UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

STEVE JAMES HALL,
Plaintiff-Appellant,

v.
                                                                     No. 98-1661
NORFOLK & WESTERN RAILWAY
COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Senior District Judge.
(CA-97-476)

Argued: January 25, 1999

Decided: April 20, 1999

Before WIDENER, MURNAGHAN, and HAMILTON,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Francis Paul Hajek, WILSON, HAJEK & SHAPIRO,
P.C., Virginia Beach, Virginia, for Appellant. Leslie Edwin Hagie,
WOODS, ROGERS & HAZLEGROVE, P.L.C., Roanoke, Virginia,
for Appellee. ON BRIEF: Richard N. Shapiro, WILSON, HAJEK &
SHAPIRO, P.C., Virginia Beach, Virginia, for Appellant. Frank K.
Friedman, WOODS, ROGERS & HAZLEGROVE, P.L.C., Roanoke,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Steve James Hall appeals the district court's grant of judgment as
a matter of law, see Fed. R. Civ. P. 50(a), in favor of his employer
Norfolk and Western Railway Company (N&W) on his claims under
the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60.
We affirm.

I

N&W is a common carrier railroad corporation involved in intra-
state and interstate commerce. Each N&W train has air brakes, which
"are regulated by a flow of air produced by the[train's] air compres-
sors and supplied to each car via the train line." (J.A. 33). To apply
the train's air brakes, the "locomotive engineer operates an automatic
brake valve on the control stand which reduces air flow into the train
line and activates the air brake system, causing the brake shoes to be
applied." Id.

At the end of each train car is a valve, called an"angle cock,"
which controls the flow of air through the train's brake line, and is
manually operated by a handle. A brakeman or conductor operates the
angle cock by turning the handle ninety degrees. When the angle cock
is open, the train's "air brake system is activated because of the
release of air pressure in the train line." Id. When the angle cock is
closed, the "air flow to the cars on the opposite side of the angle cock
from the engine locomotive" is stopped, and the brakes on those cars
are fully engaged. Id. Closing the angle cock allows a brakeman or
conductor to move the cars on the opposite side of the angle cock
from one track to another track.

Hall began working for N&W as a brakeman in 1986. Hall
received on-the-job training and also participated in a week-long

                    2
training program in 1986, involving classroom study of and field
instruction on N&W's safety rules for operating a train's air brake
system.1 Of relevance, N&W's training program provides instruction
on operating an angle cock, and requires new employees to demon-
strate the operation of an angle cock for the training instructor. During
the eight months Hall served as a brakeman, he operated numerous
angle cocks.

After eight months as a brakeman, Hall became a conductor for
N&W and worked as a conductor for approximately the next eight
years, during which time he operated hundreds of angle cocks. On
March 25, 1995, Hall served as conductor of N&W's Train 457 trav-
eling from Lynchburg to Roanoke, Virginia. On that day, in Lynch-
burg, Train 457 picked up car WC86029, which was owned by
Wisconsin Central Railroad, but had come onto N&W's line a week
earlier in Chicago, Illinois--March 18, 1995. At the Chicago inter-
change, when car WC86029 came onto N&W's line, N&W's train-
men performed a visual inspection of car WC86029's angle cock, an
older model plug-type angle cock. The visual inspection did not
reveal any defect of car WC86029's angle cock.

On March 25, 1995, after Train 457 picked up car WC86029, but
before Train 457 left Lynchburg, the train's engineer David Weeks
checked the air brake system on Train 457 and found"no problem at
all." (J.A. 186). When Train 457 arrived in Roanoke that evening, it
was too long to store on one track, and therefore, Hall and Weeks
were instructed to "cut" Train 457 and store it on two tracks. Around
9:30 p.m., Hall went to "cut" Train 457 by closing the angle cock on
car WC86029, thereby cutting the air pressure to the cars behind car
WC86029 and allowing such cars to be moved to a different track.
_________________________________________________________________
1 One of N&W's safety rules is Rule M, which provides:

          Employees must exercise care to avoid injury to themselves or
          to others. They must make certain that equipment and tools that
          they use in performing their duties are in proper condition. If any
          item is found to be defective, employees must report the defect
          to the supervising officer and, if feasible, employees must restore
          the item to a safe condition.

