Petition for Writ of Certiorari — Jones v. Port Terminal Railroad

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Supreme Court, U.S.

FILED

021769 wun 4 2003

No. _opriee Of THE CLERK

——

IN THE

Supreme Court of the Anited States

MICHAEL JONES,

Petitioner,

PORT TERMINAL RAILROAD ASSOCIATION,

Respondent.

Petition for a Writ of Certiorari to the

Supreme Court of Texas

PETITION FOR A WRIT OF CERTIORARI

TOM R. LETBETTER *

GEORGE PAYNE

GARRETT, LETBETTER & PAYNE, INC.

2500 Tanglewood, Suite 278

Houston, Texas 77063

* Counsel of Record (713) 783-2200

CLL, ELE ELIE LTE LLL ALLA TELE DNELG OLE LLANELLI ELE SAP IE SOQ BEIGE! LIES PLL ALES SEL EILEEN BALES BSP I

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

Whether the Safety Appliance Act, 49 U.S.C. Section

20302 (a) (2) applied to switchman, Michael Jones, when the

railroad tank car handrail he was using to dismount the tank

car broke causing him injury.

Whether the railroad tank car was “in use” under the Safety

Appliance Act at the time of Michael Jones’ injury.

LIST OF PARTIES

The caption of the case in the Court contains the names of

all parties to the proceedings in the Supreme Court of Texas.

The PORT TERMINAL RAILROAD ASSOCIATION, is an

association virtually completely comprised of the Burlington

Northern Santa Fe Railroad Company and the Union Pacific

Railroad Company.

SOTA a REA EDP OU nee Nm.

TABLE OF CONTENTS

Ree e RO e WEE I ai csssececsnesnsinsnssconsveseseceyvenese

a a I ic asl hneeccnensaneunnnnenhesaiiosecadsiacesensaseaness ii

DPN RE FORE FIRE BID vnncsinsionsevensscevesavacscnsnessssees Vv

SE ENO a cecihsesnvexssereessnbsshavenvedsariccesnvee Eaeaa l

I. CERTIORARI SHOULD BE GRANTED TO

RESOLVE CONFLICTS IN PRINCIPLE

AMONG THE LOWER COURTG................... 9

I shin iiidias cinch nighalvniiseewadiechaniassiadeninnde cismertawenin 21

APPENDICES

A. Opinion of the Court of Appeals for the Fourth

Supreme Judicial District of Texas.......... sihicaiis la

B. Order/Judgment of the Fourth Supreme

Judicial District of Texas Denying Motion for

Rehearing............ isabel iicasecbelNaalaaiilaicaie petccidoabiscebockaes 14a

C. Judgment of the Texas Supreme Court Deny-

ing Petition for Review of the Opinion/

Judgment of the Court of Appeals for the

Fourth Supreme Judicial District of Texas ........ Sa

(iii)

TABLE OF CONTENTS—Continued

Judgment/Order of the Texas Supreme Court

Denying Motion for Rehearing of Denial of

PE TE BE accent nirsncecensersisenctartreitincronse

Opinion of the Court of Appeals for Supreme

Judicial District of Texas in Kenneth Synar vs.

Union Pacific Railroad Company, No. 12-99-

00-428-C.V., Texas Sup. Ct. Case No. 011252,

writ denied by the Texas Supreme Court,

April 11, 2002. (opinion not published).............

Page

l6a

TABLE OF AUTHORITIES

CASES | Page

Affolder v. New York, C. & St. L.R.Co., 339 U.S.

Sak, Fe Ds CE, Fale Ce iscicetcrtncsistctcencnatiouns 14

; Alabama Great Southern R.R. Co. v. United

States, 233 F. 2d 520 (Sth Cir., 1956)..........0..... 15

Atchison, T. & S,F, Ry. Co. v. Keddy, 28 F. 2d

Pn COE ig: PR pisiernathtcininannalnaties 15

Baltimore & O.R. Co. v. Title, 4 F. 2d 818 (6th

Cs, CRT cscs tsteiotnciecmnoiaimaonua 15

Carter v. Atlanta & St. Andrews Bay Ry. Co., 70

Se GR, Za CT ss discnis ccpeniiniainhencibdaleaiialaadbatanaaes 14

Chicago G.W.R RR.. Co. v. Schendel, 267 U.S.

Bat Fee Oe GA FID GU iss nsdieiieantebnioanannes 15

Chicago Junction Ry. Co. v. King, 169 F. 372 9

CPS, Fi iidintcitdintiocanantaaunanedne 15

Chicago,.M., St. P. & Pac. R. Co., v. Gold-

hammer, 79 F, 2d 272-(8th Cir., 1935) .........0.0.. 14

Chicago, M., St. P & P. R.R. Co. v. Linehan, 66

F, 20 PEP A SE cecihscneatlnaciceten 15

Chicago, R.I. & Pac. Ry. v. Brown, 229 U.S. 317

~ CEPR DD: us cicscnteciensiacasauiiidaeguae asain ne 14

Deans v. CSX Transportation, Incorporated, 152

Fe Sa CRS FI vices phesteeaninte 15,17

DeBiasio v. Illinois Central Railroad, 52 F. 3rd

678, (7th Cir., 1995, cert. den. 116 S. Ct.

Pai inscitssdaicnisadeaelanadtemeiicenaiienbalie ance 14

Delk v. St. Louis & San Francisco R. Co., 220

oF. Ee ee 1), | | ee mOneren 14

Erie R. Co. v. Russell, 183 F. 722 (2nd Cir.,

TIE vcs gsncenidccnacssuimigtieaceeesianadseiddaldag endian 14

Fort Worth & D.C. Ry. Co., v. Williams, 275

S.W. 415 (Tex. App., 1925, cert. den. 270 U.S.

ORE, Gir. Ge. Fi cesta ntrgicencea enn: 14

TABLE OF AUTHORITIES—Continued

Fort Street Union Depo Co. v. Hillen, 119 F.2d

OT COG CW, TRS iirisiecseemnieseerniiainins

Hahn yv. Terminal Railroad Association of St.

Louis, 355 S.W. 2d. 867, (S. Ct. Missouri,

ERE) «:nsnsscesnsaspssthiaigporeanieasetansnebdsniamaaenriinaen

Louisville & Nashville Railroad Company v.

Layton, 243 U.S. 617, 37 S. Ct. 456 (1917).......

McAdoo v. McCoy, 215 S. W. 870 (Tex. App.,

1919, cert. den. 255 U.S. 575, 41 S. Ct. 447...

Minn, St. Paul & S. S. M.R. Co., v. Popplar, 237

US. S69, 3S FS. Ce, GP Pap i vnnesencosssernsiianeave ;

Monongahela Ry Co. v. Black, 235 F.2d 406 (4th

OOP. TIGR vinnciincissasciantacaeteeioiantnacmaians

Norfolk & Western Railway Company v. Ayers,

£23 &. Ch. 12 5O GIG iotirtscueinnns

O'Donnell v. Elgin, Joliet, & Eastern Ry. Co.,

SIS LG. SOG CII sciensicasirnnieinentenicenennaen

Phillips v. CSX Transportation Inc., 190 F. 3d

285 (4th Cir., 1999, cert. den. 120 S.Ct. 1269)..

Port Terminal Railroad Association v. Jones, 82

S.W. 3d 126 (Tex. App, 2002) writ denied........

Robb v. Burlington Northern & Santa Fe Rail-

way Company & Union Tank Co., 100 F.

Susp. 240 G67, M.D), Tih, BaP paisscsssventasavinsenvssence

Roe v. Port Terminal Railroad Association, 620

S.W. 2d 870 (Tex. App, 1981, error refused,

BEB} .ccssnnevisceaanannianiaanaaiean

San Antonio & A. P. R. Co. v. Wagner, 241 US.

STH, 363. Cr., GRR CF oiisicsdcunmensinns

Southern Ry. Co. v. Crocket, 234 U.S. 725, 34S.

CK BF CAA) inicennssciinsenscrnisiacenieeadngeie tanita

ah, PO Nts CAT Pse tad aI Tee tien Ck OLA BN 8 i inbe bo «

Vil

TABLE OF AUTHORITIES—Continued

St. Louis Southwestern Ry Co. of Texas vy.

Powell, 252 S.W. 268 (Tex. App., 1923,

We AIEAD vitinlbstinianidaaiaaainadceiieaaneintecaedais

St. Louis S.F. & T Ry. Co. v. Ussery, 259 S. W.

274 (Tex. App., 1924, writ. ref.) ....cccccceeeeceeees

St. Louis Merchants’ Bridge T. Ry. Co. v.

Schuerman, 237 F. (8th Cir., 1916) wo...

Synar vs. Union Pacific Railroad Company and

Missouri Pacific Railroad Company, Tyler

Court of Appeals Number 12-99-00428-C.V.;

Texas Supreme Court No. 001252, writ

denied. (unpublished opinion attached to

IIE iniicitihienshatenkcctetasntdcaii sacar: 8,

Texas & N.O. R.R. Co. v. McGinnis, 130 Tex 338

(Comm. Of. App., opinion adopted; 109 S.W.

sii eredllsitiiditiinniadas emai

Texas & P. Ry. Co. v. Sprole, 202 S. W. 985

Es MN es MPI c csAsecanstnctin tictbasceniceeeealanne lect aces

Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33,

es Si Rg ee ichacratinnensinenseicxcbibabendseisonn

Trinidad v. Southern Pacific Transportation Co..,

PP Ts Be OE COE Gl, FIED wscccvesscnsancineavennins

United States v. Cheseapeake & O. Ry Co, 213

FPN Al SPITE ishsssenichiskaniunstasaniriscasadantea

United States v. International & G.N.R. Co., 174

Fs ee RIPE ie ONIN vascccesyctiaxsicnsasentiniuessansdaisitens

United States v. Pere Marquette R. Co., 211 F.

220 (WDD. Micinigan, 1913).......c0cccecccscocssseesees

Williams v. Norfolk Southern Railway Co., 126 F

Supp. 2d 986 (W.D. Virg., 2000)...

Page

10, 18

Vili

TABLE OF AUTHORITIES—Continued

STATUTES Page

Title 49, Sections 20301 and 20302, U.S.C........... 2,9

i; ». & EES * CeO nnE EN 2

LAW REVIEW ARTICLE

Law Today; Gone Tomorrow, Jennifer Adams;

Baylor Law Review, Vol 53:3; Page 659 .......... 10

Oaths Bidens abn iatete Nee

IN THE

Supreme Court of the Anited States

lo.

MICHAEL JONES,

Petitioner,

Vv.

PORT TERMINAL RAILROAD ASSOCIATION,

Respondent.

Petition for a Writ of Certiorari to the

Supreme Court of Texas

PETITION FOR A WRIT OF CERTIORARI

Michael Jones, the petitioner herein, respectfully prays that

a writ of certiorari issue to review the judgment of the

Supreme Court of Texas, entered in the above-entitled case

on March 6, 2003, denying Motion for Rehearing on Denial

of Petition for Review entered in the above cause on

November 21, 2002, in which the Supreme Court of Texas

denied Petition for Review of the Judgment of the Court of

Appeals for the Fourth Supreme Judicial District of Texas.

OPINIONS BELOW

The May 8, 2002 opinion of the Texas Court of Appeals,

whose judgment is herein sought to be reviewed, is reported

at Port Terminal Railroad Association v. Jones, 82 S.W. 3d

126, and is reprinted in the separate Appendix to this Petition,

pp. la.

The judgment of the Supreme Court of Texas dated

November 21, 2002 denying Petition for Review and

LR Se LE RT I

judgment denying Petitioner’s Motion for Rehearing on

Denial of Petition for Review dated March 6, 2003, are

reprinted in the Appendix to the Petition, pp 15a and pp 16a

respectively.

JURISDICTION

The jurisdiction of this Court is involved pursuant to Title

28, Section 1257, U.S.C.A., in that the rights and privileges

of Petitioner, Michael Jones, under the Federal Employers

Liability, specifically, the Federal Safety Appliance Act, Title

49, U.S.C.A., Sections 20301 and 20302, have been denied

by the judgment of the Court of Appeals for the Fourth

Supreme Judicial District of Texas and the failure of the

Texas Supreme Court to grant review and reverse the said

judgment of the Texas Court of Appeals.

STATUTES INVOLVED

This case involves the “Safety Appliance Act” (FSAA)

codified in Title 49, U.S.C.A., Sections 20301 and 20302

which provide as follows:

“§ 20301. Definitions and nonapplication

(a) Definition.—In this chapter, “vehicle” means a car,

locomotive, tender, or similar vehicle.

“20302. General requirements

(a) General.—Except as provided in subsection (c) of

this section and section 20303 of this title, a railroad

carrier may use or allow to be used on any of its railroad

lines—

(1) a vehicle only if it is equipped-with-—

(A) couplers coupling automatically by impact, and

capable of being uncoupled, without the necessity

of individuals going between the ends of the

vehicles;

(B) secure sill steps and efficient hand brakes; and

quired by the Secretary of Transportation, and, if

ladders are required, secure handholds or grab irons

on its roof at the top of each ladder;

(2) except as otherwise ordered by the Secretary, a

vehicle only if it is equipped with secure grab irons or

handholds on its ends and sides for greater security to

individuals in coupling and uncoupling vehicles;

(3) a vehicle only if it complies with the standard

height of drawbars required by regulations prescribed

by the Secretary;

(4) a locomotive only if it is equipped with a power-

driving wheel brake and appliances for operating the

train-brake system; and

(5) a train only if—

(A) enough of the vehicles in the train are equipped

with power or train brakes so that the engineer on

the locomotive hauling the train can control the

train’s speed without the necessity of brake

operators using the common hand brakes for that

purpose; and

(B) at least 50 percent of the vehicles in the train

are equipped with power or train brakes and the

engineer is using the power or train brakes on those

vehicles and on all other vehicles equipped with

them that are associated with those vehicles in the

train.”

STATEMENT OF THE CASE

This is a Federal Employers’ Liability Act case brought

under the Federal Safety Appliances Act portion of the statute

by Michael Jones, Petitioner, who was injured in the course

and scope of his employment with Respondent, Port Terminal

Railroad Association.

THE EVIDENCE

Jones was hurt on October 16, 1997, while working as a

foreman on a Port Terminal Railroad Association (P.T.R.A.)

switching crew. (R.R. Vol. 2, p. 54) Jones is a switchman,

not a carman or repairman. He reported to work at the

P.T.R.A.’s Pasadena Yard and eventually took a train of

inbound cars to an industry, Lubrizol, serviced by the

P.T.R.A.. (R.R. Vol. 2, p. 58) When he arrived at Lubrizol,

he uncoupled his locomotives from the inbound cars he

brought from the Pasadena yard, and then began to prepare a

group of outbound cars released by Lubrizol for trans-

port back to the P.T.R.A. Pasadena Yard. (R.R. Vol. 2, pp.

58-61) The outbound cars had been left by Lubrizol em

ployees on a track called the Lubrizol lead. Jones walked to

the end of that group of cars, starting at the end of the cars

farthest from where his engine would couple into the cars.

He began to check his list of the cars, working his way

towards the engine, and began to prepare the outbound cars

for departure. At each car, he had to lace up the air hoses,

release some of the handbrakes, visually inspect the safety

appliances, and help the engineer put air in the brakes since

the two -engines were to be coupled to the outbound cars

before departure. (R.R. Vol. 2, pp. 74-76)

The last people to have handled the cars before Jones were

Lubrizol employees. (R.R. Vol. 2, p. 44) The last railroad to

have inspected these cars was the P.T.R.A. whose carmen

were to have inspected it at least four times between October

2, and October 8, 1997, when it was delivered to Lubrizol to

be loaded (R.R. Vol. 9 pp. 16-18). After inspecting and

lacing air hoses and releasing some handbrakes, Jones was

injured when the handhold broke while he was dismounting

one of the cars. (R.R. Vol. 2, pp. 70-76) Jones had to get up

on the car with the bad handrail to release the brakes so that ,

the engine and cars could immediately depart over to the spur

track. (R.R. Vol. 2, pp. 71-74) Once Jones got air on all the

Rake Wha NUNIT Pct CTR COR ae be, Waa eat i

cars he would have immediately moved the cars with the

defective handhold onto a siding at Lubrizol. Then his crew

would have put the cars he had on the main line onto the

Lubrizol track. (R.R. Vol. 2, pp. 61-62)

The handhold broke because of the poorly repaired, worn

splice in the handhold. A handhold that breaks is a safety

appliance violation. This was a running repair. Mowdy

(carman). R.R. Vol. 2, pp. 118, 124-127)

The threads were rusted and worn. (R.R. Dumesnil, Vol. 4,

pp. 224-226)

Jones needed to release the brakes. (R.R. Dumesnil, Vol.

4, pp. 11-12). The handholds are supposed to be secure.

(R.R. Vol. 4, p. 24)

The broken handhold was supposed to have been saved,

but is now missing. (R.R. Vol. 5, p. 42). The spliced threads

were worn down. The handhold is supposed to be secure

and this was a safety appliance (FSAA) violation. Smith

(P.T.R.A. claim agent). (R.R. Vol. 5, pp. 32, 43, 45, 50-52) —

The handhold is not supposed to break, it can be dangerous

if it does break, and a handhold like this is a safety appliance

violation. The car should have been inspected by P.T.R.A.

carmen on October 2, 1997. Running repairs could be done

by P.T.R.A. in October of 1997. Jenkins (head man for

P.T.R.A. with over 30 years of railroad experience). (R.R.

Vol. 7, pp. 148-149, 150-153; 153-158, 159)

At the time of the injury Jones and the P.T.R.A. were

engaged in work substantially affecting interstate commerce.

(R.R. Defendant’s Response to Plaintiff's Request for

Admissions of Fact, Vol. 8, pp. 194-195). George Taylor was

the head of safety appliance inspections and repairs (master

mechanic) for the P.T.R.A. on October 16, 1997. He was

the master mechanic for the P.T.R.A. from January 1, 1993

to September, 1998. He previously did the same work as

a mechanical supervisor for the Union Pacific, a member

line of the P.T.R.A., for thirty-six (36) years. (R.R. Vol. 9,

pp. 9-11)

Safety Appliances on the railroad include handrails. The

type of handrail involved in the injury to Jones is “bad order”.

(Loose, not secure, about to come loose). (R.R. Vol. 9, pp.

