgery in

February 1991 to reconstruct the ruptured ACL. 

¶20 Before permitting Bevacqua to return to work, UP required that he be

examined by Dr. Paula Lantsberger. Dr. Lantsberger insisted that Bevacqua

undergo extensive physical therapy before she would release him for work. 

Hence, in mid-March 1992, after completing his physical therapy, Bevacqua

was permitted to return to work. 

¶21 After the May 21, 1990 incident, Bevacqua filed a claim under the

Federal Tort Claims Act (FTCA) against the federal government for battery

based upon Barnhart's actions. Bevacqua lost this claim when the Ninth

Circuit Court of Appeals held that Barnhart was immune from suit and that his

conduct was privileged. However, during the FTCA proceeding, the

government hired Dr. Peter Rork, an orthopedic surgeon from Jackson,

Wyoming, to perform an independent medical examination of Bevacqua and

testify as an expert witness. Dr. Rork testified that prior to the frisking

incident, Bevacqua's left knee had a pre-existing condition comprised of a

ruptured ACL and extensive tears in his medial and lateral meniscus. He

further testified that the ACL was ruptured in the October 15, 1973 incident

when Bevacqua fell from the boxcar and that the meniscus damage occurred

in the March 31, 1980 incident when Bevacqua tripped over the railroad ties. 

Dr. Rork also testified that by 1990, Bevacqua had developed severe

osteoarthritis in his left knee because of the first two injuries. 

¶22 In February 1993, Bevacqua filed a claim against UP under the Federal

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Employers' Liability Act (FELA), 45 U.S.C. §§ 51 - 60, alleging that UP was

liable for damages sustained to his knee in the May 1990 incident. Bevacqua

amended his complaint in November 1995 to also allege claims against UP

arising from the 1973 and 1980 incidents. Additionally, he alleged that the

releases he had signed in 1973 and 1980 were invalid due to mutual mistake

of fact and that UP should be estopped from asserting the statute of limitations

as a defense. UP hired Dr. Rork to present the same testimony for UP that he

had presented on behalf of the government in the FTCA action.

¶23 The case was tried to a jury August 12 through 16, 1996. UP did not

call Dr. Rork to testify as it had planned, however, Bevacqua read Dr. Rork's

deposition to the jury. In that deposition, Dr. Rork reiterated that the 1990

incident aggravated the injuries to Bevacqua's knee stemming from the 1973

and 1980 incidents. 

¶24 Dr. Treloar also did not appear in person but his deposition was read

to the jury. In his deposition, Dr. Treloar stated that the ACL was definitely

missing from Bevacqua's left knee long before the 1990 incident. He

maintained that Bevacqua ruptured his ACL in the 1973 incident and that he

tore the medial and lateral meniscus in his knee in both the 1973 and 1980

incidents. Dr. Treloar also testified that the only injury caused by the 1990

incident was a small extension of the tear to the medial meniscus.

¶25 Dr. Lantsberger testified in person. She stated that since she had been

treating Bevacqua, the degenerative arthritis in his left knee had increased

substantially indicating that there is further degeneration to the bone surfaces

in his knee. She noted that the injuries Bevacqua sustained in the 1973 and

1980 incidents were contributory to his degenerative arthritic condition and

that he will continue to have further progression of the degeneration in his left

knee.

¶26 At the close of the evidence, both parties moved the court for judgment

as a matter of law pursuant to Rule 50(a), M.R.Civ.P. UP moved for judgment

on all claims arising from the 1973 and 1980 incidents on the grounds that

those claims were precluded by the three-year statute of limitations and by the

settlement agreements as reflected in the releases signed by Bevacqua. UP

also moved the court for judgment as a matter of law on all negligence claims

related to the 1990 incident contending that there was no evidence that UP was

negligent, that the consequences of its actions were foreseeable, or that its

actions caused Bevacqua's injuries. The District Court denied these motions. 

¶27 Bevacqua moved for judgment as a matter of law on the statute of

limitations and release issues with respect to the 1973 and 1980 incidents. The

District Court granted both motions ruling that the releases were invalid due

to mutual mistake of fact and that UP was estopped from asserting the statute

of limitations defense to the 1973 and 1980 incidents because the doctors to

whom Bevacqua was sent misdiagnosed the injuries. Bevacqua also moved

the court for judgment as a matter of law on the issue of apportionment. The

court granted this motion directing that there would be no apportionment of

Bevacqua's damages between the 1973, 1980, and 1990 incidents as UP had

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totally failed in its burden to put on any evidence of apportionment regarding

the preexisting conditions. 

¶28 The District Court presented a 23-question special verdict form, which

had been submitted by Bevacqua, to the jury. UP objected to the use of this

form but did not offer an alternative form. Based on this form, the jury, during

deliberations, asked if the total amount of damages decided for each incident

would be added together for a total award. In response, UP and Bevacqua

stipulated that under the admitted facts and the law of FELA, the amount of

damages incurred in each incident should be the same and that the amount of

damages for each of the three incidents would not, under any circumstances,

be added together. 

