Union Pacific Railroad v. Barber

UNION RAILROAD v. Chris PACIFIC COMPANY BARBER Barber; Industries,

and Claudette Allied Waste Inc. 03-57 149 W.E.3d 325 Court of Arkansas

Supreme 26, 2004 delivered Opinion February denied 8, 2004.] [Rehearing April Sutton, Tucker, William H. Robert S. Scott H for Shafer, appellant. B. and Michael L. and W. Boyda; Easley; Robert Stephen Pottroff for

GeneLud-wig, appellees. Harrison, Woods, Paul E. for amicuscuriaeRail- McMath by: Inc., Foundation. watch, Waldron Memorial and The Kelly Welch, Schulze, for

Eubanks, Welch, Baker & E. by: Morgan Trial Association. amicuscuriaeArkansas Lawyers a This arisesfrom Imber, case

Annabelle Clinton Justice. a train and collision between owned operated by Appel- and a Pacific) (Union garbage lant Union Railroad Company a verdict Chris Barber. A returned truck by jury occupied Appellee Mr. and his Union and awarded Barber that found Pacific negligent addition, million in jury $5.1 wife compensatory damages. acted malice or reckless that Union Pacific with disregard concluded affirm million in We $25 awarded Barbers damages. and punitive the judgment. a.m, a truck about 9:15

At January garbage Inc., struck in St. Francis County was owned by Browning-Ferris, was trains. The truck of Union Pacific’s freight garbage one railroad as train was traveling north over the traveling crossing accident, the time Charles Rolfe on the track. At eastbound sat in truck while Chris Barber was driving garbage appellee train struck the rear of the seat. The portion garbage passenger side, and Mr. on the driver’s Mr. Rolfe injuring truck killing Barber. 19, 1998, wife, Mr. and his Claudette October Barber

On “the filed (hereinafter Barbers”), against Barber complaint L.E. the train Pacific Railroad Jr., engi- Company, Piper, time accident referred to (hereinafter collectively neer at the of the The “Union Brush Control as Pacific”), Asplundh Company. the accident was caused Union Pacific’s alleged complaint in violation of to control within its failure right-of-way vegetation 23-12-201, audible Anri. failure to sound Ark. Code properly § lookout, devices, failure keep operating warning proper addition, the an for the conditions. In the train at excessive speed that the crossing abnormally dangerous. Barbers alleged the case Barbers later nonsuited against Asplundh pursuant Rule of Civil Procedure 41(a). Arkansas Meanwhile, Mr. Barber filed a workers’ claim compensation Industries, his Allied Waste Inc.1 In to against that employer, response claim, Mr. was Barber in an amount compensated exceeding $200,000.

Union Pacific answered the Barbers’ the complaint, denying material that the claim allegations, affirmatively asserting thereafter, excessive was federal law. Soon speed by preempted mediation, entered into settlement After parties negotiations. Union Pacific and the Barbers to “settle around” Allied’s agreed workers’ lien.2 The for settlement called Union compensation $290,000 18, Pacific to Barbers or before pay February 2000, a court or the Workers’ contingent upon Compen- sation Commission “settle around” approving provision. Allied, A notice of intent to settle was forwarded to and on 10, 2000, the filed a to February parties joint petition approve settlement around the workers’ carrier. On Febru- compensation 2000, 28, an Allied filed ary around objection parties settling Allied’s lien to Ark. Code Ann. statutory 11-9-410 pursuant § and asserted that it 2002), was entitled to a lien on (Repl. addition, settlement. In Allied proceeds any to intervene sought in the Ann. matter to Ark. P. R. Civ. 24 and Ark. Code pursuant A 11-9-410. conference by on the settlement hearing telephone § was set for 2000. Prior to the the Barbers February hearing, sent a order facsimile to Union Pacific. proposed by to According facsimile, counsel for the Barbers intended submit to order to the court after the proposed telephone hearing. record does not indicate whether the order was ever presented court; but, 3, 2000, on March the court filed a letter order that stated as follows: Industries,

The court consideredAllied having Waste Inc.’s objectionto settlementaround petition approve workers’com- all carrierand finds: pensation matters That in accordancewith Ark. Code Ann. 11-9-410 and § Arkansascaselaw that the can Plaintiffs settle around WC.C. 1 At filing some to Mr. Barber Browning- his workers’ claim point prior compensation merged into Allied Ferris, Inc., Waste Inc. Industries, “settle agreement around,” To the setdement right reserved Allied’s expressly subrogation against its claim Union Pacific to recover workers’ benefits

pursue compensation to Mr. Barber. paid However, the the court. by settlement is approved carrier if the W.C.C. carrier of the settlement. a lien on the proceeds will have Pacific via order, notified Union the Barbers letter to that In response order. the court’s their intent to facsimile of appeal continued an and without parties At that appeal, point, filed a court. Allied in the circuit complaint the matter to litigate Pacific and the intervention, Union was answered which with discovery, requesting The Barbers continued Barbers. admissions, elicited an which objection set of request second order. seeking protective Pacific in a conjunctive-motion 29, 2001, the trial date. as the court set May On June 2001, 12, filed an amended com- the Barbers On February that Union the Barbers their amended alleged complaint, plaint. the Federal the track at the failed to maintain crossing Pacific standards, failed to issue a “slow Administration’s Class Railroad that rail and a restriction over crossing, for order” calling speed filed a answer and Union Pacific joint punitive damages. requested motion to dismiss, and affirma- the material allegations, denying maintenance and claims on track that the Barbers’ tively pleading federal law. were “slow orders” preempted 13, 2001, counsel for the Barbers letter dated March In a that after to start witnesses acknowledging deposing proposed it we will be March 12th has come and gone, appears “[s]ince 2001, 27, filed a Union Pacific motion this case.” On March trying 2, on February the settlement agreement procured approve motion to an 2000. The Barbers by filing opposing responded the work- to settle around withdraw their joint petition previous trial date for The circuit court set a new ers’ carrier. compensation 6, 2001, 7, 2002, and, denied dated order August January the settlement On Union Pacific’s motion to agreement. approve 13, 2001, court concluded that the case was not December into, not an issue of the case “had turned for trial because ready was, there it’s whoever out (sic) what poor party happened As a on issues.” turned into a fuss between result, lawyers evidentiary 2002. trial was reset to begin April the circuit court ruled several Following discovery disputes, be entitled to that the Barbers would jury- on April 30, 2002, the of evidence. On instruction on April spoliation limine, motions in ruled on Union Pacific’s various circuit court evidence or the court any prohibit including request 282- that the train was at

argument an excessive traveling speed. court the motion in limine as to the granted Barbers’ excessive- claim on of federal but speed grounds denied the preemption, motion as to their claim of failure to issue a negligent “slow order.” case-in-chief,

At the close of the Barbers’ and at the again evidence, close of all the Union Pacific moved for a directed verdict on the Barbers’ claims that the was crossing abnormally that Union dangerous, failed to issue or to negligently order,” disclose a “slow and on the for request punitive damages. The court denied Union Pacific’s directed-verdict motions. The case was bifurcated with the first jury issues of deciding liability for negligence, for compensatory damages, liability punitive The matter of damages. was submitted negligence on a jury verdict form. general

While the on the jury issues of deliberating negligence liability, punitive liability, counsel for compensatory damages, Union Pacific observed B. Michael Attorney counsel for Easley, Barbers, his ear pressing deliberation room. against Al- Union Pacific’s though counsel confronted promptly Attorney him to Easley, door, remove his ear causing from the jury-room neither counsel for Union Pacific nor counsel for the Barbers the incident to the brought court’s attention at that time. The returned a jury verdict in favor of L. E. the Piper, locomotive but found engineer, for the Barbers on their complaint Union Pacific against and awarded in compensatory the damages $5,000,000 amount of $100,000 to Mr. Barber and to his wife. In to a response the special found that interrogatory, Union jury Pacific acted with malice or in reckless of the disregard conse- quences, thereby for a establishing liability punitive damages award. The amount of was set to be punitive damages determined in the by second of jury the bifurcated trial. phase Once the verdict court, was returned and jury read by Union Pacific informed the court of Attorney conduct Easley’s deliberations during jury and moved for a mistrial. The circuit court denied the mistrial, for a but ruled that request the only additional it would allow the proof Barbers to present during second of the trial would be evidence phase of Union Pacific’s net worth. Without kind, of presenting argument any parties to the net worth of stipulated Union Pacific at $9.6 billion. That at which jury on a board was written displayed figure of the on the amount punitive retired to deliberate time the jury award. damages deliberated, the attor- the trial called judge the jury

