Thomas v. Allen Lund Co.
United States District Court for the Middle District of North Carolina
March 13, 2018, Decided; March 13, 2018, Filed
1:17cv1031

Reporter
2018 U.S. Dist. LEXIS 40493 *
WHITNEY NICOLE THOMAS, Administrator of the Estate of Kenneth N. Jefferson, Plaintiff, v. ALLEN LUND COMPANY, INC., et al., Defendants.

MEMORANDUM OPINION AND ORDER
This case comes before the Court on the “Motion to Set Aside Entry of Default” (Docket Entry 70)1 (the “Motion”) filed by defendant Daniel Santiago Serna (“Serna”). For the reasons that follow, the Court will grant the Motion and set aside the Entry of Default (Docket Entry 66).2

Background
This lawsuit arises from a July 2015 vehicular accident in North Carolina that killed Kenneth [*2] N. Jefferson (“Jefferson”). (See Docket Entry 1 (the “Complaint”) at 2; see also, e.g., Docket Entry 7 (“EC Trucking’s Answer”), ¶ 6 (asserting as affirmative defense that “the person or persons who decided that the motorcyclists and passengers involved in the subject accident should stop where they were stopped when the accident occurred, may be responsible in whole or in part for this accident and the resulting injuries, deaths and damages”).)3 On July 14, 2017, Whitney Nicole Thomas, acting as administrator of Jefferson’s estate, (the “Plaintiff”) initiated this negligence-based action against Serna and five other defendants in the United States District Court for the Southern District of Florida (the “Florida Court”). (See generally Docket Entry 1.) As relevant to the Motion, the Complaint alleges that Serna negligently “drove [a] tractor trailer off the roadway, striking and killing . . . Jefferson.” (Id., ¶ 12.) It further alleges that Serna and Jacob Salazar, another defendant, “were each the employee, agent, servant, or independent contractor for” EC Trucking Enterprises, Inc. (“EC Trucking”) “and operating in the course and scope of this employment” when the accident occurred. [*3] (Id., ¶ 24.) Finally, the Complaint alleges that certain incidents in Serna’s past rendered him an unfit driver. (See, e.g., id., ¶¶ 30, 40.)
On August 3, 2017, EC Trucking answered the Complaint, denying all allegations other than that “Serna had a duty to drive in a safe and reasonable manner and obey all traffic and other commercial motor vehicle safety laws” (id., ¶ 11). (See Docket Entry 7, ¶¶ 1-3.) In addition, EC Trucking’s Answer raised multiple affirmative defenses, including that Jefferson bore responsibility for the accident and/or that “third persons over whom [EC Trucking] had no control” bore such responsibility. (Id., ¶¶ 4-8.) Two weeks later, Plaintiff served the Complaint on Serna. (See Docket Entry 60 at 1 (indicating service on August 18, 2017).) The summons instructed Serna to serve his response to the Complaint on Plaintiff’s attorney, “David J. Ventura” of “Crumley Roberts, LLP,” within 21 days of receiving the summons. (Id. at 2.) In compliance with this instruction, Serna promptly sent his response to “David J. Ventura” at “Crumley Roberts.” (Docket Entry 73-2 (the “Response”) at 1, 3.)4
According to the English translation Plaintiff provided of this handwritten Spanish [*4] document (see id. at 1-2), Serna’s Response asks Ventura “to guide [him] through this process,” as he lacks appropriate resources to hire a lawyer and “[is] alone in this country.” (Id. at 3.) The Response further indicates that Serna “will actively participate in this lawsuit because the truth has been hidden and the true responsible party is Mr. Jacob Salazar,” although EC Trucking and “Commonwealth Dairy LLC” also bear some responsibility for the accident. (Id.)5 Serna further denied acting negligently (see id. (“I was not negligent”)) and disputed the Complaint’s assertion that incidents in his past rendered him an unfit driver (see id. (“I was young and got into trouble, but today I’m an adult.”)). Serna’s Response concludes:
I really appreciate your help Mr. Ventura and guidance. I am alone in this county and I do not know how the system works nor do I have anyone to help me. Have a good day Mr. Ventura.
Thanks a bunch.
(Id.)
Plaintiff’s counsel sent Serna’s Response to EC Trucking’s counsel (see Docket Entry 73-3 at 1), who had previously indicated to Plaintiff’s counsel that he “was retained to represent EC Trucking . . . and Daniel Serna in this lawsuit” (Docket Entry 73-1 at 1). On September 4, [*5] 2017, EC Trucking’s counsel sent an email to Plaintiff’s counsel, which stated, inter alia:
Thank you for sending me the proof of service on Mr. Serna and his letter to you. It seems that he may not want me to represent him. While I try to get to the bottom of that, may I request an extension of time to respond to the lawsuit on his behalf?
(Docket Entry 73-3 at 1.) On September 13, 2017, EC Trucking’s counsel emailed Plaintiff’s counsel again, stating, in relevant part:
I just spoke with the carrier and it will be retaining separate counsel to represent Mr. Serna. Given that many of the law offices down here are not yet up and running because of the hurricane, this may take a week or two; I (and the carrier) appreciate your patience and courtesy and you should be hearing from Mr. Serna’s counsel in the near future.
(Docket Entry 73-4 at 1.) Correspondence between Plaintiff’s counsel and EC Trucking’s counsel on December 13, 2017, reveals that “separate counsel (Jeff Johnson) was retained for Serna in [a related federal] case” and participated in “the global settlement conference.” (Docket Entry 73-5 at 2.) However, no attorney appeared on Serna’s behalf in this lawsuit prior to the Entry [*6] of Default. (See Docket Entries dated July 14, 2017, to Dec. 15, 2017.)
In late August 2017, defendant Allen Lund Company, Inc. (“ALC”) moved to transfer this action from the Florida Court to this Court. (See Docket Entry 40.) Over Plaintiff’s opposition, the Florida Court granted ALC’s transfer request. (See Docket Entry 55 (the “Transfer Order”) at 1, 3.) In so doing, the Florida Court noted that Plaintiff’s “negligent selection and vicarious liability . . . . claims against ALC and EC Trucking necessarily require Plaintiff to establish that Mr. Serna committed a negligent act that was foreseeable prior to establishing a claim against ALC and EC Trucking.” (Id. at 2.)6 The Florida Court further observed that Plaintiff’s negligence claim against Serna “revolves around the motor vehicle accident that occurred in North Carolina,” and that “[o]ne key witness and [d]efendant, Mr. Serna, is currently incarcerated in North Carolina.” (Id. at 2 & n.1.) Accordingly, the Florida Court transferred the action to this Court on November 13, 2017. (See id. at 3.)
On November 16, 2017, the Court set this matter for a status conference on December 18, 2017. (See Docket Entry 59 at 1.) On the final business day before that [*7] status conference, Plaintiff moved for default against Serna. (See Docket Entry 65.) That same day, the Clerk granted Plaintiff’s motion and entered default against Serna. (See Docket Entry 66 at 1.) Approximately one month later, a North Carolina lawyer appeared on Serna’s behalf (see Docket Entry 69 at 1-2) and moved to set aside the default (Docket Entry 70). As an exhibit to the Motion, Serna’s counsel filed a proposed answer, which denies that Serna acted negligently or lacked fitness as a driver (see, e.g., Docket Entry 70-1, ¶¶ 10-15, 30, 40) and asserts both “the contributory negligence of Plaintiff’s decedent” as well as “the intervening, insulating, or superseding negligence of all persons or entities outside of his control as a bar to the claims made against [Serna] in this action” (id. at 12). Plaintiff opposes Serna’s Motion. (See Docket Entry 73.)

