Affirmed and Memorandum Opinion filed July 29, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-02-01289-CV
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JOHNNY JONES, Appellant
V.
UNION PACIFIC RAILROAD COMPANY, Appellee
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On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Cause No. 98‑58160
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M E M O R A N D U M O P I N I O N
Appellant, Johnny Jones, appeals a judgment in which he was awarded damages under the Federal Employer=s Liability Act (AFELA@). In four issues, he contends the jury findings on damages are not supported by the evidence, and the trial court erred by admitting the testimony of a vocational rehabilitation consultant, and reducing the damages based on his contributory negligence. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
Background
Appellant was employed by appellee, Union Pacific Railroad Company (AUnion Pacific@), installing railroad crossings. On July 7, 1998, appellant was using a five foot metal bar to hold a strip of rubber along the inner side of a railroad track. One of his co-workers was using a backhoe to lower a concrete slab next to the rubber. The concrete slab struck appellant=s metal bar, which then struck appellant in the head, shoulder, and chest. Appellant sued Union Pacific under the FELA to recover damages for his injuries. A jury awarded damages of $405,000, but apportioned 53% of the fault to Union Pacific and 47% to appellant. The trial court entered judgment for the amount of $214,650 based on the jury verdict.
Damages
In his first and fourth issues, appellant challenges the damages awarded by the jury. The jury awarded damages as follows:
Medical Care, past and future: $220,000
Loss of earning capacity, past and future: $150,000
Physical pain and mental anguish, past and future: $ 35,000
Physical impairment, past and future: 0
Disfigurement, past and future: 0
Loss of household services, past and future: 0
First, appellant contends the jury=s finding of no damages for physical impairment, disfigurement, and loss of household services is against the great weight and preponderance of the evidence. He also claims the damages the jury did award were manifestly too small and unjust.
Union Pacific claims appellant waived these issues because he moved for judgment based on the jury findings. A party who moves for judgment on the verdict and does not reserve the right to complain may not take a position on appeal inconsistent with that part of the judgment. Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 321B22 (Tex. 1984); see First Nat=l Bank of Beeville v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989). Appellant moved for judgment on the verdict without challenging the jury findings on damages. Therefore, he may not complain on appeal that the findings are not supported by evidence. See Litton Indus. Prods., Inc., 668 S.W.2d at 321B22 (noting appellant who moved for judgment could not complain the findings of damages had no support in the evidence); Teletron Energy Mgmt., Inc. v. Texas Instruments, Inc., 838 S.W.2d 305, 308 (Tex. App.CHouston [14th Dist.] 1992), rev=d on other grounds, 877 S.W.2d 276 (Tex. 1994) (holding appellant who moved for judgment could not challenge the jury=s failure to award damages for future lost profits). We overrule appellant=s first and fourth issues.
Admission of Evidence
In his second issue, appellant claims the trial court improperly admitted the testimony of a Union Pacific vocational rehabilitation consultant which misled the jury concerning his loss of earning capacity. In order for an evidentiary ruling to constitute reversible error, we must find the error probably resulted in an improper judgment. See Tex. R. App. P. 44.1; City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). Because appellant moved for judgment based on the jury=s finding of his loss of earning capacity, he cannot now take the inconsistent position that erroneously admitted evidence resulted in an improper judgment. See Litton Indus. Prods., Inc., 668 S.W.2d at 321B22; see also Menchaca v. Bishop, No. 14-94-00480-CV, 1996 WL 170272, at *2 (Tex. App.CHouston [14th Dist.] April 11, 1996, no writ) (not designated for publication) (holding an evidentiary complaint was waived when appellant moved for the trial court to enter judgment). Accordingly, appellant waived this issue when he moved for judgment on the jury verdict. We overrule appellant=s second issue.
Violation of a Federal Regulation
In his third issue, appellant claims the trial court impermissibly reduced the damages awarded based on the jury finding that appellant was 47% responsible for his injuries.[1] Under the FELA, a railroad employee=s recovery of damages will be reduced in proportion to the amount of negligence attributable to the employee. 45 U.S.C. ' 53 (1986). However, an employee=s award will not be reduced in Aany case where the violation by [a] common carrier of any statute enacted for the safety of employees contributed to the injury.@ Id. Appellant claims Union Pacific was precluded from asserting his contributory negligence because it violated various safety regulations.