While record. off the Following chamber for a discussion into his neys discussion, record under conditional the court went on the that seal, for his con- remorse Attorney Easley expressed whereupon deliberations door his ear to the during duct in jury-room pressing the events After considering himself to sanctions. and submitted the case the manner in which punitive damages portion handled, Pacific suffered that Union the court concluded had been on made no comments the matter. Defense counsel no prejudice for that there would be no basis court reiterated the record. The renewed its motion. if Union Pacific a mistrial granting a verdict and assessed reached punitive The ultimately jury $25,000,000. in the amount of Union Pacific damages against for notwithstanding then filed a motion judgment Union Pacific alternative, a remittitur verdict, or, for a new trial or in the The Barbers and also award. responded damages punitive viola- with in connection alleged discovery sanctions requested were denied of evidence. All motions tions and spoliation court, are now before this court on and the appeal.3 parties

I. Mistrial stems from Pacific’s first on opposing Union point appeal ear to the door of the actions in his counsel’s pressing improper witnessed counsel for Union Pacific room. After jury-rdeliberation misconduct, of the infor- he withheld disclosure Easley’s Attorney verdict. At that until the returned an unfavorable mation jury the attention of Pacific the misconduct to Union brought point, counsel’s actions The trial was stunned the circuit court. judge had been but ruled that the verdict not jury compromised. the trial have to into a that because would proceed argued a mistrial necessary. second damages, phase punitive mistrial; instead, it refused to circuit court attempted grant of evidence avoid limiting any prejudice by presentation the trial to a the second regarding during phase stipulation 3 and the Barbers as In to the briefs filed Union Pacific as addition by appellant, Association, filed the Arkansas Trial amicus curiae briefs have been Lawyers by appellees, The Waldron Memorial Foundation. Railwatch, Inc., and Kelly 284

Union Pacific’s net worth. the circuit court instructed Specifically, that it would be jury award considering punitive damages Union Pacific. Counsel for the Barbers then against the to explained that the that Union Pacific’s net jury worth parties stipulated That board, was billion. $9.6 was written on a and the figure jury was informed the net worth Union Pacific’s total figure equaled assets minus its total debts. Neither made other com- party any ments or instructions, to the With the circuit arguments jury. court’s only billion, a and an $9.6 of how figure explanation calculated, that retired figure to deliberate. On jury appeal, Union Pacific that the trial court erred in its argues denying or, alternative, motion for a mistrial in the its motion for a new trial.4

It is well settled in Arkansas that a mistrial is a drastic and extreme that should be when there remedy has granted only been error so cannot be served prejudicial justice continu the trial or when the ing fundamental fairness trial itself has been affected. Farm Bureau Mut. Ins. manifestly Foote, Co. v. 105, Ark. 14 S.W.3d 512 (2000). trial is wide judge given latitude to determine whether a mistrial is warranted. v. Engram State, 196, 341 Ark. 15 S.W.3d 678 The trial (2000). court has wide mistrial, discretion in or a motion granting for denying that decision will not be disturbed on absent an abuse of appeal discretion or manifest to the movant. Southern Farm prejudice 112, Bureau Cas. Ins. Co. v. 354 Ark. 118 S.W.3d 525 Daggett, addition, 2003). (Sept. for preserve point appeal, must be asserted at the proper objection first Edwards opportunity. Stills, Likewise, 335 Ark. 984 S.W.2d 366 (1998). motions for mistrial must be made at the first Id. opportunity.

In Arkansas Central R.R. v.Co. Morgan, S.W. 402 had (1917), reached a stalemate jury in its delibera- tions, were whereupon they after the usual permitted separate admonition of the court about the against talking case or anyone to talk to them. One of the permitting anyone in the case attorneys home, escorted a juror where the attorney’s left his juror governed A motion for new (2003).The trial is Ark. R. Civ. P.59 rule specifically grounds on which a new (2003). trial be based. Ark. R. Civ. P. 59 provides may Pacific fails to the basis, of its motion for a for its motion explain mistrial, for new independent Accordingly, trial. we treat this as a claim of error with to the circuit point appeal respect ruling court’s on the motion for mistrial with the being relief newa trial. requested older, horse, him an and the loaned unbroken attorney young as counsel witnessed the events they horse. Id. Opposing gentler until after the made no to the court jury but complaint transpired, reached a verdict. the Id. court that attorney’s This recognized but declined to reverse stating: conduct was improper should, fairness, the as in makehis to court complaint The litigant if there be a is obtained .... And is to soon as the information cases,it comewhen the incident mistrialin such should prejudicial the and the courthasdeterminedthat integrity is discovered the verdict takenits chanceon trialhasbeen destroyed.... Having have we will when it should jury by spoken, failing speak court, of the of the finding upholding integrity not disturb verdict. 73-74, v. 129 Ark. at 195 S.W. at

ArkansasCentralR.R. Co Morgan, over with This court’s (1917). ruhng eighty years ago comports for mistrial be made at the our current rule that mandates motion first opportunity. case,

In this the actions of counsel for Union in were similar to those of counsel ArkansasCentralR.R. appellant’s is, That after Co v. wrongdoing, Morgan, supra. witnessing a favorable verdict before counsel receiving jury gambled of the misconduct. In oral court arguments, informing that it did not inform the trial court of the Pacific conceded at the first available We ex misconduct attorney opportunity. that counsel is to advise the court of an attorney’s plained required is discovered that the misconduct as soon as the information so into the incident and remove court any prejudice. may inquire Had counsel immedi Arkansas Central R.R. Co v. Morgan, supra. before the court and Attorney Easley explained ately brought situation, the have from court could Attorney Easley separated Barbers, him from further co-counsel for the thereby insulating that have in the case and any may participation removing prejudice resulted from his conduct. improper

Instead, as a result of Union Pacific’s decision to verdict, take a chance on the result of the the trial court concluded in that the second of the trial needed to be cut short order phase words, trial own “I any judge’s prevent possible prejudice. needed to well shut down and this be really thought thing pretty no further made.” The law is well settled motions arguments State, for mistrial must be made at the first opportunity. Ferguson 33 S.W.3d 115 reason behind (2000). policy this rule is that a trial court should be an given opportunity trial, correct error before any early perhaps any prejudice occurs. Id. that We note other have come to a similar jurisdictions conclusion when counsel on a favorable verdict gambles jury before the issue to the court’s v. attention. See Bolton bringing 1266, Tesoro Petroleum 871 F.2d 1276-77 (5th Cir.1989) Corp., to a (failure mistrial on claim of misconduct request attorney before the deliberations showed that jury appellants verdict, on a “gambled” jury weighed against granting Co., new v. Southern Pac. 259 trial); Or. 629 Raymond (1971) that a has no to on the outcome of the (holding party right gamble case and to avail himself or misconduct if a irregularity decision is adverse to him). Court Oregon Supreme explained that the interest in the efficient use of time and in public’s judicial of the does not a finality to judicial process permit party gamble on a verdict before a motion for mistrial. v. making Raymond Co., SouthernPac. We hold that for the supra. by waiting jury return a verdict and the matter circuit court’s failing bring attention at the first Union Pacific failed to opportunity, preserve this for argument appeal.5