Analysis
Pursuant to Federal Rule of Civil Procedure 55, “the [C]ourt may set aside an entry of default for good cause.” Fed. R. Civ. P. 55(c). The “good cause” standard does not present a particularly high bar. See, e.g., Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1259 (9th Cir. 2010) (describing the “‘good cause'” standard as “non-rigorous”); Coon v. Grenier, 867 F.2d 73, 76 (1st Cir. 1989) (describing the “‘good cause'” standard as “liberal”); Stark-Romero v. National R.R. Passenger Co., 275 F.R.D. 544, 547 (D.N.M. 2011) (“Showing good cause is not a particularly demanding [*8] requirement.”). This fairly lenient standard makes sense, given federal courts’ “strong preference that, as a general matter, defaults be avoided and that claims and defenses be disposed of on their merits,” Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010).
In “deciding whether to set aside an entry of default,” the Court considers six factors: (i) “whether the moving party has a meritorious defense, [(ii)] whether it acts with reasonable promptness, [(iii)] the personal responsibility of the defaulting party, [(iv)] the prejudice to the [opposing] party, [(v)] whether there is a history of dilatory action, and [(vi)] the availability of sanctions less drastic.” Payne ex rel. Estate of Calzada v. Brake, 439 F.3d 198, 204-05 (4th Cir. 2006). Whether to set aside a default remains within the Court’s discretion, see id. at 204; nevertheless, “[g]enerally a default should be set aside where the moving party acts with reasonable promptness and alleges a meritorious defense,” Consolidated Masonry & Fireproofing, Inc. v. Wagman Constr. Corp., 383 F.2d 249, 251 (4th Cir. 1967).
Here, the first factor (i.e., a meritorious defense) supports Serna’s position. Among other defenses, Serna (through counsel) asserts that Jefferson’s contributory negligence bars Plaintiff’s recovery. (See Docket Entry 70-1 at 12.) In this regard, Serna contends that “the evidence appears to show without question that [Jefferson] had stopped his motorcycle [*9] on the highway at the time of the injury, and it is possible the [Jefferson] was in the right of way at the time of the accident, barring recovery” under North Carolina law. (Docket Entry 71 at 6.) Serna further maintains that Jefferson displayed contributory negligence by parking “on the paved portion of the highway,” an action that North Carolina forbids unless a vehicle “is disabled to such an extent that it is impossible to avoid stopping and temporarily leaving the vehicle upon the paved . . . portion of the highway.” (Id. at 6-7 (internal quotation marks omitted).) Finally, Serna asserts that “[Jefferson] could be considered contributorily negligent under the common law.” (Id. at 7.)
Notably, Plaintiff does not dispute the cognizability, as a legal matter, of Serna’s proffered defenses. (See Docket Entry 73 at 4.) Instead, Plaintiff maintains that, as a factual matter, Jefferson did not act with contributory negligence. (See id. (contending that Serna’s “argument is futile . . . . [b]ecause there was a detailed investigation, reconstruction and 562 page report created by the North Carolina State Highway Patrol that confirms by all accounts Plaintiff was well off of the main roadway and was stopped [*10] due to mechanical issues with Plaintiff’s motorcycle”).)
The current record does not clearly establish whether Jefferson acted with contributory negligence. As an initial matter, the Complaint lacks sufficient detail to ascertain exactly where and why Jefferson parked his motorcycle. (See generally Docket Entry 1.) In addition, Plaintiff did not submit the referenced Highway Patrol report in responding to the Motion. (See Docket Entries 73-1 to 73-5.) However, in opposing transfer to this Court, Plaintiff submitted a newspaper article regarding the underlying crash, which includes a picture showing three wrecked motorcycles on the paved shoulder of Interstate 85, as well as motorcycle debris in the grass area beside the paved portion of the highway. (See Docket Entry 49-1 at 1.) According to this article, “[o]fficials said the six motorcycles were parked on the side of the road due to mechanical issues with one of the bikes when a tractor-trailer hit them. The truck then came to a stop further up on I-85.” (Id. at 2.) Given this record, Serna satisfies the meritorious defense factor. See, e.g., Armor v. Michelin Tire Corp., No. 96-1724, 113 F.3d 1231 (table), [published in full-text format at 1997 U.S. App. LEXIS 10755], 1997 WL 245217, at *2 (4th Cir. 1997) (“All that is necessary to establish the existence of a meritorious defense is a presentation [*11] or proffer of evidence, which, if believed, would permit the court to find for the defaulting party.”); Augusta Fiberglass Coatings, Inc. v. Fodor Contracting Corp., 843 F.2d 808, 812 (4th Cir. 1988) (“The underlying concern is . . . whether there is some possibility that the outcome . . . after a full trial will be contrary to the result achieved by the default.” (ellipses in original; internal quotation marks omitted)).
