1995 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-29-1995

Fashauer v NJ Trans Rail

Precedential or Non-Precedential:

Docket 94-5523

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Recommended Citation

"Fashauer v NJ Trans Rail" (1995). 1995 Decisions. Paper 179.

http://digitalcommons.law.villanova.edu/thirdcircuit_1995/179
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 94-5523 

 

 THOMAS FASHAUER, JR. 

 Appellant

v. 

 NEW JERSEY TRANSIT RAIL OPERATIONS, INC. 

 

 On Appeal from the United States District Court 

 for the District of New Jersey 

 (D.C. No. 92-cv-3459) 

 

 Argued May 23, 1995 

 BEFORE: GREENBERG, ROTH and ALDISERT, Circuit Judges

 (Filed: June 29, 1995) 

 

 Marvin I. Barish (argued) 

 Marvin I. Barish Law Offices 

 Sixth & Walnut Streets 

 The Curtis Center, Suite 801 

 Philadelphia, PA 19106 

 Attorneys for Appellant

 Cheryl A. Maccaroni (argued) 

 Deputy Attorney General 

 Joanne Stipick (argued) 

 Deputy Attorney General 

 Office of Attorney General of 

 New Jersey 

 Richard J. Hughes Justice 

 Complex 

 Trenton, NJ 08625 

 Attorneys for Appellee

 
 OPINION OF THE COURT

 

GREENBERG, Circuit Judge. 

 I. Introduction, Factual Background and Procedural History

 This appeal arises in a Federal Employers' Liability 

Act (FELA) case in which the employer is New Jersey Transit Rail 

Operations, Inc. To understand the germane facts one must in the 

first instance know a bit about New Jersey Transit train design. 

On New Jersey Transit trains, or at least on the one involved 

here, cars are connected to each other by vestibules, which are 

enclosed areas located just outside the passenger seating 

compartments of each car. Thus, each car contains two 

vestibules, one at each end. Each vestibule, in turn, contains 

three doors -- one leading into the passenger compartment, the 

other two leading out of the train onto the station platform.1 

Railroad employees and passengers walk through the vestibules to 

pass from one car to the next, and to exit from the car to the 

platform and vice versa. While anyone may open the doors leading 

into the passenger compartments, railroad employees open and 

close the doors to the station platform by operating mechanisms 

located within the vestibule. 

 On March 10, 1992, appellant Thomas Fashauer was 

performing his usual duties as brakeman on a New Jersey Transit 

 

1. Of course, depending on which side of the platform the train 

arrives, one of the two side doors opens. 
train en route from Lindenwold, New Jersey, to Atlantic City, New 

Jersey. These duties included entering the vestibule, opening 

and closing the doors leading from the train to the station 

platform, and signaling the engineer that the platform was clear 

and that the train could depart. He began work in Atlantic City 

at 1:00 p.m. and made several round trips. 

 It was raining heavily, and the rug on the vestibule 

floor was soaked when the train arrived at the Atco station on 

the last run of the day. Fashauer opened the doors, exited the 

train, and, after checking the stairs for passengers running 

late, returned to the train and signaled the engineer to leave. 

Fashauer then shut the doors. The train jerked twice, once upon 

leaving the station and once soon after. Fashauer was not 

holding on to the handrails at the time, and he slipped on the 

wet floor, striking his left shoulder against the wall. He 

testified that he was in agony at the time, and he immediately 

reported the incident to the conductor. At the conductor's 

behest, Fashauer rested for the remainder of the trip. He 

suffered serious injuries to his shoulder as a result of the 

accident. 

 On August 21, 1992, Fashauer filed a complaint against 

New Jersey Transit in the United States District Court for the 

District of New Jersey, alleging that his injury was proximately 

caused by New Jersey Transit's negligence. Specifically, the 

complaint charged New Jersey Transit with negligently maintaining 
certain seals between the cars, and further alleged that the 

defective seals allowed rain to seep into the vestibule, creating 

a dangerous slippery condition on a rainy day. He sought relief 

pursuant to the FELA, which governs actions by railroad employees 

against railroads for damages arising out of job-related 

injuries. 

 The case was tried between March 7, 1994, and March 16, 

1994. New Jersey Transit defended against Fashauer's claims by 

presenting evidence that the seals were not defective, the 

slippery condition was purely the result of the rainy weather, 

and Fashauer failed to act with due care while walking through 

the vestibule. On March 16, the jury returned a verdict finding 

that New Jersey Transit was negligent and that its negligence 

contributed to the injuries. It awarded Fashauer damages of 

$71,320 in past lost earnings and $100,000 for pain and 

suffering. However, the jury awarded nothing for future lost 

earnings. Finally, the jury determined that Fashauer was 50% 

responsible for his injuries. Under FELA's pure comparative 

negligence provisions, this finding meant that the district court 

reduced Fashauer's damages by 50%. Unhappy with the 50% 

reduction and the jury's refusal to award damages for lost future 

earnings, Fashauer moved for a new trial. When that motion was 

denied on July 18, 1994 (in an Opinion and Order filed the next 

day), he timely filed this appeal. 
 The district court had jurisdiction pursuant to 28 

U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 

1291. We will affirm. 

 II. Discussion

 Most of the questions on this appeal involve the 

district court's denial of Fashauer's jury charge requests. 

Generally, "[t]he standard of review for the district court's 

ruling on points for charge is . . . abuse of discretion." Link 

v. Mercedes-Benz of North America, Inc., 788 F.2d 918, 922 (3d 

Cir. 1986). Where, as here, a party contends that the charge as 

given states an incorrect legal standard, "we will review the 

charge as a whole in the light of the evidence to determine if it 

fairly and adequately submitted the issues to the jury and we 

will reverse if the instructions were capable of confusing and 

thereby misleading the jury." Griffiths v. CIGNA Corp., 988 F.2d 

457, 462 (3d Cir.) (citing Limbach Co. v. Sheet Metal Workers 

Int'l Ass'n, 949 F.2d 1241, 1259 n.15 (3d Cir. 1991) (in banc)), 

cert. denied, ____ U.S. ____, 114 S.Ct. 186 (1993). We address 

Fashauer's arguments in turn. 

 A. Assumption of Risk v. Contributory Negligence

 The most significant question raised on this appeal is 

whether the district court erred by denying Fashauer's request to 

charge the jury that assumption of the risk is not a defense in a 
FELA action. Fashauer timely requested such a charge,2 and 

objected to the district court's charge, which declined to give 

 

2. At oral argument before us, a question was raised about 

whether Fashauer adequately raised the issue before the district 

court. Fashauer proposed the following points for charge: 

 The railroad cannot avoid liability for 

personal injury on the grounds that the 

injured party assumed the risk of his 

employment. Assumption of risk is not a 

defense in a suit by a railroad worker 

against a railroad, and the railroad worker 

does not assume the risk of being injured 

through the negligence of his employer or the 

negligence of a fellow employee. 

 You may not find contributory negligence on 

the part of the plaintiff simply because he 

acceded to the request or direction of a 

supervisor that he work at a dangerous job, 

in a dangerous place, or under unsafe 

conditions. 

 The defendant has the burden of proving by a 

preponderance of the evidence, contributory 

negligence. The plaintiff does not assume 

the risk of an unsafe place to work and 

cannot be blamed for working in an unsafe 

place. 

 It is the duty of a railroad worker to do the 

work assigned. It is not his duty to find 

the safest method of doing it, or to devise a 

safe[r] method. Therefore, in considering 

the defendant's claim that the plaintiff was 

guilty of contributory negligence, the jury 

will bear in mind that the plaintiff is not 

chargeable with any negl[igent] conduct of 

his employer. The plaintiff is only 

chargeable with his own conduct. So in 

connection with the defendant's claim of 

contributory negligence, you will consider 

only what the plaintiff himself did, or 

failed to do, at the time and place in 

question as shown by a preponderance of the 
it. Fashauer essentially contends that the district court's 

instructions inadvertently permitted the jury to reduce his 

recovery based on the fact that he continued to perform his job 

despite his knowledge that he was encountering a dangerous 

condition. He further contends that under the FELA the jury 

should not have been allowed to reduce his recovery because he 

assumed the risk of injury. 

 1. Introduction

 Congress passed the Federal Employers' Liability Act of 

1906 in part to eliminate barriers common law courts erected to 

protect railroad companies and other common carriers from 

liability for their employees' workplace injuries. See Tiller v. 

Atlantic Coast Line R. Co., 318 U.S. 54, 58-59, 63 S.Ct. 444, 447 

(1943). The FELA "substituted comparative negligence for the 

strict rule of contributory negligence," id. at 62, 63 S.Ct. at 

(..continued) 

evidence in the case. Thus, plaintiff cannot 

be found contributorily negligent based 

solely on his knowledge or acceptance of a 

dangerous situation or based on the fact that 

he was working at a dangerous job. Rather, 

you may find the plaintiff contributor[ily] 

negligent only if the defendant has proved by 

a preponderance of the evidence that 

plaintiff did not exercise slight care for 

his own protection. 