II. PriorNear Misses In its second Union Pacific that the point appeal, argues circuit court erred in evidence of near misses at the admitting prior track where the accident occurred. Union Pacific makes a crossing attack on the use of the near-miss evidence. two-pronged prior First, Union Pacific that we endorse a rule that requests prior near-miss evidence be excluded as a matter of law in railroad- Second, cases. Union Pacific contends that the grade-crossing circuit court erred in the near-miss evidence because admitting Barbers failed to offer sufficient of substantial in proof similarity Association, conditions. The Arkansas Trial its Lawyers through brief, amicuscuriae has us to decline Union Pacific’s urged request that near-miss evidence be declared inadmissable as a matter of law. 5 In view of during jury conduct deliberations, a of this Attorney Easley’s copy will be forwarded Committee on Professional Conduct.

opinion

287 Law A. Exclusionas a Matter of have enunciated a Pacific that we recognizes already that the near-miss evidence is admissible rule that “upon showing the same or similar circum events arose out of substantially Co., 278, v. Missouri R.R. 284 Ark. 681 stances.” See Carter Woods, 776, 249 Ark. Fulwider v. (1984) S.W.2d (quoting Nonetheless, we are asked to overrule that S.W.2d 581 (1971)). near-miss evidence is unreliable and un case because inherently and, thus, law. should be excluded as a matter of duly prejudicial, cited, none, No case has been and we can find exclusion of near-miss evidence. The admissibility supports perse similar occurrences has been of prior commonly accepted Arkansas for See Ford Motor Co. v. 313 Ark. many years. Massey, 345, 855 S.W.2d 897 Westark Inc. v. (1993); Specialties, Stouffer Ltd., 310 Ark. 836 S.W.2d Fraser v. Family, (1992); Harp’s Inc., Stores, Food 290 Ark. 718 S.W.2d 92 Carter (1986); Co., Missouri 681 S.W.2d 314 (1984); Pacfic Railroad Co., Ins. Houston General Co. v. Arkansas Louisiana Gas 267 Ark. 544, 592 S.W.2d 445 ArkansasPower& v. (1980); Co. Light Johnson, 237, Woods, 260 Ark. 538 S.W.2d 541 Fulwider v. 249 Ark. (1976); addition, 461 S.W.2d 581 it is (1971). generally recognized that evidence of similar occurrences is admissible with a prior of sufficient in circumstances. SeeMcCormickon showing similarity Evidence, Thus, 5th ed. 1999 703-04 200. Union Pacific p. § this court to a se exclusion in the face of a sound presses pioneer per While we are to a se rule in majority position. urged adopt per cases, the of is not railroad-crossing theory supporting unreliability so limited. Evidence of similar occurrences in railroad- prior cases is not less reliable than similar occurrences crossing any prior in other context. any

Furthermore, a to the of necessary predicate adoption a se exclusion rule would be a decision this court to break per by Co., with our in Carter v. Missouri Railroad prior precedent Pacific 284 Ark. 681 S.W.2d 314 We have held that there (1984). is a of the of decisions. Bharodiav. strong presumption validity prior 547, 11 340 Ark. S.W.3d 540 we do (2000). have Pledger, Although decisions, to overrule it is as a matter power previous necessary decisions unless or public policy uphold prior great injury would result. Id. The behind stare decisisis to lend injustice policy and to the law. Id. In matters of predictability stability practice, to its own decisions is adherence a court necessary proper by and that litigants may for the uniformity practice, regularity in the rules which must be governed know with certainty they until it of their cases. Id. Precedent gives governs conducting that a break becomes so so manifestly unjust, result wrong, patently Id. unavoidable. asserts that “a near miss leaves no

Union Pacific there situations in of the incident.” We that are record recognize no record of the which a near miss will occur leaving tangible Yet, can never be this does not mean that a near miss incident. there will be occasions verified or documented. For example, railroad, some when the near miss is or reported police, Pacific, near- Under the rule other agency. proposed miss evidence would be inadmissible of its regardless veracity. basis and admission of this evidence is considered on a case-by-case the evidence that the burden rests on the offering prove party of conditions exists. Westark Inc. necessary similarity Specialties, Ltd., 836 S.W.2d 354 (1992). Family, Stouffer that near-miss Union Pacific has failed to demonstrate allowing into evidence rise to result so so testimony gives patently wrong, that a break in is warranted. Accord manifestly unjust, precedent v. Missouri we decline from our Carter holding ingly, depart Co., R.R. supra.

B. Substantial Conditions Similarityof trial, Prior to Union Pacific moved in limine to prevent any evidence near misses at the where the accident oc- crossing curred. The court ruled that it would allow evidence of near misses the accident. At occurred within months of they provided trial, the Barbers introduced four witnesses about testimony by that the near misses. Union Pacific contends near-miss prior prior elicited at trial did arise out of not circumstances testimony similar to the circumstances of the accident on substantially Janu- 19, 1998, when the truck Mr. Barber was ary garbage by occupied struck one of Union Pacific’s trains. by freight rule with to the general admissibility respect of evidence of similar occurrences is that it is admissible only upon that the events arose out of the same or substantially showing 345, similar circumstances. FordMotor Co. v. 313 Ark. Massey, the S.W.2d 897 The burden rests on the (1993). party offering to that the of conditions exists. evidence necessary similarity prove of such evidence is within the trial Id. The judge’s relevancy discretion, if an abuse of to reversal discretion is only subject Co., Id. In v. Missouri Railroad Ark. demonstrated. Carter 278, a trial 681 S.W.2d 314 we court’s to (1984), upheld ruling exclude evidence of two near-misses. We concluded that the prior circumstances were not similar because the substantially flashing the had Id. In at the admis- lights crossing changed. determining occurrences, similar the critical is whether sibility prior question the of the circumstances makes it reasonable and similarity prob- able that the same cause existed to the accident as did the produce See, near P.R. misses. R.I. & Co. 246 Ark e.g., Chicago, Lynch, 1282, 441 S.W.2d 793 (1969).

Whether an occurrence is similar the to substantially matter at hand of the case. Ford depends underlying theory Motor Co. v. 855 S.W.2d 897 For (1993). Massey, evidence submitted to demonstrate a condi example, dangerous tion necessitates a it because high degree similarity weighs on the ultimate issue to be decided Id. directly jury. Flowever, the of substantial is relaxed when requirement similarity the evidence of other incidents is used to show notice or awareness of a defect in a Id. The Barbers’ potential product. theory case was that the was so with crossing overgrown vegetation east that drivers to cross could not see to the east attempting without their vehicles in the zone of placing danger immediately to the track. adjacent Barbers, to circumstances caused the

According accident in this case are As the truck simple. garbage approached north, headed the driver looked eastward for a train. crossing the time the truck’s were able By clear view to occupants get east, truck was at the as a train garbage already crossing that, came into view from the west. The Barbers asserted due to on the south overgrown side of the train at vegetation tracks Road a northbound County traveler would be Crossing unable to check for trains before safely cross. attempting They also claimed that the failure to sound the engineer’s train’s whistle and bell as it exacerbated the situation. approached crossing

The near-miss evidence the circuit court permitted may be summarized as follows. Susan Thweatt testified that she used the to church and crossing every to run an Sunday get occasionally errand. Between November and December of Susan was Thweatt, husband, and her with her Vernon to church traveling with one of her She was in the backseat daughters, two daughters. the car southbound. As they and Vernon was driving approached to cross the looked both ways Vernon attempted Crossing time, and saw a looked to the east tracks. At the same Susan husband, at her he train She westbound yelled approaching. braked, until the train and then backed immediately up passed. either a Union Pacific or unable to the train as Susan was identify made a to the Northern train and never Burlington complaint railroad. the same incident. He stated

Vernon Thweatt testified about at 123 and that he that the was Crossing vegetation overgrown incident, he it times week. At the time of the used about four per and two was south towards the with his wife driving crossing children in the car. Vernon first checked to see that the east was west, turned As he was to the clear and then to the west. looking the east. He his wife screamed that a train was from approaching his brakes at which his point bumper immediately applied within ten feet of the track. Vernon testified that the

train did not sound its whistle or bell at the Vernon was also unable to crossing. either Northern the train as a Union or identify Burlington train and made a to the railroad. never complaint Meredith testified that he traveled north over Crossing