The second factor (i.e., acting with reasonable promptness) also favors Serna. To begin with, within a fortnight of receiving service of process, Serna — an incarcerated, Spanish-speaking defendant — responded to the Complaint by sending his Response to Plaintiff’s counsel, as the summons (written in English) directed. (See Docket Entries 60, 73-2, 73-3.) This Response disputes the Complaint’s primary allegations against Serna — that he acted with negligence and that past conduct rendered him an unfit driver — and asserts that others bear responsibility for the accident. (See Docket Entry 73-2 at 3.) Serna’s Response also requests guidance from Plaintiff’s counsel on how to proceed with the lawsuit, in which Serna intends to “actively participate.” (Id.) From the correspondence that Plaintiff submitted in opposition to the Motion, it does not appear that either [*12] Plaintiff’s counsel or EC Trucking’s counsel (who also represented Serna in connection with this case at some point) replied to Serna directly about his assertions, request for guidance, or apparent failure to send a copy of the Response to the Florida Court, as the summons also directed (see Docket Entries dated Aug. 18, 2017, to Nov. 13, 2017; see also Docket Entry 60 at 2). (See Docket Entries 73-1 to 73-5.)
Moreover, Serna moved to set aside the default approximately one month after its entry. (See Docket Entries 66, 70.) This comfortably qualifies as acting with reasonable promptness. See, e.g., Vick v. Wong, 263 F.R.D. 325, 330 (E.D. Va. 2009) (finding reasonable promptness factor favored setting aside default where the defendant sought relief “more than two months after default was entered,” but “only a few weeks []after” the plaintiff moved for entry of default judgment); Wainwright’s Vacations, LLC v. Pan Am. Airways Corp., 130 F. Supp. 2d 712, 718 (D. Md. 2001) (finding reasonable promptness where “the default was entered on July 6th, and [the party] moved to vacate it on August 8th”); see also Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 953-54 (4th Cir. 1987) (reversing the denial of a motion to set aside default filed approximately ten months after the entry of default). The second factor thus favor setting aside the default.
The third factor (i.e., personal responsibility) [*13] counsels that result as well. Prior to issuance of a correctly addressed summons to Serna (see Docket Entry 27; see also Docket Entry 60 at 1), EC Trucking’s counsel informed Plaintiff’s counsel that he “was retained to represent . . . Serna in this lawsuit” (Docket Entry 73-1 at 1). In light of Serna’s Response, the third party who had hired this counsel to jointly represent EC Trucking and Serna indicated that “it will be retaining separate counsel to represent Mr. Serna.” (Docket Entry 73-4 at 1.) Although such counsel apparently appeared in a related case and participated in a “global settlement conference” (Docket Entry 73-5 at 2), he, for reasons unknown, failed to appear and answer in this case. Nothing in the record suggests that Serna knew of this failure prior to the Entry of Default, as none of the parties served any of their filings on Serna before Plaintiff moved for default. (Compare, e.g., Docket Entry 31 at 6, Docket Entry 39 at 13, Docket Entry 40 at 4, Docket Entry 45 at 3, Docket Entry 49 at 21, Docket Entry 61 at 3, and Docket Entry 64 at 3, with Docket Entry 65-3 at 2.) Indeed, even Plaintiff does not contend that Serna bears responsibility for the entry of default. [*14] (See Docket Entry 73 at 5 (arguing only that Serna bears responsibility for the underlying accident).) Under these circumstances, this factor supports Serna’s position.
The fourth factor (i.e., prejudice) likewise favors Serna. “In the context of a motion to set aside an entry of default, . . . delay in and of itself does not constitute prejudice to the opposing party.” Colleton, 616 F.3d at 418; see also United States v. Manriques, No. 1:10cr440, 2013 U.S. Dist. LEXIS 146993, 2013 WL 5592191, at *5 (M.D.N.C. Oct. 10, 2013) (explaining “that no prejudice accrues from ‘los[ing] a quick [default-based] victory'” (alterations in original) (quoting Augusta Fiberglass, 843 F.2d at 812)), report and recommendation adopted, slip op. (M.D.N.C. Dec. 31, 2013). Without offering any factual support, Plaintiff maintains that “[t]he difficulties with discovery and the greater opportunity for fraud or collusion are tantamount to prejudices that would affect Plaintiff’s ability to achieve proper justice in this case.” (Docket Entry 73 at 5.) These conclusory assertions of prejudice do not suffice, particularly given that discovery does not close until October 5, 2018 (see Text Order dated Dec. 18, 2017).7
Moreover, because Plaintiff asserts vicarious liability claims against EC Trucking and ALC based on Serna’s alleged negligence, [*15] Plaintiff must litigate the negligence claim against Serna “prior to establishing a claim against ALC and EC Trucking.” (Docket Entry 55 at 2.) Thus, setting aside the default will introduce no new issues into either the litigation process generally or the discovery process specifically. Finally, Plaintiff has known for months that Serna disputes the allegations of negligence (see Docket Entries 73-2, 73-3) and that Jefferson’s contributory negligence constitutes a pivotal issue in this litigation (see, e.g., Docket Entry 40-1 at 6 (seeking transfer to North Carolina on the grounds that this Court “is more familiar with . . . North Carolina’s doctrine of contributory negligence”)), so setting aside the default causes Plaintiff no unfair surprise. Accordingly, the prejudice factor supports the granting of relief from default.
The fifth factor (i.e., history of dilatory action) and sixth factor (i.e., availability of lesser sanctions) similarly favor Serna. Aside from the failure to officially answer the Complaint, the record reveals no dilatory conduct by Serna. (To the contrary, the record reflects that he promptly sent his Response to Plaintiff’s counsel upon receiving the Complaint.) [*16] In addition, as both Plaintiff and Serna recognize, the Court could impose lesser sanctions. (See Docket Entry 70 at 2; Docket Entry 73 at 6.)8 These final two factors thus counsel against leaving the default in place.

