                                    NO. 07-08-0043-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL B

                                   JUNE 18, 2008
                          ______________________________

             BNSF RAILROAD COMPANY F/K/A THE BURLINGTON
          NORTHERN AND SANTA FE RAILROAD COMPANY, APPELLANT

                                             V.

                         HOMER “GENE” HEATH, APPELLEE
                        _________________________________

             FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                   NO. 91,285-A; HONORABLE HAL MINER, JUDGE
                        _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                 ON BNSF’S MOTION TO REMAND FOR NEW TRIAL


       The above captioned matter was tried to a jury in Potter County, Texas. At the

conclusion of the trial, the trial court entered a judgment for appellee, Homer “Gene” Heath,

and overruled a motion for judgment notwithstanding the verdict and new trial filed by

appellant, BNSF Railroad Company.          BNSF subsequently perfected its appeal and

requested the preparation of the reporter’s record. The request for preparation of the

reporter’s record included all pretrial matters, trial testimony, and post trial matters. Upon

receiving the request for the reporter’s record, it was discovered that the proceedings for
the first day of trial, May 21, 2007, had been lost due to the electronic disks having become

corrupted. Efforts at retrieving the data have proven unsuccessful. The loss of the first

day’s proceedings is through no fault of BNSF. No other sources for recording of the trial

proceedings that day are available. The parties have been unable to reach an agreement

as to the exact content of the reporter’s record for the day in question. Accordingly,

BNSF’s motion to remand for new trial is granted, the judgment of the trial court is

reversed, and this case is remanded for a new trial. TEX . R. APP. P. 34.6(f).




                                                  Per Curiam




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