Missouri Pacific R. Co. v. Lemon

• Decision Date: 02 September 1993
• Docket Number: No. A14-91-00652-CV,A14-91-00652-CV
• Citation: 861 S.W.2d 501
• Parties: MISSOURI PACIFIC RAILROAD COMPANY d/b/a Union Pacific Railroad Company and Raymond Douglas Johnson, Appellants, v. Dewey LEMON, Individually, and as Next Friend of Alfred DeJuan Franklin, a Minor, Charles A. Richard and Ruby L. Warren as Representatives of the Estate of Sharon Elaine Lemon, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 501

861 S.W.2d 501

MISSOURI PACIFIC RAILROAD COMPANY d/b/a Union Pacific Railroad Company and Raymond Douglas Johnson, Appellants, v. Dewey LEMON, Individually, and as Next Friend of Alfred DeJuan Franklin, a Minor, Charles A. Richard and Ruby L. Warren as Representatives of the Estate of Sharon Elaine Lemon Appellees.

No. A14-91-00652-CV.

Court of Appeals of Texas Houston (14th Dist.).

Sept. 2, 1993.

Rehearing Denied Sept. 23, 1993.

Robert L. LeBoeuf, Gordon Holloway, Merrick C. Walton, Lori M. Gallagher, Houston, and Michael A. Hatchell, Tyler, for appellants.

David Berg, Tamera L. Kinnie, Houston, John R. Gilbert, Angleton, Luther H. Soules, III, San Antonio, for appellees.

Before J. CURTISS BROWN, C.J., and ELLIS and LEE, JJ.

OPINION ON MOTION FOR REHEARING

ELLIS, Justice.

After granting appellees' motion for rehearing in part, we withdraw our opinion on original submission and substitute the following. Appellants' motion for rehearing is denied.

Appellants, Missouri Pacific Railroad Company d/b/a Union Pacific Railroad Company (MoPac) and its engineer, Raymond Douglas Johnson (Johnson), are appealing from a judgment assessing $2,218,018.28 in actual damages and $10,000,000 in exemplary damages in favor of Dewey Lemon, individually, and as Next Friend of Alfred DeJuan Franklin, a minor, and Charles A. Richard and Ruby L. Warren as Representatives of the Estate of Sharon Elaine Lemon, appellees. MoPac and Johnson allege error in the trial court, and set out their points of error under the four specific headings of liability, contributory negligence, exemplary damages and admission of evidence. They raise approximately forty-two points of error under these headings, although it is difficult to determine because many of these points are multifarious and repetitious. We affirm as modified.

On the night of December 13, 1989, a freight train operated by MoPac and driven by Johnson struck and killed Sharon Elaine Lemon at the Martin Luther King (MLK) railroad crossing in Sweeny, Texas. The MLK crossing had no signals, flashing lights, gates, or flagmen despite numerous complaints seeking better warning devices and/or improved safety at the crossing. Specifically, Sweeny residents complained railroad cars which were illegally and improperly parked obstructed the vision of drivers attempting to cross the tracks.

The jury determined the collision was proximately caused by (1) Johnson's negligence in failing to keep a proper lookout, operating the train at an excessive rate of speed, and failing to sound the train's horn and bell, and (2) MoPac's negligence through its employees in failing to keep a proper lookout and improperly parking railroad cars near the MLK crossing. The jury then determined the MLK crossing was "extra-hazardous," and the collision was proximately caused by MoPac's negligence in failing to provide automatic signals or a flagman at the MLK crossing. The jury found MoPac was grossly negligent and this negligence was committed with malice. Based on these findings, the jury awarded actual damages against MoPac and Johnson, and exemplary damages against MoPac.

GROUP ONE POINTS OF ERROR

LIABILITY

Under Group One, appellants raise what appear to be thirteen points of error. Their argument makes it clear they are complaining generally about the submission of jury questions one, two, three and four. Additionally, they contend jury questions one, three and four are defective on the basis that "operating the train at an excessive speed" and "failure to install active warning devices" are both grounds of liability pre-empted by federal law. Further, appellants complain the evidence is legally and factually insufficient to support the jury's finding of failure to keep a proper lookout under questions one and two.