(J.A. 312).

                    3
Hall did not notice anything out of the ordinary prior to attempting
to close the angle cock. Nor did he test the angle cock before attempt-
ing to close it. When he attempted to close the angle cock on car
WC86029 with his left hand, Hall injured his left shoulder because
the angle cock was "frozen," and thus, would not close. (J.A. 137).
Hall requested Weeks to call a supervisor, and Steve Nettermeyer, a
Yard Conductor at the Roanoke Terminal, arrived on the scene
shortly thereafter. Nettermeyer was also unable to close the angle
cock on car WC86029. A later post-accident inspection revealed that
the angle cock on car WC86029 was "frozen" due to internal corro-
sion and had likely been in such condition for several weeks prior to
Hall's March 25, 1995 injury.

Subsequently, Hall filed an action in the Circuit Court of the City
of Roanoke against N&W under FELA and the Federal Safety Appli-
ance Act (FSAA), 49 U.S.C. §§ 20301-06, for the injuries that he had
sustained on March 25, 1995, when he had attempted to close the
defective angle cock on car WC86029. On N&W's motion, the Cir-
cuit Court of the City of Roanoke granted summary judgment for
N&W on Hall's FSAA claim. Thereafter, Hall nonsuited his remain-
ing FELA claims.

Then, on July 8, 1997, Hall filed this action in the United States
District Court for the Western District of Virginia against N&W
under FELA and FSAA for the injuries that he had sustained on
March 25, 1995, when he had attempted to close the defective angle
cock on car WC86029. Prior to trial, on N&W's motion, even though
the res judicata doctrine effectively barred the pursuit of Hall's FSAA
claim, the district court granted summary judgment for N&W on
Hall's FSAA claim on the merits. Hall's FELA claims proceeded to
trial. At trial, Hall averred that N&W violated FELA by breaching its
duty to provide him with a safe place in which to work by: (1) failing
to manually inspect the angle cock on car WC86029; (2) failing to
adequately train him to close an angle cock with gradual force; and
(3) failing to warn him that an angle cock could be resistant to clos-
ing. In support of his claims, Hall introduced evidence of eleven prior
incidents occurring during the five years prior to his injury during
which N&W employees were injured closing resistant angle cocks,
and Hall also presented the expert testimony of Daniel Feneziani.

                    4
Feneziani testified that a manual inspection should have been per-
formed on the angle cock on car WC86029.

At the close of Hall's evidence, N&W moved for judgment as a
matter of law, see Fed. R. Civ. P. 50(a), on Hall's FELA claims,
asserting that there was no legally sufficient basis for the jury to find
that N&W breached its duty to provide Hall with a safe place in
which to work. The district court granted the motion, and Hall
appeals.

II

On appeal, Hall contends that the district court erred in granting
N&W's motion for judgment as a matter of law on his FELA claims.
Specifically, Hall claims that the district court erred in concluding
that N&W did not violate FELA because N&W breached its duty to
provide him with a safe place in which to work by: (1) failing to per-
form a manual inspection of the angle cock on car WC86029; (2) fail-
ing to train him to turn an angle cock with gradual force; and (3)
failing to warn him that an angle cock could be resistant to closing.

We review a district court's grant of a Rule 50(a) motion for judg-
ment as a matter of law de novo, examining the evidence in the light
most favorable to the non-moving party. See Brown v. CSX Transp.
Inc., 18 F.3d 245, 248 (4th Cir. 1994). A district court should grant
a Rule 50(a) motion for judgment as a matter of law during a jury
trial, after a party has been fully heard on an issue, only if it deter-
mines, without weighing the evidence or considering the credibility
of the witnesses, that "there is no legally sufficient evidentiary basis
for a reasonable jury to have found for that party with respect to that
issue." Fed. R. Civ. P. 50(a). In a FELA action, we will affirm a dis-
trict court's grant of a Rule 50(a) motion for judgment as a matter of
law if there is no legally sufficient evidentiary basis for a reasonable
jury to have found that the employer was negligent. See id.

