USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 97-1063

MICHAEL MCGRATH,
Plaintiff - Appellant,

v.

CONSOLIDATED RAIL CORPORATION,

Defendant - Appellee.

____________________

No. 97-1064

MICHAEL MCGRATH,
Plaintiff - Appellee,

v.

CONSOLIDATED RAIL CORPORATION,

Defendant - Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Godbold,* Senior Circuit Judge,

____________________

and Barbadoro,** District Judge.

______________

_____________________

____________________

**

Of the Eleventh Circuit, sitting by designation.

Of the District of New Hampshire, sitting by designation.

Alan D. Voos, with whom

____________

Collins, Collins & Kantor, P.C. was

_______________________________

on brief for appellant Michael McGrath.

Leonard F. Zandrow, Jr.,
_________________________

with whom

Michael B. Flynn and

_________________

Brister & Zandrow, LLP

_______________________

were on brief

for appellee Consolidated

Rail Corporation.

____________________

February 12, 1998

____________________

-2-

TORRUELLA, Chief Judge.

TORRUELLA, Chief Judge.
___________

appellant Michael

On June 13,

1995, plaintiff-

McGrath ("McGrath") commenced this

personal

injuries he

appellee

Consolidated

suffered

Rail

as

an

employee

of

action for

defendant-

Corporation ("Conrail").

McGrath

alleges that Conrail was negligent in failing to provide him with

a safe work

place pursuant to

Act ("FELA"), 45

Federal Boiler

U.S.C.

the Federal Employers'

Liability

51 et seq., and was liable

________

under the

Inspection Act ("Boiler

Act"), 45 U.S.C.

23,1

for requiring

defective

him

to

condition.

entered judgment in

work with

After a

locomotive that

jury trial,

was

in

the district

favor of Conrail on both

court

the negligence and

Boiler Act claims.

McGrath

that

the

trial

McGrath's

court

receipt

submitting

to

the

locomotive in

Act; and (3)

Conrail

appeals on

erred

of

(1)

collateral

jury

the

in instructing

the

discretion with

facts

of

respect to

grounds.

in

into

of

(2)

in

whether

the

use" for purposes of

the issue

the admission

the Boiler

the Boiler Act

of whether

case.

evidence

benefits;

question

the jury on

this

Appellant argues

allowing

source

legal

question was "in

cross-appeals on

applies to

three

We

find

claim.

the Boiler

no

abuse

of collateral

Act

of

source

evidence.

However, the district court erroneously submitted the

"in use" question to the jury.

As a matter of law, we find that

____________________

Although the Boiler Act was recodified on July 5, 1994, see 49

___

U.S.C.
in effect

20701, we will refer to

at the

time of

23 because that provision was

McGrath's injury.

charging the jury, the district court applied

In addition,

in

23.

-3-

the

Boiler Act

applies to

the instant

case.

Accordingly, we

affirm the jury verdict for the employer on

theory,

but vacate

and remand

McGrath's negligence

the verdict

for Conrail

on his

Boiler Act claim.

I.
I.

On appeal, we

favorable

BACKGROUND
BACKGROUND

summarize the

facts in

1996).

"shifter,"

McGrath

or an

trains between

locomotive.

Conrail's

was

engineer

On

Conrail

for short

local depots.

operating the train,

the

most

to the verdict-winner, consistent with record support.

See Wainright Bank & Trust Co. v. Boulos,

___ ____________________________
______

Cir.

the light

He was

but also for

March 21,

89 F.3d 17,

19 (1st

engineer employed

runs,

who usually

responsible not

as

moved

only for

attaching individual cars

1994, he

reported

to work

Beacon Park office in Allston, Massachusetts.

to

at

McGrath

was the engineer on a job identified by Conrail symbol "WABP-11."

The

crew that worked WABP-11 consisted of an engineer (McGrath),

a conductor, and

a brakeman.

The train

used to perform WABP-11

was made up of at least one locomotive and several railroad cars.

On March 21, 1994, the WABP-11 was scheduled to service Conrail's

industrial customers in South Boston.

McGrath was assigned

was

coupled

back-to-back

to locomotive number

with

another

2013, which

locomotive.

McGrath

approached both locomotives, which had their engines running, and

boarded

the

number

2013.

second

As

locomotive to

soon as he

cross

over

into locomotive

entered the cabin

of number 2013,

McGrath started to walk toward the daily inspection card.

-4-

In the

cabin,

McGrath lost

shaped nut.

four-foot

suffered

his balance

He prevented

high

engineer's

injuries

Conrail's defenses

to his

at trial

when he

himself from falling by

control

stand.

shoulder,

neck

was that

payments.

an acorn-

grabbing the

Consequently,

and

back.

McGrath was

i.e., feigning physical disability to avoid

receiving disability

stepped on

One

he

of

malingering,

work and to continue

For purposes

of rendering

its

verdict, the jury

assumed that the accident

described above did

occur.

