Williams v. Southern Pacific Transp. Co.

• Decision Date: 12 July 1990
• Docket Number: No. 01-88-00968-CV,01-88-00968-CV
• Citation: 804 S.W.2d 132
• Parties: Byron WILLIAMS, Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY and Greenville Steel Car Company, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 132

804 S.W.2d 132

Byron WILLIAMS, Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY and Greenville Steel Car Company, Appellees.

No. 01-88-00968-CV.

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

July 12, 1990.

Rehearing Overruled Jan. 24, 1991.

Jack Urquhart, Jack Carnegie, J. Greg Dow, Holtzman & Urquhart, Houston, for appellant.

W.T. Womble, W.T. Womble & Associates, JoAnn Storey, Davis & McFall, James D. Wise, Jr., James N. Isbell, Brown, Sims, Wise & White, Houston, for appellees.

Before DUGGAN, SAM BASS and HUGHES, JJ.

ON MOTION FOR REHEARING

DUGGAN, Justice.

This is an appeal from a take-nothing judgment entered on a jury verdict in a personal injury case. We deny the motion for rehearing, withdraw our earlier opinion dated September 14, 1989, and issue this.

On June 22, 1981, appellant, Byron Williams, was unloading a railway hopper car filled with limestone for his employer, Radcliff Materials, Inc. ("Radcliff"). The hopper car overturned and fell on Williams and a co-worker, injuring Williams and killing the co-worker. Appellee Southern Pacific Transportation Company ("Southern Pacific") owned the hopper car, which appellee Greenville Steel Car Company ("Greenville") had manufactured.

Williams filed suit for damages against Southern Pacific and Greenville, alleging: (1) strict liability based on defective design, manufacture, and marketing of the hopper car; (2) negligence; and (3) gross negligence.

In answers to special issues, the jury found that: (1) Southern Pacific and Greenville were not negligent, and Williams was negligent (Special Issue No. 1); (2) the hopper car manufactured by Greenville, and supplied by Southern Pacific, was not defectively designed (Special Issue No. 4); (3) neither Southern Pacific nor Greenville knew or should have known that the hopper car would turn over while unloading (Special Issue No. 5); (6) Williams' injuries were caused by his own negligence (Special Issue No. 2); and (7) Williams was not entitled to damages for his injuries (Special Issue No. 11). The trial court entered judgment in favor of Southern Pacific and Greenville against Williams. Williams appeals, asserting eight points of error.

Points of Error One, Two, Three, and Seven

In points of error one, two, three, and seven, Williams urges that the answers to certain special issues were established in his favor as a matter of law or, alternatively, that the jury's findings against him were against the great weight and preponderance of the evidence. Those issues inquired whether:

(1) the hopper car manufactured by Greenville and supplied by Southern Pacific was defectively designed (point of error one);

(2) Southern Pacific and Greenville either knew or should have known that the hopper car could turn over while unloading (point of error two);

(3) Southern Pacific and Greenville were negligent (point of error three); and

(4) Williams sustained damages (point of error seven).

In a jury trial, legal insufficiency points must be preserved through a motion for instructed verdict, a motion for a judgment notwithstanding the verdict, an objection to submission of an issue to the jury, a motion to disregard the jury's answer to a vital fact issue, or a motion for a new trial. Salinas v. Fort Worth Cab & Baggage Co., 725 S.W.2d 701, 704 (Tex.1987). Williams preserved his "no evidence" points of error one, two, and three for appeal by his motion for a new trial. However, Williams did not utilize any of these measures to preserve the "no evidence" portion of his complaint as to the jury's finding of zero damages in Special Issue No. 11. Therefore, point of error seven will not be considered on appeal. Id.

Even if the "no evidence" portion of point of error seven were to be considered, Williams would not be entitled to a reversal. While he contends that the zero damage award "infers that they [the jury] entered a judgment rather than a verdict," and "may be cause for suspicion that the answer was induced by prejudice or by improper influence," quoting Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 374, 124 S.W.2d 334, 335 (Tex.Comm'n App.1939, opinion adopted), he concedes that "such conduct alone does not constitute reversible error." However, he argues that reversal is required when such conduct is taken in conjunction with the contested findings, erroneous as a matter of law and fact, that neither Southern Pacific nor Greenville was negligent. Williams is denied the benefit of this predicate because we decide these claims adversely to him in points of error two and three, which follow. Johnson v. Whitehurst, 652 S.W.2d 441, 449 (Tex.App.--Houston [1st Dist.] 1983, writ ref'd n.r.e.).