¶29 The jury returned a verdict finding that UP caused Bevacqua damages

in the amount of $400,000. The jury also found that UP was 50% negligent

in the 1973 incident, 80% negligent in the 1980 incident, and 10% negligent

in the 1990 incident. This amounted to damages of $200,000, $320,000 and

$40,000, respectively. 

¶30 Thereafter, the District Court entered judgment in favor of Bevacqua

for $320,000, the amount of the jury's verdict in the 1980 incident. UP moved

to amend the judgment pursuant to Rule 59(g), M.R.Civ.P., on the grounds

that the judgment did not "reasonably reflect or accurately state" the jury

verdict. The court granted UP's motion and reduced the award to $40,000, the

amount of the jury's verdict in the 1990 incident. UP also filed a motion for

a new trial based on what it perceived as prejudicial errors, but the court

denied that motion. 

¶31 Bevacqua appeals the District Court's reduction of the judgment and UP

cross-appeals the denial of its motion for a new trial as well as the denial of

its several motions for judgment as a matter of law.

 Bevacqua's Issue on Appeal

¶32 Whether the District Court erred in granting UP's motion to amend the

judgment by reducing it from $320,000 to $40,000.

¶33 The jury determined that UP caused Bevacqua $400,000 in damages

and that UP was 50% negligent in the 1973 incident, 80% negligent in the

1980 incident, and 10% negligent in the 1990 incident. However, since the

parties had stipulated that the amount of damages for each of the three

incidents would not be added together, the District Court entered judgment in

favor of Bevacqua for $320,000, the amount of the jury's verdict in the 1980

incident. 

¶34 UP moved to amend the judgment pursuant to Rule 59(g), M.R.Civ.P.,

contending that since the injuries sustained in the 1973 and 1980 incidents

were asymptomatic resulting in minimal wage loss and no pain or discomfort,

Bevacqua should only be compensated for the 1990 incident as it was that

incident that caused the damage for which the jury awarded a total of

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$400,000. The District Court granted UP's motion and reduced the award to

$40,000, the amount of the jury's verdict in the 1990 incident. In amending

the judgment, the court stated:

 As the substantial evidence supports that the May 21,

 1990, incident caused the Plaintiff's physical condition to

 become symptomatic, resulting in the need for corrective

 surgeries and rehabilitation, the percentages of fault for the May

 21, 1990, incident are applicable to the total jury verdict of

 $400,000.

¶35 Bevacqua contends that the District Court erred in reducing the

judgment to reflect the amount awarded for only the 1990 incident as that

effectively nullifies the jury award for the 1973 and 1980 incidents. Bevacqua

argues that, because the jury found independent negligence and causation in

each of the three incidents, each incident played a part in causing the current

condition of his knee. He maintains that, if not for the stipulation that the

damage awards would not be added together, he would be entitled to $200,000

for the 1973 incident, $320,000 for the 1980 incident, and $40,000 for the

1990 incident. Hence, he argues that he should receive the greater of these,

the $320,000, and that the smaller two awards are subsumed in that amount. 

¶36 The amendment of a judgment under Rule 59(g), M.R.Civ.P., is within

the discretion of a district court, thus, we review a court's grant or denial of a

motion to amend for an abuse of discretion. See Estate of Nielsen v. Pardis

(1994), 265 Mont. 470, 478, 878 P.2d 234, 238 (citations omitted). 

¶37 In Rogers v. Missouri Pacific Railroad Co. (1957), 352 U.S. 500, 506,

77 S.Ct. 443, 448, 1 L.Ed.2d 493, the United States Supreme Court held that,

under FELA, an injured railroad worker is entitled to recover damages if the

negligence of the railroad played any part, no matter how slight, in causing the

injury or death for which damages are sought. In like manner, if Bevacqua

proved that UP was negligent in each of the three incidents and that UP's

negligence in each incident played any part, no matter how slight, in causing

injury to Bevacqua's knee, then he would be entitled to collect damages for

each separate independent act of negligence.

¶38 In Bevacqua's case, the jury specifically found independent negligence

and causation in each incident and that each incident played a part in causing

the current condition of Bevacqua's knee. Hence, Bevacqua could be entitled

to a judgment of $200,000 for the 1973 incident, $320,000 for the 1980

incident, and $40,000 for the 1990 incident. However, because of the

stipulation with UP that the jury awards for each incident would not be added

together, Bevacqua cannot collect any double recovery. Nonetheless,

Bevacqua should receive judgment in the amount of $320,000, the greater of

the jury awards, and the smaller awards of $40,000 and $200,000 are, as

Bevacqua suggested, subsumed in that amount. The District Court's amended

judgment vitiates the jury's determination that the 1973 and 1980 incidents

played some part in causing Bevacqua's injuries. Moreover, whether

Bevacqua's knee was symptomatic only after 1990, as the District Court

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pointed out, is not the standard to be applied under FELA.

¶39 In its amended judgment, the District Court stated that it was the 1990

incident that resulted in the need for corrective surgeries and rehabilitation for

Bevacqua's knee. Similarly, UP contends that the jury would not have

awarded Bevacqua $400,000 in damages had the 1990 incident not occurred

because it was that incident that required Bevacqua to seek surgery. Both UP

and the District Court are incorrect. 