II.
II.

A.
A.

DISCUSSION
DISCUSSION

Collateral Source Evidence

Collateral Source Evidence

McGrath

argues

that

the

district

court

committed

reversible error by allowing into evidence his collateral sources

of

income,

including

Railroad

Retirement

insurance

payments

source rule,

disability

Act

on

and

source collateral

credit

Under

under

the

disability

the collateral

not offset his or

her recovery

the amount of any benefits received from a

to the defendant.

F.3d 1103, 1107 (1st

payments

supplemental

his automobile.

the plaintiff need

from the defendant by

pension

Cir. 1995).

See Lussier v.
___ _______

The rule

Runyon, 50
______

mitigates the danger

of the jury finding no liability or reducing a damage award "when

it

learns

covered."

that

plaintiff's

loss

is

entirely

or

partially

Moses v. Union Pac. R.R., 64 F.3d 413, 416 (8th

_____
________________

Cir.

1995); see also Tipton v. Socony Mobil Oil Co., 375 U.S. 34, 36________ ______
_____________________

37 (1963) (per curiam).

courts

have carved

out

However,

the rule

exceptions

-5-

to

the

is not

absolute and

collateral

source

doctrine.

See Moses, 64
___ _____

F.3d at 416 (allowing collateral source

evidence where the plaintiff's case itself has made the existence

of such evidence

Commuter R.R.,
______________

of probative value); Santa Mar a v. Metro-North

___________
___________

81

F.3d

265,

273

(2d

Cir.

1996)

(holding

collateral source evidence admissible if plaintiff puts financial

status at

(5th

for

issue); Simmons
_______

Cir. 1986)

limited

v. Hoegh Lines,
___________

(finding collateral source

purpose

of

proving

another

784 F.2d

1234, 1236

evidence admissible

matter

if

little

likelihood of prejudice and no strong potential for improper use,

and a careful

the trial

abuse of

qualifying jury instruction is given).

court's admission

discretion.

See
___

of collateral

We review

source evidence

for

Blinzler v. Marriott Int'l, Inc., 81

________
_____________________

F.3d 1148, 1158 (1st Cir. 1996).

According to McGrath,

Eichel v.
______

the Supreme Court's

New York Cent. R.R. Co., 375

_________________________

U.S.

decision in

253 (1963)

(per

curiam), applies to his FELA action and mandates the exclusion of

collateral source evidence

held

that evidence

Retirement

Act

of disability

was

inadmissible

likelihood of misuse by the

such evidence.

noted

in such cases.

malingering, there will

probative value and

payments

due

to

Eichel, the Court

______

under the

the

fact

Railroad

that

the

jury clearly outweighed the value of

See id. at 317.

___ __

that "[i]nsofar

In

as the

In particular, the Supreme Court

evidence

bears on

the issue

generally be other evidence

involving less likelihood of

of

having more

prejudice than

the receipt of a disability pension."

Id.
__

We do not read Eichel as requiring the per se exclusion

______

-6-

of collateral

source evidence

DeMedeiros v.
__________

Koehring Co.,
____________

in FELA

cases.

709 F.2d 734

narrower question in Eichel was

______

As

(1st Cir.

we noted

in

1983), the

simply "whether or not to uphold

the

district court's discretionary

Indeed, although

the Supreme Court

ruling."

the Eichel decision

______

403."

Cir.

to the

of Evidence, the analysis

"does not appear

inconsistent with Rule

Savoie v. Otto Candies, Inc., 692 F.2d 363, 371 n.8

______
___________________

1982).

district

value."

court

Rule

to

403

weigh

"confer[s]

unfair

broad discretion

prejudice

against

abuse his discretion

upon

the

probative

case, we find that the

in allowing the

trial judge did

receipt of collateral

source benefits into evidence under a Rule 403 balancing.

motion in limine to admit the

Conrail

(5th

709 F.2d at 741.

In the instant

not

at 741.

decided Eichel prior

______

enactment of the current Federal Rules

in

709 F.2d

As its

collateral source evidence argues,

offered the evidence of McGrath's disability payments on

the

issue

presented

motivation

of

McGrath's

collateral source evidence

for

returning

question McGrath

court,

credibility.

on several

to

work.

Specifically,

Conrail

to show McGrath's

lack of

In

about collateral source

allowing

admitted

occasions, issued cautionary

instructions to

In one instance where McGrath's

into evidence, the

reduce any

on the issue

tax return was

court specifically noted

references in there to [collateral]

compensation he may

that "any

sources of income are not to

receive here or to

-7-

to

evidence, the district

the jury, advising it to consider the evidence only

of malingering.

Conrail

increase it,

but only on the issue of his motivation

to go back to work . . .

."

