                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                               ________________
                               NO. 09-16-00392-CV
                               ________________

    JIMMY RAY ROBERSON JR. AND MISTY ROBERSON, Appellants

                                         V.

                  UNION PACIFIC RAILROAD COMPANY,
                               Appellee
________________________________________________________________________

                     On Appeal from the 60th District Court
                           Jefferson County, Texas
                          Trial Cause No. B-194,123
________________________________________________________________________

                          MEMORANDUM OPINION

      Jimmy Ray Roberson Jr. and Misty Roberson1 appeal the trial court’s

judgment following a jury trial. In four appellate issues, the Robersons challenge the

trial judge’s overruling of their motion for new trial, in which they alleged that the

evidence conclusively established that Union Pacific’s negligence was a proximate



      1
      When referring to appellants individually, we will refer to Jimmy as
“Roberson” and to Misty by her first name.
                                          1
cause of the accident and that Jimmy’s negligence was not. We affirm the trial

court’s judgment.

                PROCEDURAL AND FACTUAL BACKGROUND

      The Robersons filed suit against Union Pacific Railroad Company (“Union

Pacific”), alleging that Jimmy was severely injured when a tractor-trailer owned by

T and D Solutions, LLC (“T & D”) was struck by a Union Pacific train.2 The

Robersons asserted that Jimmy was in the driver’s seat of the tractor-trailer, which

was positioned across the train tracks at the time of the collision. The Robersons

contended that Union Pacific, as well as Union Pacific’s engineer and conductor,

were negligent and grossly negligent, and that their negligence proximately caused

Jimmy’s injuries and damages. In addition, the Robersons alleged that Union Pacific

acted intentionally by instructing its engineers to ignore written safety rules to keep

on schedule and to assume that obstructions on the tracks will move. Misty asserted

claims for loss of consortium, loss of household services, and mental anguish.




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

accident occurred on February 19, 2013, at approximately 8:00 a.m. Carter explained

that the crash involved a collision between a low-boy trailer that was carrying a crane

and Union Pacific’s “consist” that contained five locomotives. According to Carter,

the consist was being operated by two Union Pacific employees: engineer Leroy

Price and conductor L.V. McQueen Jr. Carter testified that the tractor-trailer was

stopped at the grade crossing approximately fifty-three seconds before the consist

struck it. Carter stated that Price should know the approximate required stopping

distance in both normal and emergency braking situations. Carter testified that the

“entire stretch” a few miles back from the crash site, was straight and flat, and the

engineer and conductor had an unobstructed view as they proceeded down the tracks.

In addition, Carter explained that the weather was good on the day of the crash, and

Price should have been able to see at least one mile down the tracks.

      According to Carter, on the day of the accident, Price and McQueen were

operating the locomotive at approximately fifty-nine miles per hour, and the

locomotive’s speed at the time of the impact was fifty-seven miles per hour. Carter

opined that Price and McQueen probably could have seen Roberson’s trailer, but the

tractor would have been hidden by the trees.



                                          3
      Carter explained that Union Pacific operates under a General Code of

Operating Rules (“GCOR”), which are divided by craft and govern all employees,

including Price and McQueen. Carter testified that one of the purposes of the GCOR

is to prevent injuries and fatalities to the general public, and he explained that the

rules must always be in writing. According to Carter, the GCOR requires employees

to exercise vigilant lookout, observe what is in their field of vision, and to respond

without hesitation. Carter explained that the GCOR also require that in case of any

doubt or uncertainty, an employee must take the safe course of action without

hesitation. Carter testified that the GCOR applied to Price and McQueen during the

entire fifty-three seconds they were able to see the tractor-trailer on the tracks. In

addition, Carter testified that one of the GCOR instructs engineers and conductors

to operate efficiently and to avoid unnecessary delays.

