Opinion
No. 14-02-00688-CV
Opinions filed October 5, 2004.
On Appeal from the 151st District Court, Harris County, Texas, Trial Court Cause No. 95-42790.
Reversed and Rendered and Plurality.
Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN. (FROST, J., Concurring and HEDGES, C.J., dissenting).
PLURALITY OPINION
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 federal law preempts appellees' negligence claims alleging inadequate warning measures and negligent failure to eliminate sight restrictions. We unanimously conclude that federal law preempts appellees' claim based on allegedly inadequate warning measures. Regarding the negligence claim for failure to eliminate sight restrictions, the concurrence concludes that federal law also preempts this claim; however, two panel members conclude that federal law does not preempt said claim and address whether, under the facts of this case, Texas recognizes a negligence claim for appellant's alleged failure to eliminate sight restrictions along its right-of-way. The author of the plurality concludes that Texas law does not recognize such an independent negligence claim. The dissent maintains that Texas law recognizes such an action as an independent claim. Accordingly, this court reverses the trial court's judgment and renders judgment that appellees take nothing.
Factual and Procedural Background
On April 24, 1994, Billy Limmer was struck and killed by a train, owned by Georgetown Railroad Company and operated by Southern Pacific Railroad Company ("Southern Pacific"), when his pickup truck attempted to cross railroad tracks at the Front Street grade crossing in Thorndale, Texas. At the time of the accident, appellant Missouri Pacific Railroad Company d/b/a Union Pacific Railroad Company ("Union Pacific") owned these tracks. The 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.
The tracks had previously been owned by Missouri Pacific Railroad Company, but that company was subsequently acquired by Union Pacific Railroad Company. At the time of the accident, Union Pacific owned the tracks.
Billy Limmer's heirs, appellees Patricia Limmer, Billye Joyce Smith, and Bobbye Jean Nothnagel (collectively referred to herein as the "Limmers") sued Union Pacific for negligence. The jury found that the Front Street crossing was "extra-hazardous" (Question 1), 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), 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). The jury further found that Mr. Limmer's negligence was also a proximate cause of the accident, and it assigned proportionate responsibility for the collision at 85 percent to Union Pacific and 15 percent to Mr. Limmer. The jury returned separate compensatory damage awards for each of the Limmers. After applying the proportionate-responsibility percentage, the Limmers were awarded a total amount of $8,733,458.70, including prejudgment interest.
Question 1 defined an extra-hazardous crossing as follows:
A railroad grade crossing is "extra-hazardous" when, because of surrounding conditions, it is so dangerous that person using ordinary care cannot pass over it in safety without some warning other than the usual cross buck [sic] sign.
Question 2 was conditioned on an affirmative response to Question 1 and stated as follows:
Was the negligence, if any, of the Missouri Pacific Railroad, through its agents or employees, a proximate cause of the collision in question? In answering this question, you may consider only the following acts of negligence, if any: (1) failure to provide automatic signals (such as flashing lights or gates); (2) failure to provide a flag man at the Front Street crossing; and/or (3) failure to install a stop sign.
Question 3 provided as follows:
Was the negligence, if any, of the Missouri Pacific Railroad, through its agents or employees, a proximate cause of the collision in question? In answering this question, you may consider only the following acts of negligence: (1) failure to eliminate a sight restriction, if any, caused by a pile of crushed limestone at the crossing; and/or (2) failure to eliminate a sight restriction, if any, caused by vegetation at or near the crossing.
Issues
On appeal, Union Pacific contends the trial court erred in (1) failing to rule that the Limmers' claims are preempted by federal law because federal funds were expended in the installation and upgrade of the warning devices at the accident site, (2) submitting Union Pacific's alleged failure to eliminate sight restrictions as an independent ground of recovery, (3) submitting a broad-form jury question on damages that included a faulty liability theory, (4) refusing to instruct the jury as to the statutory duty of care owed concerning visual obstructions at public grade crossings, and (5) awarding prejudgment and postjudgment interest that was based on delays that were not Union Pacific's fault. Because the resolution of Union Pacific's first two issues is dispositive of this appeal, we do not reach its remaining issues.
Federal Preemption A. Introduction
In its first issue, Union Pacific argues that all of the Limmers' common-law negligence claims are preempted by federal regulations concerning warning devices at public grade crossings. See generally Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 347-558 (2000).
Under Texas common law, a railroad has a duty to warn motorists of approaching trains at extra-hazardous railroad crossings. See, e.g., Osuna v. S. Pac. R.R., 641 S.W.2d 229, 230 (Tex. 1982).
State law is preempted under the Supremacy Clause of the United States Constitution when it conflicts with or frustrates federal law. U.S. CONST. art. VI, cl. 2; CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663 (1993). However, when a subject is traditionally governed by state law, a court interpreting a federal statute governing the same subject should be reluctant to find preemption unless it is "the clear and manifest purpose of Congress." Id. at 663-64. If the federal statute at issue contains an express preemption clause, then the analysis must focus on the plain meaning of the clause. Id.
In 1970, Congress passed the Federal Railroad Safety Act ("FRSA") for the purpose of promoting "safety in every area of railroad operations and [to] reduce railroad-related accidents." 49 U.S.C. § 20101 (1997). The FRSA authorizes the Secretary of Transportation to implement regulations regarding railroad safety. See id. § 20103(a) (Supp. 2003). It also contains an express preemption clause:
All statutory citations are to the current version of the statute, unless otherwise noted.
Laws, regulations, and orders related to railroad safety . . . shall be nationally uniform to the extent practicable. A State may adopt or continue in force a law, regulation, or order related to railroad safety . . . until the Secretary of Transportation . . . prescribes a regulation or issues an order covering the subject matter of the State requirement. A State may adopt or continue in force an additional or more stringent law, regulation, or order related to railroad safety . . . when the law, regulation or order —
(1) is necessary to eliminate or reduce an essentially local safety . . . hazard;
(2) is not incompatible with a law, regulation or order of the United States Government; and
(3) does not unreasonably burden interstate commerce.
Id. § 20106 (1997 Supp. 2003).
In 1973, Congress passed the Highway Safety Act, which created the Federal Highway Crossings Program and made funds available to states for the "construction of projects for the elimination of hazards of railway-highway crossings." 23 U.S.C. § 130(a) (2002). To participate in the program, states were required to "conduct and systematically maintain a survey of all highways to identify those railroad crossings which may require separation, relocation, or protective devices, and establish and implement a schedule of projects for this purpose." Id. § 130(d). The projects had to include, at a minimum, signs for all railway crossings. Id. The Secretary of Transportation, through the Federal Highway Administration, promulgated various regulations implementing the crossings program. The rules found at 23 C.F.R. § 646.214(b) (1999) specifically address the design of grade crossing improvements, and subsections (3) and (4) of that provision address the adequacy of warning devices installed under the crossings program.
In Easterwood, the United States Supreme Court held that, when sections 646.214(b)(3) and (4) are applicable, state tort law is preempted. See Easterwood, 507 U.S. at 670. The Court reasoned that these regulations displace state and private decision-making authority by specifying the devices to be installed and the means by which railroads are to participate in their selection. Id. at 671. In Shanklin, the Court held that the applicability of these regulations to any given railroad crossing does not depend on "an individualized determination of adequacy" by a diagnostic team or federal officials; rather, the regulations are applicable to all crossings where warning devices are installed using federal funds. See Shanklin, 529 U.S. at 356. The Court explained that it is the displacement of State law by the use of federal funds that has preemptive effect, not whether the installation of devices at a particular crossing meets the regulatory standards. See Shanklin, 529 U.S. at 357-58.
