Kuhnel v. BNSF Railway Co.

KUHNEL v. BNSF RAILWAY CO. 	541
Cite as 287 Neb. 541
Appeals with directions to reinstate the judgment of the district
court as it pertains to Brian’s request to remove Jakob from the
State of Nebraska.
R eveRsed and Remanded with diRections.
wRight, J., participating on briefs.
edwin h. Kuhnel, appellant,
v. BnsF R ailway company,
a coRpoRation, appellee.
844 N.W.2d 251
Filed February 28, 2014. 	No. S-12-296.
1. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, which an appellate court independently decides.
2. 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.
3. Jury Instructions: Appeal and Error. Failure to object to a jury instruction
after it has been submitted to counsel for review precludes raising an objection
on appeal absent plain error.
4. 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 preju-
dicially 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.
5. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy before it.
Petition for further review from the Court of Appeals,
inBody, Chief Judge, and sieveRs and R iedmann, Judges, on
appeal thereto from the District Court for Scotts Bluff County,
R andall l. lippstReu, Judge. Judgment of Court of Appeals
reversed.
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.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:36 AM CST

542 	287 NEBRASKA REPORTS
heavican, c.J., wRight, connolly, stephan, mccoRmacK,
milleR-leRman, and cassel, JJ.
cassel, J.
INTRODUCTION
An injured railroad employee brought this action under the
Federal Employers’ Liability Act (FELA).1 Pursuant to the
jury’s general verdict, the district court entered judgment for
the employer. On appeal, the Nebraska Court of Appeals found
plain error in the jury instructions regarding the employer’s
duty to provide a reasonably safe place to work.2 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 instruc-
tions 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.
BACKGROUND
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 submit-
ted 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 pro-
vided, in pertinent part:
At the time and place in question, [BNSF] had a con-
tinuing duty as an employer to use ordinary care under
1 45 U.S.C. § 51 et seq. (2006).
2 Kuhnel v. BNSF Railway Co., 20 Neb. App. 884, 834 N.W.2d 803 (2013).

KUHNEL v. BNSF RAILWAY CO. 	543
Cite as 287 Neb. 541
the circumstances in furnishing [Kuhnel] with a reason-
ably safe place in which to work. It was also [BNSF’s]
continuing duty to use ordinary care under the circum-
stances 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 in failing to ful-
fill this duty. The court’s instruction No. 2 provided, in perti-
nent part:
INSTRUCTION NO. 2
I. CLAIMS OF THE PARTIES
A. Plaintiff’s Complaint
. . . .
. . . Kuhnel further claims that his injuries were caused,
in whole or in part, by BNSF’s negligence, as follows:
a. Failing to provide Kuhnel with a reasonably safe
place to work[.]
The district court’s jury instruction on Kuhnel’s burden of
proof provided:
A. Plaintiff’s Burden of Proof (Negligence)
Before Kuhnel can recover against BNSF he must
prove, by the greater weight of the evidence, all of the
following:
1. That at the time of the alleged accident Kuhnel was
working in the course and scope of his employment by
BNSF; and
2. That BNSF was negligent in one or more of the
ways claimed by Kuhnel; and
3. That BNSF’s negligence was a cause, in whole or in
part, [of] some damage to Kuhnel; and
4. The nature and extent of Kuhnel’s damages.
The district court gave the parties multiple opportunities to
make objections to its instructions at the jury instruction confer-
ence and indicated that it was interested in the parties’ “having

