UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT



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No. 00-60215



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DONALD G. LANE,

Plaintiff-Appellant/Cross-Appellee,

versus

R. A. SIMS, JR., INC., ABC, That Person, Firm,

Company, or Entity That Employed Daniel Wallace

At The Time of The Crossing Collision Which

Makes The Basis of This Suit; DE&F, That Person,

Firm, Company or Entity Who Negligently

Entrusted The Truck To Daniel Wallace;

GH&I, That Person, Firm, Company, or Entity

Who Leased, and/or Maintained and Inspected

The Crossing Which Is The Subject

Of This Lawsuit; JK&L; MN&O,

Defendants-Appellees,

CSX TRANSPORTATION, INC.,

Defendant-Appellee/Cross-Appellant.



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Appeal from the United States District Court

for the Southern District of Mississippi



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February 6, 2001

Before BARKSDALE, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

For this negligence action arising out of a collision at a

crossing between a train and a vehicle, primarily at issue is

whether the Federal Railroad Safety Act (FRSA), 49 U.S.C. §§ 20101-

20153, and a regulation promulgated thereunder, 49 C.F.R. § 213.9,2

which set maximum train speeds for different classes of tracks,

preclude a railroad employee’s negligence action under the Federal

Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60, the employee

claiming the train was proceeding at an excessive speed when

involved in the collision, even though it was traveling below the

speed limit established by the regulation. Railroad employee

Donald G. Lane a ppeals the summary judgment granted CSX

Transportation, Inc. (the railroad), and the denial of his motion

for a new trial as to R. A. Sims, Jr., Inc. (the vehicle); CSX

cross-appeals the denial of its motion for judgment as a matter of

law on its cross-claim against Sims. We AFFIRM

.

I.

Lane’s FELA action against CSX and Sims alleged he was injured

when the train on which he was working as an engineer for CSX

collided with Sims’ tractor-trailer , driven by Wallace, at a

crossing in Gulfport, Mississippi. Immediately prior to the

collision, the train was traveling 44 miles per hour. The CSX

speed limit for that crossing was 4 5 miles per hour, while the

speed limit established for that crossi ng by Federal Railway

Administration Track Safety Standards, 49 C.F.R. § 213.9, was 60

miles per h our. Among other things, Lane’s negligence claim

against CSX asserted: the train was traveling at an excessive and

unsafe speed under the circumstances (heavy lunchtime traffic at a

downtown crossing).3

CSX cross-claimed against Sims, asserting, inter ali a : its

employee, Wallace (the vehicle driver), was negligent for failing

to yield the right-of-way to the train; and Sims failed to comply

with a Mississippi statute requiring it to notify CSX in advance of

its travel over the crossing. Lane made similar negligence claims

against Sims.

The district court granted partial summary judgment for CSX on

Lane’s FELA excessive-speed claim. The remaining issues were tried

to a jury, which found no negligence on the part of CSX, Sims, or

Lane. The district court denied new trial motions by Lane and CSX.

II.

Lane challenges the summary judgment granted CSX on his FELA

excessive-speed claim and the denial of a new trial on his

negligence claim against Sims. CSX contests the denial of judgment

as a matter of law on its cross-claim against Sims.

A.

The FELA provides the exclusive remedy for a railroad employee

injured as a result of his employer’s negligence. S ee, e.g.

,

Wabash R.R. Co. v. Hayes

, 234 U.S. 86, 89 (1914) ; Janelle v.

Seaboard Coast Line R.R. Co.

, 524 F.2d 1259, 1261 (5th Cir. 1975).

It authorizes an injured railroad employee to recover damages from

h is employer for “injury or death resulting in whole or in part

fromthe [railroad’s] negligence”. 45 U.S.C. § 51. But, by

summary judgment, the district court he ld Lane’s FELA excessive-4

speed claim

was precluded by the FRSA and the track-speed

regulations promulgated thereunder.

