Missouri Pacific R.R. Co. v. Limmer

• Decision Date: 29 November 2005
• Docket Number: No. 14-02-00688-CV.,14-02-00688-CV.
• Citation: 180 S.W.3d 803
• Parties: MISSOURI PACIFIC RAILROAD COMPANY d/b/a Union Pacific Railroad Company, Appellant, v. Patricia LIMMER, Billye Joyce Smith, and Bobbye Jean Nothnagel, Appellees.
• Court: Texas Supreme Court

180 S.W.3d 803

MISSOURI PACIFIC RAILROAD COMPANY d/b/a Union Pacific Railroad Company, Appellant, v. Patricia LIMMER, Billye Joyce Smith, and Bobbye Jean Nothnagel, Appellees.

No. 14-02-00688-CV.

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

November 29, 2005.

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Kathleen Hopkins Alsina, Harding J. Rome, Houston, Michael A. Hatchell, Austin, for appellant.

David M. Gunn, Kevin Dubose, Carl Crow, Russell S. Post, Houston, Deborah G. Hankinson, Dallas, for appellees.

Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.

OPINION ON REHEARING

EVA M. GUZMAN, Justice.

Upon consideration of the motion for rehearing filed by appellees Patricia Limmer, Billye Joyce Smith, and Bobbye Jean Nothnagel (collectively referred to herein as the "Limmers") and the responses thereto, we conclude that the trial court did not err in ruling against appellant Missouri Pacific Railroad Company d/b/a Union Pacific Railroad Company ("Union Pacific") as to its preemption defense. Accordingly, we grant the Limmers' motion for rehearing to this extent, deny the remainder of the Limmers' motion for rehearing, withdraw the opinions issued in this case on October 5, 2004, and issue the following opinion in their place.

In this wrongful-death action arising from a collision between decedent Billy Limmer's truck and a train at a railroad crossing, this court must determine whether the trial court erred in rejecting Union Pacific's defense that federal law preempts the Limmers' negligence claims. We conclude the trial court did not err in rejecting Union Pacific's preemption defense because there is legally and factually sufficient evidence to support the trial court's implied finding that Union Pacific failed to prove federal funds were used to install warning devices at the railroad crossing in question. We further conclude the trial court reversibly erred in submitting to the jury the Limmers' negligence claim based on Union Pacific's alleged failure to eliminate sight restrictions along its right-of-way because Texas law does not recognize this claim. Accordingly, we reverse the trial court's judgment and remand this case to the trial court for a new trial consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 24, 1994, a train struck and killed Billy Limmer when he attempted to cross railroad tracks¹ at the Front Street grade crossing in Thorndale, Texas ("Front Street Crossing"). When this accident occurred, Georgetown Railroad Company owned this train, and Southern Pacific Railroad Company ("Southern Pacific") operated it. Furthermore, at the time of this accident, Union Pacific owned the railroad tracks in question. At the time of the accident, the Front Street Crossing did not have automatic warning devices, which activate when a train approaches the crossing; rather, it had passive warning devices, including what are referred to as "crossbuck" signs — the familiar, white, X-shaped signs with black letters spelling out, "RAILROAD CROSSING." There was testimony at trial that trees and vegetation in the area of the crossing obscured visibility along the tracks at the time of the accident. Also, further down the track, there was a pile of crushed limestone to be used for construction work.

Billy Limmer's heirs, the Limmers, sued Union Pacific for negligence. The jury found that the Front Street Crossing was "extra-hazardous" (Question 1),² that Union Pacific's negligence in failing to provide automatic signals, a flag man, "and/or" a stop sign was a proximate cause of the collision (Question 2),³ and that Union Pacific's negligence in failing to eliminate sight restrictions caused by the limestone pile "and/or" the vegetation was a proximate cause of the collision (Question 3).⁴ The jury found that Billy Limmer's negligence was also a proximate cause of the accident, and it assigned proportionate responsibility for the collision at eighty-five percent to Union Pacific and fifteen percent to Billy Limmer. The jury returned separate compensatory damage awards for each of the Limmers. In its judgment, the trial court applied the proportionate-responsibility percentage to the jury's damage findings and awarded the Limmers a total amount of $8,733,458.70 plus postjudgment interest.