544 	287 NEBRASKA REPORTS
an opportunity to make an objection of record.” Kuhnel raised
several objections to the instructions on other grounds, but
made no objection on the basis that the instructions did not
charge the jury that FELA imposed a duty upon BNSF to pro-
vide a reasonably safe place to work.
The jury returned a general verdict in BNSF’s favor. It used
the district court’s verdict form No. 1, which stated its finding
that Kuhnel had not met his burden of proof. Kuhnel moved
the district court for a new trial, claiming that the court’s jury
instructions caused him prejudice by failing to instruct the jury
on BNSF’s duty of care. The district court overruled Kuhnel’s
motion, finding that its instructions “included the substance of
Kuhnel’s requested instruction regarding BNSF’s duty to pro-
vide a reasonably safe place to work.”
Kuhnel appealed to the Court of Appeals, which found that
the district court’s jury instructions constituted plain error.
According to the Court of Appeals, the instructions errone-
ously permitted the jury to decide, as a factual determination,
whether BNSF was under a duty to provide a reasonably safe
place to work.3 The Court of Appeals further found that the
general verdict rule did not bar it from overturning the jury’s
verdict. It then reversed the judgment of the district court and
remanded the cause for a new trial.
BNSF petitioned for further review, which we granted.
ASSIGNMENTS OF ERROR
BNSF assigns that the Court of Appeals erred in (1) hold-
ing that a trial court must separately instruct the jury on
the employer’s duty to provide a reasonably safe place to
work in a FELA case and that the failure to provide such an
instruction constitutes plain error, (2) holding that the dis-
trict court failed to properly instruct the jury, (3) failing to
find that Kuhnel’s lack of a proper objection precluded his
appeal, and (4) failing to apply the general verdict rule to the
jury’s verdict.
3 Id.

KUHNEL v. BNSF RAILWAY CO. 	545
Cite as 287 Neb. 541
STANDARD OF REVIEW
[1] Whether a jury instruction is correct is a question of law,
which an appellate court independently decides.4
ANALYSIS
[2] We begin our analysis by acknowledging that in dispos-
ing of a claim controlled by FELA, a state court may use pro-
cedural rules applicable to civil actions in the state court unless
otherwise directed by the act, but substantive issues concerning
a claim under FELA are determined by the provisions of the
act and interpretive decisions of the federal courts constru-
ing FELA.5
We first address the Court of Appeals’ conclusions regard-
ing the jury instructions given by the district court. Because
our analysis of the instructions is dispositive, we do not reach
BNSF’s assignment of error as to the application of the general
verdict rule.
sepaRate duty oF
caRe instRuction
BNSF assigns that the Court of Appeals erred in holding
that a trial court must provide a separate instruction on the
employer’s duty to provide a reasonably safe place to work
in a FELA case and that the failure to do so is plain error. We
find that this assignment of error misconstrues the Court of
Appeals’ holding.
We do not read the Court of Appeals’ holding as requiring
a separate duty of care instruction in a FELA case. The Court
of Appeals found that the district court’s jury instructions were
plainly erroneous after “[h]aving viewed the jury instructions
given as a whole.”6 Thus, we conclude that it was the district
court’s failure to include any instruction on BNSF’s duty of
care that the Court of Appeals found to be plainly erroneous,
4 Credit Bureau Servs. v. Experian Info. Solutions, 285 Neb. 526, 828
N.W.2d 147 (2013).
5 Ballard v. Union Pacific RR. Co., 279 Neb. 638, 781 N.W.2d 47 (2010).
6 Kuhnel, supra note 2, 20 Neb. App. at 894, 834 N.W.2d at 811.

546 	287 NEBRASKA REPORTS
not the failure to provide a separate instruction on the issue.
We therefore reject BNSF’s first assignment of error as being
without merit.
instRuction on BnsF’s
duty oF caRe
In its second and third assignments of error, BNSF asserts
that the Court of Appeals erred in finding that the district
court’s jury instructions constituted plain error for failing
to instruct the jury on BNSF’s duty of care under FELA.
The Court of Appeals concluded that the district court’s jury
instructions constituted plain error because they turned BNSF’s
duty of care into a threshold question of fact for the jury.
We disagree.
[3,4] Kuhnel failed to make an objection to the district
court’s jury instructions on the ground that they failed to
instruct the jury on BNSF’s duty of care under FELA. We
have stated that failure to object to a jury instruction after it
has been submitted to counsel for review precludes raising an
objection on appeal absent plain error.7 Plain error exists where
there is an error, plainly evident from the record but not com-
plained 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.8 Thus,
in the absence of plain error, there is no ground for reversal of
the jury verdict.
The district court’s jury instructions adequately informed the
jury of BNSF’s duty to provide Kuhnel with a reasonably safe
place to work. Contrary to the Court of Appeals’ conclusion,
we agree with the district court that its instructions included
the substance of Kuhnel’s requested instruction on BNSF’s
duty of care. The burden of proof instruction stated Kuhnel’s
burden of proving that BNSF was negligent in one or more
of the ways he had alleged. And instruction No. 2 provided
that one claim of negligence was BNSF’s failure to provide
7 Russell v. Stricker, 262 Neb. 853, 635 N.W.2d 734 (2001).
8 Id.