In oral

argument, McGrath's attorney argued

that such

instructions did not cure the defect because Eichel precludes the
______

use

of such

However, we

evidence

do not believe

bright-line rule

evidence on the

determined

on

barring

the

precise

issue

of

that the Eichel court

______

the

admission

issue of malingering.

The

of

malingering.

established a

collateral

source

Supreme Court simply

that the district court abused its discretion because

the prejudicial impact

of the evidence outweighed

value.

Here, we come to

little

likelihood of

the opposite conclusion.

prejudice

and

no

strong

its probative

"If there

potential

is

for

improper use, and a careful qualifying jury instruction is given,

then receipt of compensation

limited purpose of

benefits may be admissible for

proving another

Lines, 784 F.2d 1234, 1236 (5th Cir.

_____

Western Co. of N. Am., 953

______________________

matter."

Simmons v.
_______

the

Hoegh
_____

1986); see also Phillips v.

________ ________

F.2d 923, 930 (5th

Cir. 1992).

We

find that the district court properly allowed testimony regarding

collateral source income,

and thus, we need

not reach Conrail's

argument that McGrath failed to preserve the issue on appeal.

McGrath

also

objects to

about the value of a home he

several

questions at

trial

and his wife were planning to build

on a lot in Florida.

McGrath interjected a timely objection to a

specific question about the

sustained it before

After

the

objection

home's value and the

district court

the witness, McGrath's wife,

could respond.

was sustained,

Conrail

asked

no further

-8-

questions about the lot or

we see no reversible error.

the home.

Under these circumstances,

B.
B.

Applicability of Boiler Act

Applicability of Boiler Act

Conrail

cross-appeals

the

district

court's

orders

denying its motion and renewed motion for judgment as a matter of

law.

Conrail

argues that, as

a matter of

law, the Boiler

does

not apply to McGrath's circumstances because the locomotive

in question was not "in use" for purposes of the Act.

The Boiler

Act provides in pertinent part:

It shall be

unlawful for any carrier

to use
______

or
permit to be used on its line
________________________________________

any

locomotive

its

boiler,

unless

said

tender,

appurtenances,

locomotive,

and

all

parts

thereof

are

in

condition and safe to

be

employed in

and
proper

operate in the service

to which the same are put, that

the active

the same may

service of

carrier without unnecessary peril to life

such
or

limb, and unless said locomotive, its boiler,

tender

and

all

parts

and

Act

appurtenances

thereof have been inspected . . . .

45 U.S.C.

23 (emphasis

use" under the

decide

added).

Act is "a question of law for

and not

a question of

Maine Cent. R.R. Co.,

_______________________

874

fact for

F.2d 875,

Absolute liability under the Act

question is "in

274, 277 (2d

Whether

use."

the trial court to

the jury."

881

is "in

(1st

Pinkham v.
_______

Cir.

1989).

arise only if the locomotive in

See Crockett v. Long Island R.R., 65 F.3d

___ ________
________________

Cir. 1995).

See UNUM Corp. v.

___ ___________

a locomotive

We review de
__

United States,
_____________

novo questions of
____

130 F.3d

501, 502 (1st

law.

Cir.

1997).

"Congressional intent and the

statute clearly

case law construing

excludes those injuries directly

the

resulting from

-9-

the

inspection,

located at

and

servicing

a maintenance facility."

Ohio Ry. Co., 618

____________

the "in use"

repair

of

Angell
______

railroad

v. Chesapeake and
_______________

F.2d 260, 262 (4th Cir. 1980).

question, this court in Pinkham

_______

determinative factors are the

equipment

In addressing

observed that "the

location of the locomotive at

the

time of the injury and the activity of the injured party . . . ."

874 F.2d

at 882.

A locomotive may

although

it is motionless.

still be considered "in use"

See Crockett,
___ ________

65 F.3d

at 277; see
___

also Brady v. Terminal R.R. Ass'n of St. Louis, 303

____ _____
_________________________________

U.S. 10, 13

(1938).

The facts

easy answer.

of this

Locomotive

case do not

lend themselves

2013 was neither

being serviced

place of repair, nor operating

on Conrail's main line.

the

locomotive was

idling on

yard track,

within the confines of a railroad yard.

store,

cars.

inspect, classify

and

switch

to an

which is

in a

Instead,

located

Yard tracks are used to

locomotives and

railroad

In addition, although McGrath was part of a transportation

crew, he was

also required, as the engineer,

inspection duties before moving the locomotive.

to perform certain

However, we agree with the district court's

of this issue

in its order

judgment motion.

on

the yard

repairs.

resolution

denying Conrail's pre-trial

summary

The locomotive in question was not being stored

track or awaiting

removal to the

engine house for

Rather, "locomotive number 2013 was running on the yard

track and ready

to move into service."