B. The Nature of Union Pacific's Preemption Argument
When faced with a federal preemption challenge, a trial court must first ascertain the underlying facts on which the challenge is based. If the evidence is undisputed, the trial court makes a determination of the facts as a matter of law. See Armijo v. Atchison, Topeka Santa Fe Ry., 19 F.3d 547, 550-51 (10th Cir. 1994) (holding that there was no evidence that federal funds were spent at the crossing before the accident occurred; thus, as a matter of law, the state tort claim was not preempted). If the evidence is disputed, the trial court either acts as a fact finder itself or submits the fact issues to the jury for its determination. See Rushing v. Kansas City S. Ry., 185 F.3d 496, 516-17 (5th Cir. 1999) (holding fact issue precluded summary judgment on preemption defense). Once the facts are established, the trial court then decides the legal question of whether, based on the established facts, federal law preempts the state claims. Trans World Airlines, Inc. v. Morales, 949 F.2d 141, 144-45 (5th Cir. 1991) (per curiam).
Union Pacific argues this court should review the trial court's rejection of its preemption arguments completely under a de novo standard of review because preemption affects the court's subject matter jurisdiction. Under the federal system in the United States, once a state establishes certain courts as courts of general jurisdiction — such as the district court below — it is presumed that these courts have the power to adjudicate claims under federal statutes, unless otherwise provided by state or federal law. See U.S. Const., art. VI, cl. 2; TEX. CONST. art. V, § 8; TEX. GOV'T CODE § 24.007, 24.008; Howlett v. Rose, 496 U.S. 356, 367-69 (1990); Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000); Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 135 S.W.3d 365, 381 (Tex.App.-Houston [14th Dist.] 2004, pet. filed). Neither of the statutes at issue in the present case contains exclusive jurisdiction provisions that would apply to the facts before us. See 23 U.S.C. § 130 (FHSA); 49 U.S.C. § 20101-20153 (FRSA). Thus, the argument to be considered is not that the district court was without jurisdiction to hear the case but, instead, that the Limmers' state law claims are barred because the tort law relied upon has been preempted, leaving Union Pacific with no duty it could have failed to fulfill. In simpler terms, Union Pacific's attack is directed against the Limmers' claims, not the jurisdiction of the court to hear the dispute.
Union Pacific cites Cadillac Insurance Co. v. L.P.C. Distributing Co., 770 S.W.2d 892, 895 (Tex.App.-San Antonio 1989, writ denied), for the proposition that federal preemption is a challenge to the court's subject matter jurisdiction and, thus, is always a question of law. We disagree that section 646.214(b) defeats state court jurisdiction. In Cadillac Insurance, the court dealt with a claim under the Employee Retirement Income Security Act of 1974 ("ERISA"). Id. at 893. ERISA contains clauses creating both exclusive jurisdiction for the federal courts on some issues and concurrent jurisdiction in both state and federal courts on other issues. See 29 U.S.C. § 1132(e) (1999). The determination of whether preemption under ERISA challenges a court's subject matter jurisdiction depends on whether the particular claim falls under the exclusive jurisdiction provision. See Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 546-47 (Tex. 1991). If the claim is under the exclusive jurisdiction provision, a state court has no subject matter jurisdiction to hear the claim. See id. However, if the claim does not fall under the exclusive provision, ERISA may still preempt state law claims but it does not affect a state court's power to hear the case. See id. Compliance with section 646.214(b) preempts state law claims but does not defeat state court jurisdiction. See Easterwood, 507 U.S. at 670.
The fact that, if Union Pacific is successful in its preemption arguments, the Limmers could not recover on their claims does not deprive the district court of jurisdiction any more than any successful defense could be said to take jurisdiction from a court. Preemption may end the dispute, but it does not affect subject matter jurisdiction.
The preemption argument raised by Union Pacific is not jurisdictional in nature; rather, it is an affirmative defense that Union Pacific was required to plead and prove in the trial court. See Greathouse v. Glidden Co., 40 S.W.3d 560, 564 n. 2 (Tex.App.-Houston [14th Dist.] 2001, no pet.). Union Pacific preserved its preemption claims by asserting them in its motion for directed verdict and motion for judgment notwithstanding the verdict, and also by objecting to submission of the court's charge. However, Union Pacific did not request any charge issues relating to preemption. Accordingly, to establish preemption, Union Pacific must prove its underlying preemption facts as a matter of law. See Tex. R. Civ. P. 279 (all independent grounds of defense not conclusively established and no element of which is submitted or requested are waived).
Nor does Union Pacific cite any place in the record in which either the court ordered the preemption issue tried to it or the parties agreed to try the issue before the court. Indeed, each time the issue was raised in the trial court, it was raised pursuant to one of Union Pacific's several motions arguing preemption as a matter of law. In short, even though Union Pacific had the burden of proof, it never attempted to raise any factual issues before the jury regarding preemption.
Our conclusion comports with that of other courts examining whether the party claiming preemption established, as a matter of law, facts that precluded state claims. See, e.g., O'Bannon v. Union Pac. R.R., 169 F.3d 1088, 1090-91 (8th Cir. 1999); Wagoner v. CSX Transp., Inc., 246 F. Supp. 2d 1002, 1007 (N.D. Ind. 2003); Sec. 1st Bank v. Burlington N. Sante Fe Ry., 213 F. Supp. 2d 1087, 1090-91 (D. Neb. 2002); McDaniel v. S. Pac. Transp., 932 F. Supp. 163, 167 (N.D. Tex. 1995); Duncan v. Kansas City S. Ry., 773 So.2d 670, 680 (La. 2000).
C. The 1977 Program
Union Pacific contends that because it established as a matter of law that federal funds were expended to install warning devices at the crossing under a 1977 program to improve crossings statewide, it was therefore entitled to judgment as a matter of law on all claims. In our review, we take as true all evidence favorable to the Limmers and indulge every reasonable inference and resolve any doubts in the Limmers' favor. Provident Life and Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Both direct and circumstantial evidence may be used to establish any material fact. Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex. 2001).
Union Pacific produced sufficient evidence to establish as a matter of law the use of federal funds in the installation of warning devices at the Front Street crossing, based on the affidavit and deposition testimony of Darin Kosmak, the Railroad Liaison Manager for the Texas Department of Transportation ("TDOT"), and the trial testimony of Douglas Woods, Union Pacific's Manager of Industries and Public Projects. Kosmak stated in his affidavit as follows:
In 1977 [TDOT] implemented a program to improve all unsignalized public grade crossings in Texas. Between 1977 and 1981 the State of Texas received Federal Highway Funding in order to implement this program.
Pursuant to Section 203 of the Federal-Aid Highway Act of 1976, all crossbuck protected crossings on the Missouri Pacific Railroad Company's road crossing received the benefit of Federal Funds between approximately 1977 and 1981. These funds were expensed to either install or upgrade crossing protection at all crossbuck-protected crossings to consisted [sic] of two (2) reflectorized crossbucks. As evidenced by the attached Exhibit Pages Nos. 1-2, The Missouri Pacific Railroad Company agreed to participate in this program. As evidenced by Exhibit Page No. 3, the letting date for the contract to install metal crossbuck poles and signs for District 17, which include DOT Crossing 446 546V at West Front Street (4th Street) in Thorndale, Milam County, Texas, was December 1977. The contract price, which was a 100% Federally-funded project, for District 17 was $395,069.26.
Under this program, the Secretary of Transportation determined the type of warning devices to be installed at DOT crossing No. 446 546V at West Front Street (4th Street) in Thorndale, Milam County, Texas; determined the means by which The Missouri Pacific Railroad Company participated in the selection; and also allocated Federal Funds for said installation.