Troy 123 several times on his to sites where he searched for arrow way heads. Mr. Meredith confirmed that the brush and shrubbery the south side of the track blocked his view to the east as he He had an incident in the fall of at traveled north. 1997 Crossing 123 while north over the tracks where he had to traveling “goose car and across the track order to from jump keep getting [his] he hit.” As he first looked to his west. approached crossing, east, he the brush and blocked his When looked shrubbery view. He continued to move forward to the east and looking the time he could see the train he was in a westbound position where the train would have hit him if he did not continue across the tracks. Thweatt testified that he had been Cross-

Lastly, Ray using 123 for also confirmed ing fifty sixty years. Ray the east blocked his view of the track. Twice in vegetation while north over the he so close to the traveling crossing, got he startled he saw an eastbound train. tracks that was when finally case, Mr. Barber’s accident resulted as the this truck traveled Union Pacific train traveled east and the garbage

291 over the Susan and Vernon Thweatt’s near miss north crossing. from a southbound and a stemmed crossing approach incident, hand, train. Mr. Meredith’s on the other westbound occurred while he traveled north over the and the train crossing Co., west. In First Bank v. UnionPac. R.R. 152 traveled F.3d Security the Cir. Circuit Court of con- (8th 1998), Eighth Appeals cluded that the trial court did in not err accidents excluding prior where the drivers and the were in plaintiff traveling opposite directions, and, thus, had different of the entirely perspectives Likewise, Susan and Vernon Thweatt’s view of the crossing. from the north side was different from the crossing entirely truck driver’s view on the south side the of garbage crossing. on the north the side of track has little relevance in vegetation a view from the south side of the We determining crossing. conclude that the trial court abused its in discretion admitting Susan Vernon’s testimony.

Nonetheless, the of stemmed danger complained from on the south side of the track. The overgrown vegetation cause of the accident was to northbound trav impaired visibility as a elers result of on the south side of the overgrown vegetation Barber, track. For both Mr. Meredith and Mr. the view to the east was obscured on south side of the track vegetation as north. One difference in the they approached crossing heading circumstances of accident and Mr. Meredith’s near miss is that here, the trains were in different directions. The issue traveling however, is whether the on the south side of the track vegetation was a to northbound travelers of which danger direction regardless the train was Mr. Meredith’s reveals that he traveling. testimony n —- and Mr. Barber were in a similar circumstance substantially drivers in both vehicles had to inch forward to look east down the Likewise, track for a train. Thweatt’s near miss was Roy caused by on the south side of the track his overgrown vegetation obscuring view to the east. Due to the of we high cannot degree similarity, conclude that the circuit court abused its discretion in admitting the near-miss Meredith and testimony Thweatt. Troy Roy

Union Pacific also contends that the trial court erred because none could the near-miss parties identify such, trains as Union Pacific trains. As Union Pacific argues the evidence is irrelevant to show notice of a defect or condition. Evidence of similar occurrences is admissible when the notice of a Inc., Stores, v. Food in issue. Fraser or defect is Harp’s danger occurrences Evidence of similar 92 (1986). Ark. 186. 718 S.W.2d FordMotor condition. to demonstrate dangerous is also admissible stated, of the Barbers’ As theory already Co. Massey, supra. with was so that the overgrown vegetation case was crossing could not see to cross the track that drivers south side of attempting in the zone of their vehicles danger the east without placing notice is not the track. Under this theory, immediately adjacent Thwe- relevant; rather, Meredith and Roy testimony Troy condition. demonstrate admitted to dangerous att was properly sum, abused its discretion while the circuit court we Thweatt’s near-miss testimony, Vernon and Susan admitting matters absent a trial court’s on evidentiary will not reverse ruling Co., 345 Ark. 430 47 Dodsonv. AllstateIns. a showing prejudice. error not be 866 (2001). Evidentiary may predicated upon S.W.3d unless it affects a substantial right a that admits evidence ruling Wade, Luedemann v. 323 103(a) (2003); Ark. R. Evid. party. 161, held that an We have Ark. 913 S.W.2d 773 (1996). repeatedly if the same or similar evidence is error is harmless evidentiary Wade, at the trial. Luedemannv. Will otherwise introduced supra; 626, Bell, 893 S.W.2d 770 (1995); iams v. 319 Ark. Southwestern 164, Ark. 787 S.W.2d 687 (1990); v. 302 Thomp Shamlin Shuffield, Co., In 432 S.W.2d 873 (1968). son v. AAA Lumber evidence that was admitted at of the other near-miss properly light trial, Thweatt’s we cannot that Vernon Susan testimony, say cumulative, resulted in to Union which was prejudice merely we affirm on this Pacific. point. Accordingly,

III. DirectedVerdict that the third on Union Pacific contends For its point appeal, erred in its directed-verdict motions on circuit court denying a order that Union Pacific failed to issue slow negligently theory and on the trial, At that the was abnormally theory crossing dangerous. their claim of on several the Barbers negligence premised theories: an Arkansasstatute a railroad to

(1) requiring The violation of its free of vegetation; maintain right-of-way of an (2) abnormallydangerouscrossing; The presence devices; The failureto sound the train’saudible (3) warning lookout; a failureto (4) keep proper a railroad of federal regulationsrequiring The violation (5) rules,time code of operating its concerning instructits employees tables, instructions. and time tablespecial them, the was theories before jury given general the five With form on the claim verdict negligence. is rendered on a verdict general

When jury’s or, words, form, in other it is an indivisible finding verdict entity Buck, v. Cent. ArkansasElec. the whole case. South Co-op. upon will not This court (2003). Ark. 117 S.W.3d speculate where a verdict is used. Id. When what the found general jury jury or are not liability damages interrogatories concerning special is left in of not and this court knowing position requested, t.he verdict, will neither nor theorize for the we basis jury’s question Inc., 353 Ark. about the jury’s findings. Hyden Highcouch, 110 S.W.3d 760 (2003). case, Union Pacific does not this challenge of the evidence to verdict of

sufficiency general support Instead, it of the evidence negligence. challenges sufficiency verdict. on two of several theories We support general determine, cannot and we will not which theory speculate, upon verdict of The evidence in general negligence premised. this case reveals that the at 123 was vegetation Crossing severely The on the side of the south overgrown. overgrown vegetation train the tracks blocked view of north over the anyone driving addition, had inch drivers forward to a where crossing. point their vehicles almost the track in were order to a clear touching get Moreover, view down the track. time a the was able to by person trains, check the track for he or she in the zone of adequately a that these conditions danger. testimony supports finding caused the truck to be hit the Union Pacific garbage freight Here, train. could have based its verdict of on jury negligence the Barbers’ that Union Pacific failed to maintain theory properly Hence, at 123. See, we must affirm. vegetation Crossing e.g., 174, Union R.R. Co. v. 330 Ark. 952 S.W.2d 658 Sharp, Pacific Inc., see also (1997); South Beach v. Brands, Co. Harris 355 Beverage 347, Ark. 138 S.W.3d 102 v. (2003); Hyden Highcouch,supra. When with this at oral presented question argu

ment, Union Pacific cited our decision Missouri v. Railroad Pacific 294 137, for the 760 S.W.2d 59 (1988), 297 Ark. proposition