      Carter stated that engineers are not specifically taught not to stop or slow

down until they are certain that a car on the crossing will not move, but Union Pacific

does teach engineers to assume that a vehicle will move “[o]utside any warning that

it’s not go[ing to] move or it’s disabled[.]” Carter testified that vehicles that remain

stopped on the tracks have approximately an eighty percent chance of being struck

by an approaching Union Pacific locomotive. Carter explained that rules in the

GCOR require application of the emergency brake when doing so is necessary to

                                           4
protect life or property, and to use the maximum braking effort available that is

consistent with safe train handling techniques. Carter testified that the Federal

Railroad Administration (“FRA”) maintained that “‘[t]he physical properties of a

moving train virtually always prevent it from stopping in time to avoid hitting an

object on the track, regardless of the speed which the train is traveling.’”

      According to Carter, “[t]here’s no way to pull up the data of how many

collisions at a crossing the engineer has been involved in.” Carter explained that

Union Pacific does not maintain databases regarding the work history of particular

employees as to collisions, and he stated that the FRA does not require that such

records be kept. According to Carter, operating practices inspectors and other

individuals from FRA “ride with us, . . . evaluating our practices, our track structure,

[and] our signal structure.” Carter testified that Price’s previous involvement in

accidents involving fatalities could potentially affect Price’s ability to safely perform

his job.3 According to Carter, Price was evaluated by many people before he was

permitted to operate a locomotive again.

      Carter agreed that if the emergency brake had been applied between 1700 and

2100 feet away, there would have been in time to avoid injury, death, and property


      3
       During examination of Carter, the Robersons’ counsel read into the record a
portion of Price’s deposition testimony, in which Price testified that he had been
involved in three previous accidents involving fatalities.
                                           5
loss. Carter testified that the locomotive’s data recorder shows that four seconds after

the tractor-trailer stopped on the tracks, the train’s speed increased from fifty-eight

to fifty-nine miles per hour. The parties stipulated that as the train approached the

crossing, the engineer blew the horn in compliance with applicable regulations, the

loudness of the horn complied with applicable regulations, and the background noise

level at the crossing was loud enough that Roberson could not hear the horn in

enough time to react before the collision. Carter also explained that emergency

braking carries a risk.

      McQueen’s videotaped deposition was presented to the jury. McQueen

testified that he began working for Union Pacific in April of 1998, and he was

employed there until the date of the accident involving Roberson. McQueen

explained that he was hired as a switchman and brakeman, and was subsequently

promoted to conductor at the end of 1998. According to McQueen, the conductor is

in a superior position to the engineer regarding the safety of the train. McQueen

testified that the conductor can instruct the engineer to do something, but applying

the emergency brake is the only thing the conductor can physically do on the train.

      McQueen testified that the accident involving Roberson was the first crossing

accident he experienced as a conductor, and that accident was the first time he

needed to apply the emergency brake. McQueen explained that he did not apply the

                                           6
emergency brake until five seconds before impact because he felt that Price was

handling the train properly, and he applied the brake “when we figured that the truck

wasn’t going to move.” McQueen testified that he saw the whistle board and checked

to make sure he did not have any slow orders, and when Price told McQueen that he

thought he saw something, McQueen also saw something, but McQueen “actually

didn’t know what it was.” McQueen explained that it took him a few seconds to

figure out what he was seeing, and the train was “pretty close” before McQueen and

Price knew that a truck was sitting at the crossing. McQueen testified that Price was

already slowing down, and he could hear Price throttling off the engines and the

engines revving down. McQueen opined that Price was properly handling the train

because Price was taking action and slowing the train down. McQueen testified, “We

did everything right. We couldn’t have done anything different.”

      McQueen explained that the train had the right-of-way, and he and Price

believed the tractor-trailer would get out of the way. According to McQueen, “They

have to get out of the way, if we’re blowing the whistle. We have the right-of-way.

