UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-60215
_____________________
DONALD G. LANE,
Plaintiff-Appellant/Cross-Appellee,
versus
R. A. SIMS, JR., INC., ABC, That Person, Firm,
Company, or Entity That Employed Daniel Wallace
At The Time of The Crossing Collision Which
Makes The Basis of This Suit; DE&F, That Person,
Firm, Company or Entity Who Negligently
Entrusted The Truck To Daniel Wallace;
GH&I, That Person, Firm, Company, or Entity
Who Leased, and/or Maintained and Inspected
The Crossing Which Is The Subject
Of This Lawsuit; JK&L; MN&O,
Defendants-Appellees,
CSX TRANSPORTATION, INC.,
Defendant-Appellee/Cross-Appellant.
____________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
____________________________________________________________
February 6, 2001
Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
For this negligence action arising out of a collision at a
crossing between a train and a vehicle, primarily at issue is
whether the Federal Railroad Safety Act (FRSA), 49 U.S.C. §§ 20101-
20153, and a regulation promulgated thereunder, 49 C.F.R. § 213.9,
which set maximum train speeds for different classes of tracks,
preclude a railroad employee’s negligence action under the Federal
Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60, the employee
claiming the train was proceeding at an excessive speed when
involved in the collision, even though it was traveling below the
speed limit established by the regulation. Railroad employee
Donald G. Lane appeals the summary judgment granted CSX
Transportation, Inc. (the railroad), and the denial of his motion
for a new trial as to R. A. Sims, Jr., Inc. (the vehicle); CSX
cross-appeals the denial of its motion for judgment as a matter of
law on its cross-claim against Sims. We AFFIRM.
I.
Lane’s FELA action against CSX and Sims alleged he was injured
when the train on which he was working as an engineer for CSX
collided with Sims’ tractor-trailer, driven by Wallace, at a
crossing in Gulfport, Mississippi. Immediately prior to the
collision, the train was traveling 44 miles per hour. The CSX
speed limit for that crossing was 45 miles per hour, while the
speed limit established for that crossing by Federal Railway
Administration Track Safety Standards, 49 C.F.R. § 213.9, was 60
miles per hour. Among other things, Lane’s negligence claim
against CSX asserted: the train was traveling at an excessive and
unsafe speed under the circumstances (heavy lunchtime traffic at a
downtown crossing).
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CSX cross-claimed against Sims, asserting, inter alia: its
employee, Wallace (the vehicle driver), was negligent for failing
to yield the right-of-way to the train; and Sims failed to comply
with a Mississippi statute requiring it to notify CSX in advance of
its travel over the crossing. Lane made similar negligence claims
against Sims.
The district court granted partial summary judgment for CSX on
Lane’s FELA excessive-speed claim. The remaining issues were tried
to a jury, which found no negligence on the part of CSX, Sims, or
Lane. The district court denied new trial motions by Lane and CSX.
II.
Lane challenges the summary judgment granted CSX on his FELA
excessive-speed claim and the denial of a new trial on his
negligence claim against Sims. CSX contests the denial of judgment
as a matter of law on its cross-claim against Sims.
A.
The FELA provides the exclusive remedy for a railroad employee
injured as a result of his employer’s negligence. See, e.g.,
Wabash R.R. Co. v. Hayes, 234 U.S. 86, 89 (1914); Janelle v.
Seaboard Coast Line R.R. Co., 524 F.2d 1259, 1261 (5th Cir. 1975).
It authorizes an injured railroad employee to recover damages from
his employer for “injury or death resulting in whole or in part
from the [railroad’s] negligence”. 45 U.S.C. § 51. But, by
summary judgment, the district court held Lane’s FELA excessive-
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speed claim was precluded by the FRSA and the track-speed
regulations promulgated thereunder.
FRSA’s stated purpose “is to promote safety in every area of
railroad operations and reduce railroad-related accidents and
incidents”. 49 U.S.C. § 20101. It authorizes the Secretary of
Transportation to “prescribe regulations and issue orders for every
area of railroad safety”, 49 U.S.C. § 20103(a); and provides that
“[l]aws, regulations, and orders related to railroad safety shall
be nationally uniform to the extent practicable”. 49 U.S.C. §
20106 (emphasis added).
The Secretary of Transportation has promulgated regulations
pursuant to this authority, including establishing maximum train
speeds for various classes of railroad tracks. 49 C.F.R. § 213.9.
It is undisputed that the train involved in the collision was not
exceeding the 60-mile-per-hour speed limit established by those
regulations for the subject crossing.
The FRSA’s goal of national uniformity for laws and
regulations relating to railroad safety does not preclude a FELA
excessive-speed claim, according to Lane, because the FRSA and FELA
are not in conflict. He asserts FRSA speed regulations are minimum
safety requirements, compliance with which is evidence of due care,
but does not preclude finding negligence if reasonable railroads
would have taken additional precautions to prevent injury to their
employees.