Mackey, a is with several must be reversed when jury that a case presented case, In that we render a verdict. and asked to general theories an where the circuit court jury error gave found prejudicial Indeed, held that we we have consistently instruction. inapplicable an erroneous instruc from the of will giving prejudice presume tion, Advocat,Inc. v. harmless other factors. See unless rendered Sauer, 29, v. 324 346 (2003); 353 Ark. S.W.3d Long Lampton, 549, Davis, 313 Ark. Davis v. (1996); Ark. 922 S.W.2d Barrett, 313 Ark. 855 S.W.2d 856 S.W.2d 284 MIC v. (1993); However, made a distinction between we have 326 (1993). on trial court’s decision to instruction give jury contesting n and the suffi of challenging one theory negligence, particular verdict of the evidence to negligence. of general ciency support 952 S.W.2d 658 R.R. Co. See Union Sharp, Pacific Here, of the (1997). challenges sufficiency evidence to two theories of but does not support negligence the trial court. instructions jury given by challenge any instruction, we do not address the of any propriety Accordingly, there was sufficient evidence of and because we conclude that are which we theory negligence, unwilling speculate upon verdict.6 its negligence jury premised IV PunitiveDamages Union Pacific attacks both For its fourth point appéal, and the amount of puni- awarding punitive damages propriety matter, As a the Barbers contend that tive threshold damages. of the Union Pacific waived any challenge sufficiency evidence on because Union Pacific failed to damages punitive move for a directed verdict at the close of all the evidence. We that Union Pacific this for hold appeal, properly preserved point that there is sufficient evidence to warrant an award of punitive that the in this case is not excessive. award damages, argument, Union Pacific filed a We note that after submission of oral appeal authorities. We denied the motion on 2004. 5, motion to submit February supplemental we have been loath to entertain motions which affect a case after directly Historically, regard situation to in the most circumstances.We do not this submission except exceptional Crossley, Ark. SeeIn re as warrant the measures 310 be so extraordinary special requested. (1992). 1 435, 839 S.W.2d

295 case-in-chief, the at the At close of the s plaintiff again Pacific close of evidence in connection with Union all liability, moved for a directed verdict on issue of properly punitive however, not, Union did Pacific move for a directed damages. the close of the evidence in the second the trial verdict at of phase second occurred This after the punitive damages. phase jury had determined that Union Pacific that with was it acted negligent, malice of the or reckless and assessed disregard consequences, For the Barbers cite Advocat damages. compensatory support, Sauer, 353 Ark. 346 where “the S.W.3d we stated (2003), of all conclusion the evidence” occurs after the rebuttal plaintiffs Here, evidence. there was no rebuttal evidence and a moved for directed verdict at the close of all the evidence with for connection liability punitive damages. of a for motion directed verdict is to purpose a for whether the has met

provide procedure determining plaintiff of a Stores, burden case. Wal-Mart Inc. v. establishing primafacie Tucker, 353 Ark. 120 S.W.3d A need not (2003). plaintiff a establish second case in of bifurcated where prima trial phase facie Thus, the amount of remains to be decided. only punitive damages it is for a defendant for to move a directed unnecessary verdict as after a has determined liability Union Pacific has jury liability. its evidence to preserved challenge sufficiency support an award for a directed punitive damages by properly moving verdict on issue at the close of all the evidence submitted in the of the trial. liability phase

A. Evidence PunitiveDamages Sufficient

We review denial of motion for directed verdict to determine if the verdict is substantial jury supported by Co., Foster, evidence. D’Arbonne Const. Inc. v.

S.W.3d 894 (2003). Substantial evidence is defined as evidence of force sufficient and character to a conclusion one or compel way the other with reasonable and it must force the mind to certainty, mere or Id. When pass beyond suspicion conjecture. determining evidence, of the we sufficiency review the and all evidence reasonable inferences therefrom in arising most favorable light entered, on whose behalf we party judgment give that evidence the value. Id. A highest motion for probative verdict directed should be when the evidence viewed granted only is so insubstantial as to verdict for the to be require jury’s party 296 be denied when directed verdict should Id. A motion for aside.

set evidence, is such or when the evidence in the there is a conflict Id. different conclusions. reach fair-minded might that people for deter set out the standard We have recently an award of there evidence to whether is sufficient support mining in a case: damages negligence punitive is justified of punitive damages court has that an award This said acted wan indicates that the defendant where evidence only such a indifference in or with conscious causing injury tonly Lukas, 308 be inferred. Stein v. may that malice consequences 74, Missouri Railroadv. (1992); Mackey, 823 Ark. S.W.2d 832 Pacific 137, Inc. v. (1988); By-Products, Ark. S.W.2d 59 National 297 760 Inc., 491, 292 Ark. 731 S.W.2d 194 House Searcy MovingCompany, words, of damages in order to this element support other (1987). knew, that of it must appear negligent party by way punishment, believe, act of was about to had reason that his negligence or a he in his course with conscious injury, inflict and that continued malice be may indifference to the from which consequences, 145, 63; Ark. at 760 S.W.2d at National inferred. 297 Mackey, 494, Inc., In order to 292 Ark. at 731 S.W.2d at 196. By-Products, a of there damages, warrant submission of question punitive on the be an element willfulness or such reckless conduct must of Fields, v. of the defendant as is thereto. equivalent Dalrymple part 185, 362, 188, 364 v. Hodges 276 Ark. 633 S.W.2d (1982)(quoting Smith, 101, (1927)). 175 Ark. 293 S.W.2d 1023 Foster, Co., 354 123 S.W.3d at Const. Inc. v. Ark. at D’Arbonne Court has that recognized 898 Circuit (2003). Eighth Appeals is whether is evidence a critical to determine there inquiry known, in knew or to have surrounding likely light party ought circumstances, result that his conduct would or in naturally probably of the that he such conduct reckless continued disregard injury, could from which malice be inferred. See consequences Aircraft Inc., Airlines, F.3d Cir. (8th at Little Rock v. American 874 Accident Foster, Co., D’Arbonne Inc. Const. 2003) (citing (2003)). S.W.3d 894 an award The evidence damages, punitive supporting Barbers, is as follows. in the most favorable

viewed light as a veteran of the railroad a Willie twenty-six year Savage, foreman, foreman, track-man, for assistant testified at before Barbers trial. Southern Railroad’s merger Just with Union Pacific in he was for September working Southern Pacific as foreman. to Mr. tie-gang According Savage, a track or road master would mark railroad ties that inspector needed and then a would follow replacement tie-gang up replacing the bad ties. that the was done to Savage tie-replacement explained a the track maintained as track. How- keep sixty-mile-per-hour ever, tracks, after the Union Pacific took over and to prior the 123 the railroad had all reaching Crossing, stopped replacing the bad ties and instituted a “cluster-buster” tie replacement cluster-buster, In a the would one program. tie-gang only replace or a two ties in of bad ties. Mr. the that string Savage explained railroad then issued a “slow order” for the of track where portions the cluster-buster was being replacement performed. foreman,

In connection with his work as a Mr. tie-gang to his Mac about Savage complained supervisor, McCartney, Mr. went to the but stated that Crossing. McCartney crossing, he was not in of Mr. was concerned charge fixing crossings. Savage that the at the would his vegetation overgrown crossing prevent men from a and train that one his seeing vehicles crossing tracks would hit a train. Mr. that Mr. get McCartney suggested at the before to cross Savage place flagger crossing they attempted it. to Mr. one or two men would Savage, stand at According and direct the vehicles to it cross when was safe. He crossing also testified that in for Union Pacific there was never working any about response complaints overgrown vegetation. driver,

Carl another Jones, truck testified that he had garbage with the at experienced problems overgrown vegetation Crossing 123. Mr. to contact Union Pacific in 1997 to attempted April Jones inform them about the He made between seven and ten problem. to Union Pacific complaints by In phone regarding Crossing. addition, Mr. down a Union Pacific worker on flagged Jones road that at complained 123 was vegetation Crossing life threatening. DePriest, Donald a retired locomotive locomotive engineer, fireman, and brakeman also testified for He worked plaintiffs. for the railroad from 1962 2000. Mr. DePriest testified through that while he worked as locomotive for Union Pacific he engineer master, informed Stokes, the train and the train Tommy safety committee that the 123 was a hazard to the railroad Crossing and the because there was a employees public danger hitting at vehicle the crossing. her of Palestine testified regarding Willetta Carroll (cid:127)Mayor In Carroll Mayor Union Pacific. with communications Union Pacific concerning with contacted various personnel Vice President including track Crossing going through Jack Peterson, Coor- and Arkansas Grade Crossing Safety David Kyle, 123 was that She told these Crossing dinator persons Larry Hatley. and unsafe. overgrown the direct evidence that

