Haynes v. Union Pac. R.R. Co.

• Decision Date: 28 January 2020
• Docket Number: NO. 01-18-00181-CV,01-18-00181-CV
• Citation: 598 S.W.3d 335
• Parties: Richard HAYNES, Appellant v. UNION PACIFIC RAILROAD COMPANY, a Corporation, Appellee
• Court: Texas Court of Appeals

598 S.W.3d 335

Richard HAYNES, Appellant

v.UNION PACIFIC RAILROAD COMPANY, a Corporation, Appellee

NO. 01-18-00181-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued January 28, 2020

Michael W. Kerensky, Kerensky Law Firm, 440 Louisiana, Ste., 2300, Houston, Texas 77002, Daniel J. Cohen (Pro Hac Vice), Law Office of Daniel J. Cohen, 1310 Papin Street, #108, St. Louis, Missouri 63103, for Appellant.

Kent Rutter, Christina Crozier, Haynes & Boone, LLP, 1221 McKinney, Ste. 2100, Houston, Texas 77010-2007, Douglas W. Poole, Bryan R. Lasswell, McLeod, Alexander, Powell & Apffel, P.C., 802 Rosenberg, Galveston, Texas 77553, for Appellee.

Panel consists of Chief Justice Radack and Justices Landau and Hightower.

OPINION

Richard Hightower, Justice Appellant Richard Haynes was injured as he attempted to leave the Strang Railyard where he worked for appellee Union Pacific Railroad Company (UP). Haynes sued UP under the Federal Employment Labor Act (FELA), and the jury ultimately concluded that UP was negligent, determining that UP was 35% responsible and Haynes was 65% contributorily negligent regarding his injuries. The jury awarded Haynes a total of $1,095,000 in damages, and the trial court rendered judgment on this verdict after reducing it for Haynes's contributory negligence and two liens. On appeal, Haynes argues that (1) the trial court erroneously charged the jury on aggravation of a pre-existing condition; (2) the trial court repeatedly showed bias against and hostility toward Haynes and his counsel; and (3) even if "the foregoing errors, standing alone, were insufficient to warrant a new trial, their cumulative effect deprived [Haynes] of a fair trial and require that a new trial be granted on all issues." In a cross-appeal, UP argues that (1) the FELA does not apply to Haynes's claims because he was not acting in the course of his employment with UP at the time he was injured, and, thus, Texas's proportionate responsibility statute bars any recovery at all by Haynes; and (2) alternatively, the trial court should have applied an offset for railroad retirement taxes.

We conclude that the FELA applies to Haynes's claim against UP, that the trial court's charge was not erroneous, that the record does not support Haynes's claim of bias or cumulative harm, and that UP was entitled to the offset for railroad retirement taxes. Accordingly, we modify the judgment to apply the offset and affirm the judgment as modified.

Background

Haynes worked for UP as a carman, responsible for inspecting and repairing rail cars. At the time of his injury, Haynes had worked for UP for approximately seven years and had been assigned to the Strang Yard, the railyard where he was injured, for between six and eight months.

On April 1, 2005, the day of his injury, Haynes had received permission from his supervisor to leave work approximately thirty minutes before the regular end of his shift so that he could say goodbye to his wife and daughter before they left on a trip. At the time Haynes attempted to leave the Strang Yard, a "humping" operation was ongoing.

A humping operation involves breaking apart an incoming train, one rail car at a time, and allowing the cars to roll down a "hump track" into an area called the "bowl." In the bowl, there are several different tracks (the bowl tracks) where the cars can then be put back together to form different outbound trains. The humping operation starts with a locomotive engine pushing from the back of the incoming train to shove the rail cars down the hump track until the forward-most car reaches a point called the pin-puller's spot. At the pin-puller's spot, an employee called the pin-puller or carman pulls a lever between the forward-most car and the next car, disconnecting the forward-most car from the rest of the incoming train. The downward slope of the hump track causes the released car to free-roll down into the bowl where the car is assembled into a new outbound train. The pin-puller repeats this process, releasing the cars from the incoming train until all of the cars are coupled to new, outbound trains.