¶40 Drs. Treloar and Rork stated in their depositions that the ACL in

Bevacqua's left knee ruptured in the 1973 incident and that the extensive tears

in his medial and lateral meniscus occurred in the 1980 incident. Both doctors

testified that the 1990 incident aggravated the injuries to Bevacqua's knee

caused by the prior incidents. In addition, Dr. Treloar testified that the 1990

incident caused a small extension of the tear to the medial meniscus in

Bevacqua's knee. Dr. Treloar also stated that Bevacqua's knee would have

required surgery even without the occurrence of the 1990 incident. Dr. Rork

agreed with this assessment and stated that the condition of Bevacqua's knee

worsened because he did not have surgery to repair the knee after the 1973

incident. In addition, Dr. Treloar stated that it would be impossible to

apportion how much of Bevacqua's pain and disability was caused by the 1990

incident as compared to the prior incidents.

¶41 Accordingly, we hold that the District Court erred in granting UP's

motion to amend the judgment, hence, we reverse and reinstate the $320,000

verdict.

¶42 In his reply brief on appeal, Bevacqua requests, for the first time, that

we impose sanctions against UP under Rule 11, M.R.Civ.P., for taking a

position in its motion to amend the judgment that was inconsistent with its trial

position. Bevacqua asserts that, before and during trial, UP argued that the

1990 incident caused only a relatively minor injury and that, in its motion to

amend the judgment, UP argued that it was the 1990 incident that caused the

damages to Bevacqua's knee.

¶43 This Court will not address an issue presented for the first time on

appeal. Rasmussen v. Lee (1996), 276 Mont. 84, 88, 916 P.2d 98, 100 (citing

Fandrich v. Capital Ford Lincoln Mercury (1995), 272 Mont. 425, 431, 901

P.2d 112, 115-16). Bevacqua could have raised this issue before the trial court

in its response to UP's motion to amend, but he failed to do so. 

 UP's Issues on Cross Appeal

¶44 UP appeals the District Court's denial of its motion for a new trial based

on what it perceives as irregularities in the proceedings and prejudicial errors. 

UP also appeals the court's denial of its several motions for judgment as a

matter of law on the issues of the statute of limitations, the validity of the

releases, and the lack of foreseeability in the 1990 negligence claim. 

¶45 The decision to grant or deny a new trial is within the sound discretion

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of the trial judge and we will not disturb that decision absent a manifest abuse

of discretion. Baxter v. Archie Cochrane Motors, Inc. (1995), 271 Mont. 286,

287-88, 895 P.2d 631, 632 (citing Jim's Excavating Service v. HKM

Assoc.(1994), 265 Mont. 494, 512, 878 P.2d 248, 259). 

¶46 A motion for judgment as a matter of law is governed by Rule 50,

M.R.Civ.P., which provides, in pertinent part:

 If during a trial by jury a party has been fully heard with

 respect to an issue and there is no legally sufficient evidentiary

 basis for a reasonable jury to have found for that party with

 respect to that issue, the court may grant a motion for judgment

 as a matter of law against that party on any claim, counterclaim,

 cross-claim, or third party claim that cannot under the

 controlling law be maintained without a favorable finding on

 that issue.

Rule 50(a)(1), M.R.Civ.P. This Court's standard of review of appeals from

district court orders granting or denying motions for judgment as a matter of

law is identical to that of the district court. Durden v. Hydro Flame Corp., 

1998 MT 47, ¶ 22, ___ P.2d ___, ¶ 22, 55 St.Rep. 198, ¶ 22 (citing Ryan v.

City of Bozeman (1996), 279 Mont. 507, 510, 928 P.2d 228, 229-30). 

Judgment as a matter of law is properly granted only when there is a complete

absence of any evidence which would justify submitting an issue to a jury and

all such evidence and any legitimate inferences that might be drawn from that

evidence must be considered in the light most favorable to the party opposing

the motion. Durden, ¶ 21 (citing Jacques v. Montana Nat. Guard (1982), 199

Mont. 493, 504, 649 P.2d 1319, 1325).

 Cross-Appeal Issue 1. 

¶47 Whether the District Court erred in holding that UP was estopped from

relying on the statute of limitations for the 1973 and 1980 claims.

¶48 FELA provides that no action shall be maintained under this act unless

commenced within three years from the day the cause of action accrued. 45

U.S.C. § 56. Both parties moved for judgment as a matter of law on the

statute-of-limitations issue at the conclusion of the evidence. UP contended

that Bevacqua's cause of action accrued upon the occurrence of the injury

regardless of whether the full extent of the disability was known at that time. 

Bevacqua contended that he was misled into not filing suit within the three-year

statutory period as the doctors who conducted his physical examinations

between 1973 and 1990 were agents of UP and none of those doctors advised

him of the full extent of his knee injury. The District Court ruled that estoppel

tolled the statute, therefore the court instructed the jury that FELA's three-year

statute of limitations did not apply to Bevacqua's 1973 and 1980 claims.