In his deposition testimony, Kosmak confirmed that federal funds were expended on the Front Street crossing to upgrade or change the crossing's warning devices prior to Mr. Limmer's death in April 1994. Woods's testimony provided the link between the expenditure of federal funds and the actual installation of the reflectorized crossbucks at the Front Street crossing. After stating his familiarity with the type of reflectorized metal crossbuck blades that had been installed under the 1977 program, Woods was shown a photograph of the Front Street crossing as it appeared around the time of the accident and then testified that the blades in the photograph appeared to be the same as those installed under the 1977 program. Union Pacific thus established that federal funds were expended in connection with the installation of warning devices at the Front Street crossing.
The Limmers have not identified any evidence disputing the fact that federal funds were expended in the installation of reflectorized crossbucks at the Front Street crossing; they merely resort to allegations that Kosmak and other witnesses testifying on behalf of Union Pacific lacked personal knowledge regarding this fact. But a nearly identical challenge to similar evidence was made and rejected in McDaniel v. S. Pac. Transp., 932 F. Supp. 163, 167 (N.D. Tex. 1995). As detailed above, Union Pacific presented strong circumstantial evidence that reflectorized crossbucks were installed at the Front Street crossing using federal funds in accordance with the 1977 program. Even when this evidence is viewed in a light most favorable to the Limmers, we find that there is no genuine issue of material fact regarding federal funding of the installation of warning devices under the 1977 program.
The Limmers cite the recent decision authored by Judge Sim Lake in Lesly v. Union Pacific R.R. Co., No. H-03-0772 (S.D. Tex. June 28, 2004), in support of their position. This case is distinguishable. In Lesly, the court denied the defendant's motion for partial summary judgment based on the fact that retroreflective tape is not, in and of itself, a "warning device" as defined by the Manual of Uniform Traffic Control Devices. Id. at p. 10. In dicta, the court stated that the evidence established only that federal funds were expended to bring crossbucks located within the state up to minimum safety standards, and that it was unclear whether such funds were used to improve the warning device at the specific crossing where the accident occurred. Id. at pp. 9-10. In contrast, in the present case, Union Pacific has furnished evidence, as set forth above, that establishes the expenditure of federal funds at the Front Street crossing where the accident occurred. Therefore, the Limmers' reliance on Lesly is misplaced.
The Limmers also cite the opinion issued in Hargrove v. Missouri Pacific R.R. Co., 861 So.2d 903 (La.App. 3 Cir. 2003). As in Lesly, the evidence presented by the defendant in Hargrove fell far short of the evidence presented by Union Pacific in the present case. The Hargrove defendant's summary-judgment evidence indicated only that a federal grant to fund a crossing project was under consideration. Id. at 908. The court noted that "there is nothing to show that any federal money was used to install warning devices specifically at the Cary Avenue crossing." Id. In the present case, Union Pacific established through Woods's testimony that the installation of warning devices using federal funds actually occurred, as detailed above. As with Lesly, the Limmers' argument based on Hargrove is not persuasive.
Because the evidence supports the conclusion that federal funds were expended in connection with the installation of warning devices under the 1977 program, we find it unnecessary to consider the parties' contentions regarding the expenditure of federal funds under the 1989 program, which involved the installation of reflectorized material on the back of crossbucks and accompanying posts.
D. The Federal Preemption Question
It thus remains to be determined whether, based on the established facts, federal law preempts the Limmers' state law claims. See Morales, 949 F.2d at 144-45. In the present case, the trial court submitted Questions 1 and 2 to the jury, which concerned, respectively, whether the Front Street crossing was extra-hazardous and whether Union Pacific was negligent in failing to provide additional warning devices, such as automatic signals, a flag man, and/or a stop sign. See supra notes 2 and 3. We conclude the trial court erred in doing so because the United States Supreme Court has held that once federal funds have been used to install warning devices, the railroad is relieved of liability as to those claims. See Shanklin, 529 U.S. at 358; Easterwood, 507 U.S. at 670.
Although this opinion is labeled a "plurality opinion" because no two justices agree on much of the analysis contained herein, we note for clarification purposes that all three justices agree with the federal-preemption analysis in this opinion as to Questions 1 and 2. Therefore, the part of this opinion that addresses why federal law preempts the claim submitted to the jury in Questions 1 and 2 is the unanimous opinion of this court.
But we have not finished our inquiry. Union Pacific argues that federal preemption extends not only to the Limmers' claims concerning the adequacy of warning devices at the Front Street crossing, but also to the Limmers' remaining negligence claim concerning Union Pacific's failure to eliminate sight restrictions. See supra note 4. Two members of this panel disagree. The Third Circuit recently addressed this very same issue, and we find its reasoning persuasive. See Strozyk v. Norfolk S. Corp., 358 F.3d 268 (3d Cir. 2004); see also Shanklin v. Norfolk S. Ry., 369 F.3d 978 (6th Cir. 2004).
In Strozyk, the court held that federal law does not preempt state law claims for failure to eliminate sight restrictions, stating:
We can find nothing in the text of the regulation [§ 646.214(b)] that dictates that the Strozyks' visibility claim was preempted along with their claims regarding the adequacy of the warning devices. To the contrary, the plain language of the regulation indicates that the subject matter is the adequacy of warning devices, not the considerations involved in choosing them or state negligence law more broadly.
Strozyk, 358 F.3d at 273. For preemption to be found, the regulation must "substantially subsume" a subject area of state law. Id. The Strozyk court found that the "mere listing of various conditions that would require active warning devices as a matter of federal law does not constitute substantial subsumption requiring the displacement of related state law." Id. It ultimately concluded as follows:
While, as Easterwood and Shanklin make clear, § 646.214(b)(3) and (4) substantially altered the landscape of railroad liability, by restricting tort plaintiffs from interposing state law obligations concerning appropriate warning devices, the regulations do not eclipse those duties ensuring safe grade crossings that are unrelated to warning devices, such as the duty to keep visibility at grade crossings free from obstructions.
Id. at 276-77. Therefore, two panel members decline to adopt the more expansive view urged by Union Pacific and conclude that the Limmers' negligence claim relating to Union Pacific's alleged negligent failure to eliminate sight restrictions is not preempted by federal law.
While Union Pacific, citing a federal vegetation regulation, 49 C.F.R. 213.37(b), raises an additional ground for federal preemption on appeal, we need not consider it here. In order to preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion, state the specific grounds therefor, and obtain a ruling. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991). Because Union Pacific did not assert in the trial court any preemption argument based on this particular regulation, we find that Union Pacific failed to preserve this issue for appellate review.
Accordingly, this court sustains Union Pacific's first issue as to the Limmers' negligence claim concerning inadequate warning measures (Questions 1 and 2), but this court overrules the first issue as to the Limmers' negligence claim for failure to eliminate sight restrictions (Question 3).