Quoted in Fashauer's brief at 11-12 n.1. Although Fashauer's 

proposed instructions do not actually define assumption of the 

risk, we believe they adequately conveyed his view that the jury 

should not have been permitted to reduce his recovery based on 

actions that constitute assumption of the risk. 
448-49, but, as interpreted by the Supreme Court, originally 

allowed an employer to interpose assumption of the risk as a 

complete defense to the employer's liability. See Seaboard Air 

Line Ry. v. Horton, 233 U.S. 492, 503, 34 S.Ct. 635, 639 (1915). 

The only statutory exception to this occurred "in . . . case[s] 

where the violation by [a] common carrier of [a] statute enacted 

for the safety of employees contributed to the injury of such 

employee." Id. at 502-03, 34 S.Ct. at 639. Following widespread 

criticism of its retention of the assumption of risk defense, 

Congress amended the FELA in 1939 to eliminate the defense in 

cases where the injury "resulted in whole or in part from the 

negligence of any of the officers, agents, or employees" of the 

employer. 45 U.S.C. § 54. Interpreting the amendments soon 

thereafter, the Supreme Court held that "every vestige of the 

doctrine of assumption of risk was obliterated from the law by 

the 1939 amendment," see Tiller, 318 U.S. at 57, 63 S.Ct. at 446, 

and that "cases tried under the Federal Act [are] to be handled 

as though no doctrine of assumption of risk had ever existed." 

Id. at 64, 63 S.Ct. at 450. The Court warned that "'[u]nless 

great care be taken, the servant's rights will be sacrificed by 

simply charging him with assumption of the risk under another 

name.'" Id. at 58, 63 S.Ct. at 447 (citation omitted). 

 2. Assuring Assumption of Risk Stays Out 

 In light of the 1939 amendment and Tiller's 

interpretation of it, because contributory negligence on the 
plaintiff's part reduces his or her damages, while assumption of 

risk does not, courts have the delicate job of separating out 

evidence on one theory from evidence on the other. See Victor E. 

Schwartz, Comparative Negligence, § 9-4(a)(1) at 202 (3d ed. 

1994) ("[F]acts constituting implied assumption of risk have no 

materiality except as they might also constitute contributory 

negligence."). Some courts have guarded against jury confusion 

by doing what Fashauer suggests the court should have done here: 

describing assumption of risk to the jury and instructing it not 

to reduce the plaintiff's recovery on that basis. See Koshorek 

v. Pennsylvania R.R. Co., 318 F.2d 364, 370 (3d Cir. 1963) 

(reversible error for district court not to instruct on 

assumption of risk); Jenkins v. Union Pacific R.R. Co., 22 F.3d 

206, 212 (9th Cir. 1994) (same). But other courts have expressed 

wariness about instructing the jury on a legal doctrine not in 

the case. As one court has put it, "the statutory elimination of 

the defense of assumption of risk, when read to the jury in FELA 

cases where that 'defense' has been neither pleaded nor argued, 

serves only to obscure the issues in the case." Casko v. Elgin, 

Joliet and Eastern Ry. Co., 361 F.2d 748, 751 (7th Cir. 1966). 

The Court of Appeals for the Second Circuit, relying on the 

proposition that "'it is a mistake to give instructions on 

subjects not directly in issue in a case,'" DeChico v. MetroNorth Commuter R.R., 758 F.2d 856, 861 (2d Cir. 1985) (citation 

omitted), has cautioned that "[a]n assumption of risk instruction 
may be particularly inappropriate in cases where it 'might well 

cause such confusion as to water down or even eliminate the issue 

of contributory negligence.'" Id. at 861 (quoting Clark v. 

Pennsylvania R.R. Co., 328 F.2d 591, 595 (2d Cir.), cert. denied, 

377 U.S. 1006, 84 S.Ct. 1943 (1964)); see also Clark v. 

Burlington N., Inc., 726 F.2d 448, 452 (8th Cir. 1984) ("Cases 

discussing the issue have generally condemned the giving of an 

assumption of risk instruction in FELA actions."); Heater v. 

Chesapeake and Ohio Ry. Co., 497 F.2d 1243, 1249 (7th Cir.) (an 

assumption of the risk "instruction is a confusing negative 

statement which refers to issues not involved in a FELA case"), 

cert. denied, 419 U.S. 1013, 95 S.Ct. 333 (1974). 

 These latter cases enunciate a salutary principle: 

Whenever possible, courts should spare juries intricate 

descriptions of opaque legal doctrines inapplicable to the case. 

And indeed, our caselaw, while limited, supports that principle. 

For example, in Seaboldt v Pennsylvania R.R. Co., 290 F.2d 296 

(3d Cir. 1961), the district court at the last minute acceded to 

the plaintiff's request and charged the jury that assumption of 

risk is not a defense. Id. at 300. We pointed out that "for 

this difficult concept to be thrown into the jury's mind at the 

last minute without explanation was almost sure to have left it 

in confusion." Id. See also De Pascale v. Pennsylvania R.R. 

Co., 180 F.2d 825, 827 (3d Cir. 1950) (district court properly 

refused to instruct on assumption of risk where "[a]ssumption of 
risk was definitely not important in th[e] case [when t]here was 

no suggestion regarding it during the course of the trial."). 

 But in the end, this salutary principle can only be a 

starting point. Because assumption of risk and contributory 

negligence are similar doctrines, and because only the latter is 

a defense under the FELA, we recognize that sometimes the absence 

of an explanation of the differences between the doctrines will 

confuse the jury as to the governing law. And, following that 

logic, we have held that when the facts of the case present a 

danger of jury confusion on the issue, an assumption of risk 

charge should be given. Thus, in Koshorek v. Pennsylvania R.R. 

Co., the only evidence concerning the plaintiff's negligence 

consisted of his continuing to work in a dusty shop when he 

"either knew or should have known that inhalation of excessive 

dust over an extended period of time might cause him harm." 318 

F.2d at 369. The district court refused to give an assumption of 

risk charge and the jury returned a verdict for the railroad. We 

reversed because "[h]ad an adequate distinction between conduct 

constituting contributory negligence and that which would have 

constituted assumption of risk been pointed to the jurors in the 

charge, the jury might well have reached a different verdict." 

Id. at 369-70. 

 Thus, the most we can say as a matter of law is that 

when the evidence adduced at trial presents a danger that the 

jury might reduce a plaintiff's recovery based on the 
impermissible theory of assumption of risk, then the trial judge 

should instruct the jury on how that doctrine differs from 

contributory negligence. But when the evidence presents no such 

danger, then an adequate charge on contributory and comparative 

negligence suffices. Of course, the most difficult part of the 

inquiry is determining when the facts merit an assumption of the 

risk instruction. To answer this question, we must inquire into 

what Congress meant by the phrase "assumption of risk." Only 

then will we be able to categorize the evidence and determine 

whether such a charge should have been given. 

 3. Assumption of the Risk Generally

 At common law an employee's voluntary, 

knowledgeable acceptance of a dangerous 

condition that is necessary for him to 

perform his duties constitutes an assumption 

of risk. Contributory negligence, in 

contrast, is a careless act or omission on 

the plaintiff's part tending to add new 

dangers to conditions that the employer 

negligently created or permitted to exist. 

Taylor v. Burlington N. R.R. Co., 787 F.2d 1309, 1316 (9th Cir. 

1986) (citations omitted). Despite this seemingly simple 

definition, courts have a difficult time distinguishing between 

assumption of the risk and contributory negligence. This 

difficulty is certainly due in large part to the fact that the 

"assumption of risk" concept of voluntarily and knowingly 

accepting a dangerous condition often is used as an umbrella term 

to describe a number of discrete and dissimilar concepts. See
Schwartz, Comparative Negligence, § 9-1(a) at 187; W. Page 

Keeton, et. al., Prosser and Keeton on Torts, § 68 at 480 (5th 

ed. 1984). For example, in some cases assumption of risk 

describes a party's express contractual agreement to assume a 

risk; under this scenario, "the defendant is relieved of a legal 

duty to the plaintiff." Prosser and Keeton on Torts, § 68 at 

481. Other times the phrase is used as a legal fiction under 

which, based on the circumstances, a party is deemed implicitly 

to have consented to bear particular kinds of risk. For example, 

a railroad worker might be said to have assumed the risks 

inherent in working in a dangerous occupation. The umbrella 

category of assumptions of risk also divides into the 

subcategories of reasonable assumptions of risk and unreasonable 

assumptions of risk. See Schwartz, § 9-4(c)(2) at 214; Smith v. 

Seven Springs Farm, Inc., 716 F.2d 1002, 1005 (3d Cir. 1983). 

Thus, when an expert skier traverses an extremely difficult 

slope, he may be said reasonably to have assumed the risk 

inherent in skiing a difficult slope. Id. at 1009. But when a 

novice consciously chooses the difficult slope, his actions 

probably would be characterized as unreasonable. Thus, a 

person's implicit consent to undertake a risk can be either 

reasonable or unreasonable. As a corollary, an individual who 

accepts a dangerous employment at a high wage might be said to be 

acting reasonably. But a person who accepts the identical 
employment for a lower wage and with minimal safety precautions 

might be said to be acting unreasonably. 

