CopyCited 62 times | Published | Court of Appeals for the Eleventh Circuit | 1991 U.S. App. LEXIS 12731, 1991 WL 92953
...imits. b. Vegetation Easterwood also claims that excessive vegetation on the side of the track obstructed the views of the train engineers and the decedent, thereby causing the accident. We find this claim to be partially pre-empted. Under 49 C.F.R. § 213.37 (1990), track owners must keep vegetation on or immediately adjacent to the tracks under control....
...Because the Secretary has chosen to regulate vegetation, Congress explicitly has pre-empted all state regulation in this area. See 45 U.S.C.A. § 434 (1986); See also Missouri Pac. R.R. Co. v. Railroad Comm. of Tex.,
833 F.2d 570 (5th Cir.1987) (holding that 49 C.F.R. §
213.37 pre-empts all state regulation of vegetation immediately adjacent to railbed)....
CopyPublished | District Court of Appeal of Florida | 1991 Fla. App. LEXIS 3787, 1991 WL 63760
...in this federal employer’s liability action (FELA). Scott raises four issues; however, only the following two have merit: (1) the trial court erred in failing to allow into evidence and to instruct the jury regarding federal regulation, 49 C.F.R. § 213.37 (c); and, (2) the trial court erred in failing to give the proper Rogers instruction....
...Scott alleged that he was walking along the right-of-way area in grass or weeds eighteen inches to two feet high, adjacent to the roadbed, which was Seaboard’s property, when he stepped on a bolt, slipped and injured his back. Scott claims that he was injured as a result of Seaboard’s violation of 49 C.F.R. § 213.37 (c), which requires railroad companies to control vegetation on or adjacent to the roadbed....
...1 Scott alleges that the vegetation, located on Seaboard’s property immediately adjacent to the roadbed, was not adequately controlled, thereby interfering with the performance of his normal track-side duties. Prior to trial, Scott filed a Notice to Rely Upon Federal Regulation 49 C.F.R. § 213.37 (c), for the purpose of imposing upon Seaboard absolute or strict liability with regard to Count I of the complaint....
...However, when Scott attempted to introduce into evidence the federal regulation regarding the control of vegetation, the court would not allow it. Later, the court refused to instruct the jury on Seaboard's duty to control the vegetation. 49 C.F.R. § 213.37 (c) is part of a regulatory scheme promulgated by the Secretary of Transportation under the Railroad Safety Act, 45 U.S.C....
...We agree that the trial court erred when it refused to permit Scott to submit the issue to, or instruct, the jury that if the vegetation regulation was violated, Scott’s own negligence was irrelevant. Proof that Seaboard’s violation of 49 C.F.R. § 213.37 (c) contributed to Scott’s injury was a necessary element of his case; therefore, testimony relating to the issue should have been admitted, and the jury should have been instructed on this issue....
