Defense Verdict for Railroad in FELA Case

Following a two-day trial, a jury in the District Court of Scotts Bluff County, Nebraska returned a verdict in favor of the railroad on an employee’s claim under the Federal Employers’ Liability Act. Plaintiff claimed he injured his right shoulder while working on a steel gang and operating a claw bar to remove a bent spike. After the incident, plaintiff underwent rotator cuff surgery and returned to work for the railroad.

Plaintiff complained the railroad failed to provide him with a hydraulic spike puller on the spiker machine to remove the spike. At trial, he conceded one was available elsewhere on the gang, but he never asked for it. Ultimately, the evidence showed that the hydraulic spike puller would have been unable to remove the spike due to the spike’s condition. Plaintiff then argued the claw bar was not reasonably safe because BNSF knew it could slip and did not do anything about it. Despite this claim, he admitted it was the right tool for the job, reasonably safe, and he was trained on how to use the tool and continues to use it.

The railroad demonstrated plaintiff’s negligence in operating the claw bar. A welding foreman who witnessed the incident testified that he saw plaintiff struggle using the claw bar and radioed for him to stop so the foreman could assist. The foreman claimed plaintiff made eye contact with him, but continued to push on the claw bar anyway and it slipped off the spike. The railroad showed that plaintiff was trained to use the claw bar to anticipate slipping and his overexertion while encountering difficulty was the reason the claw bar slipped. Eventually, plaintiff accepted some personal responsibility for the incident.

The jury returned a unanimous verdict in favor of the railroad. Plaintiff did not appeal.

Frailey v. BNSF Railway Company, Case No. CI 13-641 (Neb.Dist.Ct. Feb. 14, 2017).