Failure to Remove Sight Restrictions
In its second issue, Union Pacific argues that, even if federal law does not preempt the Limmers' negligence claim in Question 3, its alleged failure to eliminate sight restrictions cannot be an independent ground of negligence under Texas law. See supra note 4. To resolve this issue, a review of a line of Texas Supreme Court cases from the late nineteenth century is essential. First, the Texas Supreme Court held several times that the failure of a railroad company to eliminate sight restrictions along its right-of-way does not necessarily constitute negligence, but that such a failure may serve as an independent ground of negligence, if the fact finder determines it to be negligence after considering all the facts and circumstances. See Galveston, H. S.A. Ry. Co. v. Michalke, 38 S.W. 31 (Tex. 1896) (upholding ruling by court of civil appeals that trial court did not err in instructing the jury regarding sight restrictions and stating whether railroad company's permitting of sight restrictions constituted negligence was question for fact finder), denying writ of error as to Galveston, H. S.A. Ry. Co. v. Michalke, 37 S.W. 480 (Tex.Civ.App. 1896) (finding no error in trial court's instruction to jury that "[i]f you believe from the evidence that defendant permitted restrictions to be placed and remain upon its track and right-of-way, so as to obstruct the view of plaintiff in approaching the public crossing in the town of Weimar, and if you believe such acts, if any, constituted negligence on the part of defendant, and that they were the proximate cause of plaintiff's injuries, and that plaintiff did not by his negligence contribute to his injuries, then you will find your verdict for the plaintiff"); Receivers of Houston T.C. Ry. Co. v. Stewart, 17 S.W. 33 (Tex. 1891) (holding that there was sufficient evidence to support the trial court's fact finding that railroad company committed negligence by placing boxcars on its side track that obstructed the view of the main track and that such a finding supports a negligence claim because whether railroad company negligently used its side track was a question of fact); Dillingham v. Parker, 16 S.W. 335, 335-36 (Tex. 1891) (holding trial court erred in instructing jury that a railroad company would necessarily be negligent if it allowed cars on its side track to obstruct the view of the main track near a crossing, because whether such action by the railroad company constitutes negligence under the facts and circumstances of the case is a question for the fact finder); Eames v. T. N.O. Ry. Co., 63 Tex. 660, 663-65 (Tex. 1885) (holding plaintiff alleged facts that a jury could find to constitute negligence, in case where plaintiff alleged railroad company negligently allowed bushes to grow on its right-of-way to the extent that they could conceal cattle, despite the railroad company's alleged knowledge of the presence of free-roaming cattle near the track that might be obscured from the train operator's sight by the bushes).
For ease of reference, this line of cases is referred to as the " Michalke line of cases."
The Texas Supreme Court again visited this topic in the Rogers case, in which it held the trial court erred in instructing the jury that any failure of the railroad company to eliminate sight restrictions would necessarily constitute negligence. See Missouri, K. T. Ry. Co. of Texas v. Rogers, 40 S.W. 956, 957-58 (Tex. 1897). The Rogers court stated the trial court erroneously charged the jury that the railroad company's failure to eliminate sight restrictions alone would necessarily constitute negligence, regardless of the care with which the railroad company operated its train. Rogers, 40 S.W. at 957. Although the Rogers court recognized its Michalke line of cases, it also cited Cordell, a New York decision holding that the existence of sight restrictions along a railroad company's right-of-way cannot be an independent ground of negligence, although it may be a circumstance material to the issues of the plaintiff's alleged contributory negligence and the railroad company's alleged negligence in operating the train. See id. at 958 (citing and quoting Cordell v. N.Y. Cent. Hudson River Ry. Co., 70 N.Y. 119 (N.Y. 1877)). Though the Cordell case is contrary to the Michalke line of cases, the Rogers court quoted from Cordell's holding and stated that the quotation properly states Texas law, subject to a qualification relating to contributory negligence that is not relevant to the issues in the case before us. See id. at 958. The Rogers court stated that the existence of sight restrictions would not give rise to a negligence claim if the train operator exercised such care in the operation of its train as a prudent person, under similar circumstances, having due regard for the safety of those traveling on the highway over the railroad would have exercised. See id. at 958.
While, on the whole, the Rogers court seems to conclude that sight restrictions are not an independent ground of negligence, there is some language in the opinion that might cloud the issue. See id. at 957-58. After stating that a railroad company's failure to eliminate sight restrictions does not necessarily constitute negligence, the Rogers court notes that it is a question of fact for the jury whether, under the circumstances, the restriction constitutes negligence and whether, under the conditions existing at the time, the railroad company exercised due care in the operation of its train. See id. While this statement may indicate that sight restrictions are to be considered in determining the train operator's negligence, if any, in operating the train, the statement may indicate to some that sight restrictions can constitute an independent ground of negligence.
The Rogers court also cites the Dillingham case for the proposition that it is a fact question for the jury whether sight restrictions constitute negligence by the railroad company. 40 S.W. at 957-58.
One year later in the Knight case, the Texas Supreme Court dispelled any confusion as to the meaning of its opinion in Rogers. See Int'l G.N. Ry. Co. v. Knight, 45 S.W. 556, 557-58 (Tex. 1898). In Knight, the trial court, in its general-verdict instructions, instructed the jury it could find the railroad company liable based solely on its determination that the company's failure to eliminate sight restrictions (1) was an act that an ordinary prudent person would not have committed under like circumstances; (2) was negligence; and (3) was the proximate cause of the decedent's death, without any contributory negligence by the decedent. Knight, 45 S.W. at 557. Noting that Rogers had held that sight restrictions cannot constitute negligence but are merely a matter to be considered by the fact finder as to whether the operator of the train was negligent, the court stated that the railroad company's failure to eliminate sight restrictions in Knight could not be deemed to be negligence either in law or in fact. Id. The Knight court held that, while the evidence was sufficient to support a jury finding that the railroad company's negligence in operating its train proximately caused the decedent's death without any contributory negligence of the decedent, a new trial was required because the jury may have found the company liable based solely on its failure to eliminate sight restrictions under the trial court's erroneous jury instructions. Id. at 556-57. Further, the court stated that, under its Rogers precedent, the presence of sight restrictions was material only to the extent it might affect the determination of the company's negligence in operating its train at the crossing. Id. at 557-58. Thus, although the Michalke line of cases indicated that failure to eliminate sight restrictions could constitute an independent ground of negligence, in Knight, the court held that sight restrictions could not constitute an independent ground of negligence, relying upon Rogers. Knight, 45 S.W. at 557-58; Rogers, 40 S.W. at 957-58.
The dissent states that the Michalke line of cases does not conflict with Rogers and Knight. I disagree for the reasons stated above. The dissent further states that the McCrorey court agrees that there is no conflict between these two lines of cases. See post at n. 3. The McCrorey court did state that it saw no conflict between the holding in Stewart (rather than the entire Michalke line of cases) and the holding in Knight. See Galveston, H. S.A. Ry. Co. v. McCrorey, 23 S.W.2d 691, 694 (Tex. Comm'n App. 1930, judgm't adopted). However, the McCrorey court went on to state that (1) it interprets Stewart as holding that sight restrictions alone cannot constitute an independent ground of negligence; and (2) if there is anything in Stewart that can be construed to conflict with Knight, then Knight controls because it is the supreme court's latest ruling on the subject. See id. Likewise, after discussing the Michalke case, the McCrorey court stated that Knight governs to the extent of any conflict with Michalke. See id. The Michalke line of cases stated that issues of a railroad's negligence as to sight restrictions are fact questions for the jury. After the jury answered such issues in favor of the plaintiff, the McCrorey court reversed and rendered a judgment that the plaintiff take nothing because sight restrictions alone cannot constitute an independent ground of negligence under Knight. See id. at 692-95. Therefore, notwithstanding some gracious language in the McCrorey opinion that might indicate the contrary, there is a conflict between these two lines of cases.
