EDWIN H. KUHNEL, APPELLANT,
BNSF RAILWAY COMPANY, A CORPORATION, APPELLEE
Petition for further review from the Court of Appeals, INBODY, Chief Judge, and SIEVERS and RIEDMANN, Judges, on appeal thereto from the District Court for Scotts Bluff County, RANDALL L. LIPPSTREU, Judge.
Michael J. Wilson, of Schaefer Shapiro, L.L.P., and James L. Cox, of Brent Coon & Associates, for appellant.
Nichole S. Bogen and Thomas C. Sattler, of Sattler & Bogen, L.L.P., for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.
[287 Neb. 542] Cassel, J.
An injured railroad employee brought this action under the Federal Employers' Liability Act (FELA). Pursuant to the jury's general verdict, the district court entered judgment for the employer. On appeal, the Court of Appeals of Nebraska found plain error in the jury instructions regarding the employer's duty to provide a reasonably safe place to work. The Court of Appeals also rejected the employer's argument that the general verdict rule precluded the court from overturning the jury's verdict. Upon further review, we conclude that the jury instructions in this case do not rise to the level of plain error. Thus, we do not reach the general verdict rule issue, and we reverse the Court of Appeals' decision.
Edwin H. Kuhnel was an employee of BNSF Railway Company (BNSF) and alleged that he was injured when he was thrown against a locomotive cab seat during the recoupling of train cars. Kuhnel filed a complaint against BNSF pursuant to FELA in July 2009. In his complaint, he claimed that his injuries were caused by BNSF's failure to provide him with a reasonably safe place to work and to take other appropriate safety measures.
A jury trial was held, and both Kuhnel and BNSF submitted proposed instructions at the jury instruction conference. Kuhnel's proposed instructions charged the jury that FELA imposed a duty upon BNSF to provide him with a reasonably safe place to work. Kuhnel's tendered instruction No. 2 provided, in pertinent part:
At the time and place in question, [BNSF] had a continuing duty as an employer to use ordinary care under [287 Neb. 543] the circumstances in furnishing [Kuhnel] with a reasonably safe place in which to work. It was also [BNSF's] continuing duty to use ordinary care under the circumstances to maintain and keep such place of work in a reasonably safe condition.
The district court rejected both parties' proposed jury instructions at the conference and adopted its own instructions. The court's jury instructions did not include an instruction that FELA imposed a duty upon BNSF to provide a reasonably safe place to work. Instead, the instructions merely repeated Kuhnel's allegation that BNSF was negligent ...