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The Supreme Court considered the FRSA speed limit regulations
in CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993). A
state common law action, arising out of a truck driver’s death in
a crossing collision, was filed against the railroad; the action
claimed, inter alia, the train was traveling at an excessive speed.
It was conceded, however, that the train was traveling at less than
the maximum speed established in 49 C.F.R. § 213.9. Id. at 673.
The Court held the claim preempted by the FRSA’s express preemption
provision. Id. at 675. That provision allows States to regulate
railroad safety “until the Secretary of Transportation prescribes
a regulation or issues an order covering the subject matter of the
State requirement”. 49 U.S.C. § 20106 (emphasis added).
The Easterwood plaintiff contended that the maximum speed
limits established in the regulations were merely ceilings,
permitting imposition of liability against the railroad if
plaintiff could establish the conditions required a lower speed.
Id. at 673-74. The Court held otherwise; because the Secretary of
Transportation had considered the hazards posed by track conditions
before adopting the regulations, “the speed limits must be read as
not only establishing a ceiling, but also precluding additional
state regulation of the sort” plaintiff urged. Id. at 674.
Because the case at hand involves a claim under another
federal statute, FELA, Easterwood, which dealt with a state common
law claim subject to FRSA’s express preemption provision, is not
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controlling. Nevertheless, the Seventh Circuit found Easterwood
persuasive in concluding that a FELA excessive-speed claim was
inconsistent with FRSA’s goal of national uniformity. Waymire v.
Norfolk & W. Ry. Co., 218 F.3d 773, 776 (7th Cir. 2000), cert.
denied, ___ S. Ct. ___, 2001 WL 32488 (2001). The Waymire
plaintiff was the conductor on a train that collided with a truck
at a crossing. Id. at 774. The train was traveling at 23 miles
per hour, well under the 60-miles-per-hour speed limit set by the
federal regulations. Noting that the operation of the trains in
Waymire and Easterwood was identical (traveling at less than the
FRSA approved speed), the Seventh Circuit stated: “It would ...
seem absurd to reach a contrary conclusion ... when the Supreme
Court has already found that the conduct is not culpable
negligence”. Id. at 776 (emphasis added).
Two other district courts considering similar FELA claims have
reached the same conclusion, reasoning that the railroad safety
uniformity intended by the FRSA would be compromised if an
excessive-speed negligence claim were permitted under the FELA, but
not under state law. See Rice v. Cincinnati, New Orleans & Pac.
Ry. Co., 955 F. Supp. 739, 740-41 (E.D. Ky. 1997) (FELA excessive-
speed claim precluded by FRSA and regulations where train traveling
at speed exceeding railroad’s self-imposed speed limit, but below
limit established in regulations); Thirkill v. J.B. Hunt Transp.,
Inc., 950 F. Supp. 1105, 1107 (N.D. Ala. 1996) (FELA excessive-
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speed claim precluded by FRSA and regulations where train was
traveling within speed limit set by regulations).
Only one court has decided otherwise. Earwood v. Norfolk
Southern Railway Co., 845 F. Supp. 880, 891 (N.D. Ga. 1993), on
which Lane relies, held FRSA speed regulations did not preclude a
FELA excessive-speed claim. The court reasoned the regulations
were not directed at employee safety and established only minimum
safety requirements. Id.
In the light of Congress’ intent that railroad safety
regulations be nationally uniform to the extent practicable, we
find Waymire, Thirkill, and Rice far more persuasive than Earwood.
Such uniformity can be achieved only if the regulations covering
train speed are applied similarly to a FELA plaintiff’s negligence
claim and a non-railroad-employee plaintiff’s state law negligence
claim. Otherwise, a railroad employee could assert a FELA
excessive-speed claim, but a non-employee motorist involved in the
same collision would be precluded from doing so. Dissimilar
treatment of the claims would have the untenable result of making
the railroad safety regulations established under the FRSA
virtually meaningless: “The railroad could at one time be in
compliance with federal railroad safety standards with respect to
certain classes of plaintiffs yet be found negligent under the FELA
with respect to other classes of plaintiffs for the very same
conduct”. Waymire v. Norfolk & W. Ry. Co., 65 F. Supp. 2d 951, 955
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(S.D. Ind. 1999), aff’d, 218 F.3d 773 (7th Cir. 2000). Moreover,
allowing juries in FELA cases to find negligence based on excessive
speed, even though it did not exceed that set by the FRSA
regulations, would further undermine uniformity, because it would
result in the establishment, through such verdicts, of varying,
uncertain speed limits at different crossings, as well as different
speed limits at the same crossing, depending on the time of day,
traffic conditions, and other variables.