In pertinent part, FELA provides, "Every common carrier by rail-
road . . . shall be liable in damages to any person suffering injury
while he is employed by such carrier in [interstate] commerce." 45
U.S.C. § 51. FELA allows recovery to railroad employees for work-
related injuries if such injury or death results"in whole or part from

                     5
the negligence of any of the officers, agents, or employees of such
carrier, or by reason of any defect or insufficiency, due to its negli-
gence, in its cars, engines, appliances, machinery, track, roadbed,
works, boats, wharves, or other equipment." Id. "However, while it is
true that FELA imposes on the railroad carrier a duty to take reason-
able precautions to inspect the workplace and protect its employees
from possible danger, the plaintiff still carries the burden of proving
some act of negligence by the carrier." Deans v. CSX Transp. Inc.,
152 F.3d 326, 330 (4th Cir. 1998) (internal citations omitted); see also
Inman v. Baltimore & O. R.R., 361 U.S. 138, 140 (1959) (stating that
railroad employers are not the insurers of their employees).

"The Supreme Court has observed that the FELA does not define
negligence and therefore leaves the question to be determined by
common law principles as established and applied by the federal
courts." Brown, 18 F.3d at 249. Under Fourth Circuit case law, in
order for a plaintiff to establish liability under FELA, the plaintiff
must prove that he was injured while in the scope of his employment,
his employment was in furtherance of his employer's interstate trans-
portation business, his employer was negligent, and his employer's
negligence caused, at least in part, the injury for which compensation
is sought. See id.; see also 45 U.S.C. § 51.

From the record, it is clear that Hall was within the scope of his
employment when he was injured, and that his work was in further-
ance of N&W's business. Thus, it is only necessary for us to address
the issues of N&W's alleged negligence and whether the alleged neg-
ligence was a cause of Hall's injury. In order to prove negligence,
Hall must prove the traditional common law elements of negligence:
duty, breach of duty, foreseeability, and causation. See Brown, 18
F.3d at 249.

It is uncontested that while N&W is not the insurer of its employ-
ees, it had a non-delegable duty to provide Hall with a safe place in
which to work. See id. "This duty includes inspecting the workplace
and taking reasonable precautions to protect employees from possible
harm." Id.

A

Hall contends that N&W's duty to provide him with a safe place
in which to work required it to perform a manual inspection of the

                    6
angle cock on car WC86029 when it joined the N&W line in Chicago
on March 18, 1995, or thereafter. According to Hall, his evidence of
other N&W employees who were injured while operating angle cocks
and Feneziani's expert testimony that a manual inspection of the
angle cock on car WC86029 should have been performed, established
that N&W had a duty to perform a manual inspection of the angle
cock on car WC86029.

It is uncontested that the angle cock on car WC86029 was defec-
tive, and that Hall was injured while attempting to operate the defec-
tive angle cock. The parties have stipulated that the angle cock on car
WC86029--which was visually inspected when it joined N&W's line
on March 18, 1995--was "inoperable because of corrosion inside the
angle cock" and had likely been "in that condition for at least several
weeks prior to March 25, 1995." Thus, the question is whether N&W
had a duty to perform a manual inspection of the defective angle cock
on car WC86029.

We conclude that there was no legally sufficient evidentiary basis
for a reasonable jury to have found that N&W's duty to provide Hall
with a safe place in which to work required it to perform a manual
inspection of the angle cock on car WC86029. First, federal regula-
tions did not require a manual inspection of angle cocks. See 49
C.F.R. § 232.17(b)(1) (requiring railroads to maintain freight brake
equipment "in a safe and suitable condition"); 49 C.F.R. § 232.14
(requiring railroads to make a visual inspection of the "position of
angle cocks").