 The subcategory of unreasonable assumption of risk 

sounds suspiciously like a negligence concept. In fact, in such 

cases -- where the plaintiff unreasonably assumed a known risk -- 

the difference between assumption of risk and contributory 

negligence appears purely semantic. Rather than saying the skier 

assumed a risk, we easily could say that he failed to act with 

due care. See Prosser and Keeton on Torts, § 68 at 481 (equating 

unreasonable assumption of risk with contributory negligence). 

The point is crucial, because it means there are times when a 

description of the defense of assumption of the risk "overlaps 

with [a description of] the defense of contributory negligence." 

Smith, 716 F.2d at 1006. In such cases, evidence supporting one 

theory also constitutes evidence of the other. Thus, depending 

on how courts characterize such evidence, a jury either may be 

permitted to reduce the plaintiff's recovery or be barred 

completely from considering such evidence. Thus, our next 

inquiry must be into just what theory of assumption of risk 

Congress sought to prohibit when it barred the defense under the 

FELA. To answer the question, we turn first to the history 

behind Congress' initial allowing and subsequent elimination of 

the assumption of risk defense under FELA, and then we consider 

the pertinent interpretative caselaw. 
 4. Assumption of the Risk Under FELA

 During the beginnings of industrial growth in the 19th 

century, and prior to the enactment of FELA and other legislation 

protecting employees, the common law governing employment 

injuries "was heavily stacked against employees." Daniel Saphire, 

Two Views on FELA and Railroad Safety, 19 Transp. L. J. 401, 402 

(1991). Specifically, the common law courts had devised rules 

"to insulate the employer as much as possible from bearing the 

'human overhead' which is an inevitable part of the cost -- to 

someone -- of the doing of industrialized business." Tiller, 318 

U.S. at 59, 63 S.Ct. at 447. Thus, for example, "a plaintiff's 

contributory negligence barred any subsequent recovery for 

damages, even if the plaintiff was only slightly at fault." Monk 

v. Virgin Islands Water & Power Authority, 1995 WL 231637 at * 2 

(3d Cir. April 20, 1995). The point, in part, was "to give 

maximum freedom to expanding industry," Tiller, 318 U.S. at 59, 

63 S.Ct. at 447, in the belief that "optimal economic growth 

could occur only when the government did not interfere unduly 

with the free workings of the marketplace." Jane P. North, 

Comment: Employees' Assumption of Risk: Real or Illusory Choice, 

52 Tenn. L. Rev. 35, 39 (1984). The doctrine of assumption of 

the risk was one of those barriers erected against this 

background. The doctrine, which "prevented recovery when a 

plaintiff was deemed to have assumed the risk of a known danger," 

Monk, 1995 WL 231637 at * 2 (citing W. Page Keeton et al., 
Prosser & Keeton on the Law of Torts, § 68, at 495-96 (5th ed. 

1984)), really was "a judicially created . . . 'rule of public 

policy, [developed because] an opposite doctrine would not only 

subject employers to considerable and often ruinous 

responsibilities, thereby embarrassing all branches of business,' 

but would also encourage carelessness on the part of the 

employee." Tiller, 318 U.S. at 58-59, 63 S.Ct. at 447 (citations 

and footnotes omitted). 

 The Supreme Court summed up the meaning of the concept 

in the pre-FELA case of Tuttle v. Detroit, G.H. & M. Ry. Co., 122 

U.S. 189, 7 S.Ct. 1166 (1887), when it declined to allow a jury 

to inquire into the reasonableness of a railroad's choice of 

machinery. It explained its decision as follows: 

 The brakemen and others employed to work in 

such situations must decide for themselves 

whether they will encounter the hazards 

incidental thereto; and, if they decide to do 

so, they must be content to assume the risks. 

. . . . 'A railroad yard, where trains are 

made up, necessarily has a great number of 

tracks and switches close to one another, and 

any one who enters the service of a railroad 

company connected with the moving of trains 

assumes the risk of that condition of 

things.' It is for those who enter into such 

employments to exercise all that care and 

caution which the perils of the business in 

each case demand. 

Id. at 194-95, 7 S.Ct. at 1168 (emphasis added) (citation 

omitted). Thus, assumption of risk in the employment context 

described the notion of implied consent -- when an employee takes 

a job, he or she consents to assume the risk of any danger he or 
she knows or should know necessarily is entailed in the job. In 

a sense the doctrine estopped the employee from blaming the 

employer for an injury resulting from a risk contemplated by the 

parties when they fashioned their employment contract. The Court 

in fact explicitly relied on this quasi-contract basis for the 

doctrine: "'[T]he servant, when he engages in the employment, 

does so in view of all the incidental hazards, and . . . he and 

his employer, when making their negotiations, -- fixing the terms 

and agreeing upon the compensation that shall be paid to him, -- 

must have contemplated these as having an important bearing upon 

their stipulations. As the servant then knows that he will be 

exposed to the incidental risk, he must be supposed to have 

contracted that, as between himself and the master, he would run 

this risk.'" Id. at 195-96, 7 S.Ct. at 1168-69 (citation 

omitted). Therefore in an action claiming damages because of 

one's employer's negligence, "although an employer may have 

violated the duty of care which he owed his employee, he could 

nevertheless escape liability for damages resulting from his 

negligence if the employee, by accepting or continuing in the 

employment with 'notice' of such negligence, 'assumed the risk.'" 

Tiller, 318 U.S. at 69, 63 S.Ct. at 452 (Frankfurter, J., 

concurring). 

 In a case decided after the original FELA was enacted -

- when assumption of the risk remained a complete defense to the 

railroad's negligence -- the Supreme Court distinguished 
assumption of the risk from contributory negligence and again 

described assumption of risk in implied consent terms. 

"Contributory negligence involves the notion of some fault or 

breach of duty on the part of the employee." Seaboard Air Line 

Ry. v. Horton, 233 U.S. at 503, 34 S.Ct. at 639-40. Assumption 

of the risk, on the other hand, "may be free from any suggestion 

of fault or negligence on the part of the employee." Rather, 

"employments [that] are necessarily fraught with danger to the 

workman . . . are normally and necessarily incident to the 

occupation [and] are presumably taken into account in fixing the 

rate of wages." Id. at 504, 34 S.Ct. at 640. Assumption of the 

risk again referred to risks to which the plaintiff implicitly 

consented in taking the employment; other than that, the 

plaintiff was charged with acting as a prudent person under the 

circumstances. 

 Tiller, the seminal case that first interpreted the 

1939 FELA amendment, canvassed the history of the assumption of 

the risk defense, and explained it in implied consent terms. The 

Court noted that assumption of the risk originally was included 

in the FELA "because of acceptance of the theory that the 

employee's compensation was based upon the added risk to his 

position and that he could quit when he pleased." Tiller, 318 

U.S. at 61, 63 S.Ct. at 448. But, the Court noted, in adopting 

the amendments, "[t]he report of the Senate Judiciary Committee 

struck at the basic reasons advanced by common law courts for the 
existence of the doctrine, declared it unsuited to present day 

activities, and described them as out of harmony with the 

equitable principles which should govern determinations of 

employer-employee responsibilities." Id. at 64-65, 63 S.Ct. at 

450 (citing Senate report). 

 Thus, Supreme Court cases from the pre-FELA, preamendment and post-amendment eras all contemplated that 

assumption of risk under the FELA referred to the employee's 

implied consent to assume the risks entailed in employment. So 

Congress in adopting the 1939 amendments sought to prevent juries 

from reducing a plaintiff's recovery because the plaintiff 

performed a dangerous task or a dangerous job rather than quit or 

find employment elsewhere. 

 5. Refining the distinctions

 Various courts have refined the distinction between 

assumption of risk and contributory negligence under the FELA in 

the last few decades. In the oft-cited Taylor v. Burlington N. 

R.R. Co., 787 F.2d 1309, a case in which the plaintiff claimed 

injuries resulting from harassment by his supervisor, the 

railroad argued that the plaintiff's failure to "bid off" to 

another work area where he would work under a different 

supervisor, constituted contributory negligence. The court 

disagreed, holding that "[t]he employee who enters the workplace 

for a routine assignment in compliance with the orders and 
directions of his employer or its supervising agents, who by such 

entry incurs risks not extraordinary in scope, is not 

contributorily negligent, but rather is engaging in an assumption 

of risk." Id. at 1316. Assumption of risk as the court 

described it thus was comprised of the plaintiff's implicit 

consent to the risks of employment; the employer could not reduce 

its liability by arguing that the plaintiff should not have 

performed the job. 

 In Rivera v. Farrell Lines, Inc., 474 F.2d 255 (2d 

Cir.), cert. denied, 414 U.S. 822, 94 S.Ct. 122 (1973),3 the 

Court of Appeals for the Second Circuit also applied the implied 

consent theory of assumption of risk. In that case, the 

plaintiff slipped and fell on a wet pantry floor while performing 

his job of getting ice cream for a crew member. The district 

court charged the jury that "appellant might have been 

contributorily negligent by not having 'the common sense to go 

and say to somebody in charge, "Look, this has got to be cleaned 

up; I won't work here until it is done."'" Id. at 258 (quoting 

charge). The court of appeals, noting that "unrebutted evidence 

. . . established that . . . numerous complaints about the 

situation in the pantry had been made to no avail," reasoned that 

 

3. Rivera arose under the Jones Act, but the standards governing 

the parties' conduct generally are the same under both the FELA 

and the Jones Act. Kernan v. American Dredging Co., 355 U.S. 