They have to get out of the way of the track.” McQueen explained that the

emergency brake was not applied until five to six seconds before impact because

“[t]hat’s when we figured he wasn’t go[ing to] move.” McQueen denied that the

tractor-trailer should have been visible to him and Price before they reached the

                                         7
whistle board. McQueen explained that he and Price saw “an object down there[,]”

but that they did not know what it was until they “got up on it and [saw] that it was

a tractor and a trailer.” McQueen testified that he and Price had to be cut out of the

locomotive after the accident. McQueen testified that he was not reprimanded for

the accident.

      Price testified that he began working with Missouri Pacific in September of

1979, and Missouri Pacific ultimately merged with Union Pacific. Price explained

that he has worked as both a locomotive engineer and in a management position as

Director of Road Operations (“DRO”). According to Price, part of his job duties as

DRO included investigating collisions and other critical incidents, and he did not

recall ever finding fault with an engineer in a crossing accident. Price testified that

if an engineer appeared to be experiencing emotional problems, physical problems,

or fatigue, Union Pacific would require a check ride, and if Union Pacific determined

that there was a problem, the engineer would be removed from the job and put into

a training period. Price explained that when his position as a DRO ended with Union

Pacific, he returned to working as an engineer approximately one year before the

accident involving Roberson.

      Price testified that as an engineer, he had been in other accidents that involved

fatalities. Price never received psychological or psychiatric care from Union Pacific

                                          8
after the previous accidents, but he did begin seeing a psychiatrist for post-traumatic

stress disorder at some point after the February 2013 accident, and he had been

seeing the psychiatrist for approximately a year and a half at the time of trial.

According to Price, his psychiatrist advised him not to return to work as an engineer.

Price testified that until the accident with Roberson, he felt that he was “a hundred

percent competent.”

      Price stated that on February 19, 2013, he was working with McQueen for the

first time. Price explained that the weather was clear and sunny, and he had an

unobstructed view down the tracks. Price testified that the locomotive’s lights were

turned on. According to Price, there are no lights or gates at the crossing where the

accident occurred. Price opined that from a half-mile away, given the lighting

conditions that existed on the day of the accident, he could not have determined that

he needed to be concerned about the object on the tracks. According to Price, there

were no indications that the vehicle was disabled or in an emergency situation. Price

testified, “If they were out flagging, I would have stopped. I would have [done] my

best with everything I had to stop, if somebody had been there and let me know that

something was wrong.” Price did not see the tractor-trailer as it came over the

crossing. Rather, Price testified that he first noticed something across the tracks

when he blew the whistle after the whistle board, and the whistle board was 2022

                                          9
feet from the crossing. According to Price, even if he had seen the tractor-trailer

when he was at the whistle board, he probably could not have stopped the train in

time. Price explained that Union Pacific’s data sheet indicated that he blew the

whistle seventeen seconds before the crash occurred. Price testified that he used the

maximum braking effort.

      Price explained that after the accident occurred, he notified the dispatcher by

radio. According to Price, when a railroad experiences a crossing collision, it must

be reported to the FRA within twenty-four hours, and he did so. Price testified that

after the accident, he reported to Union Pacific that it should take better care of its

crossings, but that was before he learned from Roberson’s deposition that Roberson

was not stuck on the tracks. Price denied that Union Pacific trained its engineers to

believe that all vehicles stopped on a crossing will move. Price explained, “Every

situation is different. Just you take care of the situation. You just look at what’s

happening, and then you put together everything. The grade, the speed, how heavy

you are, you go by all of this kind of stuff.” Price agreed that he testified at his

deposition that if he slowed down or stopped every time a vehicle pulled onto the

crossing, the train would never arrive and he would be out of a job.

      Price testified that when a train is approaching a vehicle stopped on a crossing,

the engineer looks for signs of distress or an emergency situation, such as someone

                                          10
waving his hand with a flag, a light, a hood raised on a vehicle, or other indications

of a problem. Price explained that if he could see that a vehicle was stuck, he would

take emergency action right away. According to Price, if no signs of distress or

emergency exist, in his experience, the vehicle will generally move. Price testified

that prior to the accident with Roberson, he had never struck a vehicle that was

stopped on a crossing. Price explained that when he returned to work after the

February 2013 accident, he was required to do test rides, check rides, and retake a

rules test, and he was tested and analyzed by multiple managers. Price testified that

he had passed all of the required testing at Union Pacific, such as rules training,

check rides, and simulator training.