¶49 The United States Supreme Court has repeatedly held that FELA is to

be given a liberal construction in favor of injured railroad workers so that it

may accomplish the humanitarian and remedial purposes intended by

Congress. Davis v. Union Pacific R.Co. (1997), 282 Mont. 233, 245, 937 P.2d

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27, 34 (citing Consolidated Rail Corp. v. Gottshall (1994), 512 U.S. 532, 543,

114 S.Ct. 2396, 2404, 129 L.Ed.2d 427; Urie v. Thompson (1949), 337 U.S.

163, 180-81, 69 S.Ct. 1018, 1030, 93 L.Ed. 1282). This Court has followed

federal case law in giving a liberal construction to FELA in favor of injured

railroad workers. Davis, 282 Mont. at 245, 937 P.2d at 34 (citations omitted).

¶50 FELA's statute of limitations is primarily designed to assure fairness to

defendants. Burnett v. New York Central Railroad Co. (1965), 380 U.S. 424,

428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941. Nevertheless, this policy of repose

is frequently outweighed where the interests of justice require vindication of

the plaintiff's rights. Burnett, 380 U.S. at 428, 85 S.Ct. at 1055.

¶51 In Glus v. Brooklyn Eastern District Terminal (1959), 359 U.S. 231,

235, 79 S.Ct. 760, 763, 3 L.Ed.2d 770, the United States Supreme Court held

that a plaintiff is entitled to have his cause tried on the merits, even though he

did not file suit within the limitation period prescribed by FELA, if he could

prove that misrepresentations were made by agents of the railroad and that

those misrepresentations justifiably misled him into not filing suit within the

three-year statutory period.

¶52 Relying on Glus, the Ninth Circuit Court of Appeals has determined

that a FELA defendant may be estopped from raising the statute of limitations

for equitable reasons. Atkins v. Union Pacific Railroad Co. (9th Cir. 1982),

685 F.2d 1146, 1148 (citations omitted).

 [C]onduct or representations by the defendant-employer which

 tend to "lull (the plaintiff) into a false sense of security," can

 estop the defendant from raising the statute of limitations, on the

 general equitable principle that "no man may take advantage of

 his own wrong."

Atkins, 685 F.2d at 1149.

¶53 In Fletcher v. Union Pacific Railroad Co. (8th Cir. 1980), 621 F.2d

902, 906, the Eighth Circuit Court of Appeals held that a railroad is equitably

estopped from asserting the statute of limitations as a defense "even if the

misrepresentations upon which the employee relied were unintentional." In

addition, the court in Fletcher stated: "Generally, a railroad has no duty to

ascertain whether an employee is physically fit for his job, but if it undertakes

to give physical examinations, it is liable if it performs such undertaking

negligently." Fletcher, 621 F.2d at 909. Even though the court held that

Fletcher's claim was barred by the statute of limitations because there was no

misrepresentation within three years of filing suit, the court determined that

the doctor was "almost certainly an agent of the employer" and that "the

employer undoubtedly has a hand in setting the standards for disability and

employment physicals." Fletcher, 621 F.2d at 909 n.9.

¶54 Moreover, the court in Fletcher determined that "[w]here a physician

certifies the employee as fit to return to heavy labor, it is not the employee's

burden to show malpractice by the examining physician." Fletcher, 621 F.2d

at 909. In making this determination, the court noted that "most such cases

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find that the examining physician was an agent of the railroad." Fletcher, 621

F.2d at 909 n.10.

¶55 Similarly, in Louisville & Nashville Railroad Co. v. Disspain (6th Cir.

1960), 275 F.2d 25, the plaintiff was sent to a doctor chosen by the railroad. 

This doctor stated that there was nothing wrong with plaintiff and that he

should return to work. However, two years later, another doctor informed

plaintiff that he had a disintegrated intervertebral disc which required surgery. 

The railroad claimed that the first doctor was not its employee but an

independent physician, hence it should not be estopped from raising the statute

of limitations. Disspain, 275 F.2d at 26.

¶56 The Sixth Circuit Court of Appeals held that it was sufficient if the

doctor's misrepresentation concerned the matter he was to perform for the

railroad--i.e., a physical examination. Moreover, the court determined that

when the doctor is an independent physician and is requested by the railroad

to examine an employee to determine if that employee is capable of continuing

to work, "it can hardly be said that the doctor acted without authority or on his

own." Disspain, 275 F.2d at 26.

¶57 Bevacqua underwent several physical examinations at the behest of UP

by doctors designated by UP. Each time he was certified as fit to return to

work. Additionally, Doctors Tousey, Kepl and Elston each filled out forms

setting forth Bevacqua's physical condition. These forms were provided by

UP and contained UP's name and logo. Moreover, the diagnoses of the

doctors that examined Bevacqua between 1973 and 1990 to the effect that

Bevacqua had a soft tissue bruise or a minor sprain or strain were

unequivocally wrong. None of the doctors, prior to Dr. Treloar in 1990, ever

diagnosed that Bevacqua had a ruptured ACL, torn meniscus, or degenerative

arthritis in his left knee, even though several other doctors later testified that

those conditions had been present since the 1973 and 1980 incidents. 