15-16) This would be a safety appliance violation. It is the

job of P.T.R.A. carmen to inspect such appliances, and if they

are in need of repair, pull them out of service and repair them.

(R. R. Vol. 9, p. 16) Mr. Taylor describes at least four

occasions from October 2, 1997 to October 8, 1997, (October

8, 1997 was the date when the railroad car was delivered

to Lubrizol) that the car should have been inspected by

P.T.R.A. carmen for safety appliance violations. (R.R. Vol.

9, pp. 16-18)

Taylor testified that all the P.T.R.A. does is switching

movements. It switches cars on its own tracks, from its tracks

to an industry, puts together cars that are leaving the Port

Terminal Railroad property, and puts together groups of cars

that are leaving industries to go to P.T.R.A. tracks. It picks

up cars from industries. The cars then go to wherever they

are going in the country and are carried by the Union Pacific

Railroad Company and the B.N.S.F. (P.T.R.A. member lines).

It moves cars from these railroads to industries. The P.T.R.A.

uses railroad cars in its business for switching. (R.R. Vol. 9,

pp. 19-21)

In order to switch cars switchmen must release brakes,

climb on and off railroad cars, climb on and off sill steps,

climb on and off moving equipment, both release and set

hand brakes, move drawbars, pull pins, couple cars together,

and uncouple cars. Without these processes the P.T.R.A.

cannot switch cars. (R.R. Vol. 2, pp. 36-44); and (R.R. Vol. 9,

pp. 20-21)

Taylor stated that you cannot always tell if an end handrail

such as the one that injured Jones is loose, broken, cracked, or

insecure simply by just walking by and looking at it. The

proper way to inspect this equipment is to pull on it and see if

it is properly secured. In order to do this P.T.R.A. carmen are

supposed to do their inspections by going up and pulling on

the handrails. They are supposed to do this on every car they

inspect. If the P.T.R.A. carman does not come up on the car

and pull on the handrail, he is not doing his inspection

properly. (R.R. Vol. 9, pp. 22-25, 56-57)

When railroad cars such as the one that injured Jones are

delivered to an industry, it basically sits there except for

being loaded and unloaded. He does not know if Lubrizol

had carmen like the P.T.R.A. carmen prior to October 16,

1997. (R.R. Vol. 9, pp. 26-27)

Taylor describes the defect which caused the handrail to

come loose as relating to worn threads. These threads do not

wear down overnight. It takes months for them to wear

down. If somebody had come up and shook that end handrail

within a few days before October 16, 1997, they should had

been able to identify that condition right then. (R.R. Vol. 9,

pp. 26-31)

Safety appliances on railroad cars such as end handrails are

supposed to be in proper condition under the F.R.A. and the

Safety Appliance Act when the Port Terminal Railroad

switches those cars. Never in the history of his railroad life

Or as a master mechanic on the P.T.R.A. had anybody like

Mr. Jenkins or Mr. Smith (P.T.R.A. officers) told him “don’t

pay any attention to safety appliances when we are switching

railroad cars”. Nobody has ever told him that. It would be

ridiculous to tell him that. (R.R. Vol. 9, pp. 33-34)

On the other hand Taylor has been told that when the

P.T.R.A. is involved in switching operations that safety

appliances must conform to Federal law and the Safety

Appliance Act. The requirements are in the Association of

American Railroad books; the P.T.R.A. rule books, and the

Federal Railroad Association books. He was supposed to

follow those regulations every single day of his work life with

the P.T.R.A.. (R.R. Vol. 9, pp. 33-34)

THE RULINGS BELOW

The case was tried to verdict, and the trial court entered

final judgment for the Petitioner based on the jury’s verdict

under the F.S.A.A. The judgment was signed by Honorable

John Coselli, Judge, 125th Judicial Court, Harris County,

Texas. (C.R. 65-74 & 75-77) P.T.R.A. gave notice of

appeal.

The parties in the Court of Appeals were Appellant, Port

Terminal! Railroad Association, and Appellee, Michael Jones.

The case was transferred to the Court of Appeals for the

Fourth Supreme Judicial of Texas at San Antonio. The

majority opinion of the Court of Appeals was written by

Honorable Sarah P. Duncan, who was joined by Honorable

Paul W. Green in the majority opinion and held that the

railroad car upon which Jones was injured was not “in

use” under the F.S.A.A. A dissenting opinion was written

by Honorable Phil Hardberger, Chief Justice. The opin-

ion reversing the case for Respondent, P.T.R.A., was

ordered published.

The San Antonio Court of Appeals and the Supreme Court

of Texas had before them the unpublished opinion of the

Tyler Court of Appeals in Kenneth Synar v Union Pacific

Railroad Company and Missouri Pacific Railroad Company,

Court of Appeals No. 12-99-00-428-CV, Tex. Sup. Ct. Case

No. 011252, writ denied, April 11, 2002. The San Antonio

Court of Appeals ignored the Syvar opinion which clearly

and unequivocally stated the correct law in safety appliance

act cases dealing with switchmen who are switching cars.

The Synar opinion correctly stated the Safety Appliance Act

9 -

law with regard to when a railroad car is “in use”. The Texas

Supreme Court denied writ in the Synar case, but refused to

order publication of the Synar opinion. Therefore, railroads

all over the country can take the position that Jones v. PTRA

correctly states the “in use” law. Because the Texas Supreme

Court refused to publish the Synar opinion which correctly

stated the law, the correct law is now buried, and the

published opinion in Jones v. P.T.R.A., which incorrectly

states F.S.A.A. law, has precedential value. -

The opinion and judgment of the Court of Appeals were

delivered and filed on May 8, 2002. Appellee’s (Jones)

Motion for Re-Hearing was received and filed on May 21,

2002. Appellee’s Motion for Re-Hearing was denied on May

29, 2002.

The Texas Supreme Court denied Petitioner’s (Jones)

Petition for Review on November 21, 2002 and denied Peti-

tioner’s Motion for Review of such denial on March 6, 2003.

REASONS FOR GRANTING THE WRIT

I. CERTIORARI SHOULD BE GRANTED TO

RESOLVE CONFLICTS IN PRINCIPLE

AMONG THE LOWER COURTS

The judgment of the Texas Supreme Court should be

reviewed by this Court because the opinion of the Texas

Court of Appeals incorrectly stated a vital part of the ONLY

system of compensation available to injured railroad workers.

The Texas Court of Appeals, by improperly stating the law as

to when a railroad car is “in use” on a railroad, divested tens

of thousands of railroad workers of rights granted them by

Congress, and enforced in hundreds of decisions for over a

century. The pivotal issue in this case is the applicability of a

Federal Statute, Title 49, Sec. 20301 and 20302, United

States Code, to all American railroad workers. This is not a

case of erroneous fact findings or misapplication of a prop-

erly stated rule of law.

The San Antonio Court of Appeals and the Supreme Court

of Texas had before them the opinion of the Tyler Court of

Appeals in Kenneth Synar v Union Pacific Railroad Com-

pany, Supra. The San Antonio Court of Appeals ignored the

Synar opinion which clearly and unequivocally stated the

correct law in safety appliance act cases. The Synar opinion

correctly stated the Safety Appliance Act law with regard to

when a railroad car is “in use”. The Texas Supreme Court

denied writ in the Synar case, but refused to order pub-

lication of the Synar opinion, thus denying Synar prece-

dential authority under Texas rules. Therefore, railroads all

over the country can take the position that Jones v. PTRA

correctly states the “in use” law. The Synar opinion and the

_ Jones opinion cannot both be correct, but the Texas Supreme

Court has allowed Jones to become the law without the

facing the hard truth that the Court of Appeals in Jones

misstated the law.

Attached to Petitioner’s Petition for Review in the Texas

Supreme Court was an article in Vol. 53 of the Baylor Law

Review entitled Law Today; Gone Tomorrow. This article

clearly outlined the injustices and unfairness of arbitrarily not

publishing opinions. The article pointed out that unpublished

opinions violate the United States Constitution because the

failure to publish opinions can expand the judiciary beyond

the meaning of judicial power in Art. III of the U.S. Con-

stitution, and are destructive of principles of stare decisis

upon which our legal system depends. At page 677, the

authsi correctly wrote that “rules restricting the precedential

value of unpublished opinions breed distrust for the judicial

process.” At page 678, she further wrote:

“When people start to believe the system is arbitrary, the

system loses all respect. The integrity of the court

stain aed bak aaa didi aia cae é

disappears and its officers lose the esteem of their

positions. The judicial branch of government is con-

sidered the most prestigious branch, the branch with

integrity, the branch where ordinary citizens go for

justice. . . Judges’ opinions are not supposed to be

hidden from the public but are supposed to be freely

disseminated so that people are aware of the decisions.

Any rule that takes away from stare decisis takes away

from the integrity of our judicial system because stare

decisis “contributes to the integrity of our constitutional

system of government, both in appearance and in fact.”

The statutory purpose of the Safety Appliance. Act; its

stated legislative intent; and a century of well-reasoned case

law, will be unjustifiably thrown aside if this Court does not

grant this writ and state the correct law applicable to rail-

road workers injured by violations of the Federal Safety

Appliance Act.

Tens of thousands of railroad workers, all over the United

States, twenty-four hours a day, seven days a week, in all

kinds of weather, switch railroad cars. The terminal railroads,

such as the Port Terminal Railroad Association in this case,

do nothing but switch railroad cars. Uncounted thousands of

railroad cars are switched every day by such terminal

railroads. The uncontroverted record in this case shows that

the Port Terminal Railroad Association has no use for

railroad cars other than to switch them. Its only use for the

railroad cars is to switch them. The only work for railroad

workers on the Port Terminal Railroad Association and such

railroads involves switching cars. This is their only use. If

this case was not so important, it would be laughable to think

that terminal railroads all over America who do nothing but

switch railroad cars are not “using” them under the Safety

Appliance Act. Railroad workers have no system of com-

pensation other than the Federal Employers’ Liability Act,

and the Safety Appliance Act is a vital and intergal part of

that system of compensation. Anyone who has ever handled

an FELA case knows that it is often impossible to trace who

did what to what railroad car when and at what point to cause

a safety appliance violation, such as a broken handhold, to

happen. Congress knew this 100 years ago. The courts have

known it for one hundred years. Railroads have known if for

one hundred years. It is why railroads workers must have the

protection of the Safety Appliance Act.

In 1893 Congress, at the urging of the President, passed the

Federal Safety Appliance Acts (FSAA) (also called “SAA”)

to protect switchmen from insecure handholds, grabirons, sill

steps, ladders and inefficient hand brakes and couplers, no

matter where the injury occurred or what the switchman was

doing. The Federal Safety Appliance Act (FSAA) provides

that a railroad may use or allow to be used on its line only

“vehicles”, defined to include railroad cars, that are equipped

with secure grab irons or handholds on ends and sides for

greater security to individuals in coupling and uncoupling

vehicles. (Emphasis ours). All employees were protected at

all times from the FSAA violations unless the bad car was

already at the railroad maintenance facility to be inspected,

serviced or repaired. As shown by the debates in Congress

and legislative history, the main group of employees Con-

gress was legislating to protect were switchmen doing

switching work.

Thousands of Federal Circuit, United States Supreme

Court, Federal District Court and State decisions held that the

provisions of the FSAA regarding hand holds, grabirons, sill

steps, ladders, brakes and couplers protect switchmen no

matter where the injury occurs or what the switchmen is

doing at the time of his injury unless the car was already at

the railroad maintenance facility. The courts always held that

the switchmen were protected from unsafe equipment. The

railroad car in violation of the FSAA was held to be “in use”

when: (1) the switchinan was not engaged in coupling or

uncoupling; (2) the car was not in motion; (3) the car was not

OS a

on a main track; (4) the car was by itself when the switchman

was injured.; and a multitude of other situations. The FSAA

violation existed if a covered appliance on the car (“vehicle”)

did not perform properly.

The legislative reasoning and intent for creating the

handhold provisions of the Safety Appliance Act as affirmed

in numerous Supreme Court cases and lower court opinions

rest in the following clearly established principles over the

last one hundred five (105) years: (1) there is an absolute

duty of the railroad companies to provide secure handholds to

switchmen no matter what the position the switchmen is in at

the time of the accident and no matter what act he is engaged

in at such time; (2) courts should liberally construe the hand-

hold provision to effectuate the prime purpose of Congress, to

protect railroad switchmen and others by requiring use of

safe equipment; (3) the duty is absolute, not excused by any

showing of care, however assiduous; (4) primary object of

act is to promote the public welfare by securing the safety of -

employees and travelers; (5) it matters not whether the car is

on the main line or switching track; (6) the statute should be

liberally construed so as to give a right for every injury, the

cause of which was a failure to comply with a re-

quirement of the act; and (7) courts will not construe the

handhold provisions in such a way as to lead to results which

are absurd, oppressive, and unjust and beyond the scope and

purpose of the statute. (Emphasis ours)

Shortly after the original FSAA handhold provision passed,

railroads tried to say that the handhold act did not apply

because the car was not in use: (1) if the employee was not

engaged in coupling or uncoupling; (2) if the car was not in

motion; (3) if the employee was not between the cars; (4) if a

switching crew was taking a “bad order” car to the shops; (5)

if the “bad order” car had been set out on a track with other

cars to be cut out of the cars; (6) if the car was not on a main

line track; (7) if the car was not going to another state; (8) if

employee was knocked off another train other than the car

with the bad grab iron; (9) if the switchmen is trying to repair

the defect on the track; (10) if the jury finds the handhold was

safe for its intended use; and (11) if a State statute covered

the handhold defect. All of those railroad theories have been

rejected for nearly 100 years: Louisville & Nashville Railroad

Company v Layton, 243 U.S. 617, 37 S. Ct. 456 (1917); Roe

v. Port Terminal Railroad Assoc., Supra; Texas & Pacific

Railway Company v. Rigsby, 241 U.S. 33, 36 S. Ct. 482

(1916). McAdoo v. McCoy, 215 S.W. 870 (Tex. App., 1919,

cert. den. 255 U.S. 575, 41 S. Ct. 447). Affolder v. New York,

C. & St. L.R. Co., 339 U.S. 96, 70 S. Ct. 509 (1949). Carter v.

Atlanta & St. Andrews Bay Ry. Co., 70 S. Ct. 226, (1949).

Chicago, R. I. & Pac. Ry. v. Brown, 229 U.S. 317 (1913).

O'Donnell, Administratrix v. Elgin, Joliet & Eastern Ry Co.,

338 U.S. 384, (1949). San Antonio & Aransas Pass Railway

Co. V. Wagner, 241 U.S. 476 36 S. Ct. 626 (1916). Texas &

P. Ry Co. v. Sprole, 202 S. W. 984 (Tex. App., 1918). Sz.

Louis S.W. Ry. Co of Texas v. Powell,_252 S. W. 268, (Tex.

App., 1923, W.E.D.R.). St. Louis S.F. & T. Ry Co v Ussery,

259 S.W. 275 (Tex. App., 1924, writ ref.). Texas & New

Orleans Railroad Co. v. McGinnis, 130 Tex 338 (1937,

Comm. of App. Fort Worth & D.C. Ry Co. v. Williams, 275

S.W. 415 (Tex. App., 1925, cert. den., 270 U.S. 661, 46 S. Ct,

356). DeBiasio v. Illinois Central Railroad, 52 F. 3rd. 678

(7th Cir. 1995, cert. den. 116 S. Ct. 1040). Erie R. Co. v.

Russell, i83 F. 722 (2d. Cir., 1910. Chicago, M. St. P & Pac.

R. Co v. Goldhammer, 79 F. 2d 272 (8th Cir. 1935). Southern

Ry Co v. Snyder, 187 F. 492 (6th Cir., 1911). Great Northern

Ry. Co. v. Otos, 239 U.S. 349, 36 S. Ct 124 (1915); Southern

Ry. v. Crocket, 234 U.S. 725 (1914); San Antonio Ry. v.

Wagner, 241 U.S. 476 (1916); Minn St. Paul & S.S. M. R. Co.

v. Popplar, 237 U.S. 369, 35S. Ct. 609 (1915); Delk v. St.

Louis & San Francisco R. Co., 220 U.S. 580, 31 S. Ct. 617

(1911); Southern Ry. Co. v. Snyder, 187 F. 492 (6th Cir.

1911); Fort Street Union Depo Co. v. Hillen, 119 F.2d 307 '

aait | 7 7

(6th Cir. 1941); Baltimore & O.R. Co. v. Tittle, 4 F. 2d 818

(6th Cir. 1925); St. Louis Merchants’ Bridge T. Ry Co. V.

Schuerman, 237 F.1 (8th Cir. 1916); Atchison, T. & S. F. Ry.

Co. v. Keddy, 28 F. 2d 952 (9th Cir. 1928); Chicago Junction

Ry. Co. V. King, 169 F. 372 (7th Cir. 1909); Chicago, M. St.

P. & P. R. R. Co. v. Lineham, 66 F. 2d 373 (8th Cir. 1933).

Chicago, G.W. RR. Co. v. Schendel, 267 U.S. 287, 45 S. Ct.

303 (1925). Monogahela Ry Co. v. Black, 235 F. 2d. 406 (4th

Cir., 1956). United States v. International & G.N.R. Co., 174

F. 638 (Sth Cir., 1909). Alabama Great Southern R. R. Co. v.

United States, 233 F. 2d. 520 (Sth Cir., 1956). United States

v. Pere Marquette R. Co., 211 F. 220 (W.D. Michigan, 1913).

Hahn v. Terminal Railroad Association of St. Louis, 355 S.W.

2d. 867 (S. Ct. Missouri, 1962); Robb v. Burlington Northern

& Santa Fe Ry. Co., 100 F. Supp. 2d. 867 (N.D. Ill., 2000); &

Williams v. Norfolk Southern Railway Co., 126 F. Supp. 2d.

986 (W.D. Virginia, 2000).

This court recently, in Norfolk & Western Railway

Company v. Ayers, 123 S.Ct. 1210, acknowledged that “Con-

gress designed the FELA to shift part of the ‘human

overhead’ of doing business from employees to their employ-

ers. (p. 1217) At page 1225, the Court noted that “several of

the F.E.L.A.’s provisions expand a railroad’s liability by

abolishing common-law defenses that limited employees’

ability to recover against their employers.”

No Court in the land attempted to change one hundred five

(105) years of handhold FSAA violations law until the Fourth

Circuit decisions in Deans v. CSX Transportation, Incor-

porated, 152 F.3d 326 (4th Cir., 1998 and Phillips v. CSX

Transportation Inc., 190 F. 3d 285 (4th Cir., 1999, cert. den.