      Billy Edward Gearan testified by videotaped deposition that he began working

for Union Pacific as a switchman, brakeman, and conductor in 2002. Gearan

explained that he began training as an engineer and was promoted in April 2006.

Gearan stated that he was also a safety facilitator and coordinator in Union Pacific’s

transportation department for two years before going to work as manager of

operating practices. As a manager of operating practices, Gearan supervised all

transportation employees, which included checking on the engineers and ensuring

that the engineers understand and comply with the rules. He also performed



                                         11
efficiency testing as required by FRA regulations. Gearan testified that he returned

to working as an engineer on April 16, 2016.

      According to Gearan, engineers know how to calculate the amount of braking

power they have. Gearan explained that tons per operative brake is the weight

divided by the amount of brakes in the train, and engineers make this calculation

before starting their routes. According to Gearan, it is feasible that a forty-year-old

man could see a mile on a clear day when his vision is not obstructed. Gearan stated

that an engineer can use binoculars, but “the naked eye is the safest way to operate

our train out there.” According to Gearan, Union Pacific requires its engineers to

take hearing and vision tests every three years.

      Gearan explained that after the February 2013 accident occurred, he retrieved

event recorder data and downloads from the locomotives in the consist, reported the

data, and put the data into a database. Gearan testified regarding the times when the

throttle was decreased. According to Gearan, brakes were applied at 7:56:04, and

the moment of impact was 7:56:09. Gearan testified that he did not take exception

to how Price operated the train.

      Roberson testified that when the accident occurred, he was employed as a

Class A lineman by T & D, which does contract work for Entergy that involves

maintenance and construction. Roberson explained that being a Class A lineman is

                                          12
physically demanding. Roberson holds a commercial driver’s license, which allows

him to drive tractor-trailers and 18-wheelers, and he used that license working for T

& D.

       On the day of the accident, Roberson was hauling a Mantis crane, which is an

oversize load, on a tractor-trailer. Roberson testified that T & D informed him that

he would need to cross railroad tracks and to make sure that he could clear the tracks.

Roberson testified that he did not know the exact weight of the load he was carrying.

Roberson explained that the tractor-trailer sits low to the ground and has a hydraulic

lift. According to Roberson, he could not have raised the tractor-trailer to its

maximum height before attempting to drive it because it would have made the

equipment unstable due to the turns that he had to make. As Roberson proceeded

down Highway 90 toward Beaumont, he saw his co-workers, Andrew Cain and

Joseph Grant, on the side of the road, and he saw the private crossing where the

accident occurred. Roberson explained that he entered the median and raised his

trailer to accommodate the tracks.

       According to Roberson, he got back into his truck, turned right, came to the

stop sign, looked, did not see anything, and proceeded to cross the tracks. Roberson

testified that it was his responsibility to decide how high to raise the trailer so that

stopping on the tracks would not be necessary. The cab of Roberson’s truck cleared

                                          13
the tracks, and he testified that he could then feel the trailer rubbing the tracks, so he

stopped. Robertson explained that if he had pulled the trailer over the tracks at that

point, he would have damaged the tracks, and he was also concerned about damaging

the trailer.

       Roberson testified that he looked both ways and did not see a train coming.

Roberson stated that once he looked both ways before going over the crossing, he

focused his attention ahead because he was concerned with getting across the tracks.

Roberson explained that he looked down the tracks again, removed his seat belt and

got out of the truck, and he informed Cain that he was going to raise the trailer.

According to Roberson, the trailer was not stuck on the tracks, and he felt that he

could get it off the tracks. Roberson testified that he was concerned with getting the

tractor-trailer off the tracks as quickly as possible even though he did not see a train.

