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Kuhnel v. BNSF Railway Co.

Court of Appeals of Nebraska

June 25, 2013

Edwin H. Kuhnel, appellant,
v.
BNSF Railway Company, A CORPORATION, APPELLEE.

1. Jury Instructions: Judgments: Appeal and Error. Whether jury instructions given by a trial court are correct is a question of law. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.

2. Appeal and Error. Plain error may be asserted for the first time on appeal or be noted by an appellate court on its own motion.

3. Appeal and Error: Words and Phrases. Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

4. Jury Instructions: Pleadings: Evidence. A trial court, whether requested to do so or not, has a duty to instruct the jury on issues presented by the pleadings and the evidence.

5. Jury Instructions: Appeal and Error. All the jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, [20 Neb.App. 885] and adequately cover issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.

6. Federal Acts: Railroads: Claims: Courts. In disposing of a claim controlled by the Federal Employers' Liability Act, a state court may use procedural rules applicable to civil actions in the state court unless otherwise directed by the act, but substantive issues concerning a claim under the act are determined by the provisions of the act and interpretive decisions of the federal courts construing the act.

7. Railroads: Employer and Employee. A railroad has a nondelegable duty to provide its employees with a reasonably safe place to work.

8. Federal Acts: Railroads: Employer and Employee. Although not explicitly stated in the statutes, a railroad's duty to use reasonable care in furnishing employees a safe place to work has become an integral part of the Federal Employers' Liability Act.

9. Verdicts: Juries: Presumptions: Words and Phrases: Appeal and Error. The "general verdict" rule, which is also referred to as the "two issue" rule, is a policy rule which provides that where a general verdict is returned for one of the parties, and the mental processes of the jury are not tested by special interrogatories to indicate which issue was determinative of the verdict, it will be presumed that all issues were resolved in favor of the prevailing party, and, where a single determinative issue has been presented to the jury free from error, any error in presenting another issue will be disregarded.

Appeal from the District Court for Scotts Bluff County: Randall L. Lippstreu, Judge.

Michael J. Wilson, of Schaefer Shapiro, L.L.R, and James L. Cox, of Brent Coon & Associates, for appellant.

Nichole S. Bogen and Thomas C. Sattler, of Sattler & Bogen, L.L.R, for appellee.

Inbody, Chief Judge, and Sievers and Riedmann, Judges.

Inbody, Chief Judge.


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