The Texas Supreme Court has not revisited this issue in the 106 years since it decided Knight; however, lower courts applying Knight have held that plaintiffs should take nothing if their only viable basis for negligence liability against a railroad company is an alleged failure to eliminate sight restrictions, because such a failure is not an independent ground of negligence. See Atchison, Topeka Santa Fe Ry. Co. v. Rubrecht, 445 S.W.2d 784, 789 (Tex.Civ.App.-Fort Worth 1969, writ ref'd n.r.e.) (reversing and rendering a take-nothing judgment because, as a matter of law, speed of train could not have proximately caused plaintiff's injuries and because failure of railroad company to eliminate sight restrictions, though found by the jury to be negligent, cannot constitute an independent ground of negligence under Rogers and Knight); Wichita Falls S.R.R. Co. v. Anderson, 144 S.W.2d 441, 443-45 (Tex. Civ. App.-Eastland 1940, writ dism'd judgm't cor.) (holding plaintiff could not recover as a matter of law because, among other things, the failure to eliminate sight restrictions is not a ground of actionable negligence under Rogers and Knight); Texas P. Ry. Co. v. Boyle, 29 S.W.2d 927, 930 (Tex.Civ.App.-El Paso 1930, writ dism'd) (reversing and rendering take-nothing judgment because the only ground of alleged negligence submitted to jury was failure to eliminate sight restriction, which is not itself negligence under Rogers and Knight); Texas N.O. Ry. Co. v. Adams, 27 S.W.2d 331, 335 (Tex.Civ.App.-Beaumont 1930, writ dism'd) (reversing and rendering a take-nothing judgment because plaintiff's other alleged grounds of negligence failed as a matter of law and because failure to eliminate sight restrictions is not an independent ground of negligence under Rogers and Knight); Galveston, H. S.A. Ry. Co. v. McCrorey, 23 S.W.2d 691, 692-95 (Tex. Comm'n App. 1930, judgm't adopted) (reversing and rendering take nothing judgment against plaintiff because jury found no negligence in the operation of the train but only in the railroad company's failure to eliminate sight restrictions, which the court concludes is not an independent ground of negligence under Rogers and Knight).
These courts are correct that under Rogers and Knight, the Texas Supreme Court has declared that the failure to eliminate sight restrictions is not an independent ground of negligence. As an intermediate court of appeals, this court is bound to follow established precedent from the Texas Supreme Court. Consideration of any changes to common-law rules must be left to that higher authority. Lubbock County, Tex. v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002); Deutsch v. Hoover, Bax Slovacek, L.L.P, 97 S.W.3d 179, 195 (Tex.App.-Houston [14th Dist.] 2002, no. pet.).
Even though some states have determined that the failure to eliminate sight restrictions can be an independent basis of negligence liability, see, e.g., Alabama Great S. Ry. Co. v. Lee, 826 So.2d 1232, 1236 (Miss. 2002) (holding that under Mississippi precedents, railroad company may be independently liable for its negligent failure to eliminate sight restrictions caused by vegetation on its right-of-way), others hold that the failure to eliminate sight restrictions does not constitute an independent ground of negligence, although the sight restrictions may be considered by the fact finder in assessing the negligence of the train operator, see, e.g., Alabama Great S. Ry. Co. v. Johnston, 199 So.2d 840, 843-44 (Ala. 1967); Cowles v. New York, N.H. H.R. Co., 66 A. 1020, 1023 (Conn. 1907); Cordell, 70 N.Y. at 119. The Texas Supreme Court has chosen the latter rule and this court cannot change the law in this regard. See Lubbock County, Tex., 80 S.W.3d at 585; McCrorey, 23 S.W.2d at 694-95.
The Limmers argue, and the dissent agrees, that Knight and Rogers do not apply to the facts before us because Union Pacific did not operate the train, it merely owned the right-of-way. In Rogers and Knight, and those cases cited thus far regarding sight restrictions, the train operator also owned the right-of-way. As a matter of logic, if, as to sight restrictions, a right-of-way owner is not subject to negligence liability as a right-of-way owner for accidents in which it operates the train, then there is no apparent reason that an owner should be subject to negligence liability in its capacity as owner of the same right-of-way for accidents in which another company operates the train. Presuming that the Limmers timely sued Southern Pacific — the operator of the train — and that the Limmers have claims that are not preempted by federal law, under Rogers and Knight, they would be free to seek a determination as to whether Southern Pacific negligently operated the train at the time of the accident made the basis of this suit, giving full consideration to the sight restrictions and other conditions at the time of the accident. The fact that different companies operate the train and own the right-of-way does not alter the rationale stated in Rogers and Knight.
The dissent seems to indicate that right-of-way owners will be charged with knowledge of sight restrictions along their right-of-way, but that train operators who do not own the right-of-way will not be so charged because they generally will not be aware of such restrictions and their potential dangers. See post at p. 5. First, right-of-way owners may or may not be aware of dangers caused by sight restrictions on their right-of-way. In any event, the Texas Supreme Court has held that these owners have no negligence duty to eliminate sight restrictions that might contribute to accidents at crossings. See Knight, 45 S.W. at 557-58; Rogers, 40 S.W. at 957-58. Train operators do have a duty to exercise ordinary care for the safety of those crossing the right-of-way on a highway. See Knight, 45 S.W. at 557-58; Rogers, 40 S.W. at 957-58. Furthermore, it is difficult to speculate as to the various fact patterns that may arise in these kinds of cases; however, given the fact that most railroad operators run their trains repeatedly over the same tracks, it is likely that an operator who does not own an allegedly hazardous right-of-way may be aware of the alleged hazards caused by sight restrictions at a crossing or that, in the exercise of ordinary care, the operator should have been aware thereof.
Research reveals no Texas case that expressly states Rogers and Knight do not apply to such circumstances, and neither the Limmers nor the dissent have cited any authority from any jurisdiction indicating the Rogers and Knight rule does not apply to such circumstances. Indeed, a court in Alabama — which has the same common-law rule as that stated in Rogers and Knight — applied that rule to a situation in which the right-of-way owner and train operator were different companies. Nat'l Ry. Passenger Corp. v. H P, Inc., 949 F. Supp. 1556, 1564-65 (M.D. Ala. 1996) (applying rule of law from Alabama Great S. Ry. Co. v. Johnston, 199 So.2d 840, 843-44 (Ala. 1967), that there is no independent negligence claim for failure to eliminate sight restrictions along the right-of-way, to fact pattern in which right-of-way owner and train operator were different companies). In sum, this attempt to distinguish Rogers and Knight is unpersuasive.
The Limmers also attempt to distinguish Rogers and Knight by arguing they apply only to "economically useful obstructions." This argument is also unpersuasive. In its analysis, the Rogers court cited two vegetation cases from Illinois and the Cordell case, which involved a pile of stumps and roots. See Rogers, 40 S.W. at 958 (citing Dimick, Stables, and Cordell cases); Dimick v. Chicago Northwestern Ry. Co., 80 Ill. 338 (Ill. 1875) (considering sight restrictions caused by trees and brush on the right-of-way as a circumstance affecting determination of plaintiff's contributory negligence); Indianapolis St. Louis R.R. Co. v. Stables, 62 Ill. 313 (Ill. 1872) (considering sight restrictions caused by bush and shrubs in determining negligence of railroad company in operating the train); Cordell, 70 N.Y. at 121-23 (holding that sight restrictions caused by large pile of stumps and roots and other material is not an independent ground of negligence but only a circumstance to be considered in determining plaintiff's contributory negligence and the negligence of the train operator); see also LaRocco v. Penn Cent. Transp. Co., 324 N.Y.S.2d 82, 83 (N.Y. 1971) (applying Cordell to sight restriction caused by physical condition of the road and track crossing). Although Knight involved sight restrictions relating to structures built near the tracks, it also involved sight restrictions relating to piles of cotton and railroad "ties." See Knight, 45 S.W. at 556. Furthermore, the Texas Commission of Appeals applied Rogers and Knight to sight restrictions caused by vegetation, and Texas courts of appeals have done likewise. See McCrorey, 23 S.W.2d at 692-95 (applying Rogers and Knight to sight restrictions caused by grass and weeds along the right-of-way); Rubrecht, 445 S.W.2d at 787-89 (applying Rogers and Knight to sight restrictions caused by trees and weeds along the right-of-way); Anderson, 144 S.W.2d at 442-45 (applying Rogers and Knight to sight restrictions caused by timber and underbrush along the right-of-way); Adams, 27 S.W.2d at 335 (applying Rogers and Knight to sight restrictions caused by a hill); Oden v. Tex. P. Ry. Co., 9 S.W.2d 367, 368-71 (Tex.Civ.App.-Texarkana 1928, no writ) (applying Rogers and Knight to sight restrictions caused by weeds and bushes along the right-of-way).