According to Roberson, he could not back up because his truck would protrude onto

the highway.

       Roberson testified that neither Cain nor Grant indicated that they saw an

approaching train. Roberson explained that he was not constantly looking for a train,

and he “cannot tell you what Cain and Grant [were] doing.” Roberson stated that he

did not see the train or hear its horn, and he explained, “I believe the train saw me

way before I saw it.” Roberson raised the trailer and got back into the truck.

                                           14
Roberson testified that when he turned to go back to the truck, he did not look both

ways down the tracks. Roberson explained that when he got back into the truck,

“that’s when I heard the train. . . . I heard the horn and caught it out of the corner of

my eye. . . . It just didn’t seem real. . . . and then boom.” Roberson stated that he

remembered being struck by the train, “bouncing all over the place[,]” getting out of

the truck, and then passing out and awakening in the hospital. According to

Roberson, he suffered internal bruising, a concussion, and injuries to his ribs, back,

and knees. Roberson stated that he was in pain and could hardly breathe. Roberson

had surgery in January of 2014, and he had pain management treatment.

      Cain testified by videotaped deposition that he began working for T & D in

June of 2012 and is currently employed there as a Class C lineman. Cain explained

that he normally worked on the same crew with Grant. Cain testified that he had

been to the site before the accident to review the area, and he knew there were

railroad tracks there. Cain’s foreman had instructed him and Grant to help Roberson

unload the truck when it arrived at the job site. According to Cain, on the day of the

accident, he and Grant proceeded to the crossing in a truck to await Roberson’s

arrival. Cain testified that he crossed the tracks after looking left and right, and Cain

and Grant both got out of the truck. Cain testified that he and Grant both looked both

ways as they walked toward the tracks.

                                           15
      According to Cain, Roberson made a right turn and attempted to pull across

the tracks, and Roberson stopped when his trailer hit the tracks. Cain explained that

the trailer was not stuck, but it had made contact with the tracks. Cain testified that

Roberson got out of the truck and tried to raise the trailer. Cain testified that he never

looked back toward the Liberty side of the tracks after Roberson started raising the

trailer, and he did not see the train until the impact occurred. When asked whether

anything obstructed his vision, Cain testified, “[t]here’s a tree line there, but it’s not

really in the way.” According to Cain, after Roberson adjusted the trailer, he did not

give Cain or Grant instructions about looking out for an approaching train. Cain

testified that the train hit Roberson’s truck a few seconds after Roberson had gotten

back into the truck. After the accident occurred, Cain attempted to perform first aid

on Roberson and then moved to Grant, and he determined that Grant was dead. Cain

explained that he believed, he, Grant, and Roberson acted in a safe manner.

      Rodney Ellis, a safety consultant in the trucking industry and a litigation

support person for trucking accidents, testified that Roberson’s counsel retained him

to investigate the accident that occurred on February 19, 2013. According to Ellis, T

& D has a good rating for safety, Roberson was a properly licensed and experienced

commercial driver, and Ellis had not reviewed any evidence to indicate that



                                           16
Roberson was not qualified. In addition, Ellis testified that T & D had obtained the

proper permit for the job in which Roberson was involved on February 13, 2013.

      Ellis testified that eight inches was a proper way to transport a tractor-trailer,

which is where Roberson had the trailer set when he embarked on the day of the

accident. Ellis explained that the trailer is “not designed to travel in the elevated

position.” According to Ellis, “the higher you raise that unit, the more unstable it is.”

Ellis opined that Roberson’s decision to raise the trailer in the median of the highway

was the safest decision Roberson could make, and he testified that he did not believe

Roberson could have adjusted the trailer by stopping on the shoulder of Highway 90

because portions of the shoulder are composed of gravel and are unlevel. Ellis

explained that a driver should not raise a trailer beyond where he feels he will have

sufficient clearance. Ellis testified that once Roberson felt scraping, stopping at that

moment was the appropriate response. According to Ellis, when a trailer scrapes a

railroad track, there is a risk that the track and the trailer could be damaged.

