Ill. Pattern Jury Instr. (Civil) 160.00

INTRODUCTION

Railroad employees who are injured in the course of their employment have a cause of

action against their employer under a Federal statute known as The Federal Employers' Liability

Act (FELA), 46 U.S.C.A. §§ 51- 59, rather than under the common law. Under certain

circumstances, FELA actions may also involve either the Safety Appliance Act, 45 U.S.C.A. §§

1-16, the Boiler Inspection Act, 45 U.S.C.A. §§ 22- 23, or both. In addition to railroad

employees, the protection of the Federal Employers' Liability Act is also extended to seamen by

the Jones Act, 46 U.S.C.A. § 688. The instructions in this section can be readily adapted for use

in Jones Act cases.

Section 51 of FELA provides for an action for damages against any common carrier by

railroad in interstate or foreign commerce arising out of the injury or death of an employee while

employed in such commerce, “resulting in whole or in part from the negligence of any of the

officers, agents or employees of such carrier, or by reason of any defect or insufficiency, due to

its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves,

or other equipment.”

Th

e second paragraph of that section declares that any employee, “any part of whose

duties . . . shall be the furtherance of interstate or foreign commerce; or shall, in any way

directly or closely and substantially affect such commerce,” is within the scope of the Act.

Section 53 removes contributory negligence as a complete defense to the action and

provides instead for proportionate diminution of damages to the extent of the employee's

contributory negligence. This is the “pure” form of comparative negligence as adapted in Illinois

for negligence in Alvis v. Ribar, 85 Ill.2d 1, 421 N.E.2d 886, 52 Ill.Dec. 23 (1981), not the

statutory comparative fault subsequently mandated by the Illinois General Assembly for causes

of action accruing on and after November 25, 1986 (735 ILCS 5/2-1116 (1994)). Moreover,

under FELA, where a carrier's violation of a statute enacted for the safety of employees (such as

the Safety Appliance Act or Boiler Inspection Act) contributes to the injury or death, the

employee cannot be deemed guilty of any contributory negligence.

Section 54, by its language, removes assumption of risk as a defense in cases where the

injury or death resulted, in whole or in part, from the negligence of an officer, agent or employee

of the carrier, or where the violation of a statute enacted for the safety of employees contributed

to the injury or death.

S

ection 59 provides for the survival of actions under the Act to the personal

representative for the benefit of the surviving spouse and children, and if none, for the benefit of

the parents, and if none, for the benefit of the next of kin dependent on the decedent. As opposed

to the Illinois Wrongful Death Act, which is for the benefit of the “surviving spouse and next of

kin” (740 ILCS 180/2 (1994)), the next of kin under FELA have no right of recovery if there is a

spouse, child or parent surviving.

A final general area of difference includes the extent to which federal, rather than state,

law is applicable, even where the action is tried in a state court. Bowman v. Ill. Cent. R. Co.,

11 Ill.2d 186, 142 N.E.2d 104 (1957), cert. denied, 355 U.S. 837, 78 S.Ct. 63, 2 L.Ed.2d 49

(1957) (reviewing court in FELA case may not determine whether jury verdict and judgment are

against the manifest weight of the evidence; limited to determining whether there is an

evidentiary basis for the verdict); Mitchell v. Toledo, P. & W. R. Co., 4 Ill.App.3d 1, 279 N.E.2d

782 (3d Dist.1972) (scope of appellate review is governed by federal law and is limited to

determining whether there is an evidentiary basis for the verdict; only when there is a complete

absence of probative facts to support the verdict can there be a reversal).