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Cottrell v. Burlington Northern11/2/1993
re an employee has the possibility of securing relief from unsafe conditions by informing his superiors of them, or continues to work without doing so, he may be found to be contributorily negligent.
Defendant's proposed Instruction No. 44A provided as follows:
You are further instructed that the plaintiff may not recover damages which are attributable to his pre-existing injuries in 1980, and the subsequent surgeries performed by Dr. Johnson and Dr. Vincent in 1981 and 1982 respectively. These injuries are not compensable in this action and shall not be considered by you in your deliberations.
On appeal, defendant contends that the District Court erred by refusing to give its proposed Instruction No. 31 because contributory negligence is a defense to Cottrell's claim pursuant to 45 U.S.C. ยง 53 (1988), and its theory of contributory negligence was based on the fact that Cottrell continued to work after his back began to hurt, and therefore, increased the risk of his ultimate injury . Defendant contends that it was entitled to such an instruction pursuant to the decision of an intermediate appellate court in Missouri in Conley v. BN Railroad Company (Mo. App. 1988), 765 S.W.2d 272, and pursuant to a Fifth Circuit Court decision in Savoie v. Otto Candies, Inc. (5th Cir. 1982), 692 F.2d 363.
Defendant contends that the District Court erred by refusing to give its proposed Instruction No. 44A so that the jury would not confuse Cottrell's right to compensation in this case with damages which resulted from his earlier injury .
We have held that when we review a district court's refusal to give an offered jury instruction, the following rules apply:
It is not reversible error for a trial court to refuse an offered instruction unless such refusal affects the substantial rights of the party proposing the instruction, thereby prejudicing him. Payne v. Sorenson (1979), 183 Mont. 323, 599 P.2d 362, 36 St. Rep. 1610.
A party is not prejudiced by a refusal of his proposed instructions where the subject matter of the instruction is not applicable to the pleadings and facts, or not supported by the evidence introduced at trial, or the subject matter is adequately covered by other instructions submitted to the jury. Payne v. Sorenson, supra; Brown v. North American Mfg. Co. (1978), 176 Mont. 98, 576 P.2d 711; Butler Mfg. Co. v. J & L Implement Co. (1976)
, 167 Mont. 519, 540 P.2d 962. [Emphasis added].
Associated Agency of Bozeman, Inc. v. Pasha (1981), 191 Mont. 407, 413, 625 P.2d 38, 42.
In this case, the substance of defendant's proposed instructions numbered 31 and 44A was covered in other instructions given by the District Court which were less argumentative.
In the District Court's Instruction No. 21, the jury was told that:
If the railroad carries its burden in proving that Vern Cottrell was contributorily negligent and that this caused some or all of his injuries, his total damages shall be reduced by an amount equal to the percentage of negligence charged to him when compared to the amount of negligence charged to the railroad.
The jury was fully instructed on the meaning of negligence, and based on these instructions, the railroad capably argued that Cottrell was contributorily negligent by continuing to work while in pain without informing his supervisors.
Likewise, the jury was instructed that Cottrell could not recover for injuries that occurred prior to the injury which was the subject of his complaint. In the District Court's Instruction No. 24, the jury was told that:
If you
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