120 S. Ct. 1269. The Fourth Circuit took the FSAA air brake

law dealing with a “train in use” and held the handhold act

does not protect a switchman when he is involved in

switching operations. For whatever reason, it departed from

its own reasoning in Monongahela, supra, and other cases.

Deans was a conductor who was injured releasing a

handbrake. The Fourth Circuit tried to use Trinidad v.

Southern Pacific Transportation Co., 949 F.2d 187 (Sth Cir.

1991), which is an “air brake”, “TRAIN in use” case, and not

a (vehicle) handhold case, to justify its false factors test. Of

course, the air brake law does not apply most of the time in

switching cars because the air brakes must deal with a

“train,” not one car. (Air is used when the cars are moved in

groups as a train) If the cars’ air hoses are not coupled to the

engine, it is physically impossible for air to be on the railroad

cars. In switching operations, the air hoses must be taken

apart constantly to switch cars into different tracks.

In Trinidad, Supra, a carmen was injured while inspecting

the air brake system before the “train” was turned over to the

engineer and conductor to leave with the train. This case had

nothing to do with a handhold on a single car. The Court

stated the act (air brake, NOT handhold) provision did not

protect the employee when ‘trains” are involved in switching

operations. Never did the Court say a “car” handhold has the

same “in use” requirement as a “Train” under the train air

brake provision. The court stated that when dealing with the

air brakes -Safety Appliance Act, the “train” must be

operating and not being put together. Trinidad, supra, did not

attempt to change the clearly established law that hand holds

MUST be secure for switchmen in switching operations. (See

the statute printed above for a comparison of the vehicle

(railroad car) provisions and the train air brake provisions.)

The Fourth Circuit, in United States v. Chesapeake &

O. Ry. Co., 213 F. 748, (4th Cir., 1914) ruled in a case in

which a railroad car ii violation of the FSAA was loaded and

switched instead of being repaired promptly. The Court, at

pages 750, 751, 752, stated its analysis and holding:

“. .. Did Congress by this proviso intend to afford no

protection to the employees while cars were being

operated within the yard limits?

“It is a matter of common knowledge that the danger

incident to coupling cars is as great, if not greater, in

switching yards than on the line between stations.

In Robb v. Burlington Northern & Santa Fe Ry.Co., Supra,

the court rejected the railroad’s reliance on Phillips. The

court stated at page 870, that “the restriction that a ‘train’

must be ‘in use’ does not extend to the hand brake require-

ments for ‘vehicles’ of Sec. 20302 (a)(1)(B).” When the

railroad claimed that “if a train is not in use then the FSAA as

a whole is inapplicable,” the Judge correctly stated that the

railroad’s position was absurd.

In the recent case of Williams v. Norfolk Southern Railway

Co., supra, a Federal District Judge in the Fourth Circuit

reviewed a prior opinion of the Federal Fourth Circuit

(Monogahela, supra;) and stated:

“Indeed, the fact of Monongahela could not more

closely mirror this case. As in that case, Plaintiff was

injured while assembling a train from filled coal cars

that occupied side tracks alongside the coal company.

The fact that the train was not completely assembled did

not bar application of the hand brake provisions of the

FSAA in Monongahela; thus, it should not bar its

application here. For these reasons, I find that the railcar

on which Plaintiff injured himself was “in use” for the

purposes of the FSAA.”

Misstatements of the law in Deans and Phillips will lead to

more bad law unless the Deans and Phillips “tests” are clearly

and unequivocally refuted by granting a writ in this case. All

the P.T.R.A. and many other railroads do is switch cars. The

illogical result of the majority opinion of the court below is to

eliminate the FSAA on switching railroads all over America.

Does anyone really believe Congress intended such treatment

of its laws?

The summary reverence to the faulty reasoning of the

Federal Fourth Circuit by the Texas Court of Appeals and

Texas Supreme Court is virtually incomprehensible in light of

the opinion of the Tyler Court of Appeals in Synar, Supra.

The Synar opinion clearly, articulately, unequivocally and in

great depth, points out, that the tortured tests of the Phillips

and Dean cases have no business being applied to determine

when a car is “in use” in a switching operation such as in the

case before this Court. The Texas Supreme Court correctly

denied writ in Synar, and clearly should gave granted a writ

in this case before this court.

In Synar v. Union Pacific Railroad Company, Supra, the

Twelfth Court of Appeals correctly stated:

1. “As we shall explain we conclude that Phillips is

based on a faulty premise.”

2. “Air-brakes and hand brakes are addressed separately

within the FSAA.” -

3. “Thus the FSAA makes a distinction between trains,

which are stopped with the use of air-brakes, and

cars, which are stopped with the use of hand brakes.”

4. “The Phillips court broadly stated that “the FSAA

does not apply to train cars involved in switching

operations” and cited three cases, none of which

stand for that proposition.”

5. “We should not imply that the hand brake provision

does not apply to switching operations merely

because the air-brake provision does not.”

6. “Finally, the Phillips court relied on Trinidad, a

Fifth Circuit case also applying the air-brake pro-

visions of the FSAA.”

7. “The Trinidad court did not comment on the

applicability of the hand brake provision to any given

situation.”

8. “In short, the cases relied on in Phillips to support its

holding that switching operations do not fall within

the definition of “in use” under the FSAA do not

support that holding.”

10.

11.

12.

13.

14.

15.

16.

17.

“Significantly, the purpose of the FSAA is to promote

the safety of employees and travelers and the statute

should be liberally construed as a safety measure.”

“It is because safety in the yard during switching

operations requires efficient hand brakes that Con-

gress passed the hand brake provision.”

“As other courts have considered during discussions

of this issue, if the “efficient hand brakes” provision

of the FSAA does not apply during switching

operations, it is difficult to see when it would ever

apply. Williams v. Norfolk So. Ry. Co., 126 F. Supp.

2d 986, 992 (W.D. Va. 2000); Robb, 100 F. Supp. 2d

at 870.”

“On the contrary, the Supreme Court has held that a

railroad employee’s designation as yard or switching

crew was not material. The controlling test of the

statute’s application lies in the nature of the work

done. Chicago, Burlington & Quincy R.R. Co., 237

U.S. at 413, 35 S. Ct. at 636”

“Generally speaking, the cars and railroad employees

in the yard are exposed to the hazards which the

provision requiring efficient hand brakes is intended

to avoid or minimize.”

“Efficient hand brakes are a necessary safety measure

in rail yards.”

“We conclude that the hand brake provision of the

FSAA applies to the switching activities Synar was

engaged in when injured.”

“The attempt to exempt switching activities was

actually an attack on the sufficiency of the evidence

to prove the cars on which Synar was injured were

“in use” at the time of the injury.”

“As switching operations constitute “use” under the

FSAA, the record shows there is more than a scintilla

of competent evidence to support the jury’s finding

in answer to question four.”

18. “Accordingly, the trial court erred in disregarding the

jury’s affirmative answer to question four based on

the reasoning that the FSAA does not apply to

switching operations.”

19. “Because the trial court erred in disregarding the

jury’s answer to question four, we reinstate the jury’s

affirmative answer finding UP liable under the

FSAA.”

20. “We would modify the trial court’s judgment to

reinstate the jury’s finding on the FSAA issue

thus allowing recovery for a violation of the FSAA,

making the statutory thirty percent reduction

inapplicable.”

CONCLUSION

The path to this crossroad for determination of the

continued efficacy of the FSAA is easily traced. The Federal

Fourth Circuit in Phillips and Deans applied the Trinidad

language in an air brake train safety appliance case to railroad

car safety appliance cases. Unless this Court grants a writ

and corrects this error, congressional intent; a century old

statute; thousands of cases; and the rights of tens of thousands

of railroad workers are going down the drain; and the railroad

industry will have judicially destroyed railroad workers com-

pensation legislation for railroad workers without substituting

for its existence.

For the foregoing reasons, the Petitioner respectfully prays

that his petition for a writ of certiorari be granted.

Respectfully submitted,

TOM R. LETBETTER *

GEORGE PAYNE

GARRETT, LETBETTER & PAYNE, INC.

2500 Tanglewood, Suite 278

Houston, Texas 77063

* Counsel of Record (713) 783-2200

APPENDICES

APPENDIX A

COURT OF APPEALS OF TEXAS,

San Antonio

[Filed May 8, 2002]

No. 04-01-00042-Cv

PORT TERMINAL RAILROAD ASSOCIATION,

‘ Appellant,

MICHAEL JONES,

Appellee.

Rehearing Overruled May 29, 2002

liability—that the train was “in use” at the time of the

accident—and therefore reverse the trial court’s judgment and

render judgment in the PTRA’s favor.

FACTUAL AND PROCEDURAL BACKGROUND

On the afternoon of the accident, Michael Jones, a railroad

Switchman. for PTRA, was assigned to drop off a string or

appliances (steps, handholds, and rails), lace or “cut in” the

compressed air supply lines, perform an air brake test, and

couple his engine to the cars.

Jones first went to Lubrizol, working first on the car

furthest from where the engine would be coupled. When he

was approximately half way through the cut, he fell from the

brake platform of a railcar when the handhold broke. At that

point, the engine had not been coupled to the cars, nor had an

air brake test been performed. These steps were not

performed until Jones and his crew first dropped off the cars

at the other two facilities, performed the same predeparture

procedures on their “outbound” rail cars, and returned with

those cars to pick up the “outbound” cars at Lubrizol.

After the accident, Jones sued PTRA for negligence and

violations of the Safety Appliance Act. The jury found that

the broken handhold, but not negligence, was a proximate

cause of Jones’ injuries. The trial court rendered judgment on

the verdict, after first ruling that the train was “in use” at the

time of the accident.

STANDARD OF REVIEW

Because the material facts are undisputed, whether the train

car was “in use” at the time of the accident is a question of

law. Deans v. CSX Transp, Inc., 152 F.3d 326, 329 (4th

Cir.1998). We review questions of law de novo. See Mitchell

Energy Corp. v. Ashworth, 943 $.W.2d 436, 437 (Tex.1997);

Pony Express Courier Corp. v. Morris, 921 S.W.2d 817, 820

(Tex.App.-San Antonio 1996, no writ).

DISCUSSION

“The Safety Appliance Act imposes strict liability on

railroads for violations of the Act’s safety standards.”

Trinidad v. S. Pac. Transp. Co., 949 F.2d 187, 188 (Sth

Cir.1991). However, strict liability does not attach unless the

train is “in use” at the time of the accident. See Brady v.

Terminal R.R. Assn., 303 U.S. 10, 13, 58 S.Ct. 426, 82 L.Ed.

614 (1938). To determine whether a train is “in use,” the

federal circuit courts have developed competing tests. For

instance, in Trinidad, the Fifth Circuit held the train was not

“in use” when “it had not been released following inspection

because the inspection was not yet complete.” Trinidad, 949

F.2d at 189. This “bright line” test was rejected as “too

facile” by the Fourth Circuit. Deans, 152 F.3d at 329. Instead,

“to determine whether a train is ‘in use’ for purposes of the

FSAA, the primary factors [the Fourth Circuit] consider(s]

are where the train was located at the time of the accident and

the activity of the injured party.” Id.; see McGrath v. Consol.

Rail Corp., 136 F.3d 838, 842 (Ist Cir.1998). In Deans, a

conductor was injured while attempting to release a stuck

hand brake and before conducting a predeparture air brake

test’ Deans, 152 F.3d at 328. The court held the train was “in

use” because “it already had its engine coupled to it and was

standing on a track in the rail yard in preparation for

imminent departure”; the injured conductor “was part of the

transportation crew and in no way involved in the repair or

maintenance of the train. /d. at 330. That the predeparture air

brake test had not yet been conducted was of no practical

significance since it could have been performed before the

hand brakes were released. Jd.

PTRA contends that both tests mandate reversal, and

rendition of judgment in its favor in light of the facts adduced

at trial. We agree. Under the “bright line” test adopted by the

Fifth Circuit, the Safety Appliance Act clearly does not apply.

Jones’s testimony establishes his predeparture inspection of

the Lubrizol cars was not complete at the time of the accident.

The Fourth Circuit’s test leads to the same result. Jones’s

testimony establishes the cars were not in the yard, but on the

Lubrizol lead; his predeparture inspection of the cars had not

been completed; the engine had not yet been coupled to the

cars; and the air brake test had not yet been performed.

Indeed, neither of the latter two steps would be accoinplished

for a number of hours. In short, the departure of the cars was

far from “imminent.” See Phillips v. CSX Transp., Inc., 190

F.3d 285, 289-90 (4th Cir. 1999) (holding train was not in

use, even though train was assembled and sitting in the yard,

in part because “the train was about to be uncoupled from its

engine, its handbrakes were being engaged, and it had yet to

undergo its predeparture inspection”), cent. Denied, 529 U.S.

1004, 120 S.Ct. 1269, 146 L.Ed.2d 218 (2000). We there-

fore hold the train was not “in use” when Jones’s accident

occurred.

CONCLUSION

Because the train was not “in use” when Jones’s accident

occurred, regardless of whether we employ the Fifth or

Fourth Circuit’s test for “in use,” the Safety Appliance Act

does not apply. Consequently, we reverse the trial court’s

judgment and render judgment in favor of Port Terminal

Railway Association.

PHIL HARDBERGER, Chief Justice, dissenting.

The majority reverses the trial court’s judgment based on

its conclusion that the train was not “in use” when Jones was

injured. I respectfully dissent.

In 1908, Congress enacted the Federal Employers’

Liability Act (“FELA”)’ in response to the physical dangers

railroad workers faced that resulted in the death or maiming

of thousands of workers each year. Consolidated Rail Corp.

v. Gottshall, 512 U.S. 532, 542,114 S.Ct. 2396, 129 L Ed.2d

427 (1994). FELA was inteaded to provide a federal remedy

that “shifted part of the ‘human overhead’ of doing business

from employees to their employers.” /d. “[G]Jeneral con-

gressional intent was to provide liberal recovery for injured

workers.” Kernan v. American Dredging Co., 355 U.S. 426,

432, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958). To further this

humanitarian purpose and Congress’s remedial goal, the

United States Supreme Court has liberally construed FELA.

Gottshall, 512 U.S. at 543, 114 S.Ct. 2396.

A railroad is strictly liable under FELA for violations of

the Safety Appliance Act (“SAA”). Houston Lighting &

Power Co. v. Atchison, Topeka, & Santa Fe Ry. Co., 890

S.W.2d 455, 457 (Tex.1994). The SAA provides that “a

railroad carrier may use or allow to be used on any of its

railroad lines a vehicle only if it is equipped with . . . secure

handholds or grab irons.” 49 U.S.C. § 20302(a). A railcar is a

vehicle. 49 U.S.C. § 20301(a). Accordingly, a violation of the

SAA occurs if a carrier allows a railcar that is not equipped

with secure handholds to be used.

The stated purpose of the “in use” limitation is to give

railroads the opportunity to inspect for and correct safety

appliance defects before being exposed to the SAA’s strict

liability for such defects. Phillips v. CSX Transp., Inc., 190

F.3d 285, 288 (4th Cir.1999). In keeping with this purpose,

whether the railroad has completed its inspection is a critical

factor in determining whether a railcar is in use. See, eg.,

Angell v. Chesapeake & Ohio Ry. Co., 618 F.2d 260, 261 (4th

Cir.1980) (car in use when all servicing, maintenance, and in-

spection work had been completed and injury occurred post-

inspection during coupling process); Monongahela Ry. Ca v.

Black, 235 F.2d 406, 408 (4th Cir.1956) (car in use when

moved to side track for loading) Baltimore & O.R. Co. y.

Tittle, 4 F 2d 818, 819 (6th Cir.1925) (car in use when being

prepared for coupling). In other cases involving a train

arriving at a particular location, the critical factor is whether

the train.was withdrawn from service which would give the

railroad a new opportunity to inspect the train. See, e.g.,

Brady v. Terminal R. Ass’n, 303 U.S. 10, 13, 58 S.Ct. 426, 82

L.Ed. 614 (1938) (car in use because not withdrawn from

service); Chicago Great Western R. Co. v. Schendel, 267 U.S.

287, 291-92, 45 S.Ct. 303, 69 L.Ed. 614 (1925) (car in use

where use, movement and hauling had not ended); Great

Northern Ry. Co. v. Otos, 239 U.S. 349, 351, 36 S.Ct. 124, 60

L.Ed. 322 (1915) (car in use when merely subjected to delay);

Fort St. Union Depot Co. v. Hillen, 119 F.2d 307, 312 (6th

Cir.1941) (train not withdrawn from service at time employee

was injured). The consistent pattern in these cases, is to

exclude from the SAA’s coverage “only such functions as are

necessary to detect and correct those defective conditions for

which absolute liability will be imposed.” Angell, 618 F.2d

at 262. 1

Although some common factors are considered in each

case, the cases primarily demonstrate that “[t]he inquiry into

whether a train was ‘in use’ under the [SAA] is neither simple

nor straightforward.” Paul v. Genesee & Wyoming Industries,

Inc., 93 F.Supp.2d 310, 316 (W.D.N.Y.2000). “The inquiry is

challenging because precedent on the issue tends to be very

fact-specific, and because there are generally no bright lines

that demarcate when a train is in use and when it is not.” Jd.

(citations omitted).

In an effort to provide some standard principles to guide

the “in use” analysis, two basic “tests” have developed in

federal law with regard to the “in use” requirement. The

“bright line” test established by the Fifth Circuit in 7) rinidad

v. Southern Pac. Transp. Co., 949 F.2d 187 (Sth Cir.1991),

and the “totality of the circumstances” test established by the

Fourth Circuit in Deans v. CSX Transp., Inc., 152 F.3d 326

(4th Cir.1998).

In Trinidad, a carman, Jesus Trinidad, “was performing the

final steps of a routine brake inspection” in accordance with

federal regulations that require the brakes to be tested for air

leaks after a train is made up. 949 F.2d at 188. During the

inspection, Trinidad detected and repaired an air leak in the

brake system of one of the railcars. /d. Trinidad drove his

truck to the head of the train to inform the engineer. /d. As

Trinidad walked across a set of tracks between his truck and

the train he had inspected, he was hit by a “cut” of cars being

moved up the track. /d. Trinidad argued that the air leak was a

legal cause of his injury because he was injured while

attempting to notify the engineer of the air leak. /d. The air

leak was an alleged defect under the SAA Jd.