      Ellis explained that Roberson should not have proceeded forward despite

hearing the scraping because it would only worsen as he moved farther forward, and

he might have gotten “hung up.” Furthermore, Ellis testified that it could have been

unsafe for Roberson to back up because he could either have gotten stuck or backed

into the highway. Ellis also opined that there was nothing wrong with Roberson

                                           17
relying on Cain and Grant to serve as spotters. During cross-examination, Ellis stated

that Roberson incorrectly estimated the necessary height to get the trailer across the

tracks. Ellis also testified that in addition to watching the trailer while he was raising

it, Roberson should have been scanning the area and looking down the track. Ellis

also agreed that when working in a high-noise environment, it is more important to

keep a proper lookout.

      Physicist and mathematician Stuart Nightenhelser testified that he is

employed by Wolf Technical Services. Nightenhelser explained that part of his work

includes forensic engineering, including train accident reconstruction. Nightenhelser

explained that “the part of optics that pertains to visibility, lighting which is

necessary for vision, human vision, that kind of thing, is a part of human factors.”

According to Nightenhelser, his field includes what could have been visually

perceived at different points of time and under different circumstances, such as

lighting, color, brightness, and how an object is presented against its background.

Nightenhelser opined that McQueen and Price should have easily recognized the

crane from at least a mile away as a large object on the track. Nightenhelser

explained that the crane was white, and it contrasted against a darker background of

vegetation. Nightenhelser also stated that the two rails going into the horizon

provided another visual cue. According to Nightenhelser, “it’s the white body of the

                                           18
crane primarily that you’re [going to] see and that’s [going to] get your attention

from a mile out and then on into half a mile and so forth.”

      Nightenhelser opined that no external warning sign was required to alert the

crew that the tractor-trailer would not move from the tracks. Nightenhelser

explained:

      [I]n the same way that motion is a visual cue, lack of motion is a visual
      cue. So, if you’ve been aware and looking ahead of you and seen this
      thing sitting there stationary for that entire 34 seconds prior to 1400
      feet, that’s a pretty strong visual cue that this thing’s not going
      anywhere.”

In addition, Nightenhelser testified that Roberson’s and Cain’s view down the track

would have been obstructed by vegetation. During cross-examination, Nightenhelser

stated that motion tends to get attention. Nightenhelser also testified that

immediately before the collision, both Grant and Cain had an unimpeded view of an

approaching train. Nightenhelser admitted that during his deposition, he testified that

the men could have seen the train when it was far enough away to allow them to

move away. Nightenhelser agreed that Roberson would not have been injured if he

had looked before getting back into the cab of his truck.

      Jimmy Calvin Scott, a safety consultant regarding issues involving railroad

operations, testified that he reviewed numerous documents, as well as the event data

recorder, and video, and he had inspected the accident site and viewed the tractor-

                                          19
trailer and crane at the junkyard. Scott testified that he also viewed the locomotive

and read various rules and regulations in the GCOR that apply to operation of a

locomotive. Scott explained that the data from the event data recorder enabled him

to evaluate the decisionmaking of the engineer and conductor. Scott opined that

Union Pacific did not follow the GCOR when the crash occurred. According to

Scott, an attentive engineer and conductor should have been able to see the tractor-

trailer at least fifty-three seconds away from it. Scott opined that the distance

between when McQueen and Price should have seen the tractor-trailer versus when

they did see it covered approximately 3000 feet, making both Price and McQueen in

violation of the GCOR. Scott testified that the conduct of Price and McQueen was

not consistent with safe operation practices, and both men were negligent and failed

to apply the brakes in a proper manner because they waited until four seconds before

impact to apply the emergency brake. In addition, Scott testified that emergency

braking would not have been necessary if McQueen and Price had been alert and

attentive because “they had plenty of time to stop otherwise.” Scott testified that

Union Pacific exonerated its crew with respect to the accident.

