UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 97-40784

____________________

RICHARD K. WEAVER,

Plaintiff-Appellee,

versus

MISSOURI PACIFIC RAILROAD COMPANY, Doing Business as

Union Pacific Railroad Company; ET AL.,

Defendants,

MISSOURI PACIFIC RAILROAD COMPANY, Doing Business as

Union Pacific Railroad Company; UNION PACIFIC RAILROAD COMPANY,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Texas

August 21, 1998

Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Primarily at issue is whether compliance with the Locomotive

Inspection Act, 49 U.S.C. § 20701 e t. seq. (LIA)(formerly the

Boiler Inspection Act, 45 U.S.C. § 23 et seq .), and regulations

promulgated thereto, regulating locomotive cabin conditions,

precludes finding negligence under the Federal Employers’ Liability

Act (FELA), 45 U.S.C. § 51 et seq

. Because the district court did

not err in allowing the jury to consider such negligence, we

AFFIRM

.- 2 - I.

Richard Weaver was employed by Missou ri Pacific Railroad as

the engineer of a train on the night of 12 June 1996; it was very

warm and humid. Because his locomotive did not have air

conditioning, Weaver opened the window in the cab.

As the tr ain approached Pinehurst, Texas, Weaver noticed a

person standing in the tracks. After the person jumped to av oid

the train, Weaver, using one hand to blow the horn and the other on

the emergency brake v alve in anticipation of stopping the train,

turned to see if the person had been hit. As Weaver was doing so,

Einar Rist roph threw a bottle through the open window, striking

Weaver in the head and rendering him unconscious.

Weaver and his wife filed this action against Missouri Pacific

d /b/a Union Pacific Railroad and Union Pacific Ra ilroad

(collectively, the Rail road), claiming that, under the FELA, the

Railroad was negligent in failing to provide a safe place to work;

to warn of the danger that Ristroph posed; to provide air

conditioning for the locomotive; and to arrange the configuration

of locomotives on the train, so that the lead locomotive was

equipped with air conditioning. They also claimed violation of the

LIA, and the regulations promulgated under it, and presented state

law claims against Union Pacific and Ristroph.

In May 1997, in response to the R ailroad’s summary judgment

motion, the distr ict court ruled that Union Pacific was Weaver’s- 3 -

employer; FELA, his exclusive remedy against it. Consequently, all

of Weaver’s other claims were dismissed. And, because Mrs. Weaver

was not a proper FELA plaintiff, her claims against Union Pacific

were dismissed.

A nd, concerning Weaver’s FELA claims based upon lack of air

conditioning, pro tective screens, and ditch lights, the Railroad

had claimed pre emption by the LIA. The district court denied

summary judgment on procedural grounds.

At trial, the Railroad moved for judgment as a matter of law,

pursuant to F ED

. R. C IV

. P. 50, contending, again, that W eaver’s

FELA claims were preempted by the LIA; or, at a minimum, that the

allegations could not f orm the basis for an LIA claim.

Subsequently, Weaver’s motion to dismiss all of the claims arising

out of the LIA was granted. Only his FELA claim was considered by

the jury.

Prior to the jury returning a verdict, Weaver and the Railroad

entered into a settlement agreement, approved by the district

court. It provided that, i nter alia

, if the jury returned a

verdict exceeding $749,000, Weave r’s recovery was limited to

$750,000, subject to appeal by the Railroad on the issue stated

infra

.

The jury found in favor of Weaver, awarding h im $1,591,000,

and attributing 95% fault to the Railroad and 5% to Ristroph.

II.- 4 -

As limited by the settlement agreement, and stated in the

district court’s amended judgment, the sole issue is whether “the

District Court erred in allowing the jury to consider the question

of whether the [Railroad] was negligent in not equipping its

locomotive with air conditioning and/or screens because the jury’s

consideration of such conduct is preem pted b y the Locomotive

Inspection Act (Boiler Insp ection Act)”. (Emphasis added.) We

review de novo the denial of judgment as a matter of law, viewing

all the evidence in the light most favorable to the non-movant.

E.g., Hileman v. City of Dallas, Tex.

, 115 F.3d 352, 353 (5th Cir.

1997).

For starters, th e Railroad concedes that the preemption

doctrine is not at issue; we are addressing the interaction of two

federal statutes. C f. T exas Manufactured Housing Ass’n v. City of

Nederland , 101 F.3d 1095, 1099 (5th Cir. 1996) (Congress may

expressly or implicitly preempt st ate law), c ert. denied, 117 S.

Ct. 2497 (1997) . We also note that, in its appellate brief, the

Railroad fails to address protective screens, and instead focuses

solely on air conditioning.

The FELA provides, in relevant part:

Every common carrier by railroad engaging in

[interstate commerce] shall be liable in

damages to any person suffering any injury

while he is empl oyed by such carrier in such

commerce

... for such injury or death

resulting in whole or in part from the

negligence of any of the officers, agents, or- 5 - employees of such carrier, or by reason of any

defect or insufficiency, due to its

negligence, in its cars, [and] engines....

45 U.S.C. § 51.

“[T]o p revail under [FELA], a plaintiff must prove that (1)

the defendant is a common carrier by railroad engaged in interstate

comm erce; (2) he was employed by the defendant with duties

advancing such commerce; (3) his injuries were sustained while he

was so employed; and (4) his injuries resulted from the defendant’s

negligence.” S

mith v. Medical and Surgical Clinic Ass’n

, 118 F.3d

416, 419 (5th Cir. 1997) (citing Fowler v. Seaboard Coastline R.R.