Conclusion
All six factors favor setting aside the default.
IT IS THEREFORE ORDERED that the Motion (Docket Entry 70) is GRANTED and the Entry of Default (Docket Entry 66) against Serna is hereby SET ASIDE.
This 13 day of March, 2018. th
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

2018 WL 1414498

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.
Court of Appeals of Texas,
Beaumont.
JIMMY RAY ROBERSON JR. AND MISTY ROBERSON, Appellants
v.
UNION PACIFIC RAILROAD COMPANY, Appellee
NO. 09-16-00392-CV
|
Submitted on November 29, 2017
|
Opinion Delivered March 22, 2018
On Appeal from the 60th District Court
Jefferson County, Texas
Trial Cause No. B-194,123
Before McKeithen, C.J., Kreger and Johnson, JJ.
Opinion

MEMORANDUM OPINION
STEVE McKEITHEN Chief Justice
*1 Jimmy Ray Roberson Jr. and Misty Roberson1 appeal the trial court’s judgment following a jury trial. In four appellate issues, the Robersons challenge the trial judge’s overruling of their motion for new trial, in which they alleged that the evidence conclusively established that Union Pacific’s negligence was a proximate cause of the accident and that Jimmy’s negligence was not. We affirm the trial court’s judgment.

PROCEDURAL AND FACTUAL BACKGROUND
The Robersons filed suit against Union Pacific Railroad Company (“Union Pacific”), alleging that Jimmy was severely injured when a tractor-trailer owned by T and D Solutions, LLC (“T & D”) was struck by a Union Pacific train.2 The Robersons asserted that Jimmy was in the driver’s seat of the tractor-trailer, which was positioned across the train tracks at the time of the collision. The Robersons contended that Union Pacific, as well as Union Pacific’s engineer and conductor, were negligent and grossly negligent, and that their negligence proximately caused Jimmy’s injuries and damages. In addition, the Robersons alleged that Union Pacific acted intentionally by instructing its engineers to ignore written safety rules to keep on schedule and to assume that obstructions on the tracks will move. Misty asserted claims for loss of consortium, loss of household services, and mental anguish.

James Carter, Union Pacific’s corporate representative, testified that the accident occurred on February 19, 2013, at approximately 8:00 a.m. Carter explained that the crash involved a collision between a low-boy trailer that was carrying a crane and Union Pacific’s “consist” that contained five locomotives. According to Carter, the consist was being operated by two Union Pacific employees: engineer Leroy Price and conductor L.V. McQueen Jr. Carter testified that the tractor-trailer was stopped at the grade crossing approximately fifty-three seconds before the consist struck it. Carter stated that Price should know the approximate required stopping distance in both normal and emergency braking situations. Carter testified that the “entire stretch” a few miles back from the crash site, was straight and flat, and the engineer and conductor had an unobstructed view as they proceeded down the tracks. In addition, Carter explained that the weather was good on the day of the crash, and Price should have been able to see at least one mile down the tracks.

*2 According to Carter, on the day of the accident, Price and McQueen were operating the locomotive at approximately fifty-nine miles per hour, and the locomotive’s speed at the time of the impact was fifty-seven miles per hour. Carter opined that Price and McQueen probably could have seen Roberson’s trailer, but the tractor would have been hidden by the trees.

Carter explained that Union Pacific operates under a General Code of Operating Rules (“GCOR”), which are divided by craft and govern all employees, including Price and McQueen. Carter testified that one of the purposes of the GCOR is to prevent injuries and fatalities to the general public, and he explained that the rules must always be in writing. According to Carter, the GCOR requires employees to exercise vigilant lookout, observe what is in their field of vision, and to respond without hesitation. Carter explained that the GCOR also require that in case of any doubt or uncertainty, an employee must take the safe course of action without hesitation. Carter testified that the GCOR applied to Price and McQueen during the entire fifty-three seconds they were able to see the tractor-trailer on the tracks. In addition, Carter testified that one of the GCOR instructs engineers and conductors to operate efficiently and to avoid unnecessary delays.

Carter stated that engineers are not specifically taught not to stop or slow down until they are certain that a car on the crossing will not move, but Union Pacific does teach engineers to assume that a vehicle will move “[o]utside any warning that it’s not go[ing to] move or it’s disabled[.]” Carter testified that vehicles that remain stopped on the tracks have approximately an eighty percent chance of being struck by an approaching Union Pacific locomotive. Carter explained that rules in the GCOR require application of the emergency brake when doing so is necessary to protect life or property, and to use the maximum braking effort available that is consistent with safe train handling techniques. Carter testified that the Federal Railroad Administration (“FRA”) maintained that “ ‘[t]he physical properties of a moving train virtually always prevent it from stopping in time to avoid hitting an object on the track, regardless of the speed which the train is traveling.’ ”

According to Carter, “[t]here’s no way to pull up the data of how many collisions at a crossing the engineer has been involved in.” Carter explained that Union Pacific does not maintain databases regarding the work history of particular employees as to collisions, and he stated that the FRA does not require that such records be kept. According to Carter, operating practices inspectors and other individuals from FRA “ride with us, … evaluating our practices, our track structure, [and] our signal structure.” Carter testified that Price’s previous involvement in accidents involving fatalities could potentially affect Price’s ability to safely perform his job.3 According to Carter, Price was evaluated by many people before he was permitted to operate a locomotive again.

Carter agreed that if the emergency brake had been applied between 1700 and 2100 feet away, there would have been in time to avoid injury, death, and property loss. Carter testified that the locomotive’s data recorder shows that four seconds after the tractor-trailer stopped on the tracks, the train’s speed increased from fifty-eight to fifty-nine miles per hour. The parties stipulated that as the train approached the crossing, the engineer blew the horn in compliance with applicable regulations, the loudness of the horn complied with applicable regulations, and the background noise level at the crossing was loud enough that Roberson could not hear the horn in enough time to react before the collision. Carter also explained that emergency braking carries a risk.