      Union Pacific presented the testimony of Russell McGowan by videotaped

deposition. McGowan testified that he has worked for T & D approximately seven

or eight years, and he currently works for T & D as a safety training compliance

                                         20
coordinator. McGowan stated that his work sometimes involved driving tractor-

trailers like the one involved in the February 2013 accident. McGowan explained

that in preparation for traversing a railroad crossing, he generally raised his trailer

as high as it would go. The defense then rested.

      Question one of the charge submitted to the jury asked whether the negligence

of Union Pacific or Roberson proximately caused the occurrence. The jury answered

“no” as to Union Pacific and “yes” as to Roberson. Roberson filed a motion for new

trial, in which he alleged, among other things, that the evidence was legally and

factually insufficient to support the jury’s response to question one. The trial judge

overruled the motion for new trial, rendered judgment in favor of Union Pacific, and

ordered that the Robersons take nothing.

                    ISSUES ONE, TWO, THREE, AND FOUR

      As discussed above, the Robersons raise four appellate issues. In issue one,

the Robersons argue that the trial court erred by overruling their motion for new trial

because the jury’s “no” finding as to Union Pacific’s negligence was against the

great weight and preponderance of the evidence. In issue two, the Robersons assert

that the trial court erred by overruling their motion for new trial because the evidence

conclusively established all vital facts in support of an answer of “yes” as to Union

Pacific. In issues three and four, the Robersons argue that the trial court erred by

                                           21
overruling their motion for new trial because the evidence was factually insufficient

to support the jury’s finding of “yes” as to Roberson’s negligence, and that there was

no evidence supporting the jury’s answer. We interpret the Robersons’ issues as

challenging the legal and factual sufficiency of the evidence supporting the jury’s

answers to question one. Because the Robersons’ issues are interrelated, we will

address them together.

      We review the denial of a motion for new trial for abuse of discretion. Waffle

House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). Under an abuse of

discretion standard, legal and factual sufficiency of the evidence are relevant factors

in assessing whether the trial court abused its discretion. Lesikar v. Moon, 237

S.W.3d 361, 375 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing

Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991)); see Carlin v.

Carlin, 92 S.W.3d 902, 905 (Tex. App.—Beaumont 2002, no pet.). In a legal

sufficiency review, we credit favorable evidence if a reasonable factfinder could,

and disregard contrary evidence unless a reasonable factfinder could not. City of

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Evidence is legally sufficient if

it “would enable reasonable and fair-minded people to reach the verdict under

review.” Id.



                                          22
      The factfinder is the sole judge of the credibility of the witnesses and is

responsible for resolving any conflicts in the evidence, weighing the evidence, and

drawing reasonable inferences from basic facts to ultimate facts. Id. at 819-21; Sw.

Bell Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004). As factfinder, the jury is

free to disbelieve expert witnesses. Waltrip v. Bilbon Corp., 38 S.W.3d 873, 882

(Tex. App.—Beaumont 2001, pet. denied); see also Yap v. ANT Freight Sys., Inc.,

789 S.W.2d 424, 427 (Tex. App.—Houston [1st Dist.] 1990, no writ). “[O]pinion

testimony, even when uncontroverted, does not necessarily bind the jury.” Waltrip,

38 S.W.3d at 882.

      [T]he judgments and inferences of experts or skilled witnesses, even
      when uncontroverted, are not conclusive on the jury or trier of fact,
      unless the subject is one for experts or skilled witnesses alone, where
      the jury or court cannot properly be assumed to have or be able to form
      correct opinions of their own based upon evidence as a whole and aided
      by their own experience and knowledge of the subject of inquiry.

McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

      In reviewing the factual sufficiency of the evidence, we consider and weigh

all of the evidence, and we will set aside the trial court’s finding only if the evidence

is so weak or the finding is so against the great weight and preponderance of the

evidence that it is clearly unjust. Dow Chem. v. Francis, 46 S.W.3d 237, 242 (Tex.