¶58 UP most certainly had a hand in setting the standards for the

employment physicals and, since UP undertook to give these physical

examinations, UP is liable for any negligence that occurred in those

examinations. Fletcher, 621 F.2d at 909. Even though the doctors were

independent physicians, they were requested by UP to examine Bevacqua to

determine if he was capable of continuing to work, thus it cannot be said that

the doctors who examined Bevacqua at UP's request acted without authority

or on their own. Disspain, 275 F.2d at 26.

¶59 Therefore, we hold that the doctors who examined Bevacqua between

1973 and 1990 were acting as agents of UP. Moreover, those doctors

misrepresented Bevacqua's injuries as either a soft-tissue bruise or a minor

strain or sprain and those misrepresentations misled Bevacqua into not filing

suit within the three-year statutory period. Consequently, UP should not now

be allowed to take advantage of its own wrong. Atkins, 685 F.2d at 1149. 

¶60 Since misrepresentations were made by agents of UP and those

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misrepresentations misled Bevacqua into not filing suit within the three-year

statutory period, Bevacqua is entitled to have his cause tried on the merits. 

Glus, 359 U.S. at 235, 79 S.Ct. at 763. In this case, the interests of justice

require vindication of Bevacqua's rights. Burnett, 380 U.S. at 428, 85 S.Ct. at

1055.

¶61 Accordingly, we hold that the District Court did not err in ruling that

UP was estopped from relying on the three-year statute of limitations. 

 Cross-Appeal Issue 2.

¶62 Whether the District Court erred in instructing the jury that the

physicians who examined Bevacqua were agents of UP.

¶63 A district court has broad discretion regarding the instructions it gives

or refuses to give to a jury. Schumacher v. Stephens, 1998 MT 58, ¶ 21, ___

P.2d ___, ¶ 21, 55 St.Rep. 247, ¶ 21 (citations omitted). We will not reverse

a district court on the basis of its instructions absent an abuse of discretion. 

Schumacher, ¶ 21. Furthermore, the party assigning error to the trial court's

instructions must show prejudice in order to prevail and prejudice will not be

found if the jury instructions in their entirety state the applicable law of the

case. Schumacher, ¶ 22.

¶64 The District Court's Instruction No. 34 states:

 In this case, to determine if the doctors who initially

 treated the plaintiff were agents of the railroad you may

 consider these factors: 

 1. Was the medical care provided pursuant to a contract

 or statute;

 2. Who pays the physicians or contributes to the fund for

 compensating the physicians;

 3. Who administers the fund and how;

 4. Who selects the physicians;

 5. Who sets the standards for employment and disability

 physicals;

 6. Whether injured employees are required to report to

 the company physician;

 7. What non-monetary advantages accrue to the railroad;

 and what is the custom and practice.

UP contends that this instruction, besides being confusing, is "just plain

wrong." 

¶65 In addition, the court's Instruction No. 36 states:

 Since the statements made by the doctors to plaintiff

 concern the very matter he was employed by the railroad to

 perform, the doctor was not acting on his own but was acting on

 behalf of the defendant and the defendant is responsible for all

 the acts of these doctors.

UP argues that this instruction contradicts Instruction No. 34 and is "totally at

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odds with the evidence."

¶66 We held previously in this opinion that the doctors who examined

Bevacqua were indeed agents of UP because they were acting on UP's behalf. 

As such, UP is liable for any negligence that occurred in those examinations. 

Thus, the District Court's Instruction No. 36 is not "totally at odds with the

evidence," but is correct. Instruction No. 34, however, is inaccurate and

contradictory. Since it was already determined that the doctors who initially

treated Bevacqua were agents of UP, it was unnecessary for the jury to decide

that issue. While these two instructions given together may have been

confusing, UP has failed to show that it was prejudiced by these instructions;

the instructions, in their entirety, state the applicable law of the case. 

Schumacher, ¶ 22. 

¶67 Accordingly, we hold that the District Court did not err in instructing

the jury that the physicians who examined Bevacqua were agents of UP.

 Cross-Appeal Issue 3.

¶68 Whether the District Court erred in concluding that the release and

settlement agreements executed by the parties following the 1973 and 1980

incidents were invalid.

¶69 After both the 1973 and 1980 incidents, Bevacqua signed a release

purporting to settle all claims arising from those incidents. Both releases

stated that the parties were settling all claims "INCLUDING CLAIMS FOR

INJURIES, IF ANY, WHICH ARE UNKNOWN TO ME AT THE PRESENT

TIME. . . ." At the close of the evidence in this case, both parties moved for

judgment as a matter of law on the release issue. UP argued that Bevacqua

was foreclosed from pursuing his 1973 and 1980 claims because the releases

settled any claims arising from those incidents. Bevacqua argued that a mutual

mistake of fact occurred thus the releases were invalid. The District Court

agreed with Bevacqua and concluded that the releases were invalid as a matter

of law due to a mutual mistake of fact. 