426, 439, 78 S.Ct. 394, 401 (1958) (Seaman "was in a position 

perfectly analogous to that of the railroad workers . . . and the 

principles governing [FELA] cases clearly should apply [under the 

Jones Act]."). 
"[i]t cannot be known whether further complaint by appellant 

would have resulted in correction of the drain defect in time to 

avoid the accident." Id. Thus, "if . . . contributory 

negligence is submitted to the jury on retrial . . . it should be 

done so only with a caveat that the appellant was not duty bound 

to perform a futile act." Id. In other words, if the employee 

could not reasonably expect the employer to correct the defect, 

then the employee had no real alternative but to perform the 

task, defect or not. But if reasonable safe alternatives were 

available -- such as if notification could have resulted in 

immediate correction of the problem, then it was not necessary 

for the employee to accept the dangerous condition. The employee 

could not be said to have implicitly consented to working in an 

unsafe work area, and his actions in failing to follow a safer 

alternative would constitute contributory negligence. Thus, when 

alternatives besides quitting are available to plaintiff, his 

actions are reviewed for reasonableness, and unreasonable 

assumptions of risk constitute evidence of contributory 

negligence. See also Joyce v. Atlantic Richfield Co., 651 F.2d 

676, 683 (10th Cir. 1981) (adopting implied consent theory of 

assumption of the risk) (person is not guilty of contributory 

negligence "'simply because he acceded to the request or 

direction of the responsible representatives of his employer that 

he work at a dangerous job, or in a dangerous place, or under 
unsafe conditions.'") (quoting Devitt and Blackmar, Fed. Jury 

Prac. and Instructions, §94.16 (3d ed.)). 

 The Court of Appeals for the Ninth Circuit recently 

applied these principles to the day to day relationships between 

supervisor and employee in Jenkins v. Union Pacific R.R. Co., 22 

F.3d 206 (9th Cir. 1994). In that case, a railroad engineer was 

attempting to "shove a length of nine flatcars to a point where 

they would be coupled with other cars." Id. at 208. Because the 

engineer's locomotive was pushing (rather than pulling) the cars, 

the engineer was unable to observe the point of contact, and the 

plaintiff was asked to act as his eyes and ears. The plaintiff 

did this by boarding the front car. Because the engineer 

believed that the plaintiff was having difficulty boarding the 

car, he stepped on the brakes. But the other cars continued to 

move forward, and the plaintiff was "caught on the axle, pulled 

under the train, and thrown out onto the rail," suffering severe 

injuries. Id. at 209. 

 In making its analysis, the court distinguished between 

general orders and specific orders. "'Where a general order is 

given, an employee must use ordinary care in its execution, and 

the giving of the order does not affect the question whether the 

servant has been negligent in his manner of carrying it out, 

where there is a choice open to him.'" Id. at 211 (citation 

omitted) (emphasis added). In such cases, the plaintiff's 

actions are reviewable for contributory negligence. However, 
when the employee is given a specific order -- that is, where he 

or she is told to perform a specific task in a particular way -- 

"he is not contributorily negligent; rather his conduct falls 

under the abolished doctrine of assumption of risk." Id. In 

other words, when a plaintiff has no real choice, his recovery 

should not be reduced because he performed the task, regardless 

of whether the plaintiff acted reasonably or unreasonably. But 

when the plaintiff has reasonable alternatives available to him, 

he must act reasonably in performing his job. And if he acts 

unreasonably, he is answerable for contributory negligence. 

 To illustrate, in that case, the employer produced 

evidence that the plaintiff violated company safety rules in 

performing the job in the manner in which he did. Because this 

evidence supported the employer's argument that the plaintiff had 

a safer method of performing his job, the court "agree[d] with 

Union Pacific that the jury could rationally find that Jenkins 

contributed to his own injury by violating the operating rule." 

Id. at 212. 

 Not all courts agree with the proposition that 

assumption of risk under the FELA describes the theory that the 

plaintiff implicitly has consented to the risks of his 

employment, and that when there are alternatives available the 

plaintiff must act reasonably. The Court of Appeals for the 

Eighth Circuit, for example, took a more expansive view in 

Birchem v. Burlington N. R.R. Co., 812 F.2d 1047 (8th Cir. 1987). 
There, the plaintiff used a defective "mudjack" despite knowing 

of company safety rules "forbidding the use of unsafe or 

defective equipment." Id. at 1048-49. In the court's view, the 

district court properly rejected the railroad's proffered 

instruction that the plaintiff's conduct evidenced negligence on 

his part. Rather, according to the court, "[t]he district court 

properly admonished the jury during the trial that the Railroad's 

theory was an impermissible effort to transfer to Birchem its 

nondelegable duty to provide safe equipment and a safe working 

environment." Id. at 1049. In so holding, the court necessarily 

rejected the proposition that unreasonable assumptions of the 

risk entailed in choosing one particular method of performing a 

task may constitute contributory negligence. It thus rejected 

implied consent as the theory of assumption of risk under FELA.4

 We are not persuaded by the Birchem court's analysis. 

In our view, the history behind the FELA and the Supreme Court's 

pronouncements in pre- and post-FELA cases makes clear that 

assumption of risk in the employment context refers to implied 

consent. Taylor, Jenkins, and Rivera are in accord with that 

principle and we find their analyses persuasive. Thus, we hold 

the following: A plaintiff's recovery under the FELA never can 

 

4. Despite that language in the court's opinion, though, it 

approved, without elaborating, the district court's instruction 

that "evidence concerning the manner and way in which [plaintiff] 

used the equipment was proper for its consideration." Birchem, 

812 F.2d at 1049. It is difficult to see how a jury would 

reconcile these instructions. 
be reduced on the basis that he or she implicitly consented to 

the risk by accepting employment with the railroad or by 

performing a task in the manner which the employer directed. 

This is true regardless of whether the plaintiff acted reasonably 

or unreasonably. Thus, even when a jury examining a plaintiff's 

position objectively would conclude that he acted unreasonably in 

accepting employment, or performing a task at all, such 

unreasonable actions for FELA purposes are characterized as 

assumption of risk rather than contributory negligence. 

 But all other actions of plaintiff are "to be handled 

as though no doctrine of assumption of risk had ever existed," 

Tiller, 318 U.S. at 64, 63 S.Ct. at 450, and if they are evidence 

of negligence they should be admitted to show contributory 

negligence. Thus, when reasonable alternatives besides quitting 

or refusing to perform the task in an unsafe way are available, a 

plaintiff is charged with acting with due care and will be held 

responsible for acting unreasonably. In such circumstances 

"[w]hen the plaintiff unreasonably assumes a known risk, his 

fault in that regard is negligence and his damage award may be 

subject to apportionment." See Schwartz at § 9-4(c)(2) at 214; 

see also id. at § 9-4(a)(1) at 202 ("The language of the F.E.L.A. 

makes it clear that . . . only facts that would constitute 

unreasonable implied assumption of risk (as contrasted with 

reasonable) can serve to reduce the plaintiff's award."). 

Examples of evidence of contributory negligence include failing 
to follow specific safety instructions reasonably calculated to 

protect the employee from the injury that occurred; failing to 

report a defect when the evidence establishes that such reporting 

would be productive; and failing to act prudently in performing 

the task. 

 Based on these principles, if no evidence of 

impermissible assumption of risk has reached the jury, a correct 

instruction on contributory negligence will do. However, if, 

either because of evidence introduced at trial or because of 

statements made by counsel in opening or closing arguments, there 

is a risk that the implied consent theory of assumption of the 

risk seeped its way into the case, the jury should be instructed 

that it "may not find contributory negligence on the part of the 

plaintiff . . . simply because he acceded to the request or 

direction of the responsible representatives of his employer that 

he work at a dangerous job, or in a dangerous place, or under 

unsafe conditions." Joyce, 651 F.2d at 683 (citation omitted). 

 We now turn to the facts of this case to determine 

whether there was a danger that the jury confused assumption of 

the risk with contributory negligence, and therefore that an 

assumption of risk charge should have been given. 

 6. Application Of the Law

 Fashauer claims that defense counsel made a number of 

impermissible references in her opening and closing statements, 
the net result of which enabled the jury to reduce his recovery 

based on an impermissible version of assumption of the risk. He 

first argues that defense counsel's statement in her opening that 

"plaintiff is not a newcomer to the railroad," see app. 168, 

demonstrates an illicit attempt to bring assumption of risk into 

the case. He buttresses the point by quoting counsel's argument 

that "[plaintiff] walked in that vestibule back and forth during 

the course of that day through the very spot that he later 

alleges he slipped in." app. 169. 

 When counsel's statements are read amidst the 

surrounding context, however, it becomes clear that she was not 

interjecting assumption of risk into the case but instead 

attempting to show that: (1) the vestibule's condition was the 

result not of New Jersey Transit's negligence but of normal 

conditions during the rain; and (2) Fashauer did not act with due 

care in walking through the wet vestibule. For instance, she 

argued that "if you add up the total number of stops at the time 

this alleged incident happened, [the accident happened on] the 

19th stop. As you know on the stops passengers get on and off 

the train and it has been continuing to rain the entire day." 