The Fifth Circuit noted that the SAA is only applicable if a

train is “in use,” “running,” or being “hauled.” Id. The Fifth

Circuit asserted, “Generally, courts have not applied the

[SAA] to trains involved in switching operations—those

procedures by which the cars and engines are uncoupled,

moved, and reassembled—even though such trains are in

motion. Trains that have completed the switching process,

and departed for their destinations, however, are subject to

the [SAA’s] requirements, whether or not they are actually in

motion when the defect occurs.” Jd. at 188-189 (citations

omitted). “[T]he distinction between switching and train

operations established in older cases remains relevant in

_ determining whether a train is ‘in use’ or ‘being run’ for the

purposes of the [SAA]. The initial inspection of. a train,

however, appears to fall squarely between the switching and

post-departure categories.” /d. at 189. The Fifth Circuit noted

that at the time of the accident in the case before it, the train

had not moved from the spot of its assembly “because it had

not been released following inspection because the inspection

was not yet complete.” /d. at 189.

In Deans, aconductor, Dennis Deans, and an engineer were

assigned to take a train to another location. When Deans

arrived at the yard, the railcars making up the train were

already coupled together; however, before the train could

leave, Deans had to perform the following three tasks: (1)

couple the engine to the railcars; (2) release the hand brakes

on the railcars; and (3) conduct a pre-departure brake test.

After coupling the engine, but prior too conducting the air

brake test, Deans was injured while trying to release the hand

brake on the third car. The hand brake was found to be

defective. After Deans filed suit, CSX moved for summary

judgment on the grounds that the railcar was not “in use” at

the time of Deans’s accident.

The Fourth Circuit noted than the district court relied on

the Fifth Circuit’s decision in Trinidad. Deans, 152 F.3d at

329. The Fourth Circuit asserted:

Analogizing the facts in this case to Trinidad, the district ©

court noted that the air brake test had yet to be complet-

ed at the time of Deans’s injury and no movement of the

train was imminent, and therefore concluded that the

train that injured Deans was not “in use” at the time of

the accident. This focus on the completion of the air

brake test suggests that the district court sought to draw

a useful and practical, bright-line distinction between

trains which have had their pre-departure inspections

and tests completed and been okayed for service (and are

therefore “in use”), and those for which pre-departure

tests have not yet been completed (and therefore are not

“in use”), such a distinction, is too facile to accurately

reflect the multitude of steps required—and various se-

quences in which these steps may be taken—to prepare a

train for departure. For example, while the district court

here concluded that the train was not “in use” at the time

of Deans’s injury because the train would not be

“okayed” for service until the air brake test was com-

pleted and, at the time of the accident that had not yet

been done, the record shows that there is no relationship

between the release of the hand brakes, during which

activity Deans was injured, and the performance of the

air brake test; it apparently does not matter whether the

hand brakes were released before the air brake test was

run. Therefore, under the district court’s analysis, the

train here—which had already passed its required

inspections—would have been okayed for service and

hence “in use” if Deans had simply chosen to conduct

the air brake test prior to releasing the hand brakes.

It is inappropriate to base liability under the [SAA] on

the mere happenstance of whether an employee chooses

to release the hand brakes or conduct an air brake test

first, however, and we believe a more consistent and

fairer result is reached by looking at a number of dif-

ferent factors, rather than simply at the completion or

non-completion of pre-departure tests. Therefore, to

determine whether a train is “in use” for purposes of the

[SAA], ‘‘the primary factors we consider are where the

train was located at the time of accident and the activity

of the injured party.

Id. at 329 (citations omitted).

The Fourth Circuit noted that in the case before it the train

already had its engine coupled and was standing on a track in

the rail yard in preparation for imminent departure—“not in

storage or waiting to be moved into a repair location.” Id. at

330. In addition, Deans was part of the transportation crew

and was not involved in the repair or maintenance of the train.

10a

Id. Deans’s job was to put the train in motion, and he was

engaged in an activity to do exactly that by releasing the hand

brake. Jd. “The fact that the air brake test still needed to be

completed, a test that could have been completed prior to the

release of the hand brakes, is not in this case dispositive.” /d.

The Fourth Circuit held as a matter of law that the train was

“in use” at the time of Dean’s injury.

The Fourth Circuit applied its newly established test and

reached the opposite result in Phillips v. CSX Transp., Inc.,

190 F.3d 285 (4th Cir.1999). In that case, Jeffrey Phillips, the

foreman of a yard crew, was engaged in “normal train switch-

ing operations” consisting of taking arriving trains apart and

putting departing trains together. Phillips, 190 F.3d at 286.

The Fourth Circuit discussed the nature of those switching

operations as follows:

The normal procedure when a train arrives at the yard is

for the yard crew to disconnect all of the train’s cars

from one another, and to turn the cars over to the car

department for a mechanical inspection. As part of its

inspection, the car department checks the cars’ safety

appliances. If the car department discovers any defects

during this inspection, it sets the defective cars aside for

repair. Once the mechanical inspection is complete, the

car department turns the cars back over to the yard crew.

The yard crew then assembles the cars into new trains

for departure. However, before a train may depart, it

must undergo a predeparture inspection, which the car

department also conducts. The yard crew engages the

handbrakes on the cars in an assembled train, detaches

the engine, and then turns the train over to the car

department for the predeparture inspection. The car de-

partment inspects the train’s air brakes and again checks

its safety appliances. Once the predeparture inspection is

lla

complete, the car department turns the train over to the

transportation crew, and the train departs.

Id. at 286-287. Phillips was injured while engaging the

handbrakes on a completed train prior to turning the train

over to the car department for its predeparture inspection

when a handrail broke. /d. at 287. The train was sitting on

yard track at the time. /d. The district court granted summary

judgment in favor of Phillips, finding that the train was “in

use.” Id.

The Fourth Circuit noted that the district court did not have

the benefit of its decision in Deans in rendering its judgment.

Id. at 289. The Fourth Circuit asserted that Phillips’s case dif-

fered significantly from Deans with respect to the two Deans

factors. Id.

While in both cases the trains were assembled and sitting

in the yara, the train in Deans was undergoing its

predeparture inspection, it was coupled to its engine, its

handbrakes were being released, and its departure was.

“imminent.” In this case, on the other hand, the train was

about to be uncoupled from its engine, its handbrakes

were being engaged, and it had yet to undergo its

predeparture inspection. Moreover, the plaintiff in Deans

and Phillips in this case were engaged in very different

activities at the time of their injuries. The plaintiff in

Deans was a member of the train’s transportation crew,

whereas Phillips was a member of the Cumberland yard

crew. Philip’s responsibilities were limited to switching

operations. Plus, the plaintiff in Deans was injured while

releasing the train’s handbrakes, while Phillips was hurt

while engaging his train’s handbrakes to prevent it from

moving. Finally, in Deans we emphasized the fact that

the plaintiff could have released the handbrakes after the

predeparture inspection, in conjunction with the depar-

ture of the train. In this case, Phillips had to engage the

handbrakes prior to the predeparture inspection, in

12a

conjunction with the assembly of the train. Taken to-

gether, the facts in this case show that Phillips was -

injured at the end . of, the switching process, rather than \

at the beginning of the departure process.

Id. at 289-90. The Fourth Circuit held that the train was not

“in use” at the time of Phillips’s injury. /d. at 290.

The Fourth Circuit’s test is more useful than the Fifth

Circuit’s bright line test in resolving the “in use” requirement

taking into, consideration: (1) the stated purpose of the “in

use” limitation; and (2) general congressional intent to

provide liberal recovery for injured railroad workers: ‘As

previously :noted, the stated purpose of the “in use” limitation

is to give railroads the opportunity to inspect for and correct

safety appliance defects before being exposed to the SAA’s

strict liability for such defects. Applying the Fourth Circuit’s

test, the location of the train is important for purposes of

determining whether the railroad had the opportunity to

complete the type of inspection that the SAA requires before

imposing-strict liability. The activity of the injured party also

important to determine whether the activity normally occurs

before the railroad had the opportunity to complete its -

inspection or after the railroad’s inspection

Applying the Fourth Circuit’s test, the railcar in the instant

case was in a group of coupled railcars on an outbound track.

No further inspection was to occur except for the cursory

inspection by Jones in preparing the cars for departure. Jones

had already engaged in his cursory inspection of the handhold

before climbing onto the car and only, fell while using the

handhold to climb off the car. Therefore, the stated purpose of

the “in use” limitation—to give railroads the opportunity to

inspect for’ and correct safety appliance defects before being

exposed to the SAA’s strict liability for such defects—had

been satisfied, i.e., the inspection of the handhold had been

completed. See Phillips v. CSX Transp., Inc., 190 F.3d at 288

(noting purpose of “in use” limitation); Angell, 618 F.2d at

13a

261 (noting completion of inspection to be critical factor).

Furthermore, Jones was a switch foreman involved in the

transportation of railcars. Jones was injured while releas ng

the handbrake on a railcar, and the movement of the railcars

was imminent.

The majority contends that the departure of the cars was

“far from imminent” because the engine would not be

coupled to the cars for a number of hours. However, the

record reveals that the engine was in the process of being

coupled at the time Jones was injured in order to move the

cars from the Lubrizol lead to the Lubrizol siding. Although

the cars may have remained on the Lubrizol siding while

Jones and his co-workers went to other facilities to pick up

additional cars, the train was “in use” for purposes of

‘moving the cars from the lead to the siding. The engine had

to be coupled to the cars and all air hoses had to be attached

in order to move the cars for that purpose, and no further

inspection apart from the air brake test would be undertaken

when the workers returned to Lubrizol to collect the railcars

to return to the yard. If the majority’s conclusion is correct,

and the fact that the cars were not in the yard is a decisive

factor, a worker engaged in collecting railcars from industries

to be returned to a yard could ‘never recover under the SAA

because a train involved in this type of hauling operation

would never be considered “in use.” I do not believe that this

conclusion is’ consistent with the stated purpose of the ‘ “in

use” iimitation.

I would therefore hold that the railcar was “in use” at the

time of Jones’s injury. Because the majority holds otherwise,

dissent.

l4a

_ APPENDIX B

COURT OF APPEALS

Fourth Court of Appeals District

Bexar County Justice Center, Suite 3200

300 Dolorosa

San Antonio, Texas 78205-3037

: May 29, 2002

Gordon A. Holloway Kyle M. Rowley

Holloway & Rowley, P.C. Holloway & Rowley, P.C.

1415 Louisiana, Suite 2550 1415 Louisiana, Suite 2550

Houston, TX 77002 Houston, TX 77002

George Payne

Garrett, Letbetter & Payne, Inc.

2500 Tanglewilde, Suite 278

Houston, TX 77063

RE: Court of Appeals Number: 04-01-00042-CV

Trial Court Case Number: 98-15997

Style: Port Terminal Railroad Association

Michael Jones

After examination of the record in the above styled and

numbered cause, the Court DENIES Appellee’s Motion for

Rehearing. ORDERED the day and year first above written.

Very truly yours,

HERB SCHAEFER, CLERK

/s/ Elise Dixon

ELISE DixON, Deputy Clerk

Ext. 3261

lSa

APPENDIX C

THE SUPREME COURT OF TEXAS

Post Office Box 12248

Austin, Texas 78711

November 21, 2002

Mr. Tom R. Letbetter

Garrett, Letbetter & Payne _

2500 Tangleilde, Ste. 278

Houston, TX 77063

Mr. Kyle M. Rowley

Holloway & Rowley

1415 Louisiana, Suite 2550

Houston, TX 77002

RE: Case Number 02-0596

Court of Appeals Number: 04-01-00042-CV

Trial Court Number: 98-15997

Style: MICHAEL JONES

Vv.

PORT TERMINAL RAILROAD ASSOCIATION

Dear Counsel:

Today, the Supreme Court of Texas denied the petition for

review in the above styled case.

Sincerely,

Andrew Weber, Clerk

by /s/ Gena Pelham

GENA PELHAM, Deputy Clerk

cc: Mr. Herb Schaefer, Clerk

Mr. Charles Bacarisse

hint witi ane ce SM A ae,” =

l6a

APPENDIX D

THE SUPREME COURT OF TEXAS

Post Office Box 12248

Austin, Texas 78711

March 06, 2003

Mr. Tom R. Letbetter

Garrets Letbetter & Payne

2500 Tanglewilde, Ste. 278

Houston, TX 77063

Mr. Kyle M. Rowley

Holloway & Rowley

1415 Louisiana, Suite 2550 .

Houston, TX 77002

RE: Case Number 02-0596

Court of Appeals Number: 04-01-00042-CV

Trial Court Number: 98- 15997

Style: MICHAEL JONES

PORT TERMINAL RAILROAD ASSOCIATION

Dear Counsel:

Today, the Supreme Court of Texas denied the motion for

rehearing of the above styled petition for review.

Sincerely,

Andrew Weber, Clerk

by /s/ Jessica L. Vlasac, Deputy

JESSICA L. VLASAC

cc: Mr. Herb Schaefer, Clerk

Mr. Charles Bacarisse

17a

APPENDIX E

IN THE COURT OF APPEALS, TWELFTH COURT OF

APPEALS DISTRICT, TYLER, TEXAS

No. 12-99-00428-CV

KENNETH SYNAR,

Appellant/Cross-Appellee

UNION PACIFIC RAILROAD COMPANY AND

MISSOURI PACIFIC RAILROAD COMPANY,

Appellees/Cross-Appellants

APPEAL FROM THE 87TH JUDICIAL DISTRICT COURT

OF ANDERSON COUNTY, TEXAS

Kenneth Synar (“Synar’) sued the Missouri Pacific Rail-

road Company doing business as Union Pacific Railroad

Company (“UP”) for violations of the Federal Employer’s

_ Liability Act (“FELA”) and the Federal Safety Appliance Act

(“FSAA”). The jury found that UP was negligent and violated

the FSAA, but also found Synar thirty percent contributorily

negligent. The trial court disregarded the jury’s finding that

UP violated the FSAA and reduced the award by thirty

percent pursuant to the applicable statute. Synar raises two

issues on appeal, while UP raises thirty-one issues and two

cross-points. We modify the trial court’s judgment to rein-

state the jury’s finding on the FSAA issue thus allowing

recovery for a violation of the FSAA, making the statutory

thirty percent reduction inapplicable. We further modify the

judgment to reflect that Synar take nothing on his claims for

past medical expenses and future medical expenses. As

modified, we affirm. }

18a

- BACKGROUND -

Synar began working for UP’s predecessor on March 27,

1978 as a switchman and brakeman. As of the time of trial, he

was still employed by UP. While he had worked in several

different cities, he spent the majority of his career working in

the railyard at Muskogee, Oklahoma. His job involved

jumping onto moving cars, turning the hand brake wheel to

stop them, and throwing switches to redirect cars to

appropriate tracks in order to build trains. In 1990, he began

experiencing pain in his right arm intermittently. He self-

treated for years while continuing to work. The pain

worsened progressively. He consulted Dr. Jay Yoo about it

for the first time on February 18, 1994. He was diagnosed as

having progressive neuropathy of the ulnar nerve of the right

arm. Synar filed suit against his employer on September 29,

1995. Although his doctors recommended surgery in 1994,

Synar did not have surgery until July 27, 1998. Due to

complications, he underwent a second surgery on August 4,

1998. Synar had worked until the first surgery, then remained

off duty until November 1998. Because his condition

deteriorated after he returned to work, upon doctor’s orders,

he stopped working in January 1999 on doctor’s orders.

LIMITATIONS

In its issues one through five, UP attacks, in various ways,

the jury’s answer to question five, the finding that Synar’s

case is not barred by the applicable three-year statute of

limitations. UP asserts that the evidence shows Synar told Dr.

Yoo that he experienced pain when he turned brake wheels in

1990. Additionally, Synar told Dr. Charles Lutton, a

neurologist who also examined him, that he had noticed

improvement when he switched jobs, which UP asserts

occurred in 1991. This, UP argues, constitutes proof that

Synar knew of his injury and its relation to his work at the

railroad as early as 1990, five years before Synar filed suit,

Based on this argument, UP contends that Synar’s claim is

19a

barred because there is no evidence, or only factually

insufficient evidence, supporting a finding that the case was

filed within the limitations period. UP further asserts that the

trial court erred by not granting its motion for directed

verdict, its motion for judgment notwithstanding the verdict,

and its motion for new trial, on limitations grounds.

Synar responds that his cause of action is not premised on a

one-time injury. Synar alleges that he sustained injuries over

“many years” in the course of his employment with UP, by

engaging in repetitive and hazardously strenuous motions. He

asserts that he did not know he had an injury until February

18, 1994, when he first saw a doctor about the pain in his

arm. Before that date he did not know that his work at UP

aggravated the condition. Applying the discovery rule, he

argues, his suit, which he filed on September 29, 1995, is well

within the three year limitations period.

Standards of Review

If an appellant is attacking the legal sufficiency of an

adverse finding of an issue on which he did not have the

burden of proof, the appellant must demonstrate on appeal

that there is no evidence to support the adverse finding. See

Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). An

appeal from the denial of a motion for directed verdict is in

essence a challenge to the legal sufficiency of the evidence.

Lochinvar Corp. v. Meyers, 930 S.W.2d 182, 187 (Tex.

App.—Dallas 1996, no writ). Likewise, a challenge on appeal

that the trial court erred in denying a motion for judgment

notwithstanding the verdict is construed as a legal sufficiency

challenge and reviewed in the same manner. See Mancorp,

Inc. v. Culpepper, 802 S.W.2d 226, 227-28 (Tex. 1990). In

reviewing no evidence points of error, the reviewing court

must consider only the evidence and inferences tending to

Support the trial court’s finding, disregarding ali contrary

evidence and inferences. War-Mart Stores, Inc, v. Gonzalez,

968 S.W.2d 934, 936 (Tex. 1998). If there is any evidence of

20a

probative force to support the finding, the no evidence issue

must be overruled and the finding upheld. ACS /nvestors, Inc.

v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997).

If a party is attacking the factual sufficiency of an adverse

finding on an issue to which the other party had the burden of

proof, the attacking party must demonstrate that there is

insufficient evidence to support the adverse finding. See

Croucher, 660 S.W.2d at 58. In addressing a factual

sufficiency of the evidence challenge, this Court must

consider and weigh all of the evidence and set aside the

verdict only if it is so contrary to the overwhelming weight of

the evidence as to be clearly wrong and unjust. Cain v. Bain,

709 S.W.2d 175,176 (Tex. 1986). Findings of fact are the

exclusive province of the jury. Bellefonte Underwriters Ins.