¶70 The validity of a release in a FELA action is governed by federal rather

than state law. Wilson v. CSX Transp., Inc. (6th Cir. 1996), 83 F.3d 742, 745

cert denied by CSX Transp., Inc. v. Wilson (1996), ___ U.S. ___, 117 S.Ct.

295, 136 L.Ed.2d 214 (citing Maynard v. Durham & S. R. Co. (1961), 365

U.S. 160, 161, 81 S.Ct. 561, 562, 5 L.Ed.2d 486). See also Taylor v.

Chesapeake and Ohio Railway Company (4th Cir. 1975), 518 F.2d 536, 537;

Dice v. Akron, Canton & Youngstown R. Co. (1952), 342 U.S. 359, 361, 72

S.Ct. 312, 314, 96 L.Ed. 398; Brophy v. Cincinnati, New Orleans, & Texas

Pacific Railway Co. (S.D.Ohio 1994), 855 F.Supp. 213, 215. A FELA release

may be set aside on the basis of mutual mistake of fact in executing the

release. Counts v. Burlington Northern R. Co. (9th Cir. 1991), 952 F.2d 1136,

1141 (citing Callen v. Pennsylvania R. Co. (1948), 332 U.S. 625, 630, 68 S.Ct.

296, 298, 92 L.Ed. 242). However, under FELA, a mutual mistake of fact is

sufficient to avoid a release only when the mistake goes to the nature of the

injury and the mistaken belief is held by both parties. Wilson, 83 F.3d at 745. 

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¶71 UP argues that a mutual mistake of fact did not exist because Bevacqua

was aware there was still something wrong with his knee based on the

"popping" sensation that continued to exist. On the contrary, even though the

"popping" in his knee continued, Bevacqua was lulled into believing that

nothing was wrong with his knee because of the repeated assurances by the

various doctors that examined him at UP's request. All of these doctors

released Bevacqua to return to work; none of these doctors diagnosed

Bevacqua's knee injury as anything serious. 

¶72 Moreover, Henry Lorring, the UP claims agent at the time of the 1973

incident, relied on the medical records received from Dr. Tousey. These

records indicated that Bevacqua had a simple sprain with no permanent injury. 

Lorring related this information to Bevacqua before the 1973 release was

signed. Ray McDeid, the UP claim's agent at the time of the 1980 incident,

testified that he was not aware of the extent of Bevacqua's injuries at the time

the release was signed. He also testified that the $750 paid for the 1980

release was far too low for a ruptured ACL and torn meniscus. Hence, a

mutual mistake of fact in executing the releases did occur in this case and,

under the law of FELA, that is sufficient to set aside the releases. Callen, 332

U.S. at 630, 68 S.Ct. at 298; Counts, 952 F.2d at 1141.

¶73 Accordingly, we hold that the District Court did not err in invalidating

the release and settlement agreements executed by the parties following the

1973 and 1980 incidents. 

 Cross-Appeal Issue 4.

¶74 Whether the District Court erred in instructing the jury that a violation

of the federal regulations applicable to locomotive noise emissions constitutes

negligence per se.

¶75 As we stated elsewhere in this opinion, a district court has broad

discretion regarding the instructions it gives or refuses to give to a jury and we

will not reverse a district court on the basis of its instructions absent an abuse

of discretion. Schumacher, ¶ 21. 

¶76 Bevacqua contended at trial that the injury he sustained in 1990 was

caused by UP's negligence. He theorized that UP engaged in negligent

practices by parking idling locomotives near the customs' office

inconveniencing customs officials and that the excessive noise emitted from

the locomotive parked near the customs' office angered Barnhart causing him

to assault Bevacqua. Both theories were predicated on the noise emissions

from the locomotives.

¶77 The District Court instructed the jury that federal railroad regulations

require that any railroad that uses railroad equipment that is noise defective

must correct the defect or remove the defective equipment from service. 

Additionally, the court instructed the jury that if the jury found that UP

violated this regulation and that such violation played any part in causing

Bevacqua's injuries, then UP was negligent as a matter of law. 

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¶78 UP contends that the District Court's instructions are in direct

contradiction of the law as previously established by this Court. UP cites

several Montana cases for the proposition that a violation of a statute may

constitute negligence per se under certain circumstances, however, the

violation of a regulation does not. Thus, UP asserts that since locomotive

noise emission standards are federal regulations and are not statutory, we

should consider any violation as merely evidence of negligence and not

negligence per se. In addition, UP contends that even if a statute had been

violated, it would not be negligence per se unless Bevacqua belonged to the

specific class of persons the statute was enacted to protect and the injury

Bevacqua sustained was of the sort the statute was enacted to prevent.