Earwood’s conclusion that the regulations promulgated pursuant
to the FRSA were not directed at railroad employee safety is
inconsistent with that Act, which expressly states its purpose is
“to promote safety in every area of railroad operations and reduce
railroad-related accidents and incidents”. 49 U.S.C. § 20101
(emphasis added). Railroad operations cannot be conducted without
railroad employees; therefore, it seems obvious that railroad
employee safety is one of the “area[s] of railroad operations”
addressed by the statute and regulations. See Waymire, 65 F. Supp.
2d at 956 (noting FRSA’s legislative history supports conclusion
that “railroad employee safety was a significant motivation behind
the FRSA’s enactment” (emphasis added)).
Accordingly, the district court correctly held Lane could not
maintain a FELA excessive-speed negligence claim against CSX. As
a result, the partial summary judgment awarded CSX was proper.
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B.
Concerning the denial of his new trial motion, Lane maintains
the jury’s verdict in favor of Sims “was against the clear and
substantial evidence in the case”. Our “review of the denial of a
new trial motion is more limited than when one is granted”.
Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 269 (5th Cir.
1998). The denial will be affirmed unless there is “a clear
showing of an absolute absence of evidence to support the jury’s
verdict, thus indicating that the trial court had abused its
discretion in refusing to find the jury’s verdict contrary to the
great weight of the evidence”. Id. (internal quotation marks,
emphasis, and citations omitted).
Sims’ negligence, according to Lane, is established by Sims’
admission it did not comply with a Mississippi statute requiring it
to notify CSX before Sims’ tractor-trailer attempted to cross the
CSX tracks. Lane maintains the collision would not have occurred
had Sims so complied.
The statute provides:
No person shall operate or move any
caterpillar tractor, steam shovel, derrick,
roller, or any equipment or structure having a
normal operating speed of six or less miles
per hour or a vertical body or load clearance
of less than nine inches above the level
surface of a roadway upon or across any tracks
at a railroad grade crossing without notice of
any such intended crossing first being given
to a superintendent of such railroad and a
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reasonable time being given to such railroad
to provide proper protection at such crossing.
MISS. CODE ANN. § 63-3-1013 (emphasis added).
Sims’ owner testified: the ground clearance of his tractor-
trailer was less than nine inches and no advance notice was given
to CSX; and, prior to the accident, he had not seen the statute.
CSX presented evidence a flagman would have been present had the
statutorily required notice been given.
Sims asserts Lane failed to properly preserve this issue
because he did not mention the statute in his new trial motion. In
attempting to show otherwise, Lane’s reply brief quotes his
district court brief in support of the motion. That brief,
however, is not in the record, apparently because the local rules
require that briefs be submitted directly to the judge and not
filed with the clerk, see UNIFORM LOCAL R. 7.1(D), 7.2(E), and because
the parties did not seek to supplement the record pursuant to FED.
R. APP. P. 10(e)(2). The order denying the motion, however,
supports Lane’s assertion that, in support of his motion, he
briefed the statute.
Sims contends further: the statute was not applicable because
the load involved in the collision was being transported under
permit from the Mississippi Department of Transportation, which
stated the limitations on how the load was to be transported; and
such limitations did not include any requirement that Sims comply
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with § 63-3-1013. Lane counters that the permit in question was
not applicable on the date of the collision.
Lane’s present contention that he is entitled to a new trial
because the jury’s verdict is against the great weight of the
evidence of Sims’ negligence per se is somewhat incongruous, in the
light of the fact that he did not contend, in closing argument,
either that Sims was negligent per se for violating the statute, or
that the permit was inapplicable. Nor does the record contain any
indication that Lane requested a jury instruction regarding the
statute. The record does not contain any instructions requested by
the parties; the charge conference was not transcribed; and
subsequently, when invited by the district court, Lane did not
object to the charge given, which did not include any instruction
regarding the Mississippi statute.
Under these circumstances, we cannot conclude that the
district court abused its discretion by denying Lane’s new trial
motion. As discussed infra in connection with CSX’s challenge to
the sufficiency of the evidence, there was ample evidence to
support the jury finding Sims not negligent.
C.
In its required statement of the issues in its appellate
brief, CSX contends the district court erred by denying its new
trial motion as to Sims “because the jury’s verdict in favor of
Sims was against the greater weight of the evidence”. (Emphasis
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added.) Similarly, its required summary of the argument asserts
the jury’s verdict in favor of Sims “is against the greater weight
of the evidence”. (Emphasis added.) But, the argument on this
issue in its brief recites the standard of review for denial of
judgment as a matter of law and seeks rendition of judgment in its
favor, not a new trial. Accordingly, CSX has abandoned any claim
regarding the district court’s denial of its new trial motion.