Co. v. Brown, 704 S.W.2d 742, 744 (Tex. 1986). Accord-

ingly, if there is sufficient competent evidence of probative

force to support the finding, it must be sustained. Beall v.

Ditmore, 867 S.W.2d 791, 795-96 (Tex. App.—El Paso 1993,

writ denied). When there is conflicting evidence, the jury’s

verdict on such matters is generally regarded as conclusive.

Id. at 796.

The standard of review applied to consider a complaint that

the trial court erred in denying a motion for new trial depends

on the complaint preserved in the motion. Hicks v. Ricardo,

834 S.W.2d 587, 590 (Tex. App.—Houston [Ist Dist.] 1992,

no writ). The decision of the trial court to grant or deny a

motion for new trial is an exercise of the trial court’s judicial

discretion and will got be overturned on appeal in the absence

of an abuse of discretion. Thomas Oldham, 895 S.W.2d 352,

356 (Tex. 1995).

Applicable Law

The limitations period under FELA is three years from the

day the cause of action accrued. 45 U.S.C.A. § 56 (West

1986). In an FELA action, compliance with the statute of

2la

limitations is a condition precedent to recovery rather than all

affirmative defense. Emmons v. Southern Pac. Transp. Co.,

701 F.2d 1112, 1117 (Sth Cir.1983). The burden is on the

claimant to allege and prove that he filed suit within the

three-year period. /d. at 1118. When the specific date of

injury cannot be determined because an injury results from

continual exposure to a harmful condition over a period of

time, a claimant’s cause of action accrues when the injury

manifests itself. Urie v. Thompson, 337 US. 163, 170, 69 S.

Ct. 1018, 1025, 93 L.Ed. 1282 (1949). Accordingly, the

discovery rule applies to determine when an FELA cause of

action accrues. See United States v. Kubrick, 444 V.S. 111,

121-23, 100 S. Ct. 352, 359-60, 62 L. Ed. 2d 259\ (1979).

Inquiries involving the discovery rule usually entail questions

for the trier of fact. Childs v. Haussecker, 974 S.W.2d 31, 44

(Tex. 1998). A claim accrues when the claimant should

reasonably have been aware of the critical facts of injury and

causation. DuBose v. Kansas City S.Ry., 729 F.2d 1026, 030

(Sth Cir.), cert. denied, 469 U.S. 854 (1984). Awareness of

critical facts will impose a duty to investigate the potential

cause. Fries v. Chicago & Northwestern Tranp. Co., 909 F.2d

1092, 1095 (7th Cir. 1990).

Discussion

The jury was asked on what date did Synar first become

possessed of the critical facts of his alleged work injury and

its causation. The jury answered February 18, 1994. The

record shows that Synar first consulted a doctor about the

pain in his arm on February 18, 1994 when he saw Dr. Yoo.

The medical records of each doctor he saw about this problem

reflect that the pain began in 1990 and gradually increased in

severity until early 1994 when he felt he needed to see a

doctor. These medical records indicate that, by early 1994,

Synar had come to believe he had an injury caused by his

work on the railroad and that it occurred gradually over the

curse of his employment. Synar’s testimony reiterated these

22a

facts. He emphasized that, while he experienced some pain in

1990, he did not know at that time that he had an injury. He

also stated that in 1990 and 1991, he did not even experience

pain on a daily basis. Only one of Synar’s co-workers

testified that he complained of pain and that was in 1994 and

1995.

After reviewing the evidence and inferences tending to

support the finding that limitations had not run before Synar

filed suit, we conclude that UP’s legal sufficiency challenges

fail. There is evidence of probative force to support the jury’s

finding that Synar first became aware of the critical facts of

his injury and its cause on February 18, 1994, the day he first

saw a doctor about the pain in his arm. See DuBose, 729 F.2d

at 1030. Accordingly, we overrule issues one, three, and five.

Up also contends the evidence is factually insufficient to

support the finding that Synar’s cause of action is not barred

by limitations. UP asserts that the evidence shows Synar

knew of his injury in 1990 and 1991 and had a duty to

investigate the cause at that time. UP also asserts that, in 1990

and 1991, Synar’s pain was aggravated by work and

disappeared when he was not working. This, UP argues, put

Synar on notice that his injury was work related, we consider

all the evidence on the issue of limitations to determine if

Synar should reasonably have been aware of critical facts of

injury and causation more than three years before September

29, 1995.

To support its argument, UP relies largely on medical

records containing statements by Synar that his injury

occurred over as much as a twenty-year period. Those

statements were made by Synar between the years 1994 and

1996. The records merely indicate that by early 1994, Synar

believed he had an injury and it was caused by his work at UP

over the course of many years. They do not indicate that he

knew of the injury between four and twenty years earlier.

23a

In his notes detailing his April 25, 1994 visit with Synar, in

a paragraph entitled “History of Present Illness,” Dr. Lutton

referred to Synar’s condition over the “past 4 years,” “[o]ver

the last year,” and “[c]urrently.” In the next sentence he stated

that “Synar has noted some mild improvement since he has

switched jobs.” The remainder of the paragraph speaks in

terms of Synar’s present condition. No explanation was

included as to the nature of the job he switched to or the dates

he worked a different job, Synar testified that he was a

switchman until 1997 and had no independent recollection of

switching jobs.

When shown a document purported to be his work history,

Syrian agreed that it indicated that he had been a through-

freight conductor and brakeman for a period of about two or

three months in 1991. This document was not placed in

evidence. UP contends that Dr. Lutton’s reference to

improvement after switching jobs is a reference to that two or

three-month period in 1991, thus showing his symptoms

improved in 1991. UP further argues that the presence of

symptons in 1990 that improved in 1991 when he changed

jobs constituted the required critical facts to trigger Synar’s

duty to investigate in 1991, outside the limitations periad. We

disagree. |

Synar’s symptoms were intermittent in 1990, not ongoing.

The record does not clearly indicate that the improvement

resulting from changing jobs, referenced by Dr. Lutton,

occurred in 1991. The record does not show that the

symptoms had manifested themselves sufficiently enough in

1990 and 1991 to alert Synar to the need to see a doctor.

Further, Synar’s acknowledgment in 1994, that in 1990 he

had felt some pain while working that dissipated when he was

not working, is not tantamount to an admission that he had an

injury and that it was work related. We conclude that there is

sufficient competent evidence of probative force to support

the jury’s finding that Synar filed his cause of action within

sa i eee

24a

the limitations period. See Beall, 867 S.1 .2d at 795-96. As

the jury’s finding was not in error, the trial court did not

abuse its discretion in denying UP’s motion for new trial on

limitations grounds. See Thomas, 895 S.W.2d at 356. We

overrule UP’s issues two and four.

ADMISSIBILITY OF TESTIMONY -

Quentin Pickering

In its fourteenth issue, UP asserts that the trial court erred

in allowing the testimony of Quentin Pickering, Synar’s

expert on railroad safety. UP identified eight objections it

made at trial to eight specific statements on various grounds.

Additionally, at the end of Pickering’s testimony, UP moved

to strike Pickering’s entire testimony on the grounds that it

was irrelevant and that Dickering “has no business being air

expert in this case,” UP contends that Dickering should not

have been allowed to testify that the railroad was negligent.

UP characterizes Pickering’s testimony as absurd and

unfounded, with no basis in the law or evidence, and claims

that Dickering has no expertise. UP has not included concise

argument supported by appropriate citations to authority

regarding each of the eight individual objected-to statements

referenced under this issue. See TEX. R. App. P, 38.1(h).

Accordingly, we interpret this issue as a complaint that the

trial court erred in denying its motion to strike Pickering’s

entire testimony. See TEX. R. App. P. 38.1(c).

If technical or other specialized knowledge will assist the

trier of fact, a witness qualified as an expert may testify in the

form of an opinion or otherwise. TEX. R. EviD.702. Whether a

witness is qualified to offer expert testimony is a matter

committed to the trial court’s discretion. United Blood Servs.

v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997) (per curiam).

The trial court must determine if the putative expert has

knowledge, skill, experience, training, or education that

would assist the trier of fact. Jd. at 30-31. The burden of

—_— —_

establishing an expert’s qualifications is on the offering party.

Id. at 31. An expert may state an opinion on a mixed question

of law and fact as long as the opinion is confined to the

relevant issues and is based on proper legal concepts. Birch-

field v. Texarkana Mem. Hosp., 747 S.W.2d 361, 365

(Tex. 1987).

Contrary to UP’s assertion, Pickering’s background

includes much more than just “writing safety rules.” He

worked for UP’s predecessors since 1959 in progressively

more responsible positions in the area of safety regulations

until his retirement, almost thirty years later, in 1988. He

wrote, interpreted, and taught safety rules, was responsible

for rules compliance and safety performance in switching

yards, and helped write a common safety rule hook for use by

several railroads. In determining that bickering qualifies as an

expert, the trial court did not act without reference to any

guiding rules or principles. See Longoria, 938 S.W.2d at 31.

Pickering qualifies as an expert in the field of railroad safety.

As Synar’s causes of action are based largely on the

allegation that UP negligently failed to provide a safe

workplace, Pickering’s experience and training are focused

on prominent issues presented in this case. The trial court did

not abuse its discretion in allowing Dickering to testify as an

expert. /d. at 30-31. As an expert, Pickering could properly

testify that UP’s actions constituted negligence. Birchfield,

747 S.W.2d at 365. We overrule UP’s fourteenth issue.

Dr. Tyler Kress, Ph.D.

In its twenty-third issue, UP contends the trial court erred

in admitting testimony of Dr. Tyler Kress, Ph.D. Specifically,

UP complains of Kress’s testimony that, from an ergonomics

standpoint, the Muskogee yard was not reasonably safe and

there was careless attention paid to ergonomics issues.

Without further explanation, UP states that this testimony

should have been excluded for the same reasons Pickering’s

testimony should have been excluded.

26a

We find no trial objection to Kress’s designation as an

expert witness. To the extent UP is asserting that he should

not have been designated as an expert, that complaint has

been waived, See Kroger Coo v. Betancourt, 996 S.W.2d 353,

360 (Tex. App.—Houston [14th Dist.] 1999, pet, denied).

Moreover, his qualifications are adequately explained in the

record. His education and work are in the areas of biomedical

engineering and human factors engineering. His work,

including teaching, research, and consulting, involves the

application of engineering principles to the human body,

focusing on injury prevention. This includes the biome-

chanical and ergonomical engineering aspects of safety and

injury. Synar’s suit involved allegations that UP did not

provide him with a safe place to work, leading to his

repetitive-use injury. Kress could properly testify as to these

matters. See Birchfield, 747 S.W.2d at 365. We overrule UP’s

twenty-third issue.

Physicians

In its twenty-fourth issue, UP contends that the trial court

erred in admitting testimony of Dr. Lutton, Dr. Charles

Fullenwider, and Dr. James Slates concerning causation, It

asserts that their testimony is rife with misuse of and abuse of

hypothetical questions. UP contends that the questions and

their responses should have been excluded because they

confused and misled the jury and prejudiced UP. It asserts

that Synar’s counsel was attempting to recite his theory of the

case, making factual assumptions that were not facts in

evidence and skewing the evidence. Finally, UP asserts

without argument that such testimony was not grounded in

valid scientific knowledge.

Opinion testimony of an expert witness may be based on

hypothetical questions embracing facts supported by the

evidence. Clark Equip. Co. v. Pitner, 923 S$.W.2d 117,123

(Tex. App.Houston [14th Dist.] 1996, writ denied). A trial

judge has wide discretion in ruling on the propriety of a

27a

hypothetical question and his determination will be over-

turned only on a clear showing of abuse. Thomas v. St. Joseph

Hosp., 618 S.W.2d 791, 794-95 (Tex. Civ. App.—Houston

[1st Dist.] 1981, writ ref'd n.r.e.). Accordingly, a trial court

has considerable latitude in determining whether hypothetical

questions posed to an expert witness are based upon a fair

assumption of facts. Pitner, 923 S.W.2d at 123. It is not

necessary that the facts upon which an expert bases his

opinion be uncontroverted, Collies v. Chipman, 41 Tex. Civ.

App. 563, 95 S.W. 666, 671 (1906, writ ref?d). Further, a

hypothetical can be based on evidence merely tending to

show the fact. Gulf W.T.&P. Ry. Co, v. Abbott, 146 S.W.

1078, | 082 (Tex. Civ. App.—San Antonio 1912, writ ref’d).

The hypotheticals asked each doctor to assume that Synar

worked as a switchman for UP for many years, turning hand

brakes and throwing switches. The doctors were asked to

assume Synar was required to exert significant force to do so,

at times in excess of one hundred pounds of force. They were

also asked to assume that he was required to set approxi-

mately seventy-five to one hundred hand brakes per day and

to throw approximately fifty to one hundred switches per day.

They were then asked whether Synar’s work at UP caused or

contributed to the ulnar neuropathy of his right arm.

The record shows that Synar was a switchman for the

railroad since 1978. Dr. Kress testified that he tested some

hand brakes and switches in the Muskogee yard and found

that it took in excess of one hundred pounds of force to

manipulate at least one brake wheel tested and to throw the

swatches he tested. Synar testified that, on average, he set

between seventy-five and one hundred hand brakes on a

typical day and threw between seventy-live and one hundred

switches a day. Gerald Garretson, a longtime railroad

employee who worked in the Muskogee yard testified that it

takes fifty, seventy-five or one hundred pounds of pressure to

tighten hand brakes. Although other witnesses testified that

28a

Synar set, or in the vernacular, tied, fewer hand brakes and

threw fewer switches, it is not necessary that the facts relied

on by the doctors be uncontroverted. See Collins, 95 S.W, at

671. Because the hypothetical questions asked of the doctors

were based on a fair assumption of facts presented by the

evidence, the trial court did not abuse its discretion in

allowing them, See Pitner, 923 S.W.2d at 123.

UP’s final assertion under this issue, that the testimony

based on the hypothetical questions was not grounded in valid

scientific knowledge, was not raised at trial. Accordingly, this

argument is waived. See General Motors Corp. v. Sanchez,

997 S.W.2d 584, 590-91 (Tex. 1999) (allowing reliability

challenge on appeal in absence of trial objection usurps trial

court’s discretion to screen out unreliable expert evidence).

We overrule UP’s twenty-fourth issue.

Kenneth Synar

In its twenty-second issue, UP contends the trial court erred

in refusing to allow cross-examination of Synar regarding

disability benefits he was presently drawing through the

Railroad Retirement Board. UP asserts that Synar opened the

door by testifying about his financial hardship. Additionally,

evidence of his eligibility for railroad retirement benefits was

before the jury. Under these circumstances, UP argues, it was

entitled to inquire into Synar’s eligibility for and receipt of

railroad retirement disability benefits and his receipt of

money from other sources.

On direct examination, Synar testified that, upon retire-

ment, he will get retirement benefits. In response to counsel’s

inquiry into the emotional or mental effects of his injury and

the loss of his career and hobbies, Synar explained that. he

does not have a job to go to and he does not have any money

to do anything with. He further explained that he cannot plan

or go anywhere.

29a

Evidence of collateral source payments, including

disability payments, is ordinarily inadmissible. Eichel v.

New York Cent. R.R. Co., 375 U.S. 253, 255, 84 S. Ct, 316,

317, 11 L. Ed. 2d 307 (1963). however, such evidence may

be admissible for impeachment purposes when the plaintiff

has given testimony inconsistent with the receipt of

payments, Lange v. Missouri Pac. R.R. Co., 703 F.2d 322,

324 (8th Cir. 1983). For instance, plaintiff will have opened

the door to testimony regarding disability payments where he

infects the issue of his poverty. Mundy v. Shippers, Inc., 783

S.W.2d 743, 744 (Tex. App.—Houston [14th Dist.] 1990,

writ denied).

We disagree that, by his testimony, Synar opened the door

for evidence of disability benefits. He never stated whether he

was receiving such benefits. Therefore, there was no need to

impeach him on that basis. Further, his reference to money

was not a declaration of poverty. He was explaining the

emotional and mental effects of his present situation, not his

financial status. The trial court did not abuse its discretion in

refusing to allow cross-examination of Synar on the issue of

retirement disability payments. Eichel, 375 U.S. at 255, 84

S. Ct. at 317. We overrule UP’s issue twenty-two.

NEGLIGENCE

UP’s issues seven through cloven concern jury charge

question number one, which inquired whether any negligence

by UP caused Synar’s injuries, and the fury’s affirmative

answer to that question. In these issues, UP contends that

there is no evidence warranting submission of question num-

ber one to the jury, there is no evidence, or only insufficient

evidence, supporting the jury’s answer to question number

one, and the trial court erred in denying UT’s motions for

directed verdict and for judgment notwithstanding the verdict

as to negligence. More specifically, CAP argues that there is

no evidence, or insufficient evidence, to establish that it

breached its duty to provide Synar a reasonably safe work-

30a

place, that UP could have foreseen Synar’s injury, or that the

conduct of UP caused Synar’s injury.

Standards of Review

In addressing the no evidence challenges, including the

challenges to the trial court’s denial of UP’s motions for

directed verdict and for judgment notwithstanding the verdict

and the propriety of submitting the negligence question to the

jury, we consider only the evidence and inferences tending to

support the finding. Wal-Mart Stores, Inc.; 968 S.W.2d at

936; Elbaor v. Smith, 845 S,W.2d 240, 243 (Tex. 1992);

Mancorp, Inc, 802 S.W.2d at 227-28; Lochinvar Corp., 930

S.W.2d at 187. If there is any evidence of probative force to

support the finding, it will be upheld. McLaughlin, 943

S.W.2d at 430. However, factual sufficiency reviews of a

jury’s finding of liability under the FELA is precluded. Texas

& Pre. Ry. Co. v. Roberts, 481 S.W.2d 798, 800 (Tex. 1972).

Applicable Law

When FELA cases are brought in state court, federal law

governs the substantive rights of the parties and state rules

govern procedural matters. Mitchell v. Missouri-Kansas-

Texas R. R. Co., 786 S.W.2d 659, 661 (Tex. 1990) (on reh’g).