The humping operation happening on the afternoon of April 1, 2005, blocked the main crossing out of the parking lot where Haynes had parked that day, and the operation was likely to continue for approximately twenty to thirty more minutes. The parking lot also had four other exits. One of those, however, was locked, and two were in a state of disrepair. The fourth route, and the one Haynes chose to take that afternoon, involved crossing the hump track at a place called the "tower crossing" and then continuing to the main road. The tower crossing was steep, narrow, and poorly maintained. It had been designed primarily for use by all-terrain vehicles or "four-wheelers," but workers also crossed it in their personal vehicles on a regular basis.

Haynes testified that he had used the tower crossing on multiple occasions during humping operations, driving both his work truck and his personal vehicle. He testified that he had even crossed at the tower crossing during humping operations with his supervisor in the truck with him. Other employees likewise testified that employees and managers used the tower crossing in both company and personal vehicles during humping operations, when the main crossing was blocked. For example, a former UP employee, who had worked in the Strang Yard around the time Haynes was injured, testified that he had observed a variety of vehicles cross the tower crossing while humping operations were blocking the main exit. He stated that "all the car people" would cross over in their personal vehicles and on the "four-wheelers that they rode during their shift," and he testified that he would also see "the company officers' jeeps go across ... if the other crossing was blocked." He further testified that it was "a common practice" for people to cross the tower crossing in a company or personal vehicle "with the humping operation still going on."

Haynes testified that, when he approached the tower crossing on April 1, 2005, he looked up the hump track and did not see any cars rolling toward him down the hump track. He honked his horn to get the attention of the pin-puller who was releasing the train cars down the hump track. He saw the pin-puller walk "back towards the back of the cars," back up the hump track away from Haynes's car at the tower crossing. Haynes believed that the pin-puller would have to walk back to the point known as the pin-puller's spot, "pull the cart lever and hold it and walk back to the line and then release [the next car]." Haynes testified that it appeared the last rail car on the incoming train had recoiled back up the hill, away from him, so he believed that he had adequate time to cross the tower crossing in his vehicle, a Honda Accord. However, as he attempted to cross, he became stuck in the center of the crossing. He was unable to move his vehicle, either because the tower crossing was too steep or too narrow, and he was unable to open the driver's door because the handle broke. Another rail car came down the hump track and struck Haynes's vehicle, pushing it down the hump track into the bowl. At that point, Haynes was able to jump out of his vehicle's window, and he landed on the ground in the bowl.

He heard another rail car heading toward him, but the employee conducting the humping operation saw what had happened and rerouted the rail car onto a different bowl track.

As a result of the April 1, 2005 accident, Haynes suffered numerous serious injuries, including a dislocated femur, fractured pelvis, damaged left shoulder, fractured ribs, and a closed head injury. He required several surgeries, including a total hip replacement and two shoulder surgeries. Haynes also presented evidence that the accident aggravated several pre-existing conditions. Haynes had a history of cervical spine problems that had been caused by previous automobile accidents, resulting in neck pain and radiating pain in his upper extremities. Prior to his April 1, 2005 accident, Haynes had received treatment for the cervical spine injuries from Dr. Stephen Charnov, who treated him with pain medications and steroid injections. These treatments provided Haynes with relief of his symptoms, so that he could remain active, and, although his doctor had discussed surgical treatment, Haynes had not found such treatment necessary.

Following the accident, Haynes claimed that his cervical spine injury was aggravated. Dr. Charnov and Dr. Vivek Kushwaha, who treated Haynes after the April 1, 2005 accident, likewise testified that his pre-existing injury was aggravated. Haynes testified and presented expert testimony that his pain increased, that his radiating pain shifted from his right arm to his left, and that his symptoms could no longer be improved by rest and the use of pain medication or injections. As a result of the aggravated injury, Haynes underwent spinal surgery, and Drs. Charnov and Kushwaha testified that the aggravation caused by the train accident had contributed to the need for this surgery. On the other hand, UP provided expert testimony from Dr. Greider that none of the injuries to Haynes's neck or left shoulder had been caused by the April 1, 2005 accident and was entirely pre-existing.

Haynes also presented evidence that, prior to the accident on April 1, 2005, he experienced occasional depression and, at times, took medication to treat the condition. After the accident, he sought additional treatment, and his treating physicians, Drs. Daniella White and Richard Lourie, indicated that the accident caused post-traumatic stress disorder (PTSD) and secondary, severe depression. Both doctors opined that Haynes's pre-existing mental health involved only mild and intermittent depression, and his PTSD and severe depression were new conditions unrelated to his pre-existing condition. Haynes's also presented evidence from Dr. Larry Pollock that he had suffered a...