Catherine Stouffer, Et Al. v. Union Pacific Railroad Co.

FILED
17-0845
11/15/2017 8:36 AM
tex-20722911
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK
No. 17-0845
IN THE SUPREME COURT

OF TEXAS
CATHERINE STOUFFER, ET AL.,

Petitioners,
v.
UNION PACIFIC RAILROAD CO.,

Respondent.
On Petition for Review from the

Eleventh Court of Appeals at Eastland, Texas
No. 11-15-00052-CV
PETITION FOR REVIEW
Jim Moseley Douglas W. Alexander

GRAY REED & MCGRAW, P.C. State Bar No. 00992350
1601 Elm Street, Suite 4600 dalexander@adjtlaw.com
Dallas, Texas 75201 Wallace B. Jefferson
Telephone: (214) 954-4135 J. Woodfin Jones
Facsimile: (214) 954-1332 Jennifer Josephson
ALEXANDER DUBOSE
JEFFERSON & TOWNSEND LLP
515 Congress Avenue, Suite 2350
Austin, Texas 78701-3562
Telephone: (512) 482-9300
Facsimile: (512) 482-9303
COUNSEL FOR PETITIONERS

IDENTITY OF PARTIES AND COUNSEL
PETITIONERS: Catherine Stouffer, Individually and on

behalf of the Estate of Gary Lee Stouffer,
Jr. and as Next Friend of Shannon
Stouffer and Shane Stouffer; Ada
Stouffer; Gary Stouffer, Sr.; Angela
Boivin, Individually and as Personal
Representative of the Estate of Lawrence
Boivin; Tiffanie Lubbers, Individually
and on behalf of the Estate of William L.
Lubbers, and as Next Friend of Sydnie
Lubbers; and Zachary Lubbers
Appellate Counsel for all Douglas W. Alexander

Petitioners: State Bar No. 00992350
dalexander@adjtlaw.com
Wallace B. Jefferson
State Bar No. 00000019
wjefferson@adjtlaw.com
J. Woodfin Jones
wjones@adjtlaw.com
Jennifer Josephson
jjosephson@adjtlaw.com
ALEXANDER DUBOSE
Telephone: (512) 482-9300
Facsimile: (512) 482-9303
2
Jim Moseley
jmoseley@grayreed.com
GRAY REED & MCGRAW, P.C.
1601 Elm Street, Suite 4600
Dallas, Texas 75201
Telephone: (214)954-4135
Facsimile: (214) 953-1332
Trial Counsel: Stephen F. Malouf

maloufs@smalouf.com
Jeremy Martin
jmartin@smalouf.com
Jonathan Nockels
jnockels@smalouf.com
Michael Tobolowsky
mtobolowsky@smalouf.com
MALOUF & NOCKELS LLP
3811 Turtle Creek Boulevard, Suite 800
Dallas, Texas 75219
Telephone: (214) 969-7373
Facsimile: (214) 969-7648
Peter G. Malouf
pmalouf@pmalouf.com
THE LAW OFFICE OF PETER G. MALOUF
P.O. Box 12745
Dallas, Texas 75225
Telephone: (972) 971-5509
Facsimile: (866) 272-8779
3
Zachary L. Boyd
zboyd@zacharyboydlaw.com
THE LAW OFFICE OF ZACHARY L. BOYD
113 West Avenue D, P.O. Box 870
Copperas Cove, Texas 76522
Telephone: (254) 547-2693
Facsimile: (254) 547-8700
Brian Carney
brian@carneylawfirm.net
1202 W. Texas
Midland, Texas 79701
Telephone: (432) 686-8300
Facsimile: (432) 686-1949
Counsel for Angela Boivin
Charla G. Aldous
caldous@aldouslawfirm.com
Brent R. Walker
bwalker@caldous.com
ALDOUS LAW FIRM
2311 Cedar Springs Road, Suite 200
Dallas, Texas 75201-6933
Telephone: (214) 526-5595
Facsimile: (214) 526-5525
Counsel for Stouffer Plaintiffs
4
Christian D. Searcy
Florida Bar No. 158298
(admitted pro hac vice)
CDS@searcylaw.com
Jack P. Hill
Florida Bar No. 0547808
JPH@SearcyLaw.com
SEARCY DENNEY SCAROLA
BARNHART & SHIPLEY, P.A.
2139 Palm Beach Lakes Boulevard
West Palm Beach, Florida 33409
Telephone: (561) 686-6300
Facsimile: (561) 383-9424
Broadus Spivey
bas@spivey-law.com
Dicky Grigg
dicky@Grigg-Law.com
SPIVEY & GRIGG, L.L.P.
48 East Avenue
Austin, Texas 78701
Telephone: (512) 474-6061
Facsimile: (512) 474-1605
Counsel for Tiffanie Lubbers,