¶79 While UP's contentions are correct as applied to Montana statutory and

regulatory law, they are incorrect when applied to FELA. In a FELA action,

"the violation of a statute or regulation, such as [a regulation regarding radio

standards and procedures] automatically constitutes breach of the employer's

duty and negligence per se and will result in liability if the violation

contributed in fact to the plaintiff's injury." Walden v. Illinois Central Gulf

Railroad (7th Cir. 1992), 975 F.2d 361, 364. Accord Kernan v. American

Dredging Co. (1958), 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (holding that

recovery was permissible, without any showing of negligence, for death

resulting from the violation of a rule concerning lighting equipment); Pratico

v. Portland Terminal Co. (1st Cir. 1985), 783 F.2d 255 (wherein the court

determined that a jury instruction requiring the jury to find the defendant

negligent as a matter of law if the defendant violated an OSHA regulation and

such violation was a proximate cause of plaintiff's injury, was correct as a

matter of law).

¶80 In addition, the United States Supreme Court stated in Kernan that

 the theory of the FELA is that where the employer's conduct

 falls short of the high standard required of him by this Act, and

 his fault, in whole or in part, causes injury, liability ensues. 

 And this result follows whether the fault is a violation of a

 statutory duty or the more general duty of acting with care, for

 the employer owes the employee, as much as the duty of acting

 with care, the duty of complying with his statutory obligations.

Kernan, 355 U.S. at 438-39, 78 S.Ct. at 401.

¶81 In the case before us, evidence at trial established that, prior to the 1990

incident, one of the locomotives left idling on the tracks near the customs

building had a defective valve which prevented the air tanks from closing

properly and causing the tanks to blow out air. Under FELA: 

 Every common carrier by railroad . . . shall be liable in

 damages to any person suffering injury while he is employed by

 such carrier . . . for such injury or death resulting in whole or in

 part from the negligence of . . . such carrier, or by reason of any

 defect or insufficiency, due to its negligence, in its cars, engines

 . . . or other equipment.

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45 U.S.C. § 51 (emphasis added). 

¶82 Furthermore, contrary to UP's contention that even if it had violated a

statute, it would not be negligence per se unless Bevacqua belonged to the

specific class of persons the statute was enacted to protect and the injury

Bevacqua sustained was of the sort the statute was enacted to prevent, the

United States Supreme Court has held that the violation of a statute or

regulation creates liability under FELA without regard to whether the injury

flowing from the violation was the injury the statute or regulation sought to

prevent, if the violation contributed in fact to the injury. Kernan, 355 U.S. at

433, 78 S.Ct. at 398. Accord Pratico, 783 F.2d at 263.

¶83 Accordingly, we hold that the District Court did not err when it

instructed the jury that a violation of the federal regulations applicable to

locomotive noise emissions constituted negligence per se.

 Cross-Appeal Issue 5.

¶84 Whether the District Court erred in denying UP's motion for judgment

as a matter of law on the issue of foreseeability as to the negligence claim

arising from the 1990 incident.

¶85 UP contends that, in order to prevail on a FELA negligence claim, 

Bevacqua must prove the traditional common law components of negligence,

including duty, breach, causation and injury. UP argues that Bevacqua failed

in this regard as to the 1990 incident in that he did not establish the element

of foreseeability because he did not submit any evidence that UP knew or

should have known that its activities with respect to the idling locomotives

created a reasonable possibility of harm to Bevacqua.

¶86 We have already determined elsewhere in this opinion that violation of

a federal regulation is negligence per se under FELA, Walden, 975 F.2d at

364, and, as such, it is not necessary to establish the element of foreseeability

as negligence is proven by evidence that the locomotive-noise-emission

standards were violated. Evidence at trial established that prior to the 1990

incident, a locomotive with a stuck pop valve was parked on the tracks near

the customs building. This pop valve prevented the air tanks on the engine

from closing properly, thus it blew air for several hours. The fact of the

violation of the regulation appears undisputed. 

¶87 Accordingly, we hold that the District Court did not err in denying UP's

motion for judgment as a matter of law on the negligence claims arising from

the 1990 incident. 

 Cross-Appeal Issue 6.

¶88 Whether the District Court erred in granting judgment as a matter of

law in favor of Bevacqua on the issue of apportioning damages.

¶89 Bevacqua moved for judgment as a matter of law on the issue of

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apportionment and the District Court granted that motion directing that there

would be no apportionment between the 1973, 1980 and 1990 incidents as UP

had totally failed in its burden to put on any evidence of apportionment

regarding the preexisting conditions.

¶90 UP contends that the District Court erred in granting Bevacqua's motion

because there was evidence from which the jury could have apportioned the

damages between the injuries sustained in the 1973, 1980 and 1990 incidents. 

UP asserts that statements made by Bevacqua's expert witness, Dr. Treloar,

differentiates between the injuries sustained prior to 1990 and the injuries

sustained in the 1990 incident. On the contrary, Dr. Treloar testified that it

would be impossible for him to accurately apportion damages between the

three incidents. Furthermore, UP did not call any medical expert to testify in

its behalf, thus, the undisputed medical evidence revealed that the 1980

incident aggravated the preexisting condition caused by the 1973 incident and

that the 1990 incident aggravated the preexisting condition caused by both the

1973 and 1980 incidents. 