*3 McQueen’s videotaped deposition was presented to the jury. McQueen testified that he began working for Union Pacific in April of 1998, and he was employed there until the date of the accident involving Roberson. McQueen explained that he was hired as a switchman and brakeman, and was subsequently promoted to conductor at the end of 1998. According to McQueen, the conductor is in a superior position to the engineer regarding the safety of the train. McQueen testified that the conductor can instruct the engineer to do something, but applying the emergency brake is the only thing the conductor can physically do on the train.

McQueen testified that the accident involving Roberson was the first crossing accident he experienced as a conductor, and that accident was the first time he needed to apply the emergency brake. McQueen explained that he did not apply the emergency brake until five seconds before impact because he felt that Price was handling the train properly, and he applied the brake “when we figured that the truck wasn’t going to move.” McQueen testified that he saw the whistle board and checked to make sure he did not have any slow orders, and when Price told McQueen that he thought he saw something, McQueen also saw something, but McQueen “actually didn’t know what it was.” McQueen explained that it took him a few seconds to figure out what he was seeing, and the train was “pretty close” before McQueen and Price knew that a truck was sitting at the crossing. McQueen testified that Price was already slowing down, and he could hear Price throttling off the engines and the engines revving down. McQueen opined that Price was properly handling the train because Price was taking action and slowing the train down. McQueen testified, “We did everything right. We couldn’t have done anything different.”

McQueen explained that the train had the right-of-way, and he and Price believed the tractor-trailer would get out of the way. According to McQueen, “They have to get out of the way, if we’re blowing the whistle. We have the right-of-way. They have to get out of the way of the track.” McQueen explained that the emergency brake was not applied until five to six seconds before impact because “[t]hat’s when we figured he wasn’t go[ing to] move.” McQueen denied that the tractor-trailer should have been visible to him and Price before they reached the whistle board. McQueen explained that he and Price saw “an object down there[,]” but that they did not know what it was until they “got up on it and [saw] that it was a tractor and a trailer.” McQueen testified that he and Price had to be cut out of the locomotive after the accident. McQueen testified that he was not reprimanded for the accident.

Price testified that he began working with Missouri Pacific in September of 1979, and Missouri Pacific ultimately merged with Union Pacific. Price explained that he has worked as both a locomotive engineer and in a management position as Director of Road Operations (“DRO”). According to Price, part of his job duties as DRO included investigating collisions and other critical incidents, and he did not recall ever finding fault with an engineer in a crossing accident. Price testified that if an engineer appeared to be experiencing emotional problems, physical problems, or fatigue, Union Pacific would require a check ride, and if Union Pacific determined that there was a problem, the engineer would be removed from the job and put into a training period. Price explained that when his position as a DRO ended with Union Pacific, he returned to working as an engineer approximately one year before the accident involving Roberson.

*4 Price testified that as an engineer, he had been in other accidents that involved fatalities. Price never received psychological or psychiatric care from Union Pacific after the previous accidents, but he did begin seeing a psychiatrist for post-traumatic stress disorder at some point after the February 2013 accident, and he had been seeing the psychiatrist for approximately a year and a half at the time of trial. According to Price, his psychiatrist advised him not to return to work as an engineer. Price testified that until the accident with Roberson, he felt that he was “a hundred percent competent.”

Price stated that on February 19, 2013, he was working with McQueen for the first time. Price explained that the weather was clear and sunny, and he had an unobstructed view down the tracks. Price testified that the locomotive’s lights were turned on. According to Price, there are no lights or gates at the crossing where the accident occurred. Price opined that from a half-mile away, given the lighting conditions that existed on the day of the accident, he could not have determined that he needed to be concerned about the object on the tracks. According to Price, there were no indications that the vehicle was disabled or in an emergency situation. Price testified, “If they were out flagging, I would have stopped. I would have [done] my best with everything I had to stop, if somebody had been there and let me know that something was wrong.” Price did not see the tractor-trailer as it came over the crossing. Rather, Price testified that he first noticed something across the tracks when he blew the whistle after the whistle board, and the whistle board was 2022 feet from the crossing. According to Price, even if he had seen the tractor-trailer when he was at the whistle board, he probably could not have stopped the train in time. Price explained that Union Pacific’s data sheet indicated that he blew the whistle seventeen seconds before the crash occurred. Price testified that he used the maximum braking effort.

Price explained that after the accident occurred, he notified the dispatcher by radio. According to Price, when a railroad experiences a crossing collision, it must be reported to the FRA within twenty-four hours, and he did so. Price testified that after the accident, he reported to Union Pacific that it should take better care of its crossings, but that was before he learned from Roberson’s deposition that Roberson was not stuck on the tracks. Price denied that Union Pacific trained its engineers to believe that all vehicles stopped on a crossing will move. Price explained, “Every situation is different. Just you take care of the situation. You just look at what’s happening, and then you put together everything. The grade, the speed, how heavy you are, you go by all of this kind of stuff.” Price agreed that he testified at his deposition that if he slowed down or stopped every time a vehicle pulled onto the crossing, the train would never arrive and he would be out of a job.

Price testified that when a train is approaching a vehicle stopped on a crossing, the engineer looks for signs of distress or an emergency situation, such as someone waving his hand with a flag, a light, a hood raised on a vehicle, or other indications of a problem. Price explained that if he could see that a vehicle was stuck, he would take emergency action right away. According to Price, if no signs of distress or emergency exist, in his experience, the vehicle will generally move. Price testified that prior to the accident with Roberson, he had never struck a vehicle that was stopped on a crossing. Price explained that when he returned to work after the February 2013 accident, he was required to do test rides, check rides, and retake a rules test, and he was tested and analyzed by multiple managers. Price testified that he had passed all of the required testing at Union Pacific, such as rules training, check rides, and simulator training.