The Limmers cite three Texas cases in support of their argument that Rogers and Knight apply only to "economically useful obstructions." See St. Louis Southwestern Ry. Co. of Tex. v. Larkin, 34 S.W.2d 693, 702 (Tex.Civ.App.-Dallas 1930, writ dism'd); St. Louis, S.F. T. Ry. Co. v. Allen, 296 S.W. 950, 953 (Tex.Civ.App.-Amarillo 1927, writ dism'd); Missouri, K T. Ry. Co. Of Tex. v. King, 123 S.W. 151, 152 (Tex.Civ.App.-Dallas 1909, no writ). The Allen and King cases do not support the Limmers' argument in this regard; rather, without citing Knight, the Allen and King courts state in obiter dicta that certain sight restrictions constitute independent grounds of negligence. See Allen, 296 S.W. at 951-53 (stating that trial court properly submitted special issue as to whether alleged sight restriction caused by weeds and grass was independent ground of negligence, without mention of whether weeds and grass were used in railroad company's business, in case where court affirmed judgment in favor of plaintiff based on jury answers to special issues that supported several independent grounds of negligence, at least two of which involved the operation of the train); King, 123 S.W. at 152-53 (stating it was permissible for the trial court to charge the jury on defendant's alleged failure to eliminate sight restrictions caused by trees and coalhouse as an independent ground of negligence, without citing Knight, and in an appeal in which the court reversed and remanded for a new trial based on charge error regarding "discovered peril"). These obiter dicta are incorrect under Rogers and Knight. See Knight, 45 S.W. at 557-58; Rogers, 40 S.W. at 957-58.
The only language that supports the Limmers' argument is more dicta found in the Larkin case. Larkin, 34 S.W.2d at 702 (stating "[o]bstructions placed by a railroad on its right of way that are necessary, either for the transaction of the business of the railroad or for its operation, and obstructions placed on the right of way by others, with permission of the railroad, to be used in connection with the business of the railroad, cannot be made an independent ground of negligence. . . ."). However, the Larkin court did not address the propriety of the charge regarding sight restrictions and it affirmed a judgment for the plaintiff based on special issues supporting three different alleged grounds of negligence, two of which involved the operation of the train. Id. at 696-97. Therefore, the statements in Larkin upon which the Limmers rely were not necessary to the court's disposition of the appeal and are obiter dicta. See Edwards v. Kaye, 9 S.W.3d 310, 314 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). In addition, the distinction made in Larkin as to whether the cause of the sight restriction is used in the railroad company's business is expressly rejected in the above analysis. See McCrorey, 23 S.W.2d at 692-95; Rubrecht, 445 S.W.2d at 787-89; Anderson, 144 S.W.2d at 442-45; Adams, 27 S.W.2d at 335; Oden, 9 S.W.2d at 368-71. Moreover, other states following the rule adopted in Rogers and Knight do not make the "economically useful obstruction" distinction. See, e.g., LaRocco, 324 N.Y.S.2d at 83 (applying same rule under New York law to sight restriction caused by physical condition of the road and track crossing); Johnston, 199 So.2d at 843-44 (applying same rule under Alabama law to sight restrictions caused by vegetation); May v. S. Ry. Co., 129 S.E.2d 624, 626-28 (N.C. 1963) (applying same rule under North Carolina law to sight restrictions caused by vegetation); Cowles, 66 A. at 1023 (applying same rule under Connecticut law to sight restrictions caused by trees). There is no merit in the Limmers' attempt to distinguish Rogers and Knight based on a requirement that the sight restriction be caused by an "economically useful obstruction."
Because the alleged ground of negligence submitted in Question 3 is not an independent ground of negligence under Texas law, Union Pacific's second issue should be sustained.
CONCLUSION
All three justices on this panel agree that federal law preempts the negligence claim submitted to the jury in Questions 1 and 2. Accordingly, this court sustains Union Pacific's first issue as to the claim submitted to the jury in Questions 1 and 2. Under Texas common law as announced by the Texas Supreme Court and followed by lower courts, I conclude that Texas does not recognize the negligence claim submitted to the jury in Question 3 as an independent ground of negligence. Therefore, I conclude this court should sustain Union Pacific's second issue. The concurrence would hold that federal law also preempts Question 3, and on this basis, the concurrence agrees that the judgment should be reversed and rendered as to the claim submitted to the jury in Question 3. Accordingly, the trial court's judgment is reversed, and it is rendered that the Limmers take nothing.
CONCURRING OPINION
In this case we must decide the extent to which federal law preempts state tort law claims in a railroad grade-crossing case. The other panel members conclude that, under the Federal Rail Safety Act ("FRSA"), certain federal regulations preempt the Limmers' claims for extra-hazardous crossing and negligent failure to provide additional warning devices but that these regulations do not preempt the remaining negligence claim in which the Limmers allege that appellant Missouri Pacific Railroad Company d/b/a Union Pacific Railroad Company ("Union Pacific") negligently failed to eliminate sight restrictions. This court should find that these regulations preempt all of the Limmers' claims.
Under the FRSA, if the Secretary of Transportation has prescribed regulations or issued orders covering the subject matter of the Limmers' sight-restriction claim, then these regulations or orders preempt that claim. See 49 U.S.C. § 20106 (stating "[l]aws, regulations, and orders related to railroad safety shall be nationally uniform to the extent practicable" and "[a] State may adopt or continue in force a law . . . related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement"); Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 352, 120 S. Ct. 1467, 1473 146 L. Ed. 2d 374 (2000).
In Shanklin, the United States Supreme Court stated:
When the [Federal Highway Administration] approves a crossing improvement project and the State installs the warning devices using federal funds, [sections] 646.214(b)(3) and (4) establish a federal standard for the adequacy of those devices that displace state tort law addressing the same subject.
Shanklin, 529 U.S. at 357, 120 S. Ct. at 1476 (emphasis added).
The other panel members correctly conclude that the Secretary of Transportation has prescribed regulations that preempt the claim submitted to the jury in questions 1 and 2; however, they err in holding that these regulations do not preempt the claim submitted to the jury in question 3. Question 3 asked the jury to determine whether Union Pacific's negligence, if any, in failing to eliminate either of two sight restrictions was a proximate cause of the collision in question. The trial court instructed the jury to consider only two possible sight restrictions — the sight restriction, if any, caused by a pile of crushed limestone at the crossing and the sight restriction, if any, caused by vegetation at or near the crossing. Under both sight-restriction allegations, the Limmers claimed that Union Pacific's alleged negligent failure to eliminate the sight restrictions proximately caused the collision because these sight restrictions obscured decedent Billy Limmer's view of the oncoming train so that he did not know that a train was crossing the road on which he was traveling. The Secretary of Transportation has prescribed regulations addressing the subject of restricted sight distances by requiring that automatic gates with flashing light signals be used when, among other things, grade crossings have either high speed trains combined with limited sight distances or unusually restricted sight distances. See 23 C.F.R. § 646.214(b)(3) (C) (E). This regulation addresses the same subject as the Limmers' sight-restriction claim. See Strozyk v. Norfolk S. Corp., No. Civ. A. 01-2478, 2002 WL 1226857, at *4-*5 (E.D. Pa. June 5, 2002), rev'd, 358 F.3d 268 (3rd Cir. 2004); Wilson v. Kansas City So. Ry. Co., 276 F. Supp.2d 614, 615 (S.D. Miss. 2003) (noting previous determination that "plaintiff's claim that [defendant] was negligent based on his failure to slow the train due to a sight restriction was preempted by [FRSA], 49 U.S.C. § 20101, et. seq."); but see Strozyk v. Norfolk S. Corp., 358 F.3d 268, 273 (3rd Cir. 2004) (holding 23 C.F.R. § 646.214(b)(3) does not preempt plaintiffs' sight-restriction claim); Shanklin v. Norfolk S. Ry. Co., 369 F.3d 978, 987 (6th Cir. 2004) (same as Third Circuit in Strozyk). Because 23 C.F.R. § 646.214 deals with the same subject matter as and substantially subsumes the Limmers' sight-restriction claim, the FRSA preempts this claim. See Shanklin, 529 U.S. at 357, 120 S. Ct. at 1476; but see Strozyk, 358 F.3d at 273; Shanklin, 369 F.3d at 987 (on remand).