App. 169. Moreover, the references to Fashauer going in and out 

of the vestibule were intended to point out that despite his 

complaint about the soaked vestibule, "plaintiff never reported 

any leaking from the tube diaphragm into the vestibule area at 

any time before this accident happened." Id. That observation 
was a legitimate attempt to rebut Fashauer's argument that the 

vestibule was unusually wet that day. Further, defense counsel's 

emphasis on the fact that Fashauer "wasn't holding on to any 

handholds whatsoever," in violation of company safety rules, see

id. at 170, was a permissible argument advancing the defense of 

contributory negligence. If the jury believed the evidence, it 

could have found that Fashauer had a safer alternative to the 

manner in which he performed his task. 

 Next, Fashauer points to defense counsel's argument in 

her closing that: 

 [i]t's common sense that plaintiff should 

have been expected to know that this floor 

was wet. Again I'm going to stress this, 

probably until you're sick of hearing that we 

know it was raining all day long. He had 

been out there for seven hours, at least. 

Windy, hurricane, rainy day, stormy. I mean 

passengers coming. You know there was two 

hundred passengers, the floor has to be wet. 

Plaintiff had to have known the floor was wet 

and that the rug was wet. He had to know the 

exact condition of the floor. 

app. 892. But defense counsel did not use these observations to 

build an argument that Fashauer should not have performed his 

job. Rather, she argued that he acted unreasonably in performing 

the task in the manner in which he did, and that the condition 

Fashauer encountered was not abnormal and therefore not 

proximately caused by New Jersey Transit's negligence. After 

making the above-quoted statements, defense counsel segued into a 

discussion of the relevant safety rules, and argued that when 

Fashauer failed to follow them he contributed to the injury. See
app. 892-93. To say that such an argument should not have been 

made would be "to water down or even eliminate the issue of 

contributory negligence." DeChico v. Metro-North Commuter R.R., 

758 F.2d at 861. Indeed, if we precluded the argument we 

virtually would be preventing the jury from considering whether 

there were in fact reasonable safe alternatives for Fashauer to 

follow. Id.; see also Jenkins, 22 F.3d at 212 (violating 

operating rule constitutes evidence of contributory negligence). 

 More problematic is the district court's description of 

the evidence in the case during its charge. The court instructed 

the jury that "defendant . . . alleges that plaintiff contributed 

to the happening of the accident by his own negligence in moving 

about the vestibule and by failing to follow safety regulations." 

App. 956. The first part of the court's statement could be read 

to imply that Fashauer was contributorily negligent simply 

because he moved about the vestibule in the rain. If the 

statement had gone unqualified, we might be inclined to agree 

with Fashauer that the charge permitted the jury to reduce his 

recovery based simply on the fact that he performed his job. But 

the court did not issue its statement in a vacuum as it made the 

statement only after thoroughly describing the concepts of 

negligence and ordinary prudence. Thus, the court was referring 

to the manner in which Fashauer walked through the vestibule, 

rather than to the simple fact that he walked through the 

vestibule. Moreover, we have found nothing in the record 
constituting an impermissible argument on assumption of risk as 

we have defined it. As in Seaboldt and De Pascale, "[t]here was 

no suggestion regarding [assumption of risk] during the course of 

the trial." De Pascale, 180 F.2d at 827. It therefore is 

inconceivable to us that the jury would sua sponte have taken it 

upon itself to manufacture an additional defense. 

 To summarize, we do not believe that the charge as a 

whole was confusing to the jury on this point. We therefore 

reject Fashauer's argument that the district court erred by 

failing to instruct the jury that assumption of risk is not a 

defense under the FELA. 

 B. Charge on Contributory Negligence

 Fashauer next contends that the district court gave a 

defective charge on the standard for contributory negligence. As 

indicated above, the question on review is whether the charge, 

taken as a whole, correctly stated the applicable law. Here, the 

question really is one of law -- defining the concept of 

contributory negligence. The district court instructed the jury 

as follows: 

 To determine whether the plaintiff was 

contributorily negligent, you apply the same 

definition of negligence discussed earlier. 

That is did the plaintiff take or fail to 

take actions which a reasonably prudent 

person would have taken in the circumstances. 

You also apply the same rule of causation. 

That is did plaintiff's negligence, if any, 

play any part in bringing about his injuries. 

Although I have instructed you that plaintiff 

has the burden of proving its case by a 
preponderance of the evidence, it is the 

defendant which has the burden of proving 

also by a preponderance of the evidence that 

plaintiff was contributorily negligent. 

App. 960-61 (emphasis added). The court previously defined 

negligence as follows: 

 Negligence is simply the failure to use the 

same degree of care which a person of 

ordinary prudence would use in the 

circumstances of a given situation. It could 

be the doing of something which a reasonably 

prudent person would not have done, or 

failing to do something which a reasonably 

prudent person would have done under the 

circumstances. The definition of negligence 

requires the defendant to guard against those 

risks or dangers of which it knew or by the 

exercise of due care should have known. 

App. 957. 

 Fashauer contends that the court erred in "impos[ing] a 

standard of causation in dealing with the issue of plaintiff's 

contributory negligence that is significantly more harsh than the 

standard that would be applied under the common law." Br. at 23. 

Fashauer also appears to take issue with the court's duty of care 

instruction; he contends that under the FELA he has only a slight 

duty to protect himself, and thus the court erred in holding him 

to the same standard of care as the railroad. The district 

court, in its opinion ruling on Fashauer's motion for a new 

trial, followed the language of the statute, a Pennsylvania 

district court case, and a case from the Sixth Circuit to hold 

that the same causation and care standards apply to both employer 

and employee. It noted, though, that "I personally find it very 
problematic that in a remedial statute designed to protect the 

working man and working woman, that you should apply, in effect, 

an enhanced contributorily negligent [sic] statute, because 

that's the effect. You're putting a heavier burden on the worker 

than even the common-law would have put on it." Op. at 68. 

 In the first place, we are puzzled by Fashauer's 

contention and the district court's concern regarding the 

causation instruction. It must be remembered that under the preFELA common law, contributory negligence totally barred a 

plaintiff from any recovery. Thus, in that scenario, the 

proposition that a plaintiff is contributorily negligent if his 

negligence played any part at all in causing the injury at times 

would have worked draconian consequences. But the FELA modified 

the common law; it contains a comparative negligence scheme which 

reduces plaintiff's recovery only in proportion to his share of 

responsibility for the injury. In short, while the standards of 

causation differ, so do the results of a finding of contributory 

negligence. As the district court instructed the jury: 

"[A]ssuming that you find . . . that plaintiff was negligent and 

that his negligence played a part in causing his own injuries, 

you must then determine the percentage to which plaintiff's 

negligence, if any, contributed to his injuries." App. 961. 

Thus, a jury finding of contributory negligence does no harm to 

the plaintiff unless it makes a further finding that the 

plaintiff's fault contributed to the injury to a particular 
degree. In other words, if a plaintiff's negligence contributed 

only marginally to the injury, his recovery would be reduced only 

marginally. Since the jury found that Fashauer was 50% 

responsible for his injury, it obviously found that he was more 

than marginally responsible. Therefore, in a pure comparative 

negligence scheme such as FELA's, Fashauer's argument is 

insubstantial. 

 We also disagree with Fashauer's contention that a FELA 

plaintiff is held to a lesser standard of care than his employer, 

notwithstanding the district court's invitation to us to reverse 

on this ground. See op. at 68-69 ("I welcome the insight, 

guidance, and even reversal from the Third Circuit on this 

issue."). In the first place, it is unclear what it means to say 

that a plaintiff has only a slight duty to protect himself. It 

seems to us that someone acts either with due care or without due 

care. The FELA is neither a worker's compensation statute nor a 

strict liability statute, and absent explicit direction from 

Congress or the Supreme Court, we decline to turn it into one. 

 More importantly, our interpretation is confirmed by 

the language of the statute. By its very terms, the FELA 

provides that "the damages shall be diminished by the jury in 

proportion to the amount of negligence attributable to such 

employee." 45 U.S.C. § 53. The statute does not distinguish 

between degrees of negligence; the statute does not say that the 

plaintiff only has a slight duty of care. Under the statute, a 
plaintiff's recovery is reduced to the extent that he is 

negligent and that such negligence is responsible for the injury. 

In such a situation, one must assume that Congress intended its 

words to mean what they ordinarily are taken to mean -- a person 

is negligent if he or she fails to act as an ordinarily prudent 

person would act in similar circumstances. Such a reading also 

is in accord with the FELA's pure comparative negligence scheme; 

and to adopt Fashauer's argument would be to abandon the clear 

dictate of the statute in favor of a policy decision to favor 

employees over employers. 