Co., 638 F.2d 17, 19 (5th Cir. Unit B February 1981)), c ert.

denied

, 118 S. Ct. 1034 (1998 ). “What constitutes negligence for

[FELA’S] purposes is a federal question, not varying in accordance

with the differing conceptions of negligence applicable under state

an d local laws for other purposes. Federal decisional law

formulating and applying the concept governs.” Urie v. Thompson

,

337 U.S. 163, 174 (1949).

The Railroad contends that the LIA and its regul ations

regarding locomotive cabin temperature and ventilation conditions

“totally occup[y] the field” of locomotive safety, prete rmitting

liability under FELA for not installing the air conditioners and/or

protective screens.

The LIA provides, in relevant part:- 6 - A railroad carrier may use or allow to be used

a l ocomotive or tender on its railroad line

only when the locomotive or tender and its

parts and appurtenances—

(1) are in proper condition and

safe to operate without unnecessary

danger of personal injury;

(2) have been inspected as required

under this chapter an d regulations

prescribed by the Secr etary of

Transportation under this chapter;

and

(3) can withstand every test

prescribed by the Secretary under

this chapter.

49 U.S.C. § 20701.

Pursuant to the LIA, the Federal Railroad Administration

promulgated regulations establishing standards for locomotives.

The regulations at issue provide, in part: “[c]ab windows of the

lead locomotive shall provide an undistorted view of the right-ofway for the crew from their normal position in the cab”, 49 C.F.R.

§ 229.119(b); and “[ t]he cab shall be provided with proper

ventilation and with a heati ng arrangement that maintains a

temperature of at least 50 degrees Fahrenheit 6 inches above the

center of each se at in the cab”, 49 C.F.R. § 229.119(d)(1998).

The regulations do not require air conditioning and/or protective

screens.

The Railroad contends that, having complied with the

regulations regarding temperature and windows, and in that those

regulations do not requir e air conditioning and/or protective- 7 -

screens, its conduct cannot be considered negligent. In other

words, because the Railroad complied with these regulations, then,

according to the Railroad, the district court erred by allowing the

jury to consider negligence under FELA.

Interpreting the LI A’s predecessor, the BIA, our court has

stated tha t it “‘is a safety statute which is to be liberally

construed to afford protection to railroad employees’”. G regory v.

Missouri Pacific R.R. Co.

, 32 F.3d 160, 161 (5th Cir. 1994)

(quoting Oglesby v. Southern Pacific Transp. Co. , 6 F.3d 603, 606

(9th Cir. 1993)). Moreover, commenting in U rie on the relationship

between the FELA and the BIA, the Supreme Court stated:

[T]he Safety Appliance Acts, together with the

Boiler Inspection Act, are substantively if

not in form amendments to the Federal

Employers’ Liability Act. They dispense, for

the purposes of employees’ suits, with the

necessity of proving that violations of the

safety statutes con stitute negligence; and

making proof of such violations is effective

to show n egligence as a matter of law. Thus

taken, as has been the consistent practice,

the Boiler Inspection Act

... cannot be

regarded as [a] statute[] wholly separate from

and independent of the Federal Employers’

Liability Act. They are rather supplemental

to it, having the purpose and ef fect of

facili tating employee recovery, not of

restricting such recovery or making it

impossible.

Urie , 337 U.S. at 1034.

Weaver asserted in his complaint that the Railroad should have

provided him with air conditioning and/or protective window screens

to protect him from known dangers

. He presented evidence at trial- 8 -

that , during the period 1992-1996, there were 698 reported

shootings or stonings of Union Pacific Railroad locomotives, with

the greatest frequency from April through September. At the time

of Weaver’s injury, it was 90 degrees and very humid. And, at that

t ime, approximately 1000-1500 of the Railroad’s 4500 locomotive s

were equipped with air conditioning.

The LIA regulations relied upon by th e Railroad are n ot

premised on providing safety from such dangers; rather, their focus

is on ensuring proper ventilation, a minimumtemperature, and an

undistorted view. S ee 49 C.F.R. § 229.119(b)(d)(1998). Restated,

compliance with these regulations, in the light of the evidence

presented at trial regarding the known dangers presented to

locomotive engineers traveling through the southern States in the

summer, does not address the safety of those engineers from known

dangers, such as stonings. In sum, in this regard, the LIA and

accompanying regulations do not totally occupy the field regarding

locomotive safety.

Accordingly , on the facts in this case, compliance with the

LIA and the acc ompanying regulations is not determinative of

negligence under FELA. See e.g., Mosco v. Baltimore & Ohio R.R.,

817 F.2d 1088, 1092 (4th Cir.), cert. denied, 484 U.S. 851 (1987)

(Although plaintiff had no viable BIA claim, “it is possible that

he might have stated a meritorious FELA claim based on the same

facts.”). Therefore, on these facts, the district court did not- 9 -

err in allowing the jury to consider, under FELA, whether the

Railroad was negligent in not equipping its locomoti ve with air

conditioning and/or protective screens.

III.

For the foregoing reasons, the judgment is

AFFIRMED.