Appellants allege appellees "embarked on a risky gambit" in submitting questions which: required the jury to consider disparate groups of factual negligence theories in reaching an answer; conditioned exemplary damages upon the answers to the preceding jury questions regarding liability; and did not require the jury to specify each factual theory it found to be negligent. Such allegations are not well founded. The trial court has no discretion to submit separate questions as to each element or ground of recovery under a cause of action, and separate findings by the jury are not required. Texas Dept. of Mental Health and Mental Retardation v. Petty, 848 S.W.2d 680, 682 & n. 2 (Tex.1992); Texas Dept. of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.1990). The rule is now well-settled in Texas that "broad-form submission 'shall' be used 'whenever feasible.' " Texas Dept. of Human Servs., 802 S.W.2d at 649 (Tex.1990) (quoting TEX.R.CIV.P. 277). The phrase "whenever feasible" means "in any or every The trial court is to submit to the jury the controlling questions in a case and this does not include asking "what specific ground or grounds ... the jury relied on to answer ... the questions posed." Id. Thus, "[t]he fact that a jury question contains more than one factual predicate to support an affirmative answer to a controlling question, or more than one element of a cause of action, does not render it defective." 4 ROY W. MCDONALD, TEXAS CIVIL PRACTICE IN DISTRICT AND COUNTY COURTS § 22:6 (rev. 1992).

instance in which it is capable of being accomplished." Id.

In the present case, the trial court properly submitted the controlling questions regarding Johnson's and MoPac's negligence to the jury accompanied by appropriate instructions limiting the jury's consideration to the specific acts of negligence pled. The trial court had no discretion to do otherwise.

As to appellants' other complaints we will begin with jury question one which asked: "Was the negligence, if any, of R.D. Johnson, a proximate cause of the collision in question?" Under this question the jury was instructed to "consider only the following acts of negligence, if any, by R.D. Johnson: (1) failure to keep a proper lookout, (2) operating the train at an excessive rate of speed, (3) failure to sound the train's horn and bell." Contrary to the implication in appellants' brief that the jury was instructed to consider: act of negligence (1) regarding lookout, or act of negligence (2) regarding train speed, or act of negligence (3) regarding the train's horn and bell, the jury was instructed to consider all three of these acts and only these three acts. ¹

Appellants contend the jury should not have been instructed to consider act of negligence (2), operating the train at an excessive rate of speed, because this claim has been pre-empted by the Federal Railroad Safety Act (FRSA). They cite the recent United States Supreme Court opinion in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993) as support for this proposition. Based upon the specific facts of this case and the language of the Easterwood case, we disagree with their contention.

In the Easterwood case, the Supreme Court found Mrs. Easterwood's excessive train speed claim was pre-empted. Id. at ----, 113 S.Ct. at 1742-43. However, the Court in a footnote specifically stated it was not addressing the FRSA's preemptive effect on tort law duties such as the duty to slow or stop a train to avoid a specific, individual hazard. Id. at ---- n. 15, 113 S.Ct. at 1743 n. 15.

In this case there was a line of tank cars improperly parked, in violation of MoPac's safety rules and section 5.620(b) of the Texas Administrative Code, within one hundred and five feet from the MLK crossing. See 16 TEX.ADMIN.CODE § 5.620(b) (West 1988) (Tex.R.R.Comm'n, Visual Obstructions at Public Grade Crossings). Johnson testified these tank cars obstructed his view of the intersection at MLK and the railroad tracks. He also indicated the tank cars obstructed his view of the southern approach to the MLK crossing, the side from which Sharon Lemon was approaching. Johnson testified Johnson testified he had been going through this crossing ever since he started working for the railroad and he had 14 years experience as an engineer. He was aware his train could not stop on a dime in an emergency. He was also aware this crossing was very dark, i.e., unlit, was not protected by any device to warn an approaching motorist that a train was actually coming, contained multiple tracks, was elevated above the road level, and the road curved approaching the tracks from the south. The realization that his view of one side of the crossing was obstructed, coupled with his knowledge of this crossing, triggered a duty for Johnson to slow his train as he approached the MLK crossing. These illegally and improperly parked tank cars created a specific, individual hazard which required Johnson to continue to slow his train until he had a clear view of both sides of the intersection at MLK and the railroad tracks. His failure to slow the train under these conditions is evidence he was operating his train at an excessive rate of speed and is a claim that is not pre-empted by federal law. The improper parking of tank cars which obstruct the view of a crossing is not a hazard which the Secretary took into consideration when determining train speed limits under the FRSA. See Easterwood, 507 U.S. at ----, 113 S.Ct. at 1742, 1743. The trial court properly submitted appellees' claim that Johnson was "operating the train at an excessive rate of speed" for the jury to consider.

he would have seen Sharon Lemon's car sooner if the tank cars had not been improperly set out on the track. Although he stated he was always concerned with grade crossings, Johnson testified it never occurred to him to slow his train down for the MLK crossing even after he realized his view of part of the crossing was obstructed. He stated he had made a slight, one to two mile an hour, reduction in speed after entering Sweeny because the signal block at the east end of Sweeny had gone from clear to...