 Our interpretation finds further support in precedents 

of this court and others. In the Jones Act case of Mroz v. Dravo 

Corp., 429 F.2d 1156 (3d Cir. 1970), the appellant contended that 

the district court erred by charging the jury on contributory 

negligence. In rejecting the argument, we reasoned: 

 [C]ontributory negligence is the neglect of 

the duty imposed upon a person to exercise 

ordinary care for his own protection and 

safety which is a legally contributing cause 

of an injury. In determining whether an 

injured person has been guilty of 

contributory negligence the standard of 

conduct to which he must conform is that of a 

reasonably prudent person under the 

circumstances. If a person by his own action 

subjects himself unnecessarily to danger 

which should have been anticipated and is 

injured thereby he is guilty of contributory 

negligence. 

Id. at 1163. Fashauer's argument that different duties of care 

apply is directly contrary to this language, which applies the 
same standard of care to both employer and employee. Other 

courts similarly have ruled. See Karvelis v. Constellation Lines 

S.A., 806 F.2d 49, 52-53 & n.2 (2d Cir. 1986) (approving jury 

instruction charging that both plaintiff and defendant are 

required to act with reasonable care), cert. denied, 481 U.S. 

1015, 107 S.Ct. 1891 (1987); Brown v. OMI Corp., 863 F. Supp. 

169, 170-71 (S.D.N.Y. 1994) (applying reasonable care standard to 

defendant's contributory negligence claims). 

 To be sure, Fashauer's contention derives support from 

a series of Jones Act cases decided in the Fifth Circuit. Under 

the standard enunciated in those cases, "a seaman's duty to 

protect himself is not ordinary care, but slight care." Brooks 

v. Great Lakes Dredge-Dock Co., 754 F.2d 536, 538 (5th Cir. 1984) 

(citing cases), modified on other grounds, 754 F.2d 539 (5th Cir. 

1985). In Brooks, for example, the court of appeals found 

reversible error in an instruction that "contributory negligence 

is the failure on the part of the injured party to use ordinary

care for his own safety under the circumstances at the time and 

place in question." Id. (emphasis added); see also Bobb v. 

Modern Prods., Inc., 648 F.2d 1051, 1057 (5th Cir. 1981). But we 

find those cases unpersuasive in light of the FELA's explicit 

language and comparative negligence scheme, and further note that 

it is unclear whether the slight care standard is viable in the 

Fifth Circuit itself. In a more recent discussion of the 

question, that court of appeals said in rather explicit terms 
that "the same general negligence ('ordinary prudence') and 

causation standards apply to both employer and employee in 

Federal Employers' Liability Act (and, by extension, Jones Act) 

cases." Gavagan v. United States, 955 F.2d 1016, 1019 n.7 (5th 

Cir. 1992). 

 We find no error in the district court's contributory 

negligence charge. 

 C. Future lost earnings capacity

 Fashauer next argues that the district court erred in 

its jury instruction on future lost earnings. It is settled law 

that in a FELA case, a plaintiff may recover compensatory damages 

for lost earning capacity. Wiles v. New York, Chicago and St. 

Louis R.R. Co., 283 F.2d 328, 332 (3d Cir. 1960), cert. denied, 

364 U.S. 900, 81 S.Ct. 232 (1960); Gorniak v. National R.R. 

Passenger Corp., 889 F.2d 481, 483 (3d Cir. 1989); see also

McNight v. General Motors Corp., 973 F.2d 1366, 1370 (7th Cir. 

1992), cert. denied, ____ U.S. ____, 113 S.Ct. 1270 (1993). 

Under that theory of damages, if a plaintiff "show[s] that his 

injury has caused a diminution in his ability to earn a living," 

he or she may recover damages covering the extent to which the 

railroad's negligence caused the diminution in earning capacity. 

However, such recovery is appropriate only where the plaintiff 

"has produced competent evidence suggesting that his injuries 
have narrowed the range of economic opportunities available to 

him." Gorniak, 889 F.2d at 484. 

 In Gorniak, we discussed what such evidence must 

entail, and, after canvassing the relevant caselaw, concluded 

that a plaintiff may prove impaired earning capacity by 

presenting evidence of "a decreased ability to weather adverse 

economic circumstances, such as a discharge or lay-off, or [a 

decreased ability] to voluntarily leave the defendant employer 

for other employment." Id. In Wiles, for example, the 

plaintiff, as a result of the defendant's negligence, had 

undergone numerous operations and wound up with substantial and 

ineradicable scars in his back, and a permanent minor back 

deformity. While he remained employed by the railroad as a car 

repairman, his medical expert testified that "he would have 

difficulty getting a job in heavy industry elsewhere than with 

the Railroad" because physical examinations, generally required 

by such employers, "would compel Wiles to disclose the nature of 

his operations and that he had a history of disc protrusion and 

back fusion and these disclosures would militate against his 

securing employment." Wiles, 283 F.2d at 331. Based on this 

testimony, we held that, although Wiles was earning more in his 

current position than in his position at the time of his injury, 

he had no protection against being discharged or laid off. And 

if one of those contingencies occurred, he would face the 

consequences of a reduced ability to procure employment. Id. at 
332. Additionally, "if [Wiles] cannot obtain gainful employment 

elsewhere he is chained to his present job in a kind of economic 

servitude." Id. In such circumstances, Wiles had shown evidence 

that his injuries limited his economic horizons. 

 The evidence in Gorniak was even stronger. At the time 

of the injury, Amtrak employed the plaintiff as a materials 

handler. At trial, the plaintiff introduced expert evidence that 

he "was subject to permanent physical restrictions . . . that 

would preclude him from working as a materials handler or store 

attendant in an Amtrak warehouse, and in many positions in the 

industrial workforce outside Amtrak." Gorniak, 889 F.2d at 484. 

Moreover, although after the injury Amtrak had given the 

plaintiff a position as a ticket clerk, he introduced evidence 

that because of the company's seniority system, if Amtrak cut 

down on its light duty force, he would be without a job. In 

support of this fear, "evidence at trial indicate[d] that Amtrak 

has closed one if its Pennsylvania facilities and has abolished 

jobs in plaintiff's craft at another during Gorniak's employment 

with Amtrak." Id. at 484. Finally, we noted that "Gorniak . . . 

is under no obligation to remain with Amtrak, and the fact that 

his injuries hindered his ability to obtain other employment if 

he wished was one the jury could consider in deciding to award 

him damages." Id.

 Although we reject New Jersey Transit's argument that 

evidence supporting lost earnings capacity must come from a 
vocational expert, we nevertheless agree that Fashauer has 

produced no "competence evidence" supporting his claim for these 

damages. The evidence consisted almost entirely of medical 

testimony, only tangentially related to Fashauer's economic 

horizons, that the accident caused a permanent injury to his 

shoulder that restricted his physical activity. See app. 444 

(testimony of Dr. Gary Goldstein). For instance, Dr. Goldstein 

testified that because of the injury, Fashauer cannot lift 

weights over 20 pounds above his waist level and therefore "can't 

do any activities that would involve reaching overhead with even 

minimal power." Id. Thus, Fashauer was unable to continue 

working as a trainman or brakeman. Id. at 445. Fashauer himself 

testified that his inability to lift his arm very high prevented 

him from performing his prior work at the railroad. App. 221. 

 But Fashauer does not refer to testimony that he would 

have difficulty obtaining work with a different employer, or that 

jobs he could do after the injury were less lucrative than his 

railroad job. No witness even opined that Fashauer's injury 

limited his economic potential. On appeal, Fashauer points to 

nothing specific in the record which would constitute evidence 

from which a jury could calculate such damages. The jury had no 

information from which to conclude that Fashauer's economic 

horizons were limited. He essentially wanted the jury to take 

his counsel's word for it. 
 At any rate, contrary to Fashauer's argument, the 

district court's charge, read in its entirety, adequately 

instructed the jury on loss of future earning capacity. Fashauer 

points to various portions of the district court's charge that he 

contends permitted the jury to award future damages only for the 

time he was unable to work at all. But the charge is not so 

limited. For instance, the court said to the jury: 

 [Y]ou next have to fix the amount of the 

loss. You do this by considering the length 

of time during which plaintiff was not able 

to work. The length of time he'll be unable 

to work in the future. What his income was 

before the injuries and the extent that any 

physical impairments resulting from injuries 

may lessen or decrease his income, should he 

return to the work force. 

App. 963 (court's jury charge) (emphasis added). While the court 

first referred to damages while Fashauer was unable to work, it 

then plainly instructed the jury to consider whether Fashauer's 

income would decrease if he does return to work. It appears that 

the judge categorized damages based on inability to work and 

damages based on a decreased earning capacity as separate 

measures of damages. The court continued: 

 If you decide . . . that it is reasonable 

that plaintiff will lose income in the future 

because he has not been able to return to 

work, then you should also include an amount 

to make up for those lost wages. In deciding 

how much your verdict should be to cover 

future lost income, think about the factors 

mentioned in discussing past earning losses, 

such as the nature, extent and duration of 

his injury. Also consider the plaintiff's 

age today, his general state of health before 

the accident, how long you reasonably expect 
the loss of income to continue and how much 

plaintiff can earn in any available job that 

he . . . physically will be able to do. 

App. 964-65. Here again, it is clear that the court separated 

the two measures of damages -- damages based on an inability to 

work and damages based on impaired earning capacity in the 

future. But it certainly did not say that the former is the 

exclusive measure of future lost income damages. In discussing 

the law regarding awards of fringe benefits, the court 

instructed: 

 [Fringe benefits are] benefit[s] that you 

should include in your award for each future 

year, if any, in which you find plaintiff 

will likely be unable to return to work. . . 