KUHNEL v. BNSF RAILWAY CO. 	547
Cite as 287 Neb. 541
him with a reasonably safe place to work. In order to find that
BNSF was negligent in this way, the instructions required the
jury to determine only that BNSF had failed to provide Kuhnel
with a reasonably safe place to work. The jury was not directed
to determine whether such a duty existed. Thus, although not
explicitly stated, the instructions recognized BNSF’s duty of
care under FELA and did not turn BNSF’s duty of care into a
threshold question of fact.
We therefore conclude that the jury instructions do not rise
to the level of plain error. As we have already noted, plain
error is an error 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.
Although not perfect, the substance of the jury instructions
adequately informed the jury as to the law of the case. We
recognize that trial judges are under a duty to correctly instruct
on the law without any request to do so.9 And we acknowledge
that a railroad’s duty to use reasonable care in providing a safe
place to work has become an integral part of FELA.10 But we
are not persuaded that the district court’s instructions have
resulted in a miscarriage of justice or resulted in damage to
the integrity, reputation, and fairness of the judicial process.
Consequently, the Court of Appeals erred in finding that plain
error existed.
BnsF’s R emaining assignment
oF eRRoR
[5] Because we find that the district court’s jury instructions
do not rise to the level of plain error, we need not consider
BNSF’s remaining assignment of error. An appellate court is
not obligated to engage in an analysis that is not necessary to
adjudicate the case and controversy before it.11 Consequently,
we do not address whether the Court of Appeals was correct
9 See, e.g., Russell, supra note 7.
10 See Ragsdell v. Southern Pacific Transp. Co., 688 F.2d 1281 (9th Cir.
1982).
11 Holdsworth v. Greenwood Farmers Co-op, 286 Neb. 49, 835 N.W.2d 30
(2013).

548 	287 NEBRASKA REPORTS
in concluding that the general verdict rule did not bar it from
overturning the jury’s verdict.
CONCLUSION
Although the district court’s instructions did not explicitly
charge the jury on BNSF’s duty of care, they implicitly recog-
nized BNSF’s duty by requiring the jury to find that BNSF was
negligent if it found that BNSF had failed to provide Kuhnel
with a reasonably safe place to work. We therefore find that
the Court of Appeals erred in concluding that the instructions
constituted plain error. Because our finding that the instruc-
tions were not plainly erroneous is dispositive, we need not
analyze BNSF’s remaining assignment of error. We reverse the
decision of the Court of Appeals.
R eveRsed.
victoRia a. wisniewsKi, appellant, v. heaRtland towing,
inc., et al., deFendants and thiRd - paRty plaintiFFs,
appellees, and lyman -R ichey coRpoRation,
doing Business as R eady mixed concRete
company, a delawaRe coRpoRation, et al.,
thiRd - paRty deFendants, appellees.
844 N.W.2d 48
Filed February 28, 2014. 	No. S-13-171.
1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question
does not involve a factual dispute, determination of a jurisdictional issue is a
matter of law which requires an appellate court to reach a conclusion independent
from the trial court’s decision.
Appeal from the District Court for Douglas County: w.
maRK ashFoRd, Judge. Order vacated, and appeal dismissed.
Robert S. Sherrets and James D. Sherrets, of Sherrets, Bruno
& Vogt, L.L.C., for appellant.
Christopher P. Welsh, of Welsh & Welsh, P.C., L.L.O., pro se.
heavican, c.J., wRight, connolly, stephan, mccoRmacK,
and cassel, JJ.