In addition considering that a life condition Pacific was on notice threatening put an in this case existed at jury given Crossing evidence, as which stated instruction on part spoliation case, the intentional “In this contend follows: plaintiffs voice railroad failed to the defendant preserve tapes conduct There have been records that should preserved. track inspection fore, not infer that the contents of but are you may, required, would have been the voice and track records inspection tapes Arkansas, is defined as to the defendant.” spoliation unfavorable established, evidence and when it is intentional destruction of “the evidence finder draw inference that fact may [an] [the] [the] for unfavorable to its action.” was destroyed party responsible [the] Inc., 146, 143, Co., Ark. Ives 342 27 S.W.3d Harold Trucking Goff (6th Black’sLaw 1401 ed.1990)). (2000) (citing Dictionary Blackwell, consultant, testified in the Alan a railway J. consultant, a Prior to Mr. Black- Barbers’ case-in-chief. becoming roles, in different well worked for Union Pacific many including master,7 road road and assistant track track supervisor, inspector, case, Mr. the Barbers’s in this master. After hired counsel being asked counsel to the Union Inspector’s Blackwell get records. Coun- records and the Federal Railroad Track Inspector’s sel, however, documents from Union was unable those to get Union Pacific’s He was also unable to review dispatch Pacific. crew, the train the of communications between dispatcher, tapes of Pacific’s director the maintenance dispatch- and people. assurance, as testified and Reininger, ing practices quality John voice The voice record conver- the use of the dispatch tape. tapes Mr. a and field Reininger sations between employee. dispatcher the voice for about Pacific retained tapes testified that Union make a but that a claims could request ninety days, representative Mr. the Reininger, tapes tape longer. According preserve manager The called track maintenance. road master is also of were within even when die. He also recycled ninety days people that the reflect from of testified would engineers any tapes reports condition dangerous experienced. in testi- this case was discovery process subject Patricia claims for senior Long,

mony given representative Union Pacific. Ms. testified that she was involved as the Long claims that she track received for representative request in October records 1998 for accident that occurred at Crossing 123 in of that same that the She testified documents January year. Yet, were at retained for least one to Ms. year. according Long, track records in this case were no when available longer request for them was made in October. She that her for explained request the track records was forwarded to Union Pacific’s Manager December, Track Maintenance in but no was forthcom- response When Ms. followed earlier ing. Long she up request, advised that the track records were unavailable. inspection

Mr. Blackwell made a to Union eventually Pacific’s trip Omaha, Nebraska, in found stack of “slow headquarters orders” a different set of tracks Louisiana that was concerning to arbitration between Union Pacific and subject Burlington Northern Railroad. Mr. Blackwell discovered that “slow orders” for the 123 were area listed at the tail end of some Crossing Louisiana “slow orders.” Blackwell that in before explained tracks, Union Pacific owned the various “slow orders” been had issued for the track the 123 Those “slow covering Crossing. orders” reduced the train’s maximum from miles speed sixty per earlier, hour to miles hour. forty As noted Union Pacific per with Southern Pacific on merged 1996. September Although Mr. Blackwell had at Union Pacific com- experience maintaining orders,” records of he “slow when tried puterized to find “slow orders” the 123 covering Union Pacific told the Crossing, him records did not exist. He was also to unable Union Pacific’s get track records. Mr. inspection Blackwell discovered that Finally, Union Pacific had entered into a contract to have the overgrown at cut vegetation back in but it not Crossing did August allot for the contract. money Union Pacific this cites court to Missouri Railroad Pacific 760 S.W.2d Mackey, as for (1988), its authority that assertion there is insufficient to evidence an award of support In

punitive we held damages. Mackey, of the that while there no was question railroad’s in its negligence maintaining right-of- the evidence way, did not an award of support punitive damages. was no evidence that the out that there court Mackey pointed to the had been hazardous or that presented was dangers crossing

the railroad. above, we conclude the detailed on evidence

Based that 123 was hazardous was evidence Crossing that there ample Here, its condition. direct Union Pacific was on notice of and that an imminent Pacific was notified of that Union evidence reflects addition, in 123. the at through spoliation Crossing danger struction, that the voice the was at infer destroyed liberty jury the near misses remarks about and track records contained tapes the at and the condition testified to trial dangerous presented in case conclude that the evidence this We vegetation. overgrown to conclude that Union to allow the sufficient jury known, in of the knew or to have light surrounding ought likely circumstances, to remain that the vegetation overgrown allowing 123 at close to sixty and trains to through Crossing allowing pass in and hour or result miles would naturally probably injury, per in of that such conduct reckless Union Pacific continued disregard be inferred. the from which malice could consequences B. ExcessivePunitive Award Damages there was insufficient In addition to arguing an of Union Pacific evidence to award punitive damages, support either or the the is excessive under state award argues jury given the standard for We have recently federal standards. explained a claim of damages: excessive reviewing punitive the the extent and intent of enormity wrong, We consider circumstances, all the the party committing wrong, standing financial and social condition and erring party. conduct that is malicious or Punitive are a for damages penalty with the deliberate intent to another. When injure perpetrated excessive, review the are to be we damages alleged proof punitive favorable and all reasonable inferences most light great we whether the verdict is so as determine appellees, this or to or passion shock the conscience of court demonstrate fact. It that the trier of is part important prejudice be deter others from comparable sufficient to punitive damages the future. The conscious indifference of alleged conduct in factorin assessing committed is wrongdoer wrong pertinent damages. punitive Sauer, 29, 50-51, S.W.3d 346,

AdvocatInc.v. 358 (2003) (citations omitted).

We start of the in examining enormity wrong this case. There is evidence that Union Pacific was on notice of the and life nature of this dangerous threatening crossing through of its own and the complaints personnel of the complaints public. There is also evidence that several near-misses occurred at this Furthermore; crossing. record reflects that Union Pacific evidence destroyed accident, related to important this directly voice and track including tapes records. inspection Viewing and all the evidence in proof most favorable light to the Barbers, we knew, conclude that Union Pacific or should have known of the extreme danger at presented public Crossing 123. In that recognizing Union Pacific danger, still consciously such, refused to the situation. As remedy Union Pacific’s conduct reflects that it intentionally put harm’s traveling public way. circumstances, Under these of the is enormity substan wrong tial.

There was also evidence to indicate a malicious intent Union Pacific. As perpetuated by noted the Barbers in their brief, the record in this case reflects the of a development corporate at Union Pacific that policy before put company profits public In addition safety. that evincing corporate policy through handbooks to claims given representatives, Barbers presented expert from Dr. testimony Levine who Harvey an performed economic that study opined Pacific’s reflected practices that policy. we consider the

Lastly, financial and social condition of Union Pacific. standing the second of the During phase bifurcated trial where the was called jury determine the upon amount of punitive Union Pacific damages, that its net stipulated Thus, worth $9.6 was billion. there is no doubt that Union Pacific in a is financial and social strong condition. We note that the award of punitive damages $25 million amounts to 0.260% Union Pacific’s net worth. Taken under together circumstances, all the in the evidence cluding Union Pacific intentionally destroyed evidence,

unfavorable we conclude that an award of punitive damages Thus, in this case. appropriate we turn next determine whether the amount of punitive shocks the damages 302 has the The United States Court of court. Supreme

conscience an award of test to determine whether enunciated three-factor v. America, BMW North Inc. is excessive. See damages punitive of is be undertaken Gore, A analysis by 517 U.S. 559 Gore (1996). Sauer, de novo.Advocatv. the court supra. appellate Gore, Union Pacific to determine whether Under it of both the conduct that would subject received notice adequate sanction, we the the of the consider and magnitude punishment three factors: following conduct; of the defendant’s of