Though the plurality and dissent disagree as to the disposition of Union Pacific's challenge to question 3, they agree that the Limmers' claim for negligent failure to eliminate sight restrictions is not pre-empted.
As to the latter alleged sight restriction, on appeal, Union Pacific asserts a separate regulation preempts this claim by covering its subject matter. See 49 C.F.R. § 213.37(b). Although Union Pacific does not concede on appeal that it did not raise the preemption issue regarding this regulation in the trial court, Union Pacific did not call to the trial court's attention that it was asserting preemption based on this regulation, and this court correctly holds that Union Pacific did not preserve error as to 49 C.F.R. § 213.37(b).
Under Texas common law governing extra-hazardous crossings, obstructions to vision at a railroad crossing fall within the subject matter for which a railroad may be found liable based on negligent failure to protect a crossing with warning devices. Federal preemption cannot be avoided by submitting granulated factual theories, all of which relate to the extra-hazardous nature of the crossing and the need for protective devices to abate the danger it presents. Because restricted sight distances are part of the criteria considered under the federal regulations controlling warning devices at railroad grade crossings, these regulations preempt all claims with respect to sight restrictions when federal funds have been expended to install warning devices. See 23 C.F.R. § 646.214(b)(3) (C) (E); Shanklin, 529 U.S. at 357, 120 S. Ct. at 1476; but see Strozyk, 358 F.3d at 273; Shanklin, 369 F.3d at 987 (on remand).
It would make little sense to find federal law preempts claims that existing warning devices are inadequate to warn motorists that a train is approaching the crossing but to find no preemption for a claim based on sight restrictions that allegedly create a danger by preventing motorists from observing that a train is approaching the crossing. Both of these potential dangers can be addressed by automatic gates with flashing light signals, and both are within the subject matter of 23 C.F.R. § 646.214. Accordingly, this court should hold that the FRSA preempts all of the claims upon which the trial court charged the jury in this case, reverse the trial court's judgment, and render judgment that the Limmers take nothing.
DISSENTING OPINION
In its second issue, appellant Missouri Pacific Railroad Company d/b/a Union Pacific Railroad Company argues that the trial court erred in its submission of appellant's failure to remove sight obstructions as an independent ground of recovery for appellees Patricia Limmer, Billye Joyce Smith, and Bobbye Jean Nothnagel in Question 3. Today the plurality concludes that appellant's argument is correct. Because this conclusion is based upon (1) authority wholly limited to cases factually distinguishable from the one presented here, (2) the view that Knight and Rogers conflict with earlier authority supporting the existence of an independent cause of action, and (3) a questionable extension of such existing authority, I respectfully dissent. I would reverse and remand the judgment of the trial court for further proceedings consistent with this opinion.
The Holdings in Rogers and Knight
First, the plurality asserts that the Supreme Court of Texas has declared that the failure to eliminate sight obstructions is not an independent ground of negligence, citing Missouri, K. T. Ry. Co. v. Rogers, 40 S.W. 956 (Tex. 1897), and International Great N. Ry. Co. v. Knight, 45 S.W. 556 (Tex. 1898). In both Rogers and Knight, the defendant railroad company was both the owner of the tracks and the operator of the train. The plurality acknowledges that the facts of the present case are different; here, the tracks were owned by appellant, but the train was operated by Southern Pacific Railroad Company. The issue thus presented is whether this factual difference is material to the disposition of this case. While the plurality claims that it is not, I would find that it is.
The plurality points to language from the opinion rendered by the Supreme Court of Texas in Rogers, 40 S.W. at 958 (quoting Cordell v. Railroad Co., 70 N.Y. 119 (1877)), that sight obstructions "cannot be an independent ground of recovery," but were "proper to be considered upon the question of the degree of care and vigilance which the defendant was bound to exercise in the running and management of its train, and in giving warning of its approach." One year later, the Supreme Court, relying on this statement in Rogers, held in Knight, 45 S.W. at 557-58, that the trial court erred in authorizing the jury to return a finding of negligence based on the mere presence of a sight obstruction. The plurality reasons that any failure to follow the holding in Knight constitutes a conflict with, or modification of, binding precedent. I acknowledge that we are bound to follow the established authority of a higher court when applicable. Yet we certainly may, and perhaps should, distinguish cases that present a different set of facts — especially when these differences relate to the rationale upon which the established authority was based. See Collins v. Ison-Newsome, 73 S.W.3d 178, 181 (Tex. 2001) (stating that cases do not conflict if a material factual difference legitimately distinguishes their holdings).
Significantly, Cordell involved a defendant railroad that both owned the tracks and operated the train involved in the crossing accident. See 70 N.Y. at 121 123.
The rationale for the statement made in Rogers, and thus for the holding in Knight, was as follows: "The fact that the view of the track was obstructed would not give a right of action if the railroad company exercised such care in the operation of its train as a prudent person, under similar circumstances, having due regard for the safety of those traveling upon the highway over that road, would have exercised." Rogers, 40 S.W. at 958 (emphasis added). The Rogers court emphasized the limited scope of this rule: "We think that the quotation [from the New York case] properly states the rule of law applicable to the facts of the case . . .". Id. (emphasis added). In other words, the Supreme Court held in Knight that a railroad company that owns the track and operates the train cannot be held liable solely on the ground that it failed to eliminate a sight obstruction because it has a duty to compensate for such obstruction by exercising appropriate care in its operation of the train.
I also note that the authorities applying Rogers and Knight are limited to cases involving the liability of a railroad company that not only owned the right-of-way, but also operated the train involved in the crossing accident. See generally Galveston, H. S.A. Ry. Co. v. McCrorey, 23 S.W.2d 691 (Tex.Com.App. 1930); Knight, 45 S.W. 556; Rogers, 40 S.W. 956; Atchinson, T. S.F. Ry. v. Rubrecht, 445 S.W.2d 784 (Tex.Civ.App.-Fort Worth 1969, writ ref'd n.r.e.); Wichita Falls S.R.R. v. Hesson, 151 S.W.2d 270 (Tex. Civ. App.-Eastland 1941, writ dism'd judgm't cor.); Wichita Falls S.R.R. v. Anderson, 144 S.W.2d 441 (Tex.Civ.App.-Eastland 1940, writ dism'd judgment cor.); Tex. N.O. Ry. v. Adams, 27 S.W.2d 331 (Tex.Civ.App.-Beaumont 1930, writ dism'd); Oden v. Tex. Pac. Ry., 9 S.W.2d 367 (Tex.Civ.App.-Texarkana 1928, no writ); San Antonio A.P. Ry. Co. v. Stolleis, 49 S.W. 679 (Tex.Civ.App. 1899, no writ).