*5 Billy Edward Gearan testified by videotaped deposition that he began working for Union Pacific as a switchman, brakeman, and conductor in 2002. Gearan explained that he began training as an engineer and was promoted in April 2006. Gearan stated that he was also a safety facilitator and coordinator in Union Pacific’s transportation department for two years before going to work as manager of operating practices. As a manager of operating practices, Gearan supervised all transportation employees, which included checking on the engineers and ensuring that the engineers understand and comply with the rules. He also performed efficiency testing as required by FRA regulations. Gearan testified that he returned to working as an engineer on April 16, 2016.

According to Gearan, engineers know how to calculate the amount of braking power they have. Gearan explained that tons per operative brake is the weight divided by the amount of brakes in the train, and engineers make this calculation before starting their routes. According to Gearan, it is feasible that a forty-year-old man could see a mile on a clear day when his vision is not obstructed. Gearan stated that an engineer can use binoculars, but “the naked eye is the safest way to operate our train out there.” According to Gearan, Union Pacific requires its engineers to take hearing and vision tests every three years.

Gearan explained that after the February 2013 accident occurred, he retrieved event recorder data and downloads from the locomotives in the consist, reported the data, and put the data into a database. Gearan testified regarding the times when the throttle was decreased. According to Gearan, brakes were applied at 7:56:04, and the moment of impact was 7:56:09. Gearan testified that he did not take exception to how Price operated the train.

Roberson testified that when the accident occurred, he was employed as a Class A lineman by T & D, which does contract work for Entergy that involves maintenance and construction. Roberson explained that being a Class A lineman is physically demanding. Roberson holds a commercial driver’s license, which allows him to drive tractor-trailers and 18-wheelers, and he used that license working for T & D.

On the day of the accident, Roberson was hauling a Mantis crane, which is an oversize load, on a tractor-trailer. Roberson testified that T & D informed him that he would need to cross railroad tracks and to make sure that he could clear the tracks. Roberson testified that he did not know the exact weight of the load he was carrying. Roberson explained that the tractor-trailer sits low to the ground and has a hydraulic lift. According to Roberson, he could not have raised the tractor-trailer to its maximum height before attempting to drive it because it would have made the equipment unstable due to the turns that he had to make. As Roberson proceeded down Highway 90 toward Beaumont, he saw his co-workers, Andrew Cain and Joseph Grant, on the side of the road, and he saw the private crossing where the accident occurred. Roberson explained that he entered the median and raised his trailer to accommodate the tracks.

According to Roberson, he got back into his truck, turned right, came to the stop sign, looked, did not see anything, and proceeded to cross the tracks. Roberson testified that it was his responsibility to decide how high to raise the trailer so that stopping on the tracks would not be necessary. The cab of Roberson’s truck cleared the tracks, and he testified that he could then feel the trailer rubbing the tracks, so he stopped. Robertson explained that if he had pulled the trailer over the tracks at that point, he would have damaged the tracks, and he was also concerned about damaging the trailer.

*6 Roberson testified that he looked both ways and did not see a train coming. Roberson stated that once he looked both ways before going over the crossing, he focused his attention ahead because he was concerned with getting across the tracks. Roberson explained that he looked down the tracks again, removed his seat belt and got out of the truck, and he informed Cain that he was going to raise the trailer. According to Roberson, the trailer was not stuck on the tracks, and he felt that he could get it off the tracks. Roberson testified that he was concerned with getting the tractor-trailer off the tracks as quickly as possible even though he did not see a train. According to Roberson, he could not back up because his truck would protrude onto the highway.

Roberson testified that neither Cain nor Grant indicated that they saw an approaching train. Roberson explained that he was not constantly looking for a train, and he “cannot tell you what Cain and Grant [were] doing.” Roberson stated that he did not see the train or hear its horn, and he explained, “I believe the train saw me way before I saw it.” Roberson raised the trailer and got back into the truck. Roberson testified that when he turned to go back to the truck, he did not look both ways down the tracks. Roberson explained that when he got back into the truck, “that’s when I heard the train. … I heard the horn and caught it out of the corner of my eye. … It just didn’t seem real. … and then boom.” Roberson stated that he remembered being struck by the train, “bouncing all over the place[,]” getting out of the truck, and then passing out and awakening in the hospital. According to Roberson, he suffered internal bruising, a concussion, and injuries to his ribs, back, and knees. Roberson stated that he was in pain and could hardly breathe. Roberson had surgery in January of 2014, and he had pain management treatment.

Cain testified by videotaped deposition that he began working for T & D in June of 2012 and is currently employed there as a Class C lineman. Cain explained that he normally worked on the same crew with Grant. Cain testified that he had been to the site before the accident to review the area, and he knew there were railroad tracks there. Cain’s foreman had instructed him and Grant to help Roberson unload the truck when it arrived at the job site. According to Cain, on the day of the accident, he and Grant proceeded to the crossing in a truck to await Roberson’s arrival. Cain testified that he crossed the tracks after looking left and right, and Cain and Grant both got out of the truck. Cain testified that he and Grant both looked both ways as they walked toward the tracks.

According to Cain, Roberson made a right turn and attempted to pull across the tracks, and Roberson stopped when his trailer hit the tracks. Cain explained that the trailer was not stuck, but it had made contact with the tracks. Cain testified that Roberson got out of the truck and tried to raise the trailer. Cain testified that he never looked back toward the Liberty side of the tracks after Roberson started raising the trailer, and he did not see the train until the impact occurred. When asked whether anything obstructed his vision, Cain testified, “[t]here’s a tree line there, but it’s not really in the way.” According to Cain, after Roberson adjusted the trailer, he did not give Cain or Grant instructions about looking out for an approaching train. Cain testified that the train hit Roberson’s truck a few seconds after Roberson had gotten back into the truck. After the accident occurred, Cain attempted to perform first aid on Roberson and then moved to Grant, and he determined that Grant was dead. Cain explained that he believed, he, Grant, and Roberson acted in a safe manner.

*7 Rodney Ellis, a safety consultant in the trucking industry and a litigation support person for trucking accidents, testified that Roberson’s counsel retained him to investigate the accident that occurred on February 19, 2013. According to Ellis, T & D has a good rating for safety, Roberson was a properly licensed and experienced commercial driver, and Ellis had not reviewed any evidence to indicate that Roberson was not qualified. In addition, Ellis testified that T & D had obtained the proper permit for the job in which Roberson was involved on February 13, 2013.