(1) degree reprehensibility harm sufferedby between the harm or (2) disparity potential award;and and hispunitive damages plaintiff the civil remedy the differencebetween this and (3) penalties or in cases. comparable authorized statute by imposed Gore, America,Inc. v. 517 U.S. 559 The three (1996). BMW North of Sauer, Gore are to Advocatv. We criteria be equal weight. given supra. Sauer, test in cases. AdvocatInc. v. have the Gore three See employed Stills, 353 111 346 Edwardsv. Ark. S.W.3d (2003); Ark. 984 366 Routh WreckerServicev. 335 (1998); S.W.2d Washington, S.W.2d 240 (1998). 980 (i) Degree Reprehensibility Between latest decision in StateFarmMut. Gore its v. the United States Auto. Ins. Co. U.S. (2003), Campbell, in enunciated several factors to consider Court has Supreme in of the tortfeasor. The Court held examining reprehensibility was Gorethat where the harm inflicted tortfeasor (1) “purely in no evidence that the economic nature there was tortfea [,]” (2) faith, was sor had acted bad there no evidence that (3) it had in course of conduct after had been tortfeasor “persisted occasion, unlawful on even one let alone repeated adjudged failed to disclose “deliberate record occasions[,]” (4) any statements, misconduct, or concealment of false acts of affirmative motive,” not the tortfeasor’s conduct was evidence improper of a $2 to warrant the million reprehensible imposition sufficiently Mut. Ins. the Court award. State Farm Co. Campbell,supra, for consideration when reprehensi- elaborated factors assessing “whether the harm caused was as bility: physical opposed economic; the tortious conduct evinced an indifference to or a others; reckless of the health or disregard of the safety target conduct had financial the conduct involved vulnerability; repeated incident; actions or was an isolated and the harm was the result of malice, deceit, intentional or or mere accident.” trickery, bar,

In the case at inflicted injury Pacific was Barber, and not economic. Mr. physical merely as the truck, in the passenger garbage while the severely injured driver, Rolfe, Mr. was killed. As there was already explained, evidence that Union Pacific over the prioritized monetary gain addition, of those train its tracks. In personal safety the crossing record reflects that Union Pacific in acts of affirmative engaged misconduct after notified of the accident and the being lawsuit it. The evidence against shows that Union Pacific intentionally track Furthermore, records and voice destroyed there is tapes. evidence from which a would conclude jury that reasonably Union Pacific to conceal “slow orders” attempted issued for this of track. The record portion also that Union supports finding Pacific manifested a reckless for the health and disregard of safety others. Union Pacific Specifically, the ignored condi dangerous tion of a in the face of constant crossing and near complaints misses. While this was the first time that an accident had occurred at this there was evidence of crossing, several near-misses. prior circumstances, Under these we conclude that Union Pacific’s conduct was indicative of a high degree reprehensibility. Ratio

(ii) The Gore also the analysis court to consider requires the ratio of Here, to compensatory damages the punitive damages. $5,100,000 were set the compensatory at damages and the jury $25,000,000. were set punitive at damages The in this multiplier case is 5. Most roughly Court has recently, held that Supreme are more “[s]ingle-digit multipliers with due likely comport while still process, State’s achieving deterrence and goals retribution, than awards or, with ratios in the of 500 to ... range ... of 145 to 1.” State Farm Mut. Auto. Ins. Co. v. 538 U.S. Campbell, at 425. The standard to be is whether the ratio is employed See Advocat, Under the “breathtaking.” circumstances of supra. this case, a of 5 is multiplier justified. Civil Sanctions

(Hi) States final factor United The adopted by Supreme that of for notice is punitive Court Gore adequate comparing that be civil criminal could award to the or penalties damages Sauer, misconduct. See Advocat v. supra. for similar imposed 213.5 and states that this court to 49 C.F.R (2003) Barbers point § $22,000 fined for Pacific could have been per day Union up hand, Pacific, on the other each day noncompliance. Industries, Tool court Inc. Leatherman directs this Group, Cooper Inc., that a fine be U.S. 424 for the cannot (2001), proposition that violation each day theory separate multiplied once. because the accident only happened Although Supreme that view v. Leatherman it would Court indicated in passing Cooper as a incident under out material Oregon single promotional Act, made no on the issue Unlawful Trade Practices it ruling court did not standard of because lower apply proper Id. review. on railroad

A federal regulation specific governs vegetation 213.37 (2003) C.F.R. provides: property. § which is immediately adja- on railroad on or Vegetation property (cid:127) — n cent to shall be so it does not roadbed controlled structures; Become fire hazard (a) track-carrying a Obstruct of railroad and (b) visibility signs signs signals:

(1) Along right-of-way, (b)(2) At (2) (This is highway-rail crossings; paragraph appli- cable 21,1999.) September (c) Interfere with railroad normal trackside employees performing duties; lines; Prevent of and communication

(d) signal proper functioning or Prevent from

(e) visually moving railroad employees inspecting their normal duty from stations. equipment earlier, at As Willie testified that Crossing noted Savage vegetation a 123 caused his crew while cluster-buster they performed problems Thus, on the railroad ties. there is evidence that the repair vegetation at 123 interfered with railroad nor- Crossing employees performing mal trackside duties. The of federal code at issue penalty provision states in pertinent part:

a) who violates Any person any of this or causes requirement part the violation of such any is to a civil requirement subject of penalty $11,000 violation, $500 at least and not more than that: per except Penalties be assessed may individuals for willful viola- against only tions, and, where a grossly violation or a negligent pattern violations has created repeated an imminent hazard of death or injury or has caused death persons, or not to injury, penalty $22,000 exceed violation be per may assessed. 49 CFR 213.15 (2003). at issue regulatory provision specifi- § cally violations and increases the contemplates maximum recurring fact, in those situations where a violation penalty In persists. states, of the code penalties provision specifically day “[e]ach violation continues shall constitute a offense.” 49 C.F.R. separate Here, 213.15(a). evidence reflects that the clearly at vegetation § 123 was out of Crossing from the time potentially compliance 11, Pacific took over the tracks in 1996. Under the federal September code, Union Pacific could be fined for each day non-compliance such, after 1996. As the maximum civil September in this penalty case $22,000 be calcualted may each by multiplying day There were over 450 between noncompliance. days September 1996, and the date of the accident at 123 on Crossing January 1998. Union Pacific’s Accordingly, made them noncompliance po- million. liable for about tentially $9.9 addition, Union Pacific could have been poten liable under Arkansas law. The tially pertinent statutory provision provides:

(a)(1) All railroad corporations operating this state shallmaintain their right-of-way at or around any railroad of a road crossing public trees, bushes, shrubs, or free from highway grass, or other growing vegetation which obstruct the may view of and vehicle pedestrians the operators using public highways.

[**] *(cid:127) ^[*] (b) railroad Any or corporation failing to with the refusing comply of this section provisions shallbe to a fine subject of not lessthan one 306 five ($500) nor more than hundred dollars ($100) dollars

hundred for eachviolation. Code Ann. 23-12-201 (a)(1), (b) 2002). plain

Ark (Repl. § that a railroad will continue of the statute contemplates language to the amount of and will be assessedproportionally noncompliance $500 to At the railroad’s time it fails or refuses per day, comply. $182,500 that to We conclude could year. liability up per approach the law are to total authorized by comparable the civil penalties in this case. award set the damages jury punitive Sauer, $21 we a In Advocat enforced supra, award, a million based damages upon wrongful-death punitive the a and rehabilitation claim from neglect nursing stemming Here, the center’s of an elderly patient. punitive damages neglect $25 stems from a action that resulted award million negligence and in one death and caused severe permanent injuries person’s the will not our for that of another We substitute judgment person. in the award. when there is basis evidence for punitive jury Cox, Brokers,Inc. v. Ark. Harold ReliableTruck 324 McLaughlin addition, to be 922 S.W.2d needs (1996). penalty Id. have also sufficient to deter others such conduct. We that amount to windfall damages recognized may validly punitive Co., v. Arkansas for the Missouri R.R. Boys’ plaintiff. Pacific Sheriffs Ranch, S.W.2d Under these circum Ark. 389 (1983). stances, the award of is and where punitive damages appropriate billion, net we that a $9.6 worth of the is cannot say company million shocks the conscience. $25 punishment