E.g., FED. R. APP. P. 28(a)(9); Eldredge v. Martin Marietta Corp.,
207 F.3d 737, 742 n.5 (5th Cir. 2000). Instead, its appeal as to
Sims is focused solely on the denial of its motion for judgment as
a matter of law on its cross-claim against Sims. The motion was
made after Lane rested, re-urged after Sims rested, and re-urged at
the close of all the evidence.
In reviewing the sufficiency of the evidence to support a jury
verdict in a civil action, we must affirm unless “there is no
legally sufficient evidentiary basis” for the jury’s verdict.
E.g., FED. R. CIV. P. 50(a)(1) (emphasis added); Vadie v. Mississippi
State Univ., 218 F.3d 365, 372 (5th Cir. 2000), cert. denied, ___
S. Ct. ___, 2001 WL 32522 (2001). In this regard, the evidence, as
well as all reasonable inferences from it, are viewed in the light
most favorable to the verdict. Id.
1.
CSX contends Sims’ negligence is established by its violation
of the previously-discussed § 63-3-1013, which required Sims to
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notify CSX in advance of its using the crossing, so that a flagman
could be present. CSX, unlike Lane, did urge in closing argument
Sims’ alleged violation of the statute as a basis for the jury
finding Sims negligent. But, the record, as noted, does not
contain any instructions requested by the parties; and the district
court’s charge, to which CSX had no objections when invited to make
them, did not address the statute. Moreover, CSX stated no
additional instructions were requested.
Of course, failure to request an instruction does not preclude
granting judgment as a matter of law. Deffenbaugh-Williams v. Wal-
Mart Stores, Inc., 188 F.3d 278, 284 n.5 (5th Cir. 1999). But,
this does reflect the lack of emphasis — and underscores the jury’s
verdict — concerning the statute.
On cross-examination by CSX, Wallace testified: he had never
had to notify a railroad in advance before hauling a load over a
crossing; he had used many railroad crossings and had never seen a
flagman holding back a train while a truck crossed the tracks; and
the state-issued permit did not require Sims to notify CSX before
crossing its tracks.
Sims’ owner, Ray Alton Sims, Jr., testified: he had 15 years’
experience hauling heavy equipment; prior to the collision, he had
not seen the Mississippi statute; he had never contacted any
railroad about crossing its tracks with a trailer with low ground
clearance; he would not know whom to contact or who owned the
13
various tracks to be crossed; and the permit required by state law
did not require Sims to contact railroads before crossing their
tracks.
CSX presented evidence that: it is often called upon to
provide flagmen to protect the movement of trucks with low ground
clearance across its tracks; prior to the collision, Sims did not
contact CSX; and the permit was not valid for the date of the
collision.
In the light of the conflicting evidence regarding the
applicability of the statute, and the absence of any instruction to
the jury regarding its application, there was a legally sufficient
evidentiary basis for the jury finding Sims not negligent per se.
2.
CSX next contends Sims was negligent because Wallace, its
employee, breached a legal duty to yield to its approaching train.
CSX maintains: the train was blowing its horn, from a proper
distance, prior to reaching the crossing; and active warning
devices were operating and gave Sims’ driver more than the required
20-second warning time.
Wallace testified: he stopped, looked, and listened before
entering the crossing, but could not see the approaching train
until it was too late because an Amtrak car parked on an auxiliary
track blocked his view; and he did not see any flashing lights or
hear the train’s horn or bells until after he was in the crossing,
14
prior to the collision, when his escort driver, who was following
him, contacted him by radio to tell him that the crossing arm was
descending. Wallace’s escort and several other witnesses testified
similarly that the train’s horn did not blow and the warning
signals at the crossing were not activated until immediately before
the collision.
Lane and the conductor testified, however, that the train’s
horn started blowing several hundred feet prior to the crossing and
continued up until the moment of impact. Other witnesses to the
collision testified that they observed the warning signals and
heard the train’s horn blowing before Sims’ tractor-trailer entered
the crossing.
We reject CSX’s contention that the testimony of Sims’
witnesses that they did not hear the horn should be ignored.
Needless to say, it is not our function to re-weigh the evidence or
re-evaluate the credibility of witnesses; that is for the jury.
E.g., Hiltgen v. Sumrall, 47 F.3d 695, 700 (5th Cir. 1995). In
short, the conflicting testimony is a legally sufficient
evidentiary basis for the jury finding Sims not negligent.
3.
Finally, CSX claims Sims’ spoliation of evidence (loss of
records of investigation of collision and Wallace’s personnel
records) supports its contention that Sims was negligent. CSX
elicited some evidence of spoliation. But, even though it referred
15
to the issue during its closing argument, it did not object to a
spoliation instruction not being given. In any event, the jury
obviously weighed the conflicting evidence and rejected spoliation
as a basis for finding Sims negligent.
III.
For the foregoing reasons, the judgment of the district court,
and its order denying a new trial, are
AFFIRMED.
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