FRSA’s stated purpose “is to promote safety in every area of

railroad operations and reduce railroad-related accidents and

incidents”. 49 U.S.C. § 20101. It authorizes the Secretary of

Transportation to “prescribe regulations and issue orders for every

area of railroad safety”, 49 U.S.C. § 20103(a); and provides that

“[l]aws, regulations, and orders related to railroad safety shall

be nationally uniform to the extent practicable”. 49 U.S.C. §

20106 (emphasis added).

The Secretary of Transportation has promulgated regulations

pursuant to this authorit y, including establishing maximum train

speeds for various classes of railroad tracks. 49 C.F.R. § 213.9.

It is undisputed that the train involved in the collision was not

exceeding the 60-mile-per-hour speed limit established by those

regulations for the subject crossing.

The FRS A’s goal of national uniformity for laws and

regulations relating to railro ad safety does n ot preclude a FELA

excessive-speed claim, according to Lane, because the FRSA and FELA

are not in conflict. He asserts FRSA speed regulations are m inimum

safety requirements, compliance with which is evidence of due care,

but does not precl ude finding negligence if r easonable railroads

would have taken additional precautions to prevent injury to their

employees.5

The Supreme Court considered the FRSA speed limit regulations

in CSX Transportation, Inc. v. Easterwood

, 507 U.S. 658 (1993). A

state common law action, arising out of a truck driver’s death in

a crossing collision, was filed against the railroad; the action

claimed, inter alia

, the train was traveling at an excessive speed.

It was conceded, however, that the train was traveling at less than

the maximum speed establ ished in 49 C.F.R. § 213.9. I d

. at 673.

The Court held the claim preempted by the FRSA’s express preemption

provision. Id . at 675. That provision allows States to regulate

railroad safety “ until the Secretary of Transportation prescribes

a regulation or issues an order covering the subject matter of the

State requirement”. 49 U.S.C. § 20106 (emphasis added).

The Easterwood plaintiff contended that the maximum speed

limits esta blished in the regulations were m erely ceilings

,

permitting imposition of liability against the railroad if

plaintiff could establish the conditions required a lower speed.

Id

. at 673-74. The Court held otherwise; because the Secretary of

Transportation had considered the hazards posed by track conditions

before adopting the regulations, “the speed limits must be read as

not only establishin g a ceiling, but also precluding additional

state regulation of the sort” plaintiff urged. Id . at 674.

Because the case at hand involves a claim under another

federal statute, FELA, Easterwood

, which dealt with a state common

law claim subject to FRSA’s express preemption provision, is n ot6

co ntrolling. Nevertheless, the Seventh Circuit found E asterwood

persuasiv e in concluding that a FELA excessive-speed claim was

inconsistent with FRSA’s goal of national uniformity. Waymire v.

Norfolk & W. Ry. Co.

, 218 F.3d 773, 776 (7th C ir. 2000), c ert.

denied

,

___ S. Ct.

___, 2001 WL 32488 (2001). The W aymire

plaintiff was the conductor on a train that collided with a truck

at a crossing. I d

. at 774. The train was traveling at 23 miles

per hour, well under the 60-miles-per-hour speed limit set by the

federal regulations. Noting that the operation of the trains in

Waymire and Easterwood was identical (traveling at less than the

FRSA approved speed), the Seventh Circuit stated: “It would ...

seem absurd to reach a contrary conclusion

... when the Supreme

Court has already found that the conduct is not culpable

negligence”. Id . at 776 (emphasis added).

Two other district courts considering similar FELA claims have

reached the same conclu sion, reasoning that the railroad safety

uniformity intended by the FRSA would be compromised if an

excessive-speed negligence claim were permitted under the FELA, but

not under state law. S ee Rice v. Cincinnati, New Or leans & Pac.

Ry. Co.

, 955 F. Supp. 739, 740-41 (E.D. Ky. 1997) (FELA excessivespeed claim precluded by FRSA and regulations where train traveling

at speed exceeding railroad’s self-imposed speed limit, but below

limit established in regulations); Thirkill v. J.B. Hunt Transp.,

Inc.