V.The Settlement In its on Union Pacific contends that the last appeal, point circuit court erred in and enforce the settle- refusing approve ment around workers’ lien of Allied agreement compensation This Waste. is without merit. point mediation, After and the Pacific through going Barbers entered into a settlement The settlement agreement. stated that it was contingent upon approval pay- specifically A ment 2000. conference by February hearing by telephone 28, 2000, set for Barbers sent settlement was February order facsimile Union with a notation proposed order to after counsel intended to submit the court proposed The record does not reflect whether telephone hearing. clear, It to the court. is was ever submitted order proposed Instead, however, the order. that the court did not sign proposed 3, 2000, which stated as on March filed a letter order the court follows: Industries, Allied Waste Inc.’s

The court considered having around workers’com- to to settlement approve objection petition carrier and all matters finds: pensation Ann. 11-9-410 and That in accordance with Ark. Code § the Plaintiffscan settle around the WC.C. Arkansascase law that However, the the is the court. carrier if settlement approved the carrier will have a lien on the settlement. proceeds WC.C. order, to that letter the Barbers notified Union Pacific via In response fact, intent to the court’s order. In facsimile letter of their appeal order, have the court neither or to appealed attempted party 27, 2001, its On March or more than one after reconsider ruling. year offer, Union Pacific to enforce settlement expiration sought Barbers. agreement against The substantive case that Union Pacific cites for the only notion that the contract was enforceable one after the stated year Helms, is Helms v. 317 Ark. 875 S.W.2d 849 (1994). expiration Union Pacific cites Helms for the that the fact a proposition party- enters into a settlement that later to be is no appears improvident case, for relief. to set aside a ground spouse attempted divorce settlement after an he consulted admitting attorney him Id. Helms is nobody pressured sign agreement. inappo- site.

Union Pacific to have the terms of the sought settlement enforced. is an agreement Specific performance equi table which of an or remedy compels performance agreement contract on the terms Crossett precise agreed upon. City of Pacific Inc., 769 S.W.2d 730 (1989). Bldgs., precise terms of the settlement called for court agreement prior approval 2000. The circuit court ruled that the failure of February court to the settlement from their approve discharged parties under the contract. The trial court’s obligation perform ruling was correct.

VI. To Motion Strike After the Barbers filed their brief on Union Pacific appeal, filed a motion to strike of the Barbers’ brief. That motion portions on it until the submission as we initially is still outstanding passed motion, strike that we In their requests of the case. brief on of the Barbers’ appeal. three specific portions First, “Table that we strike a Union Pacific requests addendum to included in the of supplemental Jurisdictions” is a list of The “Table of Barbers’ brief on appeal. Jurisdictions” near-misses is that hold evidence of across the cases from country at the court’s discretion. accident cases admissible in railroad of cases should be stricken contends that the list Union Pacific the Arkansas Rules of to Rule 11 of the brief from pursuant Court Rules. and Rule 4-2 of Supreme Procedure Appellate the table was the Barbers that while only pro-, explain response, court, it be a aid to the may disregarded./ vided as research issue, we Union' no on the as there is grant Accordingly, dispute the “Table of that we strike Pacific’s request Jurisdictions.” Second, we should strike Union Pacific contends that described as Plain addendum a in the Barbers’ supplemental page that it is not of the record. We note tiff’s Exhibt 63-A because part Exhibit 63-A have been used at while it Plaintiffs may appears trial, and not of the never received into evidence is it was part which This court will not consider a document record on appeal. in the record. Barnett v. included in the addendum and not is Co., 803 Insurance 354 Ark. S.W.3d Monumental General Plaintiffs Exhibit 63-A from we strike (2003). Accordingly, addendum. Barbers’ supplemental this court to strike a Union Pacific urges portion

Lastly, counsel for Union Barbers’ brief that accuses purportedly section of the brief Pacific of suborning perjury. pertinent states: Gore,

Furthermore, noted that the while in at the Court statements, deliberate acts of record failed to disclose false any misconduct, of evidence or affirmative or concealment improper motive, the in thiscaserevealsdeliberatedestructionofvoice record records, evidence, and track UP effortsto conceal tapes, inspection suborning perjury. trial, the Barbers that Union At added.) alleged

(Emphasis both before defense witnesses suborning key engaged pegury that the statement in their trial. The Barbers now assert during rather, it not an brief on was allegation suborning perjury; appeal a court in before the upholding punitive of the issue was a statement of fact which then make they The Barbers allegations award. damages for the faith basis allegation. Specifically, contend good support the accident in crew recounted that certain crewmen Barbers explain then, briefs, with counsel for Union after meeting interview with Pacific, The trial court their statements. presented changed motion Union Pacific’s posttrial the issue in the Barbers’ Response was not That the verdict. argument notwithstanding for judgment circuit court never the motion and the in the hearing pursued on it. made a ruling S.W.2d 180 (1981)

Gibson Boling, case, an issue. In that we is instructive on the granted appellant’s brief which of the to strike appellee’s implied portion request and com for the were dishonest the former solicitors appellants we to subornation of Id. While mitted what amounted perjury. finish, we has been heated from start to that this case recognize far in their brief on think that the Barbers have too appeal by gone and its counsel suborned that Union Pacific perjury. suggesting Indeed, are not this court to the Barbers concede that asking they occurred. The claim of determine whether suborning perjury is tantamount to a claim that Union Pacific suborning perjury Ark. Code Ann. 5-53-110 1997). acted See (Repl. criminally. § Pacific’s to strike that of the We portion grant request Barbers’ brief.

Affirmed. C.J., J.,

Dickey, Thornton, dissent. RayThornton, I dissent on the basis Justice, dissenting. jhat a million award is $25 excessive. I punitive-damage that the would hold trial court erred in Union Pacific’s denying motion for remittitur of damages. punitive

A remittitur is within the inherent of the court if an power award is excessive or to be a result of or grossly appears passion McNair, 299, v. McNair 316 Ark. 870 S.W.2d 756 prejudice. court will reverse a remittitur if the (1994). reviewing award is evidence and does not by punitive-damages supported shock the conscience of the court. Id.

To determine whether the award is excessive under state law, we must whether the verdict is so as to analyze jury’s great Sauer, Advocat, shock the conscience of the court. Inc. v. 353 Ark. excessiveness, 29, In the test for 111 S.W.3d 346 (2003). applying determination, and the award of

we make a case-by-case punitive reduced if the verdict shocks the conscience of the damages maybe that the were motivated or or demonstrates jurors court passion Brokers, Cox, Harold ReliableTruck Inc. McLaughlin prejudice. Ark. 922 S.W.2d 327 (1996). award excessive. I view the million as $25 punitive-damage reflect a non-fatal as The facts case injury appellant, this Advocat, the death with the facts in where contrasted supra, followed an extended period neglect. nursing-home patient Advocat, million $63 we held that a award of damage punitive conscience, $21 reduced the award to shocked the court’s we Advocat, Id. award million. Before highest punitive-damages Airco, was million. Inc. v. $3 that was affirmed this court See Bank, Nat. 638 S.W.2d 660 (1982). SimmonsFirst Here, $25 does not million award in evidence support First, I cannot find where the Arkansas High- punitive damages. or additional devices at suggested safety way Department required Second, 123. Patricia a senior claims Long, representative Crossing Pacific, that in her of Union Pacific for Union testified inspection records, evidence that there had been traffic track she found no any Third, accidents at 123. Union Pacific entered into a Crossing with to clear the four contract Contractors vegetation Tweedy accident, affirmative months taking prior specifically steps at demon- Crossing thereby remedy any vegetation problem reasons, I do not find sufficient a lack of malice. For these strating an excessive award of evidence to such damages, support punitive and I dissent. respectfully I would remit the excessive

Because punitive damages law, it is delve into an the basis of Arkansas prior unnecessary Gore, America, under BMW North Inc. v. 517 U.S. 559 analysis (1996). Dickey I am authorized to state Chief joins Justice this dissent.

Case Details

Case Name: Union Pacific Railroad v. Barber

Court Name: Supreme Court of Arkansas

Date Published: Feb 26, 2004

Citation: 149 S.W.3d 325

Docket Number: 03-57

Court Abbreviation: Ark.