Ellis testified that eight inches was a proper way to transport a tractor-trailer, which is where Roberson had the trailer set when he embarked on the day of the accident. Ellis explained that the trailer is “not designed to travel in the elevated position.” According to Ellis, “the higher you raise that unit, the more unstable it is.” Ellis opined that Roberson’s decision to raise the trailer in the median of the highway was the safest decision Roberson could make, and he testified that he did not believe Roberson could have adjusted the trailer by stopping on the shoulder of Highway 90 because portions of the shoulder are composed of gravel and are unlevel. Ellis explained that a driver should not raise a trailer beyond where he feels he will have sufficient clearance. Ellis testified that once Roberson felt scraping, stopping at that moment was the appropriate response. According to Ellis, when a trailer scrapes a railroad track, there is a risk that the track and the trailer could be damaged.

Ellis explained that Roberson should not have proceeded forward despite hearing the scraping because it would only worsen as he moved farther forward, and he might have gotten “hung up.” Furthermore, Ellis testified that it could have been unsafe for Roberson to back up because he could either have gotten stuck or backed into the highway. Ellis also opined that there was nothing wrong with Roberson relying on Cain and Grant to serve as spotters. During cross-examination, Ellis stated that Roberson incorrectly estimated the necessary height to get the trailer across the tracks. Ellis also testified that in addition to watching the trailer while he was raising it, Roberson should have been scanning the area and looking down the track. Ellis also agreed that when working in a high-noise environment, it is more important to keep a proper lookout.

Physicist and mathematician Stuart Nightenhelser testified that he is employed by Wolf Technical Services. Nightenhelser explained that part of his work includes forensic engineering, including train accident reconstruction. Nightenhelser explained that “the part of optics that pertains to visibility, lighting which is necessary for vision, human vision, that kind of thing, is a part of human factors.” According to Nightenhelser, his field includes what could have been visually perceived at different points of time and under different circumstances, such as lighting, color, brightness, and how an object is presented against its background. Nightenhelser opined that McQueen and Price should have easily recognized the crane from at least a mile away as a large object on the track. Nightenhelser explained that the crane was white, and it contrasted against a darker background of vegetation. Nightenhelser also stated that the two rails going into the horizon provided another visual cue. According to Nightenhelser, “it’s the white body of the crane primarily that you’re [going to] see and that’s [going to] get your attention from a mile out and then on into half a mile and so forth.”

*8 Nightenhelser opined that no external warning sign was required to alert the crew that the tractor-trailer would not move from the tracks. Nightenhelser explained:
[I]n the same way that motion is a visual cue, lack of motion is a visual cue. So, if you’ve been aware and looking ahead of you and seen this thing sitting there stationary for that entire 34 seconds prior to 1400 feet, that’s a pretty strong visual cue that this thing’s not going anywhere.”
In addition, Nightenhelser testified that Roberson’s and Cain’s view down the track would have been obstructed by vegetation. During cross-examination, Nightenhelser stated that motion tends to get attention. Nightenhelser also testified that immediately before the collision, both Grant and Cain had an unimpeded view of an approaching train. Nightenhelser admitted that during his deposition, he testified that the men could have seen the train when it was far enough away to allow them to move away. Nightenhelser agreed that Roberson would not have been injured if he had looked before getting back into the cab of his truck.

Jimmy Calvin Scott, a safety consultant regarding issues involving railroad operations, testified that he reviewed numerous documents, as well as the event data recorder, and video, and he had inspected the accident site and viewed the tractor-trailer and crane at the junkyard. Scott testified that he also viewed the locomotive and read various rules and regulations in the GCOR that apply to operation of a locomotive. Scott explained that the data from the event data recorder enabled him to evaluate the decisionmaking of the engineer and conductor. Scott opined that Union Pacific did not follow the GCOR when the crash occurred. According to Scott, an attentive engineer and conductor should have been able to see the tractor-trailer at least fifty-three seconds away from it. Scott opined that the distance between when McQueen and Price should have seen the tractor-trailer versus when they did see it covered approximately 3000 feet, making both Price and McQueen in violation of the GCOR. Scott testified that the conduct of Price and McQueen was not consistent with safe operation practices, and both men were negligent and failed to apply the brakes in a proper manner because they waited until four seconds before impact to apply the emergency brake. In addition, Scott testified that emergency braking would not have been necessary if McQueen and Price had been alert and attentive because “they had plenty of time to stop otherwise.” Scott testified that Union Pacific exonerated its crew with respect to the accident.

Union Pacific presented the testimony of Russell McGowan by videotaped deposition. McGowan testified that he has worked for T & D approximately seven or eight years, and he currently works for T & D as a safety training compliance coordinator. McGowan stated that his work sometimes involved driving tractor-trailers like the one involved in the February 2013 accident. McGowan explained that in preparation for traversing a railroad crossing, he generally raised his trailer as high as it would go. The defense then rested.

Question one of the charge submitted to the jury asked whether the negligence of Union Pacific or Roberson proximately caused the occurrence. The jury answered “no” as to Union Pacific and “yes” as to Roberson. Roberson filed a motion for new trial, in which he alleged, among other things, that the evidence was legally and factually insufficient to support the jury’s response to question one. The trial judge overruled the motion for new trial, rendered judgment in favor of Union Pacific, and ordered that the Robersons take nothing.

ISSUES ONE, TWO, THREE, AND FOUR
*9 As discussed above, the Robersons raise four appellate issues. In issue one, the Robersons argue that the trial court erred by overruling their motion for new trial because the jury’s “no” finding as to Union Pacific’s negligence was against the great weight and preponderance of the evidence. In issue two, the Robersons assert that the trial court erred by overruling their motion for new trial because the evidence conclusively established all vital facts in support of an answer of “yes” as to Union Pacific. In issues three and four, the Robersons argue that the trial court erred by overruling their motion for new trial because the evidence was factually insufficient to support the jury’s finding of “yes” as to Roberson’s negligence, and that there was no evidence supporting the jury’s answer. We interpret the Robersons’ issues as challenging the legal and factual sufficiency of the evidence supporting the jury’s answers to question one. Because the Robersons’ issues are interrelated, we will address them together.

