Southern Pacific Transportation Company v. George B. Ward--Appeal from 40th District Court of Ellis County

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Laws-info.com » Cases » Texas » 10th District Court of Appeals » 1991 » Southern Pacific Transportation Company v. George B. Ward--Appeal from 40th District Court of Ellis County

State: Texas

Court: Texas Northern District Court

Docket No: 10-90-00083-CV

Case Date: 10/30/1991

Plaintiff: Southern Pacific Transportation Company

Defendant: George B. Ward--Appeal from 40th District Court of Ellis County

Preview:Southern Pacific Transportation Company v. George B.
Ward--Appeal from 40th District Court of Ellis County
Southern Pac v. Ward /**/
IN THE
TENTH COURT OF APPEALS
No. 10-90-083-CV
SOUTHERN PACIFIC TRANSPORTATION
COMPANY,
Appellant
v.
GEORGE B. WARD,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court # 37,388
O P I N I O N
This case involves the Federal Employees' Liability Act (FELA). See 45 U.S.C. 51 (1986). On November 6, 1979,
George B.Ward, a twenty-year employee of Southern Pacific Transportation Company, was the conductor of a train on
a trip from Fort Worth to Ennis. Just outside of Ennis, as Ward was getting off his chair, the train experienced a
sudden jerk known as "slack action," which threw him to the floor. Slack action is caused by the "letting in and out" of
space between the cars of a train. As a result of the fall, Ward sustained injuries to his back. He sued Southern Pacific
for negligence, alleging that it was responsible for the excessive slack action which caused his fall. The jury
determined that Southern Pacific was negligent and Ward was awarded $66,000 in damages.
Southern Pacific raises three points on appeal: (1) that there was no evidence of its negligence, (2) that the verdict was
excessive, and (3) that the trial court erred when it refused to grant a remittitur. We affirm.
FELA STANDARD OF REVIEW
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In point one, Southern Pacific challenges the legal sufficiency of the evidence to support the jury's verdict. Because
this case involves the FELA, the more liberal FELA standard of review applies. See Hullum v. St. Louis SW. Ry., 384
S.W.2d 163, 172 (Tex. Civ. App. Tyler 1964, writ ref'd n.r.e.), cert. denied, 382 U.S. 906, 86 S.Ct. 244, L.Ed.2d
(1965). Once we determine that the verdict is supported by "some evidence," our review function is exhausted. See
Texas & Pac. Ry. v. Roberts, 481 S.W.2d 798, 800 (Tex. 1972). Thus, the jury verdict can only be disregarded when
there is a "complete absence of probative facts to support" it. Lavendar v. Kurn, 327 U.S. 645, 66 S.Ct. 741, 744, 90
L.Ed. 916 (1946).
Southern Pacific has failed to show a complete absence of evidence which would support the jury's verdict. Ward
presented evidence which could support a jury determination that Southern Pacific's negligence caused the slack action
leading to his injuries. Ward's testimony, the testimony of James Allen Holdcraft, an engineer with the Atchison,
Topeka, & Santa Fe Railway, and the testimony of James Davis, the train's engineer, established two possible causes
of Ward's injuries: (1) excessive slack action caused by improperly mixing loaded cars and empty cars in the train; or
(2) excessive slack caused by improper train handling by the engineer. Applying FELA standards, we hold that based
on the record as a whole the evidence was legally sufficient to support the verdict. Point one is overruled.
EXCESSIVE VERDICT AND REMITTITUR POINTS
Southern Pacific's second and third points are that the award of lost income was excessive and that a remittitur should
have been granted. These points are reviewed by considering and weighing all the evidence, both in support and
contrary to the challenged finding. See Browning v. Paiz, 586 S.W.2d 670, 676 (Tex. Civ. App. Corpus Christi 1979,
writ ref'd n.r.e.). Unless the finding is so weak or so against the great weight and preponderance of the evidence, it
must be upheld. Id. Furthermore, we "may not substitute our opinion for that of the trier of fact merely because we
might have reached a different fact conclusion." See id.
Although the award of lost income from November 1979 to March 1980 is not contested, Southern Pacific complains
about the amount of lost income awarded after March. Ward testified that, after he returned to work in March 1980, he
continued to miss "a couple of days a week or something like that" for "anywhere from two to three years." Taking
into consideration his escalating salary during these years and the nature of his injury, the evidence was sufficient to
support the jury's $16,000 lost income finding. Accordingly, we overrule points two and three.
We affirm the judgment.
BOB L. THOMAS
Chief Justice
Before Chief Justice Thomas,
Justice Cummings and
Justice Vance
Affirmed
Opinion delivered and filed October 30, 1991
Do not publish
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