Under federal law, a railroad carrier is liable for damages to

its employees who suffer an injury “resulting in whole or in

part from the negligence of any of the officers, agents, or

employees of such carrier, or by reason of any defect or

insufficiency, due to its negligence, in its cars, engines,

appliances . . . or other equipment.” 45 U.C.S.A. § 51 (West

1986). A FELA, plaintiff must prove the common law

components of negligence, including duty, breach, foresee-

ability, causation, and injury. Adams v. CSX Transp., Inc.,

899 F.2d 536, 539 (6th Cir. 1990).

3la

Breach of Duty and Forseeability

Railroads have a duty to provide employees a reasonably

safe place in which to work and such protection against

hazards as would be expected of a person in the exercise of

ordinary care under those circumstances. Urie, 337 U.S. at

178 n.16, 69 S. Ct. at 1029 n.16; Missouri Pac. R.R. Co, v.

Roberson, 25 S.W.3d 251, 256 (Tex. App.—Beaumont 2000,

no pet.). Ordinary care must be in proportion to the danger to

be avoided and the consequences that might reasonably be

anticipated from the neglect. Urie, 337 U.S. at 179, 69 S. Ct.

at 1029. Ordinary care must be commensurate with known

dangers. Jd. However, “known dangers” does not mean that

the injury must have occurred on a previous occasion to the

same or a similarly situated worker. Aparicio vy. Norfolk &

Western Ry. Co., 84 F.3d 803, 810-11 (6th Cir. 1996).

The carrier breaches its duty to provide a safe workplace if

it knew or should have known of a potential hazard in the

workplace, and yet failed to exercise reasonable care to

inform and protect its employees. Ulfik v. Metro-North Com-

muter R.R., 77 F.3d 54, 58 (2nd Cir.1996). The touchstone of

this negligence inquiry is the issue of foreseeability, whether

or not the carrier kriew or should have known of the potential

hazard. /d. The test for foreseeability does not requite that the

negligent person should have been able to foresee the injury

in the precise form in which it in fact occurred. Adams, 899

F.2d at 540. Negligence attaches if the carrier knew or by the

exercise of due care; should have known that prevalent _

standards of conduct were inadequate to protect employees.

Urie, 337 U.S. at 178, 69 S. Ct. at 1028.

The record shows that in 1988 there were six carmen

working in the Muskogee yard inspecting and repairing cars.

Tea 1992, there were only three. After that, the number

continued to diminish. Accordingly, there was an insufficient

number of men to inspect and repair the cars im the Muskogee

railyard. One longtime railroad employee, Gerald Garretson,

32a

testified that between thirty and thirty-three percent of hand

brakes on cars in the Muskogee yard were defective. He also

complained that he did not have the right tools to repair them.

Quentin Dickering, Synar’s safety expert, testified that UP

failed to properly maintain equipment and was negligent in

requiring Synar to work under those circumstances. He

explained that the repetitive nature of the job made it

ergonomically incapable.

Synar testified that, on average, he set seventy-live to one

hundred hand brakes on a typical day and threw seventy-five

to one hundred switches a day. He estimated that about thirty

percent of the hand brakes he encountered required a lot of

force and two hands to set and that about five percent were

inoperative. He explained that some of the hand brakes and

switches were in disrepair. He said he had to push or

pull weights of more than twenty-five pounds constantly and

had to push and pull weights of more than fifty pounds

occasionally.

Douglas Hammer, another railroad employee, testified that

ten to fifteen percent or “a lot” of the brakes that he tied were

extremely hard to tie. He did not consider those brakes to be

safe. He also stated that they had problems with eighty

percent of the switches and that the switches were in “bad

shape,” needing cleaning and lubrication. He opined that the

Muskogee yard was poorly maintained in the ‘90’s. He

claimed that no one did inspections from 1994 to 1998 and

that there were not enough maintenance people.

Gary Scott, the highest level management official UP has

in the Muskogee yard, testified that he has no responsibility

to make sure the equipment is in good condition. He also

stated that in the two years before this trial, some of the

switches were replaced with different models that are easier

to throw. He testified that if a hand brake is difficult to turn,

that car should be set aside for repair.

33a

Dr. Tyler Kress, the biomedical engineer, viewed the

Muskogee yard from an ergonomics standpoint and deter-

mined that the yard was not reasonably safe. He explained

that the field of ergonomics is the study of how humans

interface with their work environment, particularly con-

sidering productivity and safety. Kress testified that one of

the brake wheels he tested required in excess of one hundred

pounds of poundage or force to manipulate it. Also, it took in

excess of one hundred pounds to throw the switches that were

tested. This amount of force is in excess of the recommended

weight loads of the National Institute of Occupational Safety,

It is undisputed that UP provided no ergonomics training or

information regarding repetitive trauma disorders or overuse

injuries to its Muskogee employees.

Thus, the evidence showed that-there was an insufficient

number of employees working with equipment that was in

disrepair and inproperly maintained. The Muskogee yard’s

management did not feel responsible for maintaining equip-

ment and provided no ergonomics training or information.

There was testimony that it takes an inordinate amount of

force to tie brakes and throw switches. Finally, from the fact

that UP replaced some swiiches with a different type that is

easier to throw, the jury could infer that the old switches

needed to be replaced because they were difficult to throw.

See Heater v. Chesapeake and Ohio Ry. Co., 497 F.2d 1243,

1247 (7th Cir.), cert. denied, 419 U.S. 1013 (1974) (In

passing on fault and causality, the jury has a broad power to

engage in inferences.). Accordingly, Synar presented sonic

evidence that UP breached its duty of care.

Regarding foreseeability, the record indicates that UP

should have known that Synar could have sustained on the

job injuries. Contrary to UP’s assertion, it was not necessary

for Synar to have notified UP of his injuries or to have shown

that other employees had previously suffered the same injury.

See Aparicio, 84 F.3d at 810-11. Moreover, the jury had

34a

before it evidence from which it could conclude that Synar’s

injury was foreseeable. Garretson testified that he had

complained to his superiors that there was an insufficient

number of men to take care of the number of cars in need of

repair. Synar testified that he had reported to Scott that the

equipment was worn out and did not operate properly. He

also testified that each day during one time period, he

reported an average of five or six malfunctioning brakes to a

past supervisor, Freddy Lowrance. Finally, Kress testified

that the Association of American Railroads has been doing

research in the field of ergonomics since the early 1980's and

started publishing their findings shortly thereafter. That

association has made its articles available for railroad use.

Accordingly, UP has had access to information in the field of

ergonomics, including studies on the effects of actions

involving repetitive flexion and force such as tying hand

brakes and throwing switches. We conclude that Synar

presented some evidence to show UP knew or should have

known of the potential hazard presented by requiring Synar to

engage in activities requiring the repetitive use of his right

arm and hand and that UP breached its duty to provide a safe

workplace. See Urie, 337 U.S. at 178, 69 S. Ct. at 1028; Ulfik,

77 F.3d at 58-59.

Causation

UP asserts that there was insufficient evidence to establish

that any negligence by UP actually caused Synar’s injuries. It

argues that there was no showing that Synar was injured on

any specific piece of equipment and no showing he was

injured on the equipment tested by Kress. UP also relies oil

the testimony of railroad employees stating that Synar never

complained about the equipment and that the hand brakes and

switches were well maintained.

The statute establishes a standard of “in whole or in

part” causation which replaces the common law standard of

proximate causation. See 45 U.C.S.A. § 51; Rogers v.

35a

Missouri Pac. R.R. Co., 352 U.S. 500, 507, 77 S. Ct. 443,

449, | L. Ed. 2¢ 493 (1957), With regard to causation, an

FELA case presents the single question of whether there is

any probative evidence to support a finding that employer

negligence played any part, even the slightest, in producing

the injury or death for which damages are sought. Rogers,

352 U.S. at 506, 77 S. Ct. at 448. The burden of the employee

is met, and the obligation of the employer to pay damages

arises, when there is proof, even though entirely circum-

stantial, from which the jury may reasonably make that

inference. Rogers, 352 U.S. at 508, 77 S. Ct. at 449. If that

test is met, the judge is bound to find that a case for the jury is

made out whether or not the evidence allows the jury a choice

of other probabilities. Rogers, 352 U.S, at 507, 77 S. Ct.

at 449.

The evidence UP would have us consider on this issue is

not controlling. Our research revealed no legal basis to

require Synar to prove he was injured on a particular piece of

equipment and UP directs us to no such authority. While

there was testimony that Synar never complained about the

equipment and that the hand brakes and switches were well

maintained, there was also testimony to the contrary. It was

for the jury to decide which testimony to believe. See Beall,

867 S.W.2d at 796. In addition to the testimony that railroad

equipment was not well maintained, we look to the medical

evidence to resolve the issue of causation.

Dr. Charles Fullenwider, a neurosurgeon who lead exam-

ined Synar, explained that the relatively constant, exertional

and repetitive use of hands and arms in an occupational

setting arc risk factors for development of ulnar neuropathy.

The jury heard testimony from several different witnesses

regarding the repetitive nature of Synar’s job tasks. Dr.

Fullenwider also testified that Synar’s work was likely a

major causative factor leading to his injuries. Dr. Lutton

testified that Synar’s work factors are the most probable

36a

explanation as to the cause of his injury. Dr. James Slater, the

orthopedic surgeon who performed Synar’s surgeries, testi-

fied that, with reasonable medical certainty, he would

attribute Synar’s injuries to his work on the railroad. This is

enough probative evidence from which the jury may with

reason make the inference that UP’s negligence caused

Synar’s injury. See Rogers, 352 U.S. at 508, 77 S. Ct. at 449,

Under these circumstances, the judge was bound to find that a

case for the jury has been made out. Rogers, 352 U.S. at 507,

77 S. Ct. at 449. Accordingly, the judge; properly submitted

question number one to the jury, the evidence is legally

sufficient to support the jury’s answer to question number

one, and the trial court properly denied UP’s motions for

directed verdict and for judgment notwithstanding the verdict

as to negligence. Pursuant to applicable law, we shall not

address UP’s factual sufficiency complaints. Roberts, 481

S.W.2d at 800. We overrule issues seven through eleven.

INTERSTATE COMMERCE

In its twelfth and thirteenth issues, UP contends the trial

court erred in denying its motions for directed verdict and for

judgment notwithstanding the verdict by which UP requested

judgment on the ground that Synar presented no evidence that

UP was a common carrier engaged in interstate commerce.

UP also contends that Synar failed to present evidence that he

was engaged in interstate commerce at the time of the

incident for which suit was brought.

Standard of Review

In attacking the denial of its motions for directed verdict

and for judgment notwithstanding the verdict, UP must show

there is no evidence to support the rulings. Mancorp, Inc.,

802 S.W.2d at 227-28; Lochinvar Corp., 930 S.W.2d at 187.

The reviewing court considers only the evidence and infer-

ences tending to support the teal court’s ruling. War-Mart

Stores, Inc., 968 S.W.2d at 936.

37a

- Applicable Law

To recover under FELA, the plaintiff must prove that the

defendant is a common carrier engaged in interstate or

foreign commerce and that the plaintiff suffered the injury

while employed in such commerce. 45 U.S.C.A. § Sl;

Hallaway v. Thompson, 148 Tex. 471, 226 S.W.2d 816, 819

(1950). The employee must show that his duties at least in

part arc in the furtherance of interstate or foreign commerce

or that they affect such commerce directly or closely and

substantially. /d. at 824 (on reh’g). It is enough if any part of

the employee’s duties further or affect interstate commerce.

Reed v. Pennsylvania R.R. Co., 351 U.S. 502, 506, 76 S. Ct.

958, 962, 100 L. Ed. 1366 (1956). A railroad is engaged in

interstate commerce when it carries an article from one state

to another and the character of the commerce continues

without cessation, until such article reaches its destination.

Louisville & Nashville R. R. Co. v. Meadors’ Adm r, 197

S.W. 440, 441 (Ky. 1917).

Discussion

Initially, we note that UP did not, at trial, raise the issue of

Synar’s failure to prove that he was engaged in interstate

commerce at the time he was injured. To the extent UP

now complains of that issue, the complaint is waived. TEX. R.

App. P. 33.1. However, the record supports a trial court ruling

denying such a motion on the issue of whether both UP and

Synar were engaged in interstate commerce at the time Synar

was injured.

Gary Scott, UP’s highest management official in Muskogee

explained that, as Manager of Terminal Operations, he

Oversees an area from Wagner, Oklahoma to Van Buren.

Arkansas. David Hoaglan, a UP foreman general, testified

that he was responsible for an area spanning three states,

Oklahoma, Kansas, and Arkansas. Jerrold Garretson testified

that trains came into the Muskogee yard from Kansas and

38a

Texas, as well as from other Oklahoma yards. Synar testified

that, while in UP’s employ, he worked in Oklahoma, Kansas,

Texas, and Louisiana. Synar explained that, while working 111

the Muskogee yard, he “built fields” for the North Platt Fort

Worth train, and for a northbound train, in addition to

building the Pryor and Tulsa, Oklahoma locals, Paul Goodie

confirmed that the men on Synar’s shift had to separate some

cars from through freights and switch those cars to other

tracks. Freddy Lowrance testified that the cars that carne into

the Muskogee yard that Synar used to make up the Tulsa and

Pryor locals arrived from all points on the railroad, including

California, Wyoming, and “the east.” On Lowrance’s shift,

they ran trains to Texas, Kansas, and Arkansas.

This evidence shows that UP operates in several different

states and moves its trains from one state to another in inter-

state commerce. Further, the cars Synar stopped, switched,

and moved cane from states oilier than Oklahoma and some

were destined for states other than Oklahoma. When he built

fields for the through freights, which were destined for other

states, Synar engaged in interstate commerce even if the cars

he moved were destined only for other locations within

Oklahoma. See Baltimore & O.R. Co. v. Darling, 3 F.2d 987,

987-88 (6th Cir. 1925) (Yard brakeman injured on intrastate

car while building an interstate train was engaged in interstate

commerce for purposes of FELA,); Pennsylvania R.R. Co. v.

Morrison, 3 F.2d 986, 986-87 (6th Cir. 1925) (All movements

of interstate cars, including a switching movement within one

yard, form a part of the entire interstate transportation.);

McCall v. Pitcairn, 6 N.W.2d 415, 421 (lowa 1942) (Because

an interstate train in a switching yard retains its interstate

character) a switchman injured in the process of adding cars

to that train is covered by FELA.); Rogers v. Mobile & Ohio

R.R. Co., 85 S.W.2d 581, 585-86 (Mo.), cert, denied, 296

U.S. 642 (1935) (where an interstate train picks up or sets out

cars at a railyard, such action is incident to interstate

transportation, whether the individual cars arc interstate or

39a

local in character.). Accordingly, although Synar’s main duty

may have been to make up two local trains, he was also

involved in furthering interstate transportation. Synar’s injury

was caused by the repetitive use of his arm over the course of

many years during which time he moved both interstate and

intrastate cars. Considering the nature of the injury as well as

the constantly changing interstate/intrastate character of his

work, we conclude that Synar met his burden to show that he

and UP were engaged in interstate commerce at the time of

his injury. The record presents some evidence of probative

force supporting the trial court’s denial of UP’s motions for

directed verdict and for judgment notwithstanding the verdict

on the issue of whether UP was a common carrier engaged in

interstate commerce at the time of the injury and whether

Synar was engaged in interstate commerce at the time of

the injury. Accordingly, we overrule UP’s issues twelve

and thirteen.

FEDERAL SAFETY APPLIANCE ACT

Background

Synar alleged in his petition that UP, in violation of the

FSAA, used rail cars that were not equipped with efficient

hand brakes. In question four of the charge, the jury was

asked if the failure, if any, of UP to provide cars in proper

condition and safe to operate without unnecessary danger of

personal injury was a cause of the occurrence in question.

The accompanying instruction set out the text of the hand

brake provision of the FSAA as it read before the 1994

recodification: “It shall be unlawful for any common carrier

subject to the provisions of . . . this title to haul, or permit to

be hauled or used on its line, any car subject to the provisions

of said sections not equipped with . . . efficient hand brakes.”

Also, it defined “inefficient” as “not producing or not capable

of producing the desired effect, incapable, incompetent or

inadequate.” The jury answered, “yes” to question four.

40a

UP filed a motion for judgment notwithstanding the verdict

or alternatively to disregard special issues. UP argued that

there was no evidence that any car caused any injury to

Synar. Further, UP argued that the FSAA does not apply to

switching operations because switching does not constitute

hauling or use on a line. It also argued that the answer to

question four should be disregarded because Synar did not

identify a particular, defective hand brake that caused his

injuries. The trial judge explained on the record that he

agreed that the FSAA does not apply to switching operations

and, therefore, Synar did not show that the allegedly defective

cars contributing to his injury were being used on UP’s line

as required by the FSAA and that Synar must, but did not,

identify a particular defective hand brake. The trial judge

disregarded the jury’s answer to question four thereby

denying Synar recovery under the FSAA. As a result, FELA

section 53, in conjunction with the jury’s finding that Synar

was thirty percent contributorily negligent, required the trial

judge to deduct thirty percent of the jury’s total award. See 45

U.S.C.A. § 53 (West 1986); Rogers, 352 U.S. at 507 n.113,

77 S. Ct. at 449 n.13.

Standard of Review

A trial court may disregard a jury’s findings and grant a

motion for judgment notwithstanding the verdict, when the

evidence is conclusive and one party is entitled to judgment

as a matter of law. Mancorp, Inc., 802 S.W.2d at 227-28. We

must review the record in the light most favorable to the jury

findings, considering only the evidence and inferences which

support the findings and rejecting the evidence and inferences

contrary to the findings. Jd. at 227. If there is more than a

scintilla of competent evidence to support the jury’s finding,

then the judgment notwithstanding the verdict will be

reversed. Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d

308, 309 (Tex. 1986).

4la

Applicable Law

The Safety Appliance Act imposes absolute liability on

railroad carriers for violations of that act’s safety standards.

Myers v. Reading Co., 331 U.S. 477, 482, 67 S. Ct. 1334,

1337, 91 L. Ed. 1615 (1947). Pursuant to the FSAA, a

railroad is required to use only cars equipped with efficient

hand brakes. 49 U.S.C.A. § 20302(a)(I)(B) (West 1997).' A

railroad may be found liable for a violation of the FSAA if

the jury reasonably can infer from the evidence that the hand

brake which caused the injuries was on a car which the

railroad was then using on its line, in interstate commerce,

and that the brake was not an efficient hand brake. Myers,

331 U.S. at 482-83, 67 S. Ct, at 1338. An inefficient hand

brake is one that fails to function properly. Myers, 331 U.S. at

483, 67S. Ct. at 1338.