We review the denial of a motion for new trial for abuse of discretion. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). Under an abuse of discretion standard, legal and factual sufficiency of the evidence are relevant factors in assessing whether the trial court abused its discretion. Lesikar v. Moon, 237 S.W.3d 361, 375 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991)); see Carlin v. Carlin, 92 S.W.3d 902, 905 (Tex. App.—Beaumont 2002, no pet.). In a legal sufficiency review, we credit favorable evidence if a reasonable factfinder could, and disregard contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Evidence is legally sufficient if it “would enable reasonable and fair-minded people to reach the verdict under review.” Id.

The factfinder is the sole judge of the credibility of the witnesses and is responsible for resolving any conflicts in the evidence, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. Id. at 819-21; Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004). As factfinder, the jury is free to disbelieve expert witnesses. Waltrip v. Bilbon Corp., 38 S.W.3d 873, 882 (Tex. App.—Beaumont 2001, pet. denied); see also Yap v. ANT Freight Sys., Inc., 789 S.W.2d 424, 427 (Tex. App.—Houston [1st Dist.] 1990, no writ). “[O]pinion testimony, even when uncontroverted, does not necessarily bind the jury.” Waltrip, 38 S.W.3d at 882.
[T]he judgments and inferences of experts or skilled witnesses, even when uncontroverted, are not conclusive on the jury or trier of fact, unless the subject is one for experts or skilled witnesses alone, where the jury or court cannot properly be assumed to have or be able to form correct opinions of their own based upon evidence as a whole and aided by their own experience and knowledge of the subject of inquiry.
McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

In reviewing the factual sufficiency of the evidence, we consider and weigh all of the evidence, and we will set aside the trial court’s finding only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly unjust. Dow Chem. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). As long as the evidence falls within the zone of reasonable disagreement, we cannot substitute our judgment for that of the factfinder. City of Keller, 168 S.W.3d at 822.

As part of their arguments on appeal, the Robersons cite So. Pac. Transp. Co. v. Peralez, 546 S.W.2d 88, 94 (Tex. Civ. App.—Corpus Christi 1976, writ ref’d n.r.e.) and state that Peralez was “[t]he last case thoroughly analyzing a train crew’s duty to slow or stop a train in a crossing collision case, when faced with unchanging conditions, like a vehicle stationary on the tracks[.]”Determining whether a defendant breached a duty is a question of fact. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 526 (Tex. 1990); Atchison, Topeka and Santa Fe Ry. Co. v. Standard, 696 S.W.2d 476, 479 (Tex. App.—Eastland 1985, writ ref’d n.r.e.). We conclude that Peralez and other such duty cases cited by the Robersons do not govern the jury’s resolution of the issue of the parties’ negligence presented in question one of the charge.

*10 The jury heard conflicting evidence from both lay and expert witnesses regarding what Price and McQueen could or should have seen and how quickly they could or should have reacted. In addition, the jury heard evidence that Roberson did not raise the tractor-trailer to its maximum height before attempting to cross the tracks, and the jury heard conflicting evidence about the safety or advisability of driving a tractor-trailer in a fully-elevated position. The jury also heard evidence that once Roberson stopped on the tracks, his focus was on raising the tractor-trailer and getting off the tracks, and he did not look both ways down the tracks before returning to his truck.

It was the province of the jury to resolve conflicts in the evidence, weighing the evidence, and to draw inferences from basic facts to ultimate facts. See Garza, 164 S.W.3d at 625; see also Waltrip, 38 S.W.3d at 882. Crediting favorable evidence if a reasonable factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not, we conclude that the evidence would enable reasonable and fair-minded people to conclude that Union Pacific’s negligence did not proximately cause the occurrence and that Roberson’s alleged negligence did proximately cause the occurrence. Therefore, the evidence is legally sufficient. See City of Keller, 168 S.W.3d at 827. Furthermore, considering and weighing all of the evidence, we conclude that the evidence supporting the challenged findings is not so weak nor are the jury’s findings so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Therefore the evidence supporting the jury’s findings is factually sufficient. See Francis, 46 S.W.3d at 242. Because the jury’s findings were supported by legally and factually sufficient evidence, we conclude that the trial judge did not err by overruling the Robersons’ motion for new trial. See Waffle House, Inc., 313 S.W.3d at 813; Lesikar, 237 S.W.3d at 375. Accordingly, we overrule issues one, two, three, and four, and we affirm the trial court’s judgment.4

AFFIRMED.

All Citations
Not Reported in S.W.3d, 2018 WL 1414498

Footnotes

1
When referring to appellants individually, we will refer to Jimmy as “Roberson” and to Misty by her first name.

2
The case began as a lawsuit by the surviving family members and the estate of Robert Grant, Roberson’s co-worker who was killed in the accident. Jimmy Roberson was named as a defendant in that lawsuit, along with Union Pacific and other defendants. The Robersons asserted a cross-claim against Union Pacific and other parties. The Robersons state in their brief that the portion of the case involving Grant settled, and the instant case involved the Robersons as plaintiffs and Union Pacific as the defendant.

3
During examination of Carter, the Robersons’ counsel read into the record a portion of Price’s deposition testimony, in which Price testified that he had been involved in three previous accidents involving fatalities.

4
Union Pacific raises two cross-points, in which it contends that (1) it is entitled to judgment as a matter of law because its crew applied the brakes when confronted with an imminent collision, and (2) it is entitled to judgment as a matter of law because the evidence established that Roberson was negligent per se and that his percentage of responsibility was greater than fifty percent. Although Union Pacific does not expressly indicate that its cross-points are conditional upon this Court granting relief to the Robersons on appeal, we interpret their cross-points as conditional. We need not address Union Pacific’s cross-points because we are affirming the trial court’s take-nothing judgment in favor of Union Pacific. See generally Tex. R. App. P. 47.1.