2001). As long as the evidence falls within the zone of reasonable disagreement, we


                                           23
cannot substitute our judgment for that of the factfinder. City of Keller, 168 S.W.3d

at 822.

      As part of their arguments on appeal, the Robersons cite So. Pac. Transp. Co.

v. Peralez, 546 S.W.2d 88, 94 (Tex. Civ. App.—Corpus Christi 1976, writ ref’d

n.r.e.) and state that Peralez was “[t]he last case thoroughly analyzing a train crew’s

duty to slow or stop a train in a crossing collision case, when faced with unchanging

conditions, like a vehicle stationary on the tracks[.]”Determining whether a

defendant breached a duty is a question of fact. Greater Houston Transp. Co. v.

Phillips, 801 S.W.2d 523, 526 (Tex. 1990); Atchison, Topeka and Santa Fe Ry. Co.

v. Standard, 696 S.W.2d 476, 479 (Tex. App.—Eastland 1985, writ ref’d n.r.e.). We

conclude that Peralez and other such duty cases cited by the Robersons do not

govern the jury’s resolution of the issue of the parties’ negligence presented in

question one of the charge.

      The jury heard conflicting evidence from both lay and expert witnesses

regarding what Price and McQueen could or should have seen and how quickly they

could or should have reacted. In addition, the jury heard evidence that Roberson did

not raise the tractor-trailer to its maximum height before attempting to cross the

tracks, and the jury heard conflicting evidence about the safety or advisability of

driving a tractor-trailer in a fully-elevated position. The jury also heard evidence that

                                           24
once Roberson stopped on the tracks, his focus was on raising the tractor-trailer and

getting off the tracks, and he did not look both ways down the tracks before returning

to his truck.

       It was the province of the jury to resolve conflicts in the evidence, weighing

the evidence, and to draw inferences from basic facts to ultimate facts. See Garza,

164 S.W.3d at 625; see also Waltrip, 38 S.W.3d at 882. Crediting favorable evidence

if a reasonable factfinder could, and disregarding contrary evidence unless a

reasonable factfinder could not, we conclude that the evidence would enable

reasonable and fair-minded people to conclude that Union Pacific’s negligence did

not proximately cause the occurrence and that Roberson’s alleged negligence did

proximately cause the occurrence. Therefore, the evidence is legally sufficient. See

City of Keller, 168 S.W.3d at 827. Furthermore, considering and weighing all of the

evidence, we conclude that the evidence supporting the challenged findings is not so

weak nor are the jury’s findings so against the great weight and preponderance of

the evidence as to be clearly wrong and unjust. Therefore the evidence supporting

the jury’s findings is factually sufficient. See Francis, 46 S.W.3d at 242. Because

the jury’s findings were supported by legally and factually sufficient evidence, we

conclude that the trial judge did not err by overruling the Robersons’ motion for new

trial. See Waffle House, Inc., 313 S.W.3d at 813; Lesikar, 237 S.W.3d at 375.

                                         25
Accordingly, we overrule issues one, two, three, and four, and we affirm the trial

court’s judgment.4

      AFFIRMED.



                                              ______________________________
                                                     STEVE McKEITHEN
                                                         Chief Justice


Submitted on November 29, 2017
Opinion Delivered March 22, 2018

Before McKeithen, C.J., Kreger and Johnson, JJ.




      4
        Union Pacific raises two cross-points, in which it contends that (1) it is
entitled to judgment as a matter of law because its crew applied the brakes when
confronted with an imminent collision, and (2) it is entitled to judgment as a matter
of law because the evidence established that Roberson was negligent per se and that
his percentage of responsibility was greater than fifty percent. Although Union
Pacific does not expressly indicate that its cross-points are conditional upon this
Court granting relief to the Robersons on appeal, we interpret their cross-points as
conditional. We need not address Union Pacific’s cross-points because we are
affirming the trial court’s take-nothing judgment in favor of Union Pacific. See
generally Tex. R. App. P. 47.1.
                                         26