Switching Operations

In his first issue, Synar contends the trial court erred in

determining that the Safety Appliance Act does not apply to

switching operations and, therefore, he cannot recover under

the FSAA. He further contends the trial court erred in

disregarding the jury’s answer to question four, by which the

jury found the railroad violated that act, and in reducing the

jury’s award accordingly.

Synar’s FSAA cause of action is based on an injury

allegedly occurring solely while he performed switching

operations, UP relies on a recent case from the Fourth Circuit,

Phillips v. CSX Transportation, Inc., 190 F.3d 285 (4th Cir.

1999), cert. denied, 529 U.S. 1004 (2000), to support its

‘The Safety Appliance Act was recodified in 1994. However.

Congress intended merely to restate, without substantive change. laws

previously enacted. It declared that the new provisions may not be con-

strued as making a substantive change in the laws replaced. Pub. L. No.

103-272, § 6 108 Stat. 881 (1994). Accordingly, we rely on cases issued

before and after the 1994 recodification.

42a

argument that the FSAA does not apply to switching

operations. Phillips was, at the time of his injury, engaging

the hand brakes on a completed train prior to turning the train

over to the car department for its predeparture inspection. He

was injured when the hand rail he held on to gave way and he

fell to the ground. Based on its interpretation of other case

law, the Fourth Circuit started with the premise that the

FSAA does not apply to switching operations because, it

determined, those activities do not fall within the definition of

“in use” under the act. /d. at 289.

The focal point of the opinion was not whether the FSAA

applies to switching operations, but rather, the court’s

discussion o f whether the train was involved in switching

operations or whether it was “in use” under the FSAA at the

time of Phillips’ injury. The court characterized the key issue

in the case as “[d]etermining the point at which switching

operations end and a train becomes ‘in use,’ /d. Considering

where the train was located at the time of the accident and the

activity Phillips was engaged in at the time of the injury, the

court concluded that he was injured at the end of the

switching process, rather than at the beginning of the

departure _process. With the conclusion that switching

operations do not fall within the definition of “in use” as its

foundation and starting point for analysis, the court held that

the train upon which Phillips was injured was not in use at the

tune of his injury, Therefore, Phillips could not recover on his

FSAA claim. /d. at 289-90. As we shall explain, we conclude

that Phillips is based on a faulty premise.

Air-brakes and hand brakes are addressed separately within

the FSAA. Section 20302(a)(1)(B) requires vehicles to be

equipped with efficient hand brakes. 49 U.S.C.A.

§ 20302(a)(1)(B). “Vehicle” is defined as a car, locomotive,

tender, or similar vehicle. 49 U.S.C.A, § 20301(a) (West

1997). Section 20302(a)(5S) requires trains to be composed

of enough vehicles equipped with power or train brakes

43a

so that the train’s speed can be controlled without the use

or hand brakes, 49 U.S.C.A. § 20302(a)(5)(A). Thus, the

FSAA makes a distinction between trains, which are stopped

with the use of air-brakes, and cars, which are stopped with

the use of hand brakes. See 49 U.S.C.A. § 20302(a); United

States v. Erie R.R. Co., 237 U.S. 402, 407-08, 35 S. Ct. 621,

624, 59 L, Ed. 1019 (1915). In railroad yards, incoming trains

are broken up and cars are assembled and coupled into

outgoing trains. Erie R.R. Co., 237 U.S. at 408, 35 S. Ct. at

624. Use of the air-brake system is impracticable in railroad

yards. Grand Rapids & I. Ry. Co. v. United States, 249 F.

650, 653 (6th Cir. 1918). Accordingly, yard movements,

which are switching operations, are not within the air-brake

provision. Erie R.R. Co., 237 U.S. at 408, 35 S. Ct. at 624. In

contrast, the hand brake provision is ascribable to the

necessity of controlling the movements of cars its yards and

elsewhere, when trains have been broken up or arc being

made up. United States v. Great N. Ry. Co., 229 F. 927, 930

(9th Cir. 1916). With this law in mind, we consider the

Phillips opinion.

The Phillips court broadly stated that “the FSAA does not

apply to train oars involved in switching operations” and

cited three cases, none of which stand for that proposition.

Phillips, 190 F.3d at 289. Those three cases are United States

v. Seaboard Air Line Railroad, Co., 361 U.S. 78, 80 S. Ct. 12,

4 L. Ed. 2d 25 (1959), United States v. Northern Pacific

Railway Co., 254 U.S. 251, 41 S. Ct. 101, 65 L. Ed. 249

(1920), and Trinidad v. Southern Pacific Transportation Co.,

949 F.2d 187 (Sth Cir. 1991). In Seaboard Air Line Railroad,

the railroad had been cited for failure to comply with the air-

brake provisions while moving trains within a_ yard.

Accordingly, the Supreme Court was applying the air-brake

provisions when it distinguished “train movements” from

“switching operations.” Seaboard Air Line R.R. Co., 361 U.S.

at 80, 80 S. Ct. at 14. The Court pointed out that there is no

“train” in a true “switching” operation and held that, while

44a

the complained-of movements took place in a yard, the case

involved train movements subject to the air brake provisions.

Seaboard Air Line R.R. Co., 361 U.S. at 82, 80S. Ct. at 15.

We should not imply that the hand brake provision does not

apply to switching operations merely because the air-brake

provision does not.

Likewise in Northern Pacific, the Supreme Court

considered whether the provision of the FSAA requiring a

certain percentage of the train’s air-brakes to be coupled so as

to be under engine control applied to two transfer trains. It

held that “[a] moving locomotive with cars attached is

without the provision of the act only when it is nof a train; as

where the operation is that of switching, classifying and

assembling cars within railroad yards for the purpose of

making up trains.” Northern Pac., 254 U.S. at 254-55, 41 S.

Ct. at 102. We conclude that the logical interpre-

tation of the phrase “the provision of the act” is that it is a

reference to the air-brake provision since that is the provision

at issue in the case. Again, we shall not imply that the hand

brake provision does not apply merely because the our-brake

provision does not.

Finally, the Phillips court relied on Trinidad, a Fifth

Circuit case also applying the air-brake provisions of the

FSAA. The Trinidad court determined that the air-brake

provisions, the only provisions relied on by the plaintiff, did

not apply. It reasoned that the train, which was assembled in

Southern Pacific’s yard, had not been released because of an

incomplete inspection and had not, therefore, passed from the

assembly phase to the “in use” phase. Trinidad, 949 F.2d at

189. Specifically, referencing sections one and nine, the old

FSAA section numbers containing the airbrake provisions,

the court stated that, because the train was not in use, it was

not covered by the train brake provisions of the Act. /d. The

Trinidad court did not comment on the applicability of the

hand brake provision to any given situation.

45a

In short, the cases relied on in Phillips to support its

holding that switching operations do not fall within the

definition of “in use” under the FSAA do not support that

holding. We shall now review ot*>er pertinent case law.

As the Fourth Circuit has previously stated, “(t]he purpose

of the law is the guide to its interpretation.” Virginian Ry. Co.

v. United States, 223 F. 748, 751 (4th Cir.1915). Further,

“[t]he beneficial and remedial purposes of these statutes must

not be defeated by strained construction.” /d. at 752. The

controlling test of the statute’s application lies in the essential

nature of the work clone. United States vy. Chicago,

Burlington & Quincy R.R. Co., 237 US. 410, 413, 35 S. Ct.

634, 636, 59 L. Ed. 1023 (1915). Significantly, the purpose of

the FSAA is to promote the safety of employees and travelers

and the statute should be liberally construed as a safety

measure. Seaboard Air Line R.R. Co., 361 U.S. at 83, 80

S. Ct. at 16; Delk v. St. Louis & San Francisco, R.R. Co., 220

U.S. 580, 582, 31 S. Ct. 617, 619, 55 L. Ed. 590 (1911).

In construing the FSAA, it is appropriate to consider the

context in which the individual provisions of the statute must

be applied. For instance, in determining the applicability of

the airbrake provision to transfer trains running on a main

track between two yards, the Supreme Court has noted that

the trains were exposed to the hazards which the air-brake

provision was intended to avoid or minimize. See Chicago,

Burlington & Quinsy R.R. Co., 237 U.S. at 412, 35 S. Ct. at

635. Although these “trains” were merely made up of cars

being moved from one yard to another, they came within the

air-brake requirement. Jd. Thus, the Court focused on

furthering the FSAA’s purpose of promoting safety.

Interpretation and application of a provision of the FSAA

that is similar to the hand brake provision provides guidance.

Section 20302(a)1)(A) requires vehicles to be equipped with

automatic couplers. 49 U.S.C.A, § 20302(a)(1)(A). Finding

that the car in question was being used in interstate traffic

46a

when the plaintiff was injured, courts have repeatedly held

that the FSAA applies in cases where the plaintiffs injury,

incurred while the plaintiff was engaged in switching

operations, resulted from a defective coupler. See Great N.

Ry. Co. v. Otos, 239 U.S. 349, 351, 36 S. Ct. 124, 125, 60 L.

Ed. 322 (1915); Delk, 220 U.S. at 585-86, 31 S. Ct. at 620;

United States v. Houston Belt & Terminal Ry. Co., 210 F.2d

421, 424 (Sth Cir.1954); Erie R. Co. v. Russell, 183 F. 722,

724-25 (2d Cit. 1910), error dismissed, cert. denied, 220 U.S.

607 (1911).

Further, at least four jurisdictions have applied the FSAA

in cases involving injuries occurring during switching

operations and allegedly caused by defective hand brakes.

However, we note that the applicability of the FSAA was

neither questioned nor discussed in these cases. See Texas &

Pacific Ry. Co. v. Griffith, 265 F.2d 489 (Sth Cir. 1959);

Missouri-K.-T. R.R. Co. v. Ridgway, 191 F.2d 363 (8th

Cir.1951); Hosman v. Southern Pac. Co., 83 P.2d 88 (Cal.

App. 1938), cert. denied, 306 U.S. 656 (1939); Didinger v.

Pennsylvania R.R. Co., 39 F.2d 798 (6th Cir.1930).

It is because safety in the yard during switching operations

requires efficient hand brakes that Congress passed the hand

brake provision. Robb v. Burlington N. & Santa Fe Ry. Co,

100 F.Supp. 2d 867, 870-71 (N.D. Ill. 2000). As other courts

have considered during discussions of this issue, if the

“efficient hand brakes” provision of the FSAA does not apply

during switching operations, it is difficult to see when it

would ever apply. Williams v. Norfolk So. Ry. Co., 126 F.

Supp.2d 986, 992 (W.D. Va. 2000); Robb, 100 F. Supp. 2d at

870, Further, there is no provision of the statute or any

exception carved out by case law excluding emp!oyees who

work in switching yards. On the contrary, the Supreme Court

has held that a railroad employee’s designation as yard or

switching crew was not material. The controlling test of the

Statute’s application lies in the nature of the work done.

47a

Chicago, Burlington & Quincy R.R. Co., 237 U.S. at 413, 35

S. Ct. at 636. Generally speaking, the cars and railroad

employees in the yard are exposed to the hazards which the

provision requiring efficient hand brakes is intended to avoid

or minimize. See Chicago, Burlington & Quincy R.R. Co.,

237 U.S. at 412, 35 S. Ct. at 635. Efficient hand brakes are a

necessary safety measure in rail yards. Accordingly,

construing the hand brake provision as a safety measure

would lead us to apply that provision to switch-

ing Operations.

We conclude that the hand brake provision of the FSAA

applies to the switching activities Synar was engaged in when

injured. Therefore, it is improper to say that UP was entitled

to judgment as a matter of law on Synar’s FSAA claim. See

Mancorp, Inc., 802 S.W.2d at 227-28. The attempt to exempt

switching activities was actually an attack on the sufficiency

of the evidence to prove the cars on which Synar was injured

were “in use” at the time of the injury. There is no dispute

that the cars were involved in switching operations. As

switching operations constitute “use” under the FSAA, the

record shows there is more than a scintilla of competent

evidence to support the jury’s finding in answer to question

four. See Navarette, 706 S.W.2d at 309. Accordingly, the trial

court erred in disregarding the jury’s affirmative answer to

question four based on the reasoning that the FSAA does not

apply to switching operations. We sustain Synar’s first issue.

Identification of Defective Hand Brakes

In his second issue, Synar contends the trial court erred in

determining that he must identify the specific defective hand

brakes that caused his injury and in disregarding the jury’s

answer to question four because he failed to do so. Synar

asserts that the evidence shows the hand brakes on the cars in

the Muskogee yard were inefficient and caused injuries. He

further argues that the trial court’s ruling on this issue is

contrary to legislative intent and impermissibly denied him

48a

his right to trial by jury on this issue. Also, Synar argues that

the trial court’s conclusion is illogical and impracticable

based on the nature of the injury and that its reasoning is

internally inconsistent with its reasoning for not disregarding

the jury’s answer on the FELA cause of action.

The FSAA itself does not specifically state a requirement

that the plaintiff identify the sped lie defective hand brake

that caused his injury. See 49 U.S.C.A. § 20302. UP relies on

the Supreme Court’s Myers case and a Seventh Circuit case,

Richardson v. Consolidated Rail Corp., 17 F.3d 213 (7th

Cir.1994), for the proposition that Synar “bears the burden of

establishing that a particular hand brake failed to work

efficiently and properly.” we do not agree that either case

stands for that proposition.

In Myers, the Supreme Court explained that there are two

recognized methods of showing the inefficiency of hand

brake equipment. The plaintiff may introduce evidence

showing some particular defect or evidence showing a failure

to function. Myers, 331 U.S. at 483, 67 S. CL at 1338. The

Myers court did not require the plaintiff to identify a

particular hand brake. The Seventh Circuit, in Richardson,

addressed the question of whether the jury could consider

evidence of a hand brake’s condition before and after the

incident during which the plaintiff was injured. In

- determining that the jury could consider such evidence, the

Richardson court did not state that the plaintiff had to identify

a specific, defective hand brake, See Richardson, 17 F.3d at

216-17. Although the plaintiff in both of these cases was

injured on a single, identified car and therefore the specific

defective brake was identified, the question now before us

was not addressed by these cases.

Finding no cases that address the specific file question

before us, we turn to the Supreme Court for guidance in

construing the FSAA. We start with the basic proposition that

the FSAA is to be liberally construed in the light of its prime

49a

purpose, the protection of employees and others by requiring

the use of safe equipment. Lilly v. Grand Trunk W. R.R. Co..

317 U.S. 481, 486, 63 S. Ct, 347, 351, 87 L. Ed. 411(1943),

The case of Urie v. Thompson, in which the Supreme Court

addressed the question of the extent of coverage of FELA and

the Boiler Inspection Act, is instructive and we shall borrow

from its reasoning. See Urie, 337 U.S. at 180-95, 69 S. Ct. at

1030-37.

Liability for a violation of the FSAA springs from the fact

that it is unlawful to use cars not equipped as required. Urie,

337 U.S. at 195 n.34, 69 S. Ct. at 1037 n.34. The wording of

the statute is not restrictive. Requiring a plaintiff with a

repetitive trauma injury, alleged to have been caused by use

of hand brakes on hundreds of railroad cars over the course of

many years, to identify specific defective hand brakes would

make recovery for that plaintiff impossible. This would result

in the elimination of an entire subset of plaintiffs us from the

purview of the statute’s benefit. Construing the FSAA to

require such specific identification would therefore defeat the

intent of Congress in passing the FSAA. The FSAA is to

facilitate employee recovery, not defeat it. Urie, 337 U.S. at

189, 69 S. Ct. at 1034. It would not make sense to designate

violation of the statute as a per se violation and then contract

the scope of compensable injuries thereby defeating recovery

for an entire group of plaintiffs. Urie, 337 U.S. at 190, 69

S. Ct. at 1034-35. When the acts of the railroad impair an

employee’s health by requiring him to work under conditions

likely to bring about harmful consequences, the injury is just

as valid and compensable when it follows a course pursued

over an extended period of time as when it happens suddenly,

See Urie, 337 U.S, at 186-87, 69 S. Ct. at 1033. We conclude

that the FSAA sloes not require Synar to identify specific

hand brakes that contributed to his injury. Accordingly, the

trial court erred in disregarding the Jury’s answer to question

four based on the reasoning that Synar failed to identify the

specific hand brakes that caused his injury. We sustain

50a

Synar’s second issue and reinstate the jury’s affirmative

answer to question four, finding UP liable under the FSAA.

Sufficiency of the Evidence

UP asserted alternatively in its first cross-point that there

was no evidence to support the jury’s answer to question four.

The focus of this cross-point is UP’s assertion that question

four was improperly submitted because it tracks the language

of the Boiler Inspection Act. However, UP did not argue its

no evidence issue under this cross-point. It is not clear

whether UP is asserting there is no evidence to support an

affirmative finding that it violated the FSAA or whether it

asserts there is no evidence to support an affirmative finding

that it violated the Boiler Inspection Act, As we explain

below, question four properly presented the FSAA claim to

the jury. The rules require parties to discuss the facts and the

authorities upon which they rely to maintain their issues. TEX.

R. App. P.38.1(h). Mere assertions of error, without argument

or authority, waive error. Jones v. Texas Pac. Indent. Co., 853

S.W.2d 791, 796 (Tex. App.-Dallas 1993, no writ) (on reh’g).

To the extent UP complains in its first cross-point that there is

no evidence to support the jury’s answer, that complaint is

waived. However, our discussion of UP’s second cross-point

speaks to this issue.

In its second cross-point, UP contends the evidence is

insufficient to support the jury’s answer to question four. UP

complains that Synar did not identify a particular defect, a

specific failure to function, or the particular hand brake that

caused him injury, Additionally, UP contends Synar did not

prove the hand brakes which caused his injury were on a car

UP was using on its line or that UP was engaged in interstate

commerce at the time of the alleged injury.

We have already addressed the question of whether Synar

had to identify a particular hand brake that caused his injury

and determined. that the statute does not require such

Sla

specificity in this type of case. See generally Urie, 337 U.S.

at 183-91, 69 S. Ct. at 1031-35. We have also considered the

question of whether Synar was injured on cars used on UP’s

line. We determined that switching operations fall within the

meaning of the phrase in use on the carrier’s line and there is

no question that Synar was engaged in Switching operations

at the time he was injured. Therefore, the record shows he

was injured by hand brakes on cars which UP was then using

on its line. See Robb, 100 F.Supp. at 870-71. Likewise, we

have considered the issue of whether UP was engaged in

interstate commerce and we determine that the record shows

that UP was so engaged. See Darling, 3 F.2d at 987-88.

