Raymond H. Jenkins v. Union Pacific Railroad Company, a Corporation

Opinion by Judge BEEZER.

Raymond Jenkins sued defendant Union Pacific Railroad Company under the Federal Employer’s Liability Act, 45 U.S.C. § 51 et seq. (FELA) for injuries he sustained during his employment. The jury determined Jenkins was 65% responsible for his own injuries. The damage award of $800,000 was reduced by 65% to $280,000. Jenkins appeals, arguing that the district court erroneously instructed the jury on contributory negligence and erroneously denied his motion to amend the complaint to conform to the proof adduced at trial. We reverse and remand.

I

Jenkins worked as a brakeman for the Union Pacific Railroad. On the evening of February 20, 1988, he was working with a crew at Apex, Nevada. He was seriously injured while helping the locomotive engineer shove a length of nine flatcars to a point where they would be coupled with other cars.

Jenkins’ job was to serve as the eyes and ears of the engineer, who, because of the darkness and his position behind the line of flatcars, would be unable to see exactly how far to go and when to stop. Jenkins was standing next to the line of flatcars as it began to move. The conductor, Dan Pierson, directed Jenkins to assist…