CSX Transportation, Inc., which is a railroad involved in interstate commerce, employed Larry Smith as a conductor. On April 6, 2004, two supervisors allegedly observed Smith violate a safety rule by dismounting a moving train and subsequently removed him from service pending further investigation. Several hours later, Smith entered CSX’s Terminal Administration Building in Walbridge, Ohio and was walking up a flight of stairs on his way to a union safety meeting when he slipped and hit his knee on the edge of a step. A small puddle of liquid soap was later found on the stair tread. Smith had knee surgery one year later. In 2007, Smith brought suit against CSX in the Superior Court of Gwinnett County under the Federal Employers’ Liability Act FELA, which provides a federal tort remedy for interstate railroad employees who are injured while working within the scope of their employment. See 45 USC § 51 et seq.; Eubanks v. CSX Transp. , 223 Ga. App. 616, 617 1 478 SE2d 387 1996. Smith moved in limine to exclude as irrelevant any evidence of past discipline by CSX, including the incident before his fall which allegedly caused two supervisors to advise him that he was “out of service.” The trial court granted that motion. At trial, the jury returned a verdict in favor of CSX, and the trial court entered judgment thereon.
The Court of Appeals reversed because the trial court refused Smith’s request to instruct the jury regarding a federal Occupational Safety and Health Administration OSHA stair regulation requiring that “all treads shall be reasonably slip-resistant and the nosings shall be of nonslip finish.” 29 CFR § 1910.24 f. Smith v. CSX Transp. , 306 Ga. App. 897, 901-903 2 703 SE2d 671 2010 four judges fully concurred in this division. The Court of Appeals also concluded that, because of Smith’s own actions, the trial court did not err in allowing CSX to cross-examine him regarding whether he had been taken “out of service” before his fall and to present evidence concerning this issue. Smith v. CSX Transp. , supra at 899-901 1 plurality, 904-905 Andrews, P.J., dissenting, joined by two other judges. Presiding Judge Barnes concurred specially on the ground that Smith’s failure to object or otherwise seek enforcement of the ruling on the motion in limine “could not open the door to the questioning by CSX.” Smith v. CSX Transp. , supra at 904. Presiding Judge Andrews and two other judges dissented with respect to the jury charge issue. We granted certiorari to consider both issues raised in the Court of Appeals.