Finally, we now consider whether the record also supports a

finding that Synar was injured on inefficient hand brakes on

UP’s cars.

Synar had worked as a switchman and brakeman for more

than fifteen years at the time his injuries were diagnosed.

Synar testified that he set seventy-five to one hundred hand

brakes a day. He estimated that about thirty percent of the

hand brakes he encountered required a lot of force_and two

hands to set. Gerald Garretson, a UP employee, testified that

about thirty percent of hand brakes on cars in the Muskogee

yard are defective. Douglas Hammer, who worked as a

brakeman in the Muskogee yard, testified that ten to fifteen

percent of the hand brakes that had to be tied were extremely

hard to tie. Some brakes required both hands and feet. Dr.

Kress’s test showed that the amount of force required to

manipulate the hand brake tested was in excess of the

recommended weight loads. Kress testified that Gary Scott,

UP’s highest ranking management official in Muskogee, told

hint that the hand brake he tested was representative of all

hand brakes on cars in the Muskogee yard. However, Scott

testified that the cars Kress tested were not representative of

the cars in the Muskogee yard. Quentin Pickering, Synar’s

expert witness, stated that in his opinion, hand brakes

requiring excessive force to set are defective and inefficient.

52a

Scott, who testified that the cars in the Muskogee yard are

inspected regularly and well-maintained, explained that a

defective hand brake is one that will not tighten the brake.

He also stated that UP employees are told not to use

excessive force to tighten hand brakes. In response to

Pickering’s testimony, Scott denied that between one-third

and two-thirds of all hand brakes on cars in the Muskogee

yard were defective.

Thus, the jury had before it evidence that, over a period of

many years, Synar set many hand brakes and that up to

approximately one third of them were difficult to set. Some

witnesses considered those brakes to be defective while Scott

asserted that a hand brake is not considered defective unless it

will not tighten. The jury also heard evidence that the cars in

the Muskogee yard were well-maintained and that not many

hand brakes were defective. It is for the jury to resolve

conflicts in the evidence. The jury reasonably could infer that

at least some of the hand brakes Synar had to set were not

efficient. See Myers, 331 U.S. at 484, 67 S. Ct. at 1339.

Accordingly, the evidence supports the jury’s answer to

question four. We overrule UP’s second cross-point.

CHARGE ERROR

Question Four

In its first cross-point, UP asserts that, assuming the trial

court improperly disregarded question number four, Synar is

not entitled to judgment on his FSAA claim because the issue

was improperly submitted to the jury. UP complains that

question four tracks the language of the Boiler Inspection

Act, not the FSAA. Further, it contends the trial count erred

in failing to ask whether UP had violated the FSAA generally

or whether UP used on its line cars equipped with inefficient

hand brakes. UP asserts that there was no issue submitted

on the FSAA and the jury’s answer to question four had no

legal effect.

53a

Applicable Law

Trial courts have broad discretion in formulating a charge

by which to submit disputed issues to the jury. Varme vy.

Gordon, 881 S.W.2d 877, 881 (Tex. App.—Houston (14th

Dist,] 1994, writ denied). The trial court must, whenever

feasible, submit the cause upon broad-form questions and

must give proper instructions and definitions to enable the

jury to render a verdict, TEX. R. Civ. P. 277. If the jury charge

resolves the controlling issues raised by the pleadings and any

evidence in a feasible manner that does not confuse the jury,

no error occurs. Friday v. Spears, 975 S.W.2d 699, 700 (Tex.

App.—Texarkana 1998, no pet.).

The standard of review on appeal for charge error is

whether the trial court abused its discretion. Texas Dept. of

Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990) (on

reh’g). Abuse of discretion occurs only when the trial court

acts without reference to any guiding principle. /d. An

appellate court may not substitute its judgment for that of the

trial court, but must determine whether the trial court’s action

was arbitrary or unreasonable. McFarland vy. Sanders, 932

S.W.2d 640, 644 (Tex. App.—Tyler 1996, no writ). We must

consider the pleadings of the parties, the evidence presented

at trial, and the charge in its entirety. /sland Recreational

Dev. Corp. v. Republic of Texas Sav. Ass'n, 710 S.W.2d 551,

555 (Tex. 1986) (on reh’g).

Discussion

A railroad may be held liable for a violation of the FSAA if

the jury can reasonably infer from the evidence that the hand

brake which caused the injuries was on a car which the

railroad was using on its line, in interstate commerce, and that

the brake was not an efficient hand brake. Myers, 331 U.S. at

482-83, 67 S. Ct. at 1338. In question four, the jury was

instructed that a common carrier that is subject to the

provisions of the FSAA violates the FSAA if it hauls, permits

54a

to be hauled, or uses on its line any car with an inefficient

hand brake. Question four asked the jury if UP’s failure, if

any, to provide cars in proper condition and safe to operate

was a cause of Synar’s injury.

UP asserts that question four tracks the language of the

Boiler Inspection Act, 49 U.S.C.A, § 20701 (West 1997).

That statute provides:

A railroad carrier may use or allow to be used a

locomotive or tender on its railroad line only when the

locomotive or tender and its pans and appurtenances—

(1) are in proper condition and safe to operate without

unnecessary danger of personal injury;

(2) have been inspected as required under this chapter

and regulations prescribed by the Secretary of

Transportation under this chapter; and _

(3) can withstand every test prescribed by the Secretary

under this chapter.

Id. The only similarity between question four and the Boiler

Inspection Act lies in the fact that they both contain the

phrase “in proper condition and safe to operate without

unnecessary danger of personal injury.” As it is the purpose

of the Safety Appliance Act to promote safety by ensuring

that each car is properly equipped, we see no error in

borrowing the phrase. Further, the instructions accompanying

question four track the language of the Safety Appliance Act

as it read prior to the 1994 recodification. See 45 U.S.C.A.

§ 11 (West 1986) (current version at 49 U.S.C.A. § 20302).

Although the charge did not specifically track the current

version of the FSAA, the jury was adequately and correctly

informed of the relevant law which enabled it to reach a

verdict. See 49 U.S.C.A. § 20302; Myers, 331 U.S. at 482-83,

67 S. Ct. at 1338. Further, the question and instructions were

not misleading, confusing, or prejudicial, We conclude that

5Sa

the question and accompanying instructions, taken together,

properly submitted this issue to the jury. Accordingly, the

trial court did not abuse its discretion in submitting question

four and the jury’s answer constitutes a finding that UP

violated the provisions of section 20302 of the FSAA. See

Friday, 975 §.W.2d at 700. We overrule UP’s first cross-

point.

UP's Requested Jury Instructions

a. Limitations

In its sixth issue, UP asserts that the trial court erred in

failing to give UP’s requested question number four, on the

issue of limitations, and erred in submitting question number

five as it was worded. UP contends that question number five

erroneously placed the burden of proof on UP. It further

contends that question was confusing and should have only

inquired whether Synar did not know that his injury was work

related prior to a day certain.

Applicable Law

While the substantive law contained injury instructions in

FELA cases is federal and should not vary whether the case is

tried in state or federal court, the instructional format is

procedural and is a matter for the state to regulate. Dutton vy.

Southern Pac. Transp., 576 S.W.2d 782, 784 (Tex. 1978).

Trial courts have broad discretion in formulating a charge by

which to submit disputed issues to the jury. Varme, 881

S.W.2d at 881. The trial court must, whenever feasible,

submit the cause upon broad-form questions and must give

proper instructions and definitions to enable the Jury to render

a verdict. TEX. R. Civ. P. 277. The trial court should submit

instructions only when it determines that the instructions will

help the jury to understand the meaning and effect of the law

and the presumption created thereby. City of Austin vy.

Houston Lighting & Power Co., 844 $:W.2d 773, 794 (Tex.

App.-Dallas 1992, writ denied).

S6a

Discussion

Question five as submitted asked the jury the following

question: “On what date did Kenneth Synar first become

possessed of the critical facts of his alleged work related

injury and: its causation?” It was followed by this instruction:

“Critical facts are those that either did or in the exercise of

ordinary care should have placed him on notice that work

related activities were causing injury, if said activities did

cause injury.” The jury answered “2/18/94.”

UP’s requested question and instruction on the issue of

limitations was as follows:

Did plaintiff know has condition was work-related or

should he have been reasonably aware of the critical facts of

his alleged injury and its causation prior to September 29,

1992? A critical fact causing a claim to accrue can be an

event that should put Plaintiff on notice to check for injury

even if the event is only minor.

Question five merely asked the jury to determine when

Synar had enough information to know his injuries were

caused by his work at the railroad. This instruction accurately

reflects the law on accrual in FELA cases. A claim accrues

when the claimant should reasonably have been aware of the

critical facts of injury and causation. DuBose, 729 F.2d at

1030. The question as given was open-ended and asked the

jury to determine the month, day and year. UP’s requested

question asked if Synar knew or should have known the same

critical facts prior to a date certain. ale discern no substantive

difference in this wording. A party cannot complain when the

judge submits an issue substantially similar to the one it

requested. Maddox v. Denka Client. Corp., 930 S.W.2d 668,

670 (Tex. App.-Houston [Ist Dist.] 1996, no writ). Further,

we disagree that the question given to the jury placed the

burden on UP. It merely asked the jury for a date. Finally,

while the last sentence in UP’s requested instruction on

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limitations, regarding critical facts. is a correct statement of

the law, that alone is not a sufficient reason to require the trial

court to include it in the charge. Kansas C ity So. Ry. Co. v.

Stokes, 20 S.W.3d 45, 49 (Tex. App.—Texarkana 2000, no

pct.). Because the instruction given accurately reflects the

law, the trial court did not abuse its discretion by determining

that the jury did not need this expanded explanation of what

constitutes a critical fact. See City of Austin, 844 S.W.2d at

794. We overrule UP’s sixth issue.

b. Negligence.

In its fifteenth issue, UP asserts that the trial court erred in

not submitting its requested instructions numbers eight

through fourteen and seventeen. UP contends that the trial

court’s denial of these instructions denied its right to a

substantive defense as such instructions are an integral part of

what constitutes negligence under FELA.

UP submitted the following requested instructions which

the trial court denied:

Number 8: Plaintiff has sued the Railroad under the

Federal Employer’s Liability Act, referred to as the

FELA. The FELA protects the employee only if they are

injured in the course and scone of their employment.

Plaintiff cannot recover for injuries that were not

sustained in the course; and scope of his employment

with the Railroad.

Number 9: In order to recover under FELA, Plaintiff

must prove that the Railroad was negligent. Mere proof

that the work place is dangerous or a difficult place

to work does clot make the Railroad liable without proof

of negligence, The Railroad is' not held to an absolute

responsibility for the reasonably safe condition of the

place, tools and appliances, but only to the duty of

exercising reasonable care to that end. The fact that

an employee is injured is not proof of negligence of

the Railroad.

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Number 10: Union Pacific had a right to assume that

Plaintiff would exercise reasonable care for his own

safety and that he would not disobey safety rules and

- practices.

Number 11: Union Pacific cannot be charged with

negligence in this case by failing to anticipate that

plaintiff would not take the ordinary and proper

precautions to protect and safeguard his health and

welfare. As part of their duties, railroad employees must

exercise due care for their own safety.

Number 12: In order to prove that the Railroad was

negligent in violation of the Federal Employers Liability

Act, 45 U.S.C. § 51, et seq., the Plaintiff must prove, by

a preponderance of the evidence, that the Railroad knew,

or, in the exercise of ordinary cart;, should have known,

that a dangerous condition existed.

Under the law, even after proof of an unsafe or defective

condition, the Plaintiff must prove that Defendant knew,

or in doe exercise of ordinary care, should have known

of the unsafe condition, if he is to recover under the

Federal Employer’s Liability Act, 45 U.S.C. § 51, et seq.

Number 13: During all the time he was working, and at

the time of the alleged occurrence in question, the law

imposed upon plaintiff the duty to exercise reasonable

care for his own safety. The Railroad owed him no duty

to exercise a higher degree of care for his safety than he

owed to himself. The Railroad is not an insurer of the

safety of its employees; employees, particularly those

working in yards, must as part of their duty exercise due

care for their own safety.

Plaintiff was required to exercise reasonable care to

protect himself from injury from the ordinary hazards

and dangers of his employment not resulting from the

Railroad’s negligence and to protect himself from injury

from such hazards however and whenever they might be

encountered.

59a

Number 14: The Plaintiff is making a claim under the

Federal Employers Liability Act (“FELA”). To recover.

the Plaintiff mat prove each, of the following elements

by a preponderance of the evidence.

First: That at the time of the Plaintiffs injury, he was an

employee of the Defendant performing duties in the

course of his employment; —

Second: That the Defendant was at such time a common

carrier by railroad, engaged in interstate commerce:

Third: That the Defendant was “negligent:;” and

Fourth The Defendant’s negligence was a “legal cause”

of damage sustained by the plaintiff.

Under the FELA, the railroad has a non-delegable duty

to furnish a reasonably safe place for employees to work.

The Plaintiff claims that the Defendant was negligent in

failing to meet its duty tinder the FELA to exercise care

to provide hire with a reasonably safe place to work.

Number 17: For Plaintiff to recover for injuries

Sustained in the course of employment, those injuries

must be the requisite precipitating physical injury

The trial court included the following Texas Pattern Jury

Charge definitions in the charge:

NEGLIGENCE means failure to use ordinary cane, that

is, failing to do that which a person of ordinary prudence

would have done under the same or similar

circumstances or doing that which a person of ordinary

prudence would not have done under the same or similar

circumstances.

ORDINARY CARE means that degree of care that

would be used by a person of ordinary prudence under

the same or similar circumstances.

By the term CAUSE IN WHOLE OR IN PART, as used

in this charge, means a cause which played any part, no

60a

matter how small, in producing the injury for which

damages are sought.

The trial court submitted the following questions and

instructions on the issue of negligence:

Question Number |: Was the negligence, if any, of the

Missouri Pacific Railroad Company d/b/a Union Pacific

Railroad Company a cause, in whole or in part, of the

injuries in question, if any, sustained by Kenneth Synar?

You are instructed that under the Federal Employers’

Liability Act, the railroad company was under a

continuing, nondelegable duty to exercise ordinary care

in providing Kenneth Synar with a reasonably safe place

to work, reasonably safe conditions in which to work,

and reasonably safe tools and equipment. This duty

includes the duty to inspect the premises where the

Railroad employees will be working and _ their

equipment. This does not mean that the Railroad is an

insurer of the safety of the employee. The extent of the

Railroad’s duty is to exercise ordinary care under the

circumstances to sec that the work r.ace and equipment

is reasonably safe. This duty ex sts at all times and

applies at all places where the Railroad requires it’s

employees to work.

Answer “Yes” or “No”. The jury answered, yes.

Question Number 2: Was the negligence, if any, of

Kenneth Synar a cause, in whole or in part, of the

injuries in question, if any, sustained by Kenneth Synar?

You are instructed that the Missouri Pacific Railroad

Company d/b/a Union Pacific Railroad Company bears

the burden of proof by the preponderance of the

evidence (as that term has been previously defined) on

the question of Kenneth Synar’s negligence, if any. You

are instructed that it was the continuing duty of Kenneth

6la

Synar to exercise reasonable and ordinary care for his

own safety and protection,

Answer “Yes” or “No”. The jury answered yes,

Discussion

Much of what UP requested was included in the charge

given, As UP has no actual complaint with regard to those:

requests, we will not address them. See Maddox, 930 S.W.2d

at 670. Requested instruction number eleven has been

considered and rejected by the Fifth Circuit, It is a negative

instruction which was properly refused as it might confuse

the jury, See Almendarez v. Atchison, Topeka & Santa Fe Ry.

Co., 426 F.2d 1095, 1097 (Sth Cir.1970) (no error in denying

request to instruct jury that railroad is not negligent for failing

to anticipate employee’s carelessness or lack of care).

Requested instruction number twelve focuses on the

foreseeability element of FELA, The content of that requested

instruction is addressed in the charge as given through the

explanation of UP’s duty to Synar and the definitions of

negligence and ordinary care. The jury was instructed that Up

had the duty to “exercise ordinary care under +he

circumstances” to provide a safe work environment for its

employees. The definitions of negligence and ordinary care

also referenced the circumstances under which the “person of

ordinary prudence” was acting. Forseeability is a part of the

“circumstances” to be considered by the jury in determining

whether the carrier used ordinary care. See Gallick v.

Baltimore and Ohio R.R. Co., 372 U.S. 108, 117-19, 83 S. Ct.

659, 665-66, 9 L.Ed. 618 (1963) (instruction on negligence

encompassed foreseeability element). Accordingly, the jury

was instructed that if the danger cannot reasonably be

foreseen, the law will not impose any liability on the carrier.

See Johnson v. National R.R. Passenger Corp., 989 P.2d 245,

248-49 (Colo. Ct. App. 1999) (instruction explaining ordinary

care informed jury of foreseeability issue). Specific use of the

62a

word “foreseeability” is not required. Merando v. Atchison,

Topeka & Santa Fe Ry. Co., 656 P.2d 154, 162-63 (Kan.

1982). We conclude that the charge as given incorporated the

foreseeability issue and thus it was considered by the jury. As

the substance of the requested instruction was included in the

charge, the trial court did not err in denying the requested

instruction.

The element that the plaintiff must, at the time of injury, be

an employee of the defendant performing duties in the course

of his employment is adequately presented in the instruction

accompanying question one. That instruction explained that

the railroad had a duty to provide a safe place for Synar and

all railroad employees to work. The instruction specifically

noted that, while the duty exists at all times and applies to all

places the employees work, the extent of this duty is to

exercise ordinary care under the circumstances to see that the

work place and equipment aide reasonably safe. Considering

the charge as a whole, we conclude the jury would have

understood that UP cannot be held liable under FELA for

injuries Synar suffered while not performing duties in the

course of his employment with UP.

In requested instruction number fourteen, UP set out the

elements an FELA plaintiff must prove, including that the

defendant is a common carrier by railroad engaged in

interstate commerce. As explained above, the record contains

evidence showing that UP is a common carrier by railroad

engaged in interstate commerce. While UP did file a general

denial, it presented no controvert

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