, 950 F. Supp. 1105, 1107 (N.D. Ala. 1996) (FELA excessive-7

speed claim precluded by FRSA and regulations where train was

traveling within speed limit set by regulations).

Only one court has decided otherwise. E arwood v. Norfolk

Southern Railway Co.

, 845 F. Supp. 880, 891 (N.D. Ga. 1993), on

which Lane relies, held FRSA speed regulations did not preclude a

FELA excessive-speed claim. The court reasoned the regulations

were not directed at employee safety and established only minimum

safety requirements. Id

.

In the light of Congress’ intent that railroa d safety

regulations be nationally uniform to the extent practicable, we

find Waymire

, Thirkill

, and Rice far more persuasive than Earwood

.

Such uniformity can be achieved only if the regulations covering

train speed are applied similarly to a FELA plaintiff’s negligence

claim and a non-railroad-employee plaintiff’s state law negligence

claim. Otherwise, a railroad employee could assert a FELA

excessive-speed claim, but a non-employee motorist involved in the

same collision would be precluded from doing so. Dissimilar

treatment of the claims would have the untenable result of making

the railroad safety regulations established under the FRSA

virtually meaningless: “The railroad could at one time be in

compliance with federal railroad safety standards with respect to

certain classes of plaintiffs yet be found negligent under the FELA

with respect to other classes of plaintiffs for the very same

conduct”. W aymire v. Norfolk & W. Ry. Co.

, 65 F. Supp. 2d 951, 9558

(S.D. Ind. 1999), aff’d , 218 F.3d 773 (7th Cir. 2000). Moreover,

allowing juries in FELA cases to find negligence based on excessive

speed , even though it did n ot exceed that set by the FRSA

regulations, would further undermine uniformity, because it would

resu lt in the establishment, through such verdicts, of varying,

uncertain speed limits at different crossings, as well as different

speed l imits at the same crossing, depending on the time of day,

traffic conditions, and other variables.

Earwood ’s conclusion that the regulations promulgated pursuant

to the FRSA were not directed at railroad employee safety is

inconsistent with that Act, which expressly states its purpose is

“to promote safety in every area of railroad operations and reduce

railroad-related accidents and incidents”. 49 U.S.C. § 20101

(emphasis added). Railroad operations c annot be conducted without

railroad employees; theref o re, it seems obvious that railroad

employee safety is one of the “area[s] of railroad operations”

addressed by the statute and regulations. S ee Waymire

, 65 F. Supp.

2d at 956 (noting FRSA’s legislative history supports c onclusion

that “railroad employee safety was a significant motivation behind

the FRSA’s enactment” (emphasis added)).

Accordingly, the district court correctly held Lane could not

maintain a FELA excessive-speed negligence claim against CSX. As

a result, the partial summary judgment awarded CSX was proper.9 B.

Concerning the denial of his new trial motion, Lane maintains

the jury’s verdict in favor of Sims “was agai nst the clear and

substantial evidence in the case”. Our “review of the denial of a

new trial motion is more limited than when one is granted”.

Whitehead v. Food Max of Miss., Inc. , 163 F.3d 265, 269 (5th Cir.

1998). The denial will be affirmed unless there is “a clear

showing of an absolute absence of evidence to support the jury’s

verdict, thus indicating that the trial court had abused its

discretion in refusing to find the jury’s verdict contrary to the

great weight of the evidence”. I d

. (internal quotation marks,

emphasis, and citations omitted).

Sims’ negligence, according to Lane, is established by Sims’

admission it did not comply with a Mississippi statute requiring it

to notify CSX before Sims’ tractor-trailer attempted to cross the

CSX tracks. Lane maintains the collision would not have occurred

had Sims so complied.

The statute provides:

No person shall operate or move any

caterpillar tractor, steam shovel, derrick,

roller, or any equipment or structure having a

normal operating speed o f six or less miles

per hour or a vertical body or load clearance

of less than nine inche s a bove the level

surface of a roadway upon or across any tracks

at a railroad grade crossing without notice of

any such intended crossing first being given

to a superintendent of such railroad and a10 reasonable time being given to such railroad

to provide proper protection at such crossing.