. If you find that at some point in time 

plaintiff should be able to return to work, 

but at a lower paying position[,] in fixing 

the amount of the future wage loss, you 

should consider not only the difference in 

pay rates, but the possible lower value of 

any fringe benefits available to plaintiff in 

his new position. 

App. 966. Again, the "confusion" Fashauer perceives in the 

charge derives from the court's decision to distinguish the two 

measures of damages. It is difficult to see how a jury could be 

confused by an instruction which repeatedly asks it to consider 

loss of earning capacity. We reject Fashauer's argument. 

 D. Rebuttal Witness

 Fashauer next contends that the district court erred in 

refusing to permit him to call a rebuttal witness who was not 
listed in the pretrial orders. His contention builds upon the 

following procedural background. 

 In the pretrial order, New Jersey Transit named Dr. 

Morris Ehrenreich as a vocational expert. Ehrenreich was slated 

to testify that based on doctors' reports about Fashauer's work 

abilities and a job search conducted in the New Jersey area, 

Fashauer had numerous employment opportunities. Nothing in the 

pretrial summary of testimony indicated that Ehrenreich had 

conducted a job search by answering classified advertisements in 

newspapers. At trial, however, when defense counsel asked 

Ehrenreich about the methods he used to gauge Fashauer's ability 

to gain employment, the following colloquy ensued: 

 Q: And what did you do? 

 A: I did a laborer survey, a laborer 

survey, which looked at the jobs available to 

him in this community, and, in fact, I found 

him a -- employer who's ready to interview 

him for a job if he wishes. 

 Q: And what job is that? 

 A: This was a job as a salesman for a car 

dealership. I spoke to the manager who 

suggested that Mr. -- that if he's interested 

in the job, he can come down and apply for 

the job and indicated that the average 

salesman for this dealership earns between 30 

and $70,000 a year. 

App. 778-79. 

 Subsequent questioning by the court revealed that 

Ehrenreich had discovered this "job opportunity" by responding to 

newspaper advertisements in the Asbury Park Press the day before 
he testified. Moreover, the court's further questioning revealed 

that while the trial was proceeding, New Jersey Transit's counsel 

had supplied Ehrenreich with the newspapers, thereby assisting 

Ehrenreich in the untimely job search.5 In other words, as the 

court later put it, Ehrenreich, with New Jersey Transit's 

cooperation, amended his report during the trial without notice 

to Fashauer's counsel. 

 

5. The court questioned the witness as follows: 

 THE COURT: What made you call up [the Jaguar 

company]? 

 THE WITNESS: They had an ad in the paper 

offering jobs with training. 

 THE COURT: Well, there's hundreds of ads 

in the paper every day. . . . What made you 

pick that one? 

 THE WITNESS: Well, I got the job from 

Friday from the Asbury News. 

 THE COURT: From when? 

 THE WITNESS: This past Friday. 

 THE COURT: So, this was just done this 

Friday? 

 THE WITNESS: Yes. And it was a -- many of 

the jobs require that you -- that you fax 

them a resume or you send a resume in. 

* * * 

 THE COURT: And this you did last Friday? 

 THE WITNESS: This I did on Monday. 

App. 780-82. 
 Immediately upon discovering that the witness had 

testified about a survey not mentioned in the pretrial report, 

the court practically invited Fashauer to object to the 

testimony. Nonetheless, his counsel explicitly declined to 

object, informing the court that "I'm not objecting." App. 782.6 

Subsequently, out of the presence of the jury, the court severely 

rebuked New Jersey Transit and the expert: 

 THE COURT: I think harm has been done to 

slip by the notion that to have this witness, 

in effect, work on his report, because that's 

what he's doing when he's making the calls. 

He's working on his report. He's modifying 

his report when he gets up there and says 

there is a car dealership that would 

interview this man. He's modifying his 

report. 

 

6. The relevant passage was as follows: 

 Q: Did you make any other calls previously 

to them? 

 A: Not really. 

 

 THE COURT: Do you have something to say? 

 MR. BARISH: No. 

 THE COURT: I'm sorry. 

 MR. BARISH: I started to. 

 THE COURT: Either you object or you don't object. 

Your motions don't mean -- 

 MR. BARISH: I'm not objecting. 

 THE COURT: Okay. Ask your next question. 

App. 782. 
 I might add he didn't say till I 

questioned him when that was done. Only in 

response to my questions did it come out he 

did it yesterday. It is yesterday, really 

yesterday, not just -- I'm shocked and 

stunned that a witness would be put on the 

stand. 

* * * 

 [I]t's another example of [sic] this 

case of, in effect, trial by ambush, and the 

idea is to say -- I don't have to repeat that 

I don't like it. 

App. 798. Instead of objecting to the testimony or requesting 

the court to give a limiting instruction, Fashauer's counsel 

elected to cross-examine Ehrenreich about the substance of his 

telephone call to the dealership salesman. 

 After Ehrenreich finished testifying -- and after the 

court again rebuked New Jersey Transit -- Fashauer's counsel 

requested leave to present a rebuttal witness, who was to testify 

that "he conducted a job search through the agencies, through a 

number of sources of his business, through the State of New 

Jersey, and that there were no jobs . . . presently available 

that Mr. Fashauer could receive." App. 859. The district court 

denied the motion, reasoning that "I think [Dr. Ehrenreich's] 

testimony was so ludicrous that it's just inconceivable to me 

that the jury got anything out of it." App. 861. Thus, "I'm 

making the judgment that [Dr. Ehrenreich's testimony] is so 

laughably ludicrous that I don't think you need -- that it 

requires rebuttal." App. 861-62. 
 In its ruling on Fashauer's post-trial motions, the 

district court amplified the reasons behind its decision to 

preclude the rebuttal testimony. In that opinion, the court 

questioned Fashauer's counsel's motive in requesting leave to 

call a rebuttal witness. Noting that his rebuttal witness 

"apparently was in court ready to go" when Ehrenreich gave his 

surprise testimony, see op. at 76, the court pointed out that 

"[t]here's absolutely nothing [the witness] could have said about 

that. . . . He couldn't say, I called the same Jaguar salesman, 

and he said No, there is no job." Op. at 77. Therefore, 

according to the court, Fashauer was using the testimony as an 

artificial justification for testimony rebutting Ehrenreich's 

general testimony about Fashauer's employability, as Fashauer 

must have planned to call the rebuttal witness without regard to 

whether Ehrenreich gave surprise testimony. As the court put it, 

"[t]he only thing that was new in Dr. Ehrenreich's testimony that 

hadn't been in his original report was that he looked in the want 

ads and found a Jaguar salesman." Id. Therefore, the rebuttal 

witness could have been named in the pretrial report. The court 

concluded that "what we had here was a tactical decision made by 

the plaintiff to get the last word in by withholding his own 

expert and then springing him at the end. . . . What was really 

wanted by the plaintiff was to put its vocational expert last and 

get the last shot at the jury, and I don't think that's a proper 

use of rebuttal." Op. at 76-78. 
 Boiled down to its essence, the question before us is 

whether, in light of the manner of the proceedings, the district 

court erred in refusing to allow Fashauer to call a rebuttal 

witness who was not listed in the pretrial orders. "[T]he trial 

court ha[s] the discretion to exclude testimony of a witness who 

had not been identified. The trial court's exclusion of 

testimony because of the failure of counsel to adhere to a 

pretrial order will not be disturbed on appeal absent a clear 

abuse of discretion." Semper v. Santos, 845 F.2d 1233, 1238 (3d 

Cir. 1988); see also Greate Bay Hotel & Casino v. Tose, 34 F.3d 

1227, 1236 (3d Cir. 1994). As we have explained, "[o]ne of the 

main purposes of the pretrial conference is to formulate the 

issues to be litigated to aid the parties in preparation for 

trial. If counsel are permitted to change the positions taken at 

pretrial obviously the effectiveness of this procedure is 

destroyed." Ely v. Reading Co., 424 F.2d 758, 763 (3d Cir. 

1970). 

 Here, we find no abuse of discretion in the district 

court's decision. Fashauer contends that rebuttal was required 

to dispel the notion left by Ehrenreich's testimony that he was a 

malingerer. However, the district court's finding that 

plaintiff's counsel was using the rebuttal witness to rebut 

anticipated testimony and simply get the last word, is not 

clearly erroneous. That being the case, Fashauer "'from the 

outset of this action knew the [defendant's] contentions and the 
necessity for . . . rebuttal testimony could reasonably have been 

anticipated.'" American Int'l Trading Corp. v. Petroleos 

Mexicanos, 835 F.2d 536, 538 (5th Cir. 1987) (internal 

alterations omitted) (alteration added) (citation omitted). 

Therefore, the district court acted within its discretion in 

refusing to allow the rebuttal expert to testify. 