Second, Hall's evidence of eleven incidents occurring within the
five years prior to Hall's March 25, 1995 injury, during which N&W
employees were injured while operating angle cocks, did not create
a duty for N&W to perform a manual inspection of the angle cock on
car WC86029 when it arrived on its line on March 18, 1995. Ten of
the eleven incidents that Hall introduced involved angle cocks that
were resistant to closing, and one of the incidents involved an angle
cock that would not close because it was frozen. Hall's expert Fenezi-
ani admitted on cross-examination, however, that during the five
years in which these eleven angle cock incidents occurred, N&W
employees operated millions of angle cocks without being injured.
Eleven incidents during the five years prior to Hall's injury failed to

                    7
create a duty for N&W to perform a manual inspection not required
by the relevant federal regulations.2

Third, Feneziani's testimony that a manual inspection of the angle
cock on car WC86029 should have been performed is of no help to
Hall. Feneziani testified that "ten years ago" railroads performed man-
ual inspections of its line at interchange points and that railroads
should perform manual inspection of "plug-type" angle cocks at inter-
change points because "there are few of them and[they are] known
to be obstinate and leak." (J.A. 237, 242-43). While Feneziani testi-
fied that railroads used to and could today perform manual inspection
of an angle cock at interchange points, Feneziani admitted that the
present industry practice is to perform a visual inspection to ensure
that the angle cock's handle is properly positioned so that the train's
_________________________________________________________________
2 Hall argues that the district court erred in excluding evidence of ten
additional prior incidents in which N&W employees were injured while
operating angle cocks, and that the district court erred in allowing Fenez-
iani to testify on cross-examination that millions of angle cocks were
turned without incident during the five years prior to Hall's injury. These
arguments are without merit.

With respect to the additional prior incidents, we find that the district
court's exclusion of the ten additional prior incidents was not an abuse
of discretion. See Persinger v. Norfolk & Western Ry., 920 F.2d 1185,
1187 (4th Cir. 1990). First, the evidence of the ten additional prior inci-
dents was cumulative, because the evidence of the eleven incidents
already introduced established that N&W had notice that employees
were injured while operating angle cocks. See Fed. R. Evid. 403. In any
event, in our view, assuming the exclusion of the ten additional incidents
was error, the error was harmless. See Fed. R. Civ. P. 61 (commanding
us to "disregard any error or defect in the proceeding which does not
affect the substantial rights of the parties").

With respect to Feneziani's testimony on cross-examination that mil-
lions of angle cocks were turned during the five years prior to Hall's
injury, Hall failed to object to the admission of this testimony at trial,
and, thus, we review his claim for plain error. See Owens-Illinois, Inc.
v. Rapid American Corp., 124 F.3d 619, 631 (4th Cir. 1997) (applying
the plain error test from United States v. Olano , 507 U.S. 725, 732-37
(1993), in the civil context). We find that the admission of such testi-
mony was not plain error because the testimony was relevant to establish
whether N&W had a duty to perform a manual inspection of angle cocks.

                    8
air brakes will operate. Feneziani further admitted that he would not
have written a brakeman up for not manually checking or inspecting
an angle cock. Also, Feneziani testified that while plug-type angle
cocks are no longer used as a replacement on railroad cars, there was
no requirement that plug-type angle cocks be removed or replaced on
existing cars. Considering Feneziani's testimony as a whole, it is clear
that his opinion that N&W should have performed a manual inspec-
tion of the angle cock on car WC86029 did not establish that N&W
had a duty to perform a manual inspection of the angle cock.

In sum, we conclude that there was no legally sufficient evidentiary
basis for a reasonable jury to have found that N&W's duty to provide
Hall with a safe place in which to work required it to perform a man-
ual inspection of the angle cock on car WC86029.