¶91 In a case factually similar to the case before us wherein the plaintiff

suffered two work-related back injuries prior to the injury for which he

brought a claim, we stated that

 to impose upon the plaintiff the sometimes impossible burden of

 proving which tortious act did which harm, would be an

 expression of a judicial policy that it is better that a plaintiff,

 injured through no fault of his own, should take nothing simply

 because he could not prove which tortious act caused which

 harm. We believe, on the other hand, that where the tortious act

 is established, it is better that the tortfeasor should be subject to

 paying more than his theoretical share of the damages in a

 situation where the tortious conduct has contributed to the

 confused situation making it difficult to prove which tortious act

 did the harm.

Callihan v. Burlington Northern, Inc. (1982), 201 Mont. 350, 357, 654 P.2d

972, 976 (quoting Azure v. City of Billings (1979), 182 Mont. 234, 253, 596

P.2d 460, 470-71).

¶92 Accordingly, we hold that the District Court did not err in refusing to

apportion damages between the 1973, 1980 and 1990 incidents.

 Cross-Appeal Issue 7.

¶93 Whether the special verdict form submitted to the jury was inherently

confusing and misleading.

¶94 The District Court submitted the case to the jury on a 23-question

special verdict form that had been proposed by Bevacqua. UP objected to the

use of this form, but did not offer an alternative form. UP contends on appeal

that the use of this special verdict form was error on the part of the District

Court because the form was inherently confusing and did not clearly indicate

the jury's intent with respect to the damages issue. 

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¶95 During the course of its deliberations, the jury posed a question for the

court. The question focused on the interrogatories in the special verdict form

which referred to the amount of damages for each of the three incidents. The

jury inquired whether the amount of damages for each incident would "get

added together or not for the total award?" After discussion with counsel, the

court responded that the jury should fill in the same damages figure for each

incident and that the figures would not be totaled. UP now contends that the

jury's question indicates that the jury intended to apportion damages between

the three incidents but was unable to do so because of the court's ruling.

¶96 Special verdicts are governed by Rule 49(a), M.R.Civ.P., which

provides as follows:

 The court may require a jury to return only a special

 verdict in the form of a special written finding upon each issue

 of fact. In that event the court may submit to the jury written

 questions susceptible of categorical or other brief answer or may

 submit written forms of the several special findings which might

 properly be made under the pleadings and evidence; or it may

 use such other method of submitting the issues and requiring the

 written findings thereon as it deems most appropriate. The court

 shall give to the jury such explanation and instruction

 concerning the matter thus submitted as may be necessary to

 enable the jury to make its findings upon each issue. If in so

 doing the court omits any issue of fact raised by the pleadings

 or by the evidence, each party waives the right to a trial by jury

 of the issue so omitted unless before the jury retires the party

 demands its submission to the jury. As to an issue omitted

 without such demand the court may make a finding; or if it fails

 to do so, it shall be deemed to have made a finding in accord

 with the judgment on the special verdict. 

The use of a special verdict form is left to the discretion of the trial court. 

Rule 49(a), M.R.Civ.P.; Barthule v. Karman (1994), 268 Mont. 477, 488, 886

P.2d 971, 978 (citing Kinjerski v. Lamey (1981), 194 Mont. 38, 41, 635 P.2d

566, 567). "While it is within the trial court's discretion to structure the form

and frame the questions of a special verdict, the interrogatories must be

adequate to enable the jury to determine the factual issues essential to

judgment." Kinjerski, 194 Mont. at 41, 635 P.2d at 567 (citations omitted).

¶97 We use a three-part standard to determine the adequacy of a special

verdict form:

 1) whether, when read as a whole and in conjunction with the

 general charge, the interrogatories adequately presented the

 contested issues to the jury;

 2) whether the submission of the issues to the jury was fair; and

 3) whether the ultimate questions of fact were clearly submitted

 to the jury.

Story v. City of Bozeman (1993), 259 Mont. 207, 229, 856 P.2d 202, 215

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(citing Kinjerski, 194 Mont. at 41, 635 P.2d at 568). If the evidence does not

support a claim, then the trial court should not allow a jury to consider the

claim on the special verdict form. Story, 259 Mont. at 229, 856 P.2d at 215

(citing R.H. Grover, Inc. v. Flynn Ins. Co. (1989), 238 Mont. 278, 284, 777

P.2d 338, 342).

¶98 In the case before us on appeal, although the jury found it necessary to

ask a question about one portion of the special verdict form, they were able to

determine the factual issues essential to the judgment once their question was

answered. In addition, when read as a whole, the interrogatories adequately

presented the contested issues to the jury, the submission of the issues to the

jury was fair, and the ultimate questions of fact were clearly submitted. 

Furthermore, UP did not make any substantial objections at trial that would

require reversal on this issue.

¶99 Accordingly, we hold that the special verdict form submitted to the jury

in this case was not inherently confusing and the District Court did not abuse

its discretion in using this form.

 Conclusion

¶100 We reverse the District Court's order granting UP's motion to amend the

judgment and we reinstate the $320,000 verdict. In addition, we affirm on

each of UP's specifications of error and we deny Bevacqua's request for Rule

11 sanctions. 

 /S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ JIM REGNIER 

/S/ WILLIAM E. HUNT, SR.

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