 We stress that the decision to exclude the rebuttal 

expert had nothing to do with the content of Ehrenreich's 

testimony, and nothing we say should be read to approve his 

testimony. However, the record shows that Fashauer did not 

object to the testimony, did not request a limiting instruction, 

and was intending to use the witness to rebut anticipated 

testimony rather than the surprise testimony. Fashauer chose to 

cross-examine Ehrenreich in the hopes of discrediting him. He 

cannot capitalize now on his tactical choice by getting improper 

rebuttal before the court. 

 E. Mitigation of Damages

 Finally, Fashauer contends that the district court 

erred in neglecting to instruct the jury that New Jersey Transit 

had the burden of proving that Fashauer failed to mitigate his 

damages. Under the FELA, which is to be interpreted according to 

"general principles of law as administered in the federal courts 

. . . an injured plaintiff has a duty to mitigate his damages." 

Jones v. Consolidated Rail Corp., 800 F.2d 590, 593 (6th Cir. 
1986). However, "once it is established that a duty to mitigate 

is present, the burden . . . falls on the wrongdoer to show that 

the damages were lessened or might have been lessened by the 

plaintiff." Id. at 593; DeBiasio v. Illinois Central R.R., 52 

F.3d 678, 688 (7th Cir. 1995) (same); Jackson v. City of 

Cookeville, 31 F.3d 1354, 1359 (6th Cir. 1994) (same); Schneider 

v. National R.R. Passenger Corp., 987 F.2d 132, 136 (2d Cir. 

1993). The district court instructed the jury that "[p]laintiff 

. . . must try to minimize the damages due to loss of wages. But 

extraordinary or impractical efforts are not necessary. All that 

is required are reasonable efforts and ordinary care in trying to 

reduce the loss." App. 963. The district court's charge, while 

correctly stating that Fashauer had a duty to mitigate, failed to 

specify that New Jersey Transit had the burden of proof on the 

issue. Because the mitigation language occurred in the midst of 

the court's general damages instructions, the jury could well 

have believed that Fashauer had the burden to prove mitigation. 

Therefore, the charge unquestionably was flawed. 

 However, Fashauer failed to request a charge on 

mitigation of damages, and, as the district court pointed out, 

"no one asked for that burden of proof charge. Mr. Barish 

[plaintiff's counsel] admits, candidly, that he did not call to 

my attention at any of the various points that I have failed to 

do that." Op. at 48. 
 Thus, while ordinarily an "[i]ncorrect jury instruction 

as to burden of proof 'is "fundamental and highly prejudicial" 

and requires a new trial,'" Waldorf v. Shuta, 896 F.2d 723, 730 

(3d Cir. 1990) (citation omitted), that principle assumes that 

the issue properly has been preserved for appeal. The procedure 

for preserving an objection to a jury charge is governed by Fed. 

R. Civ. P. 51 which provides that: 

 At the close of the evidence . . . any 

party may file written requests that the 

court instruct the jury on the law as set 

forth in the requests. The court shall 

inform counsel of its proposed action upon 

the requests prior to their arguments to the 

jury. The court, at its election, may 

instruct the jury before or after argument, 

or both. No party may assign as error the 

giving or the failure to give an instruction 

unless that party objects thereto before the 

jury retires to consider its verdict, stating 

distinctly the matter objected to and the 

grounds of the objection.

Fed. R. Civ. P. 51 (emphasis added). 

 We repeatedly have stressed the important policy 

objectives served by Rule 51. The rule affords the trial judge 

"an opportunity to correct any error that may have been made in 

the charge before the jury begins its deliberations." Seman v. 

Coplay Cement Co., 26 F.3d 428, 436 (3d Cir. 1994); Miller v. 

CIGNA Corp., 47 F.3d 586, 591 n.5 (3d Cir. 1995) (in banc). It 

also "lessen[s] the burden on appellate courts by diminishing the 

number of rulings at the trial which they may be called upon to 

review." McAdam v. Dean Witter Reynolds, Inc., 896 F.2d 750, 769 
n.29 (3d Cir. 1990). Thus, Rule 51 is consistent with the 

general rule that "an appellate court will not predicate error on 

an issue upon which the district court was not provided with an 

opportunity to rule." Remington Rand Corp.- Delaware v. Business 

Sys., Inc., 830 F.2d 1260, 1267 (3d Cir. 1987). We have followed 

this proposition strictly, and have refused to consider "newly 

developed arguments[s] concerning [a] jury charge deficiency." 

McAdam, 896 F.2d at 769; see, e.g., Dunn v. HOVIC, 1 F.3d 1371, 

1378 (3d Cir. 1993) (in banc) (declining to consider whether jury 

instruction was defective under Virgin Islands law because "th[e] 

issue was not properly preserved for appeal under Federal Rule of 

Civil Procedure 51"), cert. denied, ____ U.S. ____, 114 S.Ct. 650 

(1993). 

 In the absence of a party's preservation of an assigned 

error for appeal, we review only for plain error, and our power 

to reverse is discretionary. Cf. United States v. Olano, 113 

S.Ct. 1770, 1778 (1993) (interpreting Federal Rule of Criminal 

Procedure 52(b)). Consequently, "our discretionary power to 

review errors in jury instructions which were not objected to at 

trial should be exercised sparingly"; otherwise we risk 

"emasculat[ing]" the important policies served by Rule 51. 

McAdam, 896 F.2d at 770 n.31 (citing Trent v. Atlantic City Elec. 

Co., 334 F.2d 847, 859 (3d Cir. 1964)). Thus, we should notice 

the error only "'if [it] is fundamental and highly prejudicial or 

if the instructions are such that the jury is without adequate 
guidance on a fundamental question and our failure to consider 

the error would result in a miscarriage of justice.'" Bereda v. 

Pickering Creek Indus. Park, Inc., 865 F.2d 49, 53 (3d Cir. 1989) 

(quoting United States v. 564.54 Acres of Land, 576 F.2d 983, 987 

(3d Cir. 1978), rev'd on other grounds, 441 U.S. 506, 99 S.Ct. 

1854 (1979)); Bennis v. Gable, 823 F.2d 723, 727 (3d Cir. 1987) 

(same). 

 We take guidance in this regard from the Supreme 

Court's recent interpretation of the Federal Rule of Criminal 

Procedure setting forth the plain error standard, Rule 52(b). 

The Court held that courts of appeal should exercise their 

discretion to "correct a plain forfeited error affecting 

substantial rights if the error 'seriously affect[s] the 

fairness, integrity or public reputation of judicial 

proceedings.'" Olano, 113 S.Ct. at 1779 (quoting United States 

v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392 (1936)). If 

anything, the plain error power in the civil context -- which is 

judicially rather than statutorily created -- should be used even 

more sparingly. And in keeping with this, the Court of Appeals 

for the Second Circuit has held that the doctrine "should only be 

invoked with extreme caution in the civil context." United 

States v. Carson, 52 F.3d 1173, 1188 (2d Cir. 1995). The court 

continued: "plain error review is only appropriate in the civil 

context where the error is so serious and flagrant that it goes 

to the very integrity of the trial." Id. (citing Brenner v. 
World Boxing Council, 675 F.2d 445, 456 (2d Cir.), cert. denied, 

459 U.S. 835, 103 S.Ct. 79 (1980)). 

 We decline to exercise our discretion to reverse in 

this case, notwithstanding the importance of proper instructions 

on burdens of proof. In the first place, the instruction was 

quite cursory and not at all as detailed as mitigation 

instructions usually are and should be. The court did not tell 

the jury explicitly that Fashauer had a duty to mitigate. The 

court did not instruct the jury how to reduce the damages if it 

found Fashauer failed to mitigate. Thus, it seems doubtful that 

the instruction had the significance with which Fashauer endows 

it. 

 Moreover, Fashauer in his brief repeatedly confuses 

loss of future earnings capacity with the duty to mitigate 

damages. For example, he points to the fact that the jury 

awarded no damages for future lost earnings as evidence that the 

mitigation charge prejudiced him. But to the extent that the 

district court's mitigation charge referred to future earning 

potential, it was correct. The defendant is obligated to prove 

failure to mitigate, but that burden only applies to damages for 

past loss of earnings -- from the time of injury to the time of 

trial. As discussed in detail above, though, the plaintiff has 

the burden of proving future loss of earnings due to a diminished 

earnings capacity. Gorniak, 889 F.2d at 484. As Judge Bailey 

Brown pointed out in his concurrence in Jones v. Consolidated R. 
Corp., 800 F.2d at 595, the "burden [i]s on the defendant to show 

that, after his injury and prior to the trial, [plaintiff] was 

able to do some work and did not make a reasonable effort to find 

and do such work." But the burden remains on the plaintiff to 

prove "damage[s] as a result of a decrease in earning capacity 

which will reduce future income." Id. (Brown, J., concurring). 

 Here, the jury awarded Fashauer $71,320 for past loss 

of earnings and he does not contend that this amount was 

inadequate. Therefore, the fact that the jury awarded nothing 

for future loss of earnings only reflects that Fashauer failed to 

prove that element of damages. We recognize that, as in Jones, 

the district court's charge did not adequately distinguish 

between past losses and future losses, but that hardly prejudiced 

Fashauer. And it hardly affected the integrity of the trial. We 

reject Fashauer's argument. 

 III. CONCLUSION

 For all the reasons detailed above, we will affirm the 

judgment of the district court.