B

Hall also contends that N&W breached its duty to provide him with
a safe place in which to work by failing to train him to turn an angle
cock with gradual force and by failing to warn him that an angle cock
could be resistant. Assuming arguendo that N&W had a duty to train
Hall to operate angle cocks and warn him of dangers associated with
angle cocks, we conclude that there was no legally sufficient evidenti-
ary basis for a reasonable jury to have found that N&W breached such
duties. N&W provided classroom instruction on and field demonstra-
tions of safety rules for operating a train's air brake system, including
instruction and demonstration of the proper operation of an angle
cock. Even though Hall claims that he did not specifically recall being
trained to close an angle cock slowly or being warned that an angle
cock might be difficult to close, Hall admitted that he went through
N&W's standard training class, recalled being instructed to use grad-
ual slow pressure when "opening an angle cock," (J.A. 138), and
recalled watching a video instructing him to use a firm stance when
operating an angle cock. Furthermore, Hall admitted that prior to his
March 25, 1995 injury, he was aware, through his nine years' experi-
ence with angle cocks, that angle cocks might be difficult to turn.
After reviewing the evidence, we conclude that there was no legally
sufficient evidentiary basis for a reasonable jury to have found that
N&W breached its duty to train Hall in the proper operation of angle

                     9
cocks or failed to warn him of the dangers associated with the opera-
tion of angle cocks.3
_________________________________________________________________

3 Hall contends that the district court erred in dismissing his FELA
claims because it applied the assumption of risk defense, which has been
eliminated from FELA cases, see 45 U.S.C.§ 54, and dismissed his
FELA claim based upon Hall's assumption of risk and contributory neg-
ligence. Specifically, Hall contends that the district court improperly
considered whether Hall was contributorily negligent for violating Rule
M. Hall also contends that the district court improperly considered
whether Hall assumed the risk of danger because an angle cock was a
simple tool, see Jones v. Lamm, 69 S.E.2d 430, 433 (Va. 1952) (holding
that an employer has no obligation to inspect a tool if the tool is simple
such that an employee could discover defects).

In our opinion, Hall misreads the district court's decision. First, the
district court took great pains to clarify that in dismissing Hall's FELA
claims, it was not considering Hall's actions:

          Hall's conduct is irrelevant to the disposition of this case
          because it would go to the issue of comparative negligence. I am
          not dismissing this case because Hall was negligent. I am dis-
          missing this case solely because N&W was not negligent in any
          way.

(J.A. 75) (emphasis added). Thus, the district court's opinion makes clear
that it was not dismissing Hall's FELA claims because Hall assumed a
risk or was contributorily negligent for violating Rule M. Second, the
district court's discussion of Rule M and the simplicity of the angle cock
was relevant to its conclusion that N&W was not required to perform a
manual inspection of the angle cock on car WC86029. In discussing Rule
M, the district court was merely recognizing that N&W had, in accor-
dance with Association of American Railroads Rule 1, see (J.A. 239)
(stating "railroad is responsible for all cars on its line, or the condition
of all cars on its lines"), imposed its own safety rules to govern railroad
interchanges. The district court was in no way dismissing Hall's FELA
claims based upon Hall's possible violation of Rule M, and the district
court took great pains to clarify its decision. Finally, in discussing the
simplicity of an angle cock, the district court was merely concluding that
N&W's visual inspection was reasonable. Thus, contrary to Hall's con-
tentions, and as clearly spelled out by the district court, the district court
dismissed Hall's FELA claims not because of Hall's conduct, but
because it determined that N&W had not breached its duty to provide
Hall with a safe place in which to work.

                     10
III

Because we conclude that there was no legally sufficient evidenti-
ary basis for a reasonable jury to have found that N&W breached its
duty to provide Hall with a safe place in which to work, we affirm
the district court's grant of judgment of a matter of law for N&W on
Hall's FELA claims.

AFFIRMED
_________________________________________________________________
Finally, Hall contends that the district court erred in granting N&W's
motion in limine to exclude one of Hall's experts, Michael Shinnick,
from testifying as to how N&W could have altered its training program
to reduce angle cock injuries. We have reviewed Hall's claim and find
it to be without merit.

                    11