II. ISSUES PRESENTED

On appeal, Union Pacific presents the following issues for review:

(1) Did the trial court err in rejecting Union Pacific's preemption defense because Union Pacific conclusively proved as a matter of law that federal funds were expended to install warning devices at the Front Street Crossing, or, alternatively, is the trial court's implied finding that this did not occur against the great weight and preponderance of the evidence?

(2) Did the trial court reversibly err by submitting Union Pacific's alleged failure to eliminate sight restrictions as an independent basis of liability?

(3) Did the trial court err by refusing to instruct the jury as to the statutory duty of care owed concerning visual obstructions at public grade crossings?

(4) Did the trial court err in awarding prejudgment and postjudgment interest based on delays that were not Union Pacific's fault?

III. STANDARDS OF REVIEW

In the trial court, Union Pacific asserted the affirmative defense that certain federal regulations preempt all of the Limmers' claims in this case because federal funds were expended to install warning devices at the Front Street Crossing. Before we can determine the proper standard of review regarding this issue, we must determine whether it was tried to the bench or to the jury. The record is silent as to whether the parties agreed that this preemption issue would be tried to the bench rather than to the jury. Although the Limmers demanded a jury trial and paid the jury fee, the jury never heard any of the evidence or argument on the fact issue of whether federal funds were expended to install warning devices at the Front Street Crossing. The trial court admitted the documentary evidence regarding this issue for the court only, and the trial court heard the testimony on this issue outside the presence of the jury during the trial. The trial court did not mention this fact issue in the jury charge. The trial court stated several times that it, rather than the jury, would determine the preemption issue.⁵ No party objected to this procedure or indicated to the trial court that it was standing on its right to a jury trial.⁶ On appeal, the Limmers do not assert that this preemption issue had to be tried to the jury or that Union Pacific waived its preemption defense by not having its preemption proof admitted in evidence before the jury. On this record, we conclude Union Pacific and the Limmers waived any right they had to have the jury decide whether federal funds were expended to install warning devices at the Front Street Crossing. See Massey v. Galvan, 822 S.W.2d 309, 318-19 (Tex.App.-Houston [14th Dist.] 1992, writ denied) (stating that a party who has paid the jury fee and properly requested a jury waives its right to a jury trial by proceeding with a trial to the bench); Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat. Assur. Co., 875 S.W.2d 385, 386-88 (Tex.App.-Dallas 1993, no writ) (holding that party waived right to jury trial by allowing the trial court to conduct a bench trial without objecting or indicating to the trial court that it was standing on its perfected right to a jury trial).

Although the trial court filed no findings of fact or conclusions of law regarding the preemption issue, on appeal, we presume the trial court made all findings in favor of its judgment. See Pharo v. Chambers Cty., 922 S.W.2d 945, 948 (Tex.1996) (stating that, in a bench trial in which the trial court does not file findings of fact or conclusions of law, appellate courts presume the trial court made all findings in support of its judgment). Because a complete reporter's record is a part of the appellate record in this case, Union Pacific may challenge both the legal and factual sufficiency of the trial court's findings. See Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989). We apply the same standards of review to these challenges as those applied in the review of jury findings. See id.

In its first issue, Union Pacific attacks the legal sufficiency and factually sufficiency of the evidence to support the trial court's implied finding that Union Pacific failed to prove federal funds were expended to install warning devices at the Front Street Crossing. This finding relates to Union Pacific's preemption defense, an issue on which Union Pacific had the burden of proof. Therefore, for Union Pacific to succeed in its legal-sufficiency challenge, we must conclude that Union Pacific conclusively proved its preemption defense as a matter of law. See Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001). In making this determination, we must consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). We must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. See id. at 827. We must determine whether the evidence at trial would enable a reasonable and fair-minded person to find the facts at issue. See id. The factfinder is the sole judge of the credibility of the witnesses and the weight to give their testimony. See id. at 819. Evidence is conclusive only if reasonable people could not differ in their conclusions. See id. at 819.

As to Union Pacific's factual-sufficiency challenge, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). After considering and weighing all the evidence, we set aside the fact finding only if...