M ISS

. C ODE A NN . § 63-3-1013 (emphasis added).

Sims’ owner testified: the ground clearance of his tractortrailer was less than nine inches and no advance notice was given

to CSX; and, prior to the accident, h e had n ot seen the statute.

CSX presented evidence a flagman would have been present had the

statutorily required notice been given.

Sims asserts Lane failed to properly preserve this issue

because he did not mention the statute in his new trial motion. In

attempting t o show otherwise, Lane’s reply brief quotes his

district court brief in support of the motion. That brief,

however, is not in the record, apparently because the local rules

require that briefs be submitted directly to the judge and not

filed with the clerk, see U NIFORM L OCAL R. 7.1(D), 7.2(E), and because

the parties did not seek to supplement the record pursuant to F ED

.

R. A PP

. P. 10(e)(2). The order denying the motion, however,

supports Lane’s assertion that , in support of his motion, he

briefed the statute.

Sims contends further: the statute was n ot applicable because

the load involved in the collision was being transported under

permit from the Mississip pi Department of Transportation, which

stated the limitations on how the load was to be transported; and

such limitations did not include any requirement that Sims comply11

with § 63-3-1013. Lane counters that the permit in question was

not applicable on the date of the collision.

Lane’s present contention that he is entitled to a new trial

because the jury’s verdict is against the great weight of the

evidence of Sims’ negligence per se is somewhat incongruous, in the

light of the fact that he did not contend, in clos ing argument,

either that Sims was negligent per se for violating the statute, or

that the permit was inapplicable. Nor does the record contain any

indication that Lane requested a jury instruction regarding the

statute. The record does n ot contain any instructions requested by

the parties; the char ge conference was n ot transcribed; and

subsequently, when invited by the district court, Lane did not

object to the charge given, which did not include any instruction

regarding the Mississippi statute.

Under these ci rcumstances, we c annot conclude that the

district court abused its discretion by den ying Lane’s new trial

motion. As discussed infra in connection with CSX’s challenge to

the sufficiency of the evidence, there wa s ample evidence to

support the jury finding Sims not negligent.

C.

In its required statement of the issues in its appellate

brief, CSX contends the district court erred by denying its new

trial motion as to Sims “because the jury’s verdict in favor of

Sims was against the greater weight of the evidence”. (Emphasis12

added.) Similarly, its required summary of the argument asserts

the jury’s verdict in favor of Sims “is against the greater weight

of the evidence”. (Emphasis added.) But, the argument on this

issue in its brief recites the standard of review for denial of

judgment as a matter of law and seeks rendition of judgment in its

favor, not a new trial . Accordingly, CSX has abandoned any claim

regarding the district court’s denial of its new trial motion.

E.g., F ED

. R. A P P

. P. 28(a)(9); E ldredge v. Martin Marietta Corp.

,

207 F.3d 737, 742 n.5 (5th Cir. 2000). Instead, its appeal as to

Sims is focused solely on the denial of its motion for judgment as

a matter of law on its cross-claim against Sims. The motion was

made after Lane rested, re-urged after Sims rested, and re-urged at

the close of all the evidence.

In reviewing the sufficiency of the evidence to support a jury

verdict in a civi l action, we must affirm unless “there is n o

lega l ly sufficient evidentiary basis” for the jury’s verdict.

E.g.

, F ED

. R. C IV

. P. 50(a)(1) (emphasis added); Vadie v. Mississippi

State Univ. , 218 F.3d 365, 372 (5th Cir. 2000), cert. denied

, ___

S. Ct.

___, 2001 WL 32522 (2001). In this regard, the evidence, as

well as all reasonable inferences from it, are viewed in the light

most favorable to the verdict. Id

.

1.