Union Pacific contends appellant waived this claim because he failed to obtain a jury finding on whether Union Pacific violated any statutes. See Sweet v. Port Terminal R.R. Ass=n, 653 S.W.2d 291, 293B94 (Tex. 1983) (recognizing that a claimant under the FELA has the burden to prove a statutory violation, and secure a finding to that effect). However, if a matter is conclusively proven, it is not necessary to submit it to the jury. Tex. R. Civ. P. 279; Washington v. Reliable Life Ins., Co., 581 S.W.2d 153, 157 (Tex. 1979). Appellant claims the evidence establishing Union Pacific violated safety regulations was uncontroverted. Therefore, we will consider whether appellant conclusively proved Union Pacific violated a safety regulation.
First, appellant claims Union Pacific violated a safety regulation by failing to designate a person to provide on-track safety for his work crew on the day of his injury. See 49 C.F.R. ' 214.315 (2003). However, Union Pacific presented evidence that the foreman on appellant=s job had the obligation to look out for the safety of the group. The foreman conducted a job briefing before the workday began at which he read the safety rules, and discussed how to do the job and what tools to use. Based on this evidence, appellant did not conclusively prove Union Pacific failed to designate an on-track safety person.
Next, appellant claims Union Pacific failed to comply with regulations governing roadway maintenance machines. Specifically, he claims Union Pacific failed to include safety procedures and set forth the required distance between machines and workers in its safety program regarding roadway maintenance machines. See 49 C.F.R. ' 214.341(a)(2), (5) (2003). However, this information was included in the Union Pacific=s rule book for employees and appellant=s Union Pacific training history, both admitted as evidence at trial. Appellant also claims Union Pacific did not inform him of the safety procedures applicable to persons working near roadway machines, and he did not acknowledge full understanding of the procedures. See id. ' 214.341(b)(3). However, appellant was provided written safety guidelines concerning roadway machines in general. He also attended a job briefing on the day he was injured where he was informed about the specific procedures and safety precautions for that particular job. Appellant testified that the briefing covered information Awhich we already knew.@ Further, appellant claims Union Pacific failed to keep instructions for the safe operation of the backhoe on the machine that was being used at the job site where appellant was injured. See id. ' 214.341(b). However, there was no evidence to that effect. Therefore, appellant did not conclusively prove Union Pacific failed to comply with regulations governing roadway maintenance machines.
Finally, appellant claims Union Pacific violated federal regulations by needlessly Afouling@ the railroad track. Fouling a track means placing an individual or equipment in such proximity to a track that they could be struck by a moving train or on-track equipment. 49 C.F.R. ' 214.7 (2003). Federal regulations provide that A[a] roadway worker shall not foul a track except when necessary for the performance of duty.@ 49 C.F.R. ' 214.313(b) (2003). Appellant claims Union Pacific violated this regulation because alternative methods for holding the rubber strip next to the railroad track existed that would not have required him to stand on the track, so his fouling of the track was not necessary.
However, section 214.313 appears to apply to individual railroad workers, not railroads. The section is entitled AResponsibility of individual roadway workers,@ and contains directives specifically for railroad employees. Id. Nonetheless, even assuming section 214.313 does apply to Union Pacific, appellant did not prove it was violated. Appellant claims Union Pacific could have held the rubber in place with tape or welding rods, or it could have used a concrete slab with a rubber strip already attached, neither of which would have required him to stand on the track to hold the rubber strip in place. Although alternative methods for keeping the rubber in place may have existed, nothing in section 214.313 requires a railroad to utilize only procedures that do not require an employee to foul a track if they are available. Section 214.313(b) prohibits a worker from fouling a track except when necessary Afor the performance of duty.@ Id. (emphasis added). Appellant=s duty was to hold the rubber strip in place next to the track. Fouling the track was necessary for him to perform this duty. Accordingly, appellant failed to conclusively prove Union Pacific violated section 214.313.
Because appellant failed to conclusively prove Union Pacific violated any federal regulations, the trial court properly reduced his recovery by his percentage of responsibility. Accordingly, appellant=s third issue is overruled.
The judgment of the trial court is affirmed.
/s/ Charles W. Seymore
Justice
Judgment rendered and Memorandum Opinion filed July 29, 2004.
Panel consists of Justices Edelman, Seymore, and Ray.[2]
[1] Appellant preserved error on this issue because he made this complaint in his Motion to Enter Judgment. See Fojtik, 775 S.W.2d at 633.
[2] The Honorable Elizabeth Ray, Judge of the 165th District Court of Harris County, sitting by assignment pursuant to Tex. Gov=t Code Ann. ' 74.003(h) (Vernon Supp. 2004).