When an appellant attacks the legal sufficiency of an adverse finding on an issue on which he had the burden of proof, he must demonstrate on appeal that the evidence conclusively established all vital facts in support of the issue. Ritchey v. Crawford, 734 S.W.2d 85, 86 (Tex.App.--Houston [1st Dist.] 1987, no writ). In reviewing a legal sufficiency point relating to an issue on which the appellant had the burden of proof, this Court first examines the record for evidence that supports the jury finding, while ignoring all evidence to the contrary. Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982).

Because points of error one, two, three, and seven, as well as two others of Williams' eight points, concern the legal and factual sufficiency of the evidence, we begin by reviewing such evidence. The testimony conflicted regarding whether the hopper car was defectively designed, whether Greenville (when it sold the hopper car) or Southern Pacific (when it supplied the car) knew or should have known that the hopper car could turn over while unloading, whether either Greenville or Southern Pacific was negligent, whether any such defective design or negligence was the producing cause of Williams' injuries, and whether Williams himself caused the accident. Employees of Southern Pacific, Greenville, and Radcliff, as well as outside consultants, testified in person and by deposition.

Prior to trial, the parties stipulated that a Class H-100-36 open top hopper car (no. 466439) overturned while being unloaded at Radcliff's facilities in June 1981. They also stipulated that a similar car overturned while being unloaded at Radcliff's facilities in May 1981. The testimony of Roland Townsend, Radcliff's general manager at the time of the accidents, indicated that Southern Pacific supplied the hopper cars to Radcliff after the two companies signed a contract in June 1980. The record does not show when Greenville sold hopper car no. 466439 to Southern Pacific.

Charles Day, Southern Pacific's division mechanical officer, testified that he investigated the hopper car that overturned in June 1981, and found nothing mechanically wrong with it. Based on his observation of hopper cars during his many years with the railroad, he also stated that there was nothing wrong with the design of the hopper car. Day concluded that uneven unloading caused the accident. He further stated that, in addition to the May and June 1981 incidents, he knew of two occurrences since 1975 when uneven loads caused cars to turn over. Day also testified that he did not know whether Southern Pacific warned users of hopper cars that the cars could turn over while unloading, but that he personally had cautioned some users that the cars could turn over if unloaded unevenly.

Kenneth Leaver, senior engineer-car for Southern Pacific, stated that the hopper car was designed properly and in accordance with the requirements of the Federal Railroad Administration ("FRA") and the Association of American Railroads ("AAR"). He also testified that Southern Pacific inspectors were present at the plant during construction of the hopper car, and reported that the car was designed according to the specifications. Southern Pacific set the specifications in accordance with requirements of the FRA and AAR. Leaver commented that at least 1,000 hopper cars, identical to the one that overturned, had been built for Southern Pacific, and that he had heard of only two overturnings, both at Radcliff.

Greenville's chief engineer and only witness, Thomas Minshull, testified that Greenville had not performed any testing to determine the stability of the hopper car during unloading. He stated he believed that the design and manufacture of the hopper car did not cause the accident, because this was the first time that he had heard of such an occurrence. He noted that hopper cars were designed 50 years ago, and that the design had proven itself over the years to be satisfactory in hauling limestone. Minshull also testified he was unaware of any other situations in which a Greenville hopper car similar to the one involved in the June 1981 accident turned over while being unloaded.

Roland Townsend testified that, in his 40 years of experience in the industry, he had never heard of hopper cars turning over either at Radcliff or at any of its competitors. He stated that he had attended meetings of aggregate (limestone, gravel) trade associations and had never heard of an accident similar to those at Radcliff's facilities.

A consultant retained by Williams, Dr. David Peters, who had degrees in applied mechanics and aeronautical and astronautical engineering, testified that, in his opinion, an open top hopper car was defective in carrying limestone because in normal use it could fall over. He stated that the accident was caused by excessive limestone caking up on the side of the car, causing it to flip over. He concluded that one or more of several design changes, including a lock-type coupler, locking center pin, the addition of weight to the car, or safety chains linking the wheels to the car, would render the car impossible to flip over. Peters admitted that if there was absolutely no doubt that the first compartment of the hopper car was empty, it was completely safe to open the...