KRAVITCH, Circuit Judge.
Following a jury trial in this wrongful death action filed pursuant to the Federal Employers Liability Act (FELA), judgment was rendered for the plaintiff, the decedent's widow and personal representative. Inter alia the appellants, Texas & Pacific Railway Company and Missouri & Pacific Railway Company, on appeal attack: (1) capacity of appellee to sue; (2) sufficiency of the evidence; (3) refusal of the court to instruct the jury on the effect of income tax on the final award. For the reasons stated below, we affirm in part and reverse and remand in part.
At the time of his death Larry Lang, the appellee's decedent, had been employed as a switchman by the appellants for four years. On the night of his fatal injuries, Lang was engaged in switching railroad cars down particular access tracks to be later attached to other cars and engines. The procedure was for a switchman to release the cars by pulling the pin that attached them to more forward cars or the engine and let gravity operate to move the cars down the track. The evidence shows that Lang and his crew released two cars on Track 3. Lang then continued with the engine which proceeded on Track 4 parallel to the released cars. Because of its greater speed, the engine passed the two cars on Track 3. Immediately after the engine which stopped, Lang jumped from the engine and attempted to cross Track 3. He was struck and killed, however, by the two cars that he had earlier released. Although there were no witnesses to Lang's death, the evidence showed
Lang's widow brought this action against the railway companies individually, as next friend of her minor child and as representative of her deceased husband. She was not named administrator of the estate until after the jury verdict. The appellants, however, failed to plead lack of capacity. The jury returned a verdict in favor of the plaintiff in the amount of $913,000. The district court ordered a remittitur and the award was reduced to $600,000.
Capacity to Sue
Pursuant to 45 U.S.C. § 51, an action under FELA may be maintained only by the deceased's "personal representative." The phrase "personal representative" has been construed to mean an executor or administrator of the deceased's estate, not simply an heir. Briggs v. Walker, 171 U.S. 466, 19 S.Ct. 1, 43 L.Ed. 243 (1898). At the time the suit was filed, the appellee, wife of the deceased, had not been appointed administrator of the estate. Indeed, she did not attain that status until after the jury verdict had been rendered but before the verdict was reduced to judgment. The appellants, however, failed to plead lack of capacity and only raised this ground in their motion for new trial after the verdict and judgment. The district court permitted the appellee to amend her pleadings to demonstrate capacity. The appellants argue that because the appellee lacked the proper capacity throughout the trial, the trial and the verdict are nullities. We disagree. See Reading Company v. Koons, 271 U.S. 58, 46 S.Ct. 405, 70 L.Ed. 835 (1926). It is true, as the appellants contend, that only a personal representative may enforce the action. This limitation on enforcement, however, is not for the purpose of assuring that the proper party be before the court, but rather to assure all beneficiaries and heirs access to whatever funds might result from the litigation and to guarantee that the railroad will not be subject to multiple recoveries. Neither of those bases underlying § 51 are offended by permitting the appellee to amend her complaint after the trial has occurred. Moreover, it is apparent that the appellants have suffered no prejudice. The label affixed to the appellee is one of form not substance for the purpose of prosecuting the litigation. No new cause of action was involved nor were any different factual circumstances introduced. See M.K.T. & R. Co. v. Wulf, 226 U.S. 570, 577, 33 S.Ct. 135, 137, 57 L.Ed. 355 (1912). It would be a different situation if the appellee had never become the personal representative of the deceased because then the railroad could be subject to multiple recoveries. However, that case is not before us. Moreover, the appellants' failure to plead lack of capacity renders that objection waived. Rule 9(a) of the Federal Rules of Civil Procedure, although not requiring a plaintiff to aver capacity, does require a defendant to plead absence of capacity. See Plumbers Local Union No. 519 of Miami v. Service Plumbing Company, Inc., 401 F.Supp. 1008 (D.C. Fla.1975). Therefore, because the appellants failed to plead the appellee's lack of capacity, they have now waived that objection.
Sufficiency of Evidence
The FELA allows recovery of damages for personal injuries to an employee of a railroad if the injuries resulted "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."
327 U.S. at 653, 66 S.Ct. at 744.
In the instant case the evidentiary basis for the jury's conclusion is manifest: the negligence of the appellants is demonstrated by the absence of lighting both in the switching yard and on the cars in question and by the accumulation of oil in the immediate vicinity of Lang's body. It was reasonable for the jury to infer causation, that Lang was struck either because he could not see the approaching cars or he did see the approaching cars but slipped on the oil or perhaps a combination of the two. The appellants were free to demonstrate factors from which the jury could infer contributory negligence, for example, that Lang was susceptible to fainting or a similar physical infirmity, that Lang was ill at the time he was working, or that Lang had been drinking. The appellants offered no such evidence and the appellants' foreman testified that he knew of no contributing factors. Because there is not a complete absence of probative facts, we reject the appellants' contention that there was insufficient evidence to support the verdict.
Finally, the appellants contend the trial judge erred in refusing to give a requested charge dealing with the effect of income taxation:
Apparently, relying upon the settled law in this circuit, see, e. g., Greco v. Seaboard Coastline R.R., 464 F.2d 496, 497 (5th Cir. 1972), cert. denied, 410 U.S. 990, 93 S.Ct. 1502, 36 L.Ed.2d 190 (1973), the district court refused the proffered charge. However, on February 19, 1980, subsequent to the trial and while the appeal was pending, the Supreme Court in Norfolk and Western Railway Co. v. Liepelt, ___ U.S. ___, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980), effectively changed the law in this area. In Liepelt, also a wrongful death action brought under FELA, the Court held that the trial court erred in refusing a requested jury instruction that "your award will not be subject to any income taxes, and you should not consider such taxes in fixing the amount of your award."
Nor do we agree with appellee that Liepelt should not have retroactive effect. Our duty is to apply the law in effect at the time we render our decision, unless to do so would result in "manifest injustice." Bradley v. Richmond School Board, 416 U.S. 696,
We have considered the appellants' other citations of error but find them meritless.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
Any employee of a carrier, any part of whose duties as such employee shall be the furtherance of interstate or foreign commerce, or shall, in any way directly or closely and substantially, affect such commerce as above set forth shall, for the purposes of this chapter, be considered as being employed by such carrier in such commerce and shall be considered as entitled to the benefits of this chapter.
This court also has held that an appellate court may reverse for plain error in an instruction that was not objected to, Chagas v. Berry, 369 F.2d 637, 641 (5th Cir. 1966), cert. denied, 389 U.S. 872, 88 S.Ct. 161, 19 L.Ed.2d 154 (1967), although that power will be exercised only in exceptional cases. Delancey v. Motichek Towing Serv., Inc., 427 F.2d 897, 901 (5th Cir. 1970). We do not find that the failure to give the proffered instruction in the instant case was "plain error."