McGrath v. Consolidated
_______
____________

Rail Corp., 943 F. Supp. 95, 97 (D. Mass. 1996).

__________

-10-

Furthermore, as

the

district

court

"'incidental

to

engineer.'"

Id.
__

noted,

[the]

task

McGrath's

of

citing Rivera v.
______ ______

Supp. 294,

301 (D.

Colo. 1994).

applies to

the instant

case.

inspection

operating

an

Union Pac. R.R. Co., 868

____________________

F.

Accordingly,

train

were

as

We hold

the

duties

that the

Boiler Act

we need

to address

McGrath's grounds for dismissal relating to the Boiler Act.

-11-

C.
C.

The Jury Instructions

The Jury Instructions

McGrath

argues

submitting to the jury the

applies

to

the instant

instructions to

the jury

that

the

district

court

erred

in

legal question whether the Boiler Act

case.

We

for abuse of

review the

trial

discretion.

court's

See United
___ ______

States
______

v. Shadduck,
________

112 F.3d

523,

526 (1st

Cir. 1997).

The

district court submitted the following instructions, in pertinent

part, to the jury:

Mr. McGrath claims

that the Boiler

Act

was violated and that as a consequence of the

violation that was at least one of the causes
of

injury

damage.

to
So

him

for

which

he

suffered

the first

thing

you

want to

consider under the Boiler Act is the question

of

whether the

Boiler Act

applies to

him.

The congressional intent and the case law

_____________________________________________
construing the Boiler Act excludes from its
_____________________________________________
coverage those injuries directly resulting
_____________________________________________
from the inspection, repair or servicing of
_____________________________________________
railroad equipment located at a maintenance
_____________________________________________
facility.
_________

These

the Boiler

Act

injuries are excluded

because they

occur

in

from
the

course of functions necessary to discover and

correct the

unsafe conditions

the Boiler Act.

prohibited by

So the

first question under

the Boiler

Act is, is Mr. McGrath, and he's got to prove

it by a

fair preponderance of the

evidence,

is he excluded under what I've just told you,

or

is he

included,

is he

able to

recover

under the Boiler Act?

Transcript at 627-28 (emphasis added).

a locomotive

court

is "in

to decide

Pinkham, 874
_______

and

use" is "a

not

question of

a question

F.2d at 881.

We reiterate that whether

of

law for

fact for

the trial

the

However, the instructions

jury."

above ask

the jury to decide this legal issue.

In instructing

the

jury, the

-12-

district court

repeats

almost

verbatim the

employed

legal

in Angell.
______

language)

the

Fourth

262 ("[c]ongressional intent and the

the statute clearly excludes

directly resulting from

the inspection, repair and

those injuries

servicing of

railroad equipment located at a maintenance facility").

in

Angell,
______

remanding

course.

Circuit

Compare jury instructions above (emphasized

_______

with 618 F.2d at

____

case law construing

considerations

the court

itself

it for consideration

resolved

the

by a jury.

However,

issue rather

than

That was the proper

In

the instant

case,

verdict for Conrail on McGrath's

its

verdict, the

matter, the

case.

jury may

rendered

decided that,

Act.

general

In reaching

as a

apply to the facts

instance, it did not

Conrail's liability under the

jury

Boiler Act theory.

have

Boiler Act did not

In that

the

threshold

of McGrath's

need to reach the issue

Alternatively, the

of

jury may

have determined that the Boiler Act did apply but Conrail was not

liable under the

Act.

From the general

verdict, we cannot tell

whether the jury's verdict was based on an improper determination

of the "in use" question.

did

consider this

judge was:

exclusion

The record does reflect that

threshold issue.

"Is there any case

regarding

inspection

One

jury question

law that extends the

and repair

repair outside the maintenance yard?"

the jury

to

to the

Boiler Act

inspections and

Under these circumstances,

we must vacate the verdict as to the Boiler Act claim and remand.

See Dillard & Sons Constr., Inc. v.

___ _____________________________

51 F.3d

910, 916

(10th Cir. 1995)

Burnup & Sims Comtec, Inc.,

__________________________

("erroneous submission

of a

-13-

legal question to a jury compels reversal when the jury returns a

general

verdict, creating

uncertainty as

to

whether the

jury

relied upon an

we

improper resolution of the legal

remand for new

trial on the

reach McGrath's last ground

district

court

erred

issue").

Boiler Act theory,

we need not

for reversal, which argued that

in instructing

the

jury

Since

on Boiler

the

Act

liability.

III.
III.

For the foregoing

for appellee on

CONCLUSION
CONCLUSION

reasons, we affirm the

affirm
______

McGrath's negligence claim, but

jury verdict

with respect to

the jury verdict on the Boiler Act claim, we vacate and remand to
vacate
remand
______
______

the

district court

opinion.

for

proceedings

in

accordance

with

this

-14-