Knight/Rogers and the Alleged Conflict with Prior Case Law
Second, the plurality asserts that there is a conflict between the " Michalke line of cases" and the more recent line of cases including Rogers and Knight. See, e.g., Galveston, H. S.A. Ry. Co. v. Michalke, 38 S.W. 31 (Tex. 1896); Receivers of Houston T.C. Ry. Co. v. Stewart, 17 S.W. 33 (Tex. 1891); Dillingham v. Parker, 16 S.W. 335 (Tex. 1891) (collectively, "the Michalke line of cases"). I disagree.
The holdings in the Michalke line of cases may be summarized as follows: "Whether or not [the placement of sight obstructions constitutes] negligence would depend upon the manner of use and the circumstances attending it. This is a question of fact to be ascertained by the court." See, e.g., Stewart, 17 S.W. at 33. Nothing in the Rogers/ Knight line of cases alters these holdings. Rogers, Knight, and their progeny only clarify that in cases where the defendant railroad company is both the owner of the tracks and the operator of the train, there is no cause of action for the failure to eliminate sight obstructions independent of a cause of action for negligent operation of the train. To recognize such an independent claim in this factual context would violate the holdings in the Michalke line of cases because a determination as to the defendant's negligence is a question of fact that must take into account all of the defendant's conduct — including whether the defendant exercised due care in the operation of its train in light of the sight obstructions — as well as all of the attendant circumstances.
In contrast, courts properly applying Rogers and Knight to cases involving a defendant that only owned the tracks, and did not operate the train, would recognize a cause of action for the defendant's failure to remove sight obstructions because such failure to act constitutes the entirety of the defendant's conduct. In other words, the defendant's failure to remove sight obstructions would not be only a mere factor in determining whether it was negligent because, given the fact that it did not operate the train, such failure is the only conduct by the defendant relevant to a determination of its liability. Therefore, I cannot agree with the plurality's assertion that there exists a conflict between the Michalke line of cases and Rogers, Knight, and their progeny; they can be, and should be, interpreted as consistent with each other.
My conclusion, not the plurality's, as to the existence of a conflict between the two lines of cases is the same as that reached by the Commission of Appeals of Texas. See McCrorey, 23 S.W.2d at 694 ("When carefully considered we see no conflict between the holding in the Stewart Case, which is by the old commission, and the holding in the Knight Case.").
Application of the Knight Holding
Third, the plurality asserts that "[a]s a matter of logic, if, as to sight restrictions, a right-of-way owner is not subject to negligence liability in its capacity as a right-of-way owner for accidents in which it operates the train, then there is no apparent reason that an owner should be subject to negligence liability in its capacity as owner of the same right-of-way for accidents in which another company operates the train." I cannot agree; situations in which the owner of the right-of-way should be found negligent where another company operates the train are certainly foreseeable.
The common-law doctrine of negligence consists of the elements of a legal duty owed by one person to another, breach of that duty, and damages proximately resulting from the breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). In deciding the existence of duty, a court must consider several interrelated factors, including the risk of injury, foreseeability, likelihood of injury, and the consequences of placing the burden on the actor. Id. Of these factors, foreseeability is "the foremost and dominant" factor. Id. There must be sufficient evidence indicating that the defendant knew or should have known that harm would eventually befall a victim. Id. Thus, if the train operator did not know, and should not have known, about the existence of a sight obstruction at a given crossing, then it cannot be held liable for negligence under Rogers and Knight ( see quotations above) for failure to take the requisite precautions. Given that the plurality's interpretation of Rogers and Knight would also foreclose any recovery from the owner of the right-of-way, a plaintiff in such situations would consequently have no adequate remedy at law.
Because we cannot necessarily assume that a train operator has, or should have, knowledge of the existence of a sight obstruction at any given crossing, significant public policy concerns ( e.g., redress for victims of crossing accidents, public safety, etc.) support the viability of a cause of action for failure to eliminate sight restrictions in the present case. I therefore do not believe that the rule announced in Rogers and Knight should be extended to situations such as the one in the present case. Accordingly, I would overrule appellant's second issue.
I also find the plurality's citation to Nat'l Ry. Passenger Corp. v. H P, Inc., 949 F. Supp. 1556 (M.D. Ala. 1996), unavailing. The court there cited Alabama Great S. Ry. Co. v. Johnston, 199 So.2d 840, 843-44 (Ala. 1967), for the proposition that there is no cause of action for allowing vegetation, which obstructs a traveler's view of an approaching railroad crossing, to grow on the railroad's right-of-way. In Johnston, the Alabama Supreme Court considered this issue for the first time and cited Cowles v. New York, New Haven Hartford R. Co., 66 A. 1020 (Conn. 1907), for its rationale. However, both Johnston and Cowles involved ownership of the tracks and operation of the train by the same company. See Johnston, 199 So.2d at 842; Cowles, 66 A. at 1020-22. Because the court in H P, Inc. did not provide any discussion of its application of Johnston to the facts presented there, that authority is of little persuasive value in the present case because it begs the question we seek to answer here.
Because I would hold that there exists a viable cause of action for appellant's failure to remove sight obstructions, it is necessary for me to address appellant's third issue. My resolution of appellant's first, second, and third issues renders it unnecessary for me to consider appellant's remaining issues.
The Broad-Form Jury Question on Damages
In its third issue, appellant argues that the trial court's broad-form jury question on damages included a faulty liability theory and therefore requires reversal. I agree. In Wingate v. Hajdik, 795 S.W.2d 717, 719-20 (Tex. 1990), the trial court awarded the plaintiff shareholder a single sum of actual damages predicated upon multiple liability findings, including misappropriation of corporate assets and breach of fiduciary duty, against another shareholder. The Supreme Court of Texas found that the misappropriation claim belonged not to the plaintiff personally, but to the corporation of which he was a shareholder. Id. Because the trial court did not segregate the damages obtained under the misappropriation claim from the damages recovered under the plaintiff's personal causes of action, the Supreme Court held that the entire judgment had to be reversed. Id. at 720.
The jury was instructed as follows: "If, in answer to Questions Nos. 2 or 3 or 4 or 4(a) you have found that the negligence of more than one of those named below proximately caused the collision, then answer the following question. Otherwise, do not answer the following question." Question 5 provided in relevant part as follows:
What percentage of the negligence that caused the collision do you find to be attributable to each of those found by you, in your answer to Questions Nos. 2 or 3 or 4 or 4(a) to have been negligent?
In the present case, the trial court entered judgment in favor of appellees based on the jury's findings that appellant was negligent in its failure to provide adequate warning devices (see Question 2) and its failure to eliminate sight obstruction(s) (see Question 3). The broad-form jury question (Question 5) did not segregate the damages recovered under the negligence claim in Question 2 from those under the negligence claim in Question 3. Because we have determined that the negligence claim in Question 2 is preempted by federal law, I would find that the negligence claim for failure to provide adequate warning devices does not constitute a valid liability theory upon which appellees are entitled to recover. Therefore, the trial court's award of damages predicated upon multiple liability findings — one of which was invalid — requires reversal under Wingate.
Accordingly, I would sustain appellant's third issue.
Conclusion
Because a viable cause of action exists in cases where a defendant railroad company is only the owner of tracks and not the train operator, but here the trial court's award of damages failed to segregate the damages recovered on the valid negligence claim from those on the invalid negligence claim, I would reverse and remand the judgment of the trial court for further proceedings consistent with this opinion.