CSX contends Sims’ negligence is established by its violation

of the previously-discussed § 63-3-1013, which required Sims to13

notify CSX in advance of its using the crossing, so that a flagman

could be present. CSX, unlike Lane , did urge in closing argument

Sims’ alleged violation of the statute as a basis f or the jury

finding Sims negligent. But, the record, as noted, does n ot

contain any instructions requested by the parties; and the district

court’s charge, to which CSX had no objections when invited to make

them, did not address the statute. Moreover, CSX stated n o

additional instructions were requested.

Of course, failure to request an instruction does not preclude

granting judgment as a matter of law. D effenbaugh-Williams v. WalMart Stores, Inc.

, 188 F.3d 278, 284 n.5 (5th Cir. 1999). But,

this does reflect the lack of emphasis

— and underscores the jury’s

verdict — concerning the statute.

On cross-examination by CSX, Wallace testified: he had never

had to notify a railroad in advance before hauling a load over a

crossing; he had used many railroad crossings and had never seen a

flagman holding back a train while a truck crossed the tracks; and

the state-issued permit did not require Sims to notify CSX before

crossing its tracks.

Sims’ owner, Ray Alton Sims, Jr., testified: he had 15 years’

experience hauling heavy equipment; prior to the collision, he had

not seen the Mississippi statute; he had never contacted any

railroad about crossing its tracks with a trailer with low ground

clearance; he would not kno w whom to contact or who owned the14

various tracks to be crossed; and the permit required by state law

did not require Sims to contact railroads before crossi ng their

tracks.

CSX presented evidence that: it is often called upon to

provide flagmen to protect the movement of trucks with low ground

clearance across its tracks; prior to the collision, Sims did not

contact CSX; and the permit was not valid for the date of the

collision.

In the light of the conflicting evidence regard ing the

applicability of the statute, and the absence of any instruction to

the jury regarding its application, there was a legally sufficient

evidentiary basis for the jury finding Sims not negligent per se

.

2.

CSX next contends Sims was negligent because W allace, its

employee, breached a legal duty to yield to its approaching train.

CSX maintains: the train was blowing its horn, from a proper

distance, prior to reaching the crossing; and active warning

devices were operating and gave Sims’ driver more than the required

20-second warning time.

Wallace testified: he stopped, looked, and listened before

entering the crossing, but could not see the approaching train

until it was too late because an Amtrak car parked on an auxiliary

track blocked his view; and he did not see any flashing lights or

hear the train’s horn or bells until after he was in the crossing,15

prior to the collision, when his escort driver, who was following

him, contacted him by radio to tell him that the crossing arm was

descending. Wallace’s escort and several other witnesses testified

similarly that the train’s horn did not blow and the warning

signals at the crossing were not activated until immediately before

the collision.

Lane and the conductor testified, however, that the train’s

horn started blowing several hundred feet prior to the crossing and

continued up until the moment of impact. Other witnesses to the

c ollision testified that they observed the warning signals an d

heard the train’s horn blowing before Sims’ tractor-trailer entered

the crossing.

We reject CSX’s contention that the testimony of Sims’

witnesses that they did not hear the horn should be ignored.

Needless to say, it is not our function to re-weigh the evidence or

re-evaluate the credibility of witnesses; that is for the jury.

E.g.

, Hiltgen v. Sumrall

, 47 F.3d 695, 700 (5th Cir. 1995). In

short, the conflictin g testimony is a legally sufficient

evidentiary basis for the jury finding Sims not negligent.

3.

Finally, CSX cla ims Sims’ spoliation of evidence (loss of

records of investigation of collision and Wallac e ’s personnel

records) supports its contention that Sims was negligent. CSX

elicited some evidence of spoliation. But, even though it referred16

to the issue during its closing argument, it did not object to a

spoliation instruction not being given. In any event, the jury

obviously weighed the conflicting evidence and rejected spoliation

as a basis for finding Sims negligent.

III.

For the foregoing reasons, the judgment of the district court,

and its order denying a new trial, are

AFFIRMED

.