Individually, on Behalf of the
Estate of William Lubbers, and as
Next Friend of Sydnie Lubbers;
and Zachary Lubbers
5
RESPONDENT: Union Pacific Railroad Company
Appellate Counsel: Kent Rutter

kent.rutter@haynesboone.com
HAYNES AND BOONE
1221 McKinney Street, Suite 2100
Houston, Texas 77010
Telephone: (713) 547-2211
Facsimile: (713) 236-5598
John W. Proctor
jproctorr@browndean.com
Sheryl Norman
snorman@browndean.com
BROWN, DEAN, WISEMAN, PROCTOR, HART
& HOWELL, L.L.P.
440 Louisiana Street, Suite 900
Telephone: (713) 275-2192
Facsimile: (713) 236-7721
William H. Bill Hoffman, Jr.

hoff2@sbcglobal.net
HOFFMAN LAW OFFICE
P.O. Box 875
Eastland, Texas 76448-0875
Telephone: (254) 629-2679
Facsimile: (254) 629-2052
6
Trial Counsel: John W. Proctor
jproctor@browndean.com
Sheryl S. Norman
snorman@browndean.com
BROWN, DEAN, WISEMAN,
PROCTOR, HART & HOWELL, L.L.P.
306 West 7th Street, Suite 200
Fort Worth, Texas 76102
Telephone: (817) 332-1391
Facsimile: (817) 970-2427
Earnest W. Wotring
ewotring@connellybaker.com
Karen Dow
kdow@connellybaker.com
CONNELLY BAKER WOTRING LLP
700 JPMorgan Chase Tower
600 Travis Street
Telephone: (713) 980-1700
Facsimile: (713) 980-6925
Sheryl A. Falk
SFalk@winston.com
WINSTON & STRAWN LLP
1111 Louisiana, 25th Floor
Telephone: (713) 651-2600
Facsimile: (713) 651-2700
7
David A. Fraser
Louisiana State Bar No. 5830
dfraser@fraser-law.com
FRASER, WHEELER & BERGSTEDT, L.L.P.
4350 Nelson Road
Lake Charles, Louisiana 70605-4120
Telephone: (337) 478-8595
Facsimile: (337) 474-4761
8
TABLE OF CONTENTS
Identity of Parties and Counsel ........................................................................................... 2
Index of Authorities ............................................................................................................... 11
Statement of the Case ............................................................................................................ 13
Statement of Jurisdiction .................................................................................................... 14
Issues Presented....................................................................................................................... 15
Reasons to Grant Review ..................................................................................................... 16
Statement of Facts................................................................................................................... 18
Summary of Argument ......................................................................................................... 21
Argument ..................................................................................................................................... 22
I. Plaintiffs cause of action is expressly not preempted.............................. 22
A. State-law causes of action based on a railroads failure to

comply with the federal standard of care established by a
railroad-safety regulation are not preempted. ................................. 22
B. There was abundant evidence that UP violated 49 C.F.R.

234.225, therefore Plaintiffs claims are not preempted. ........ 23
C. The court of appeals erroneously held that UP complied

with 49 C.F.R. 234.225 because the court misconstrued
that regulation. ................................................................................................ 24
1. The court of appeals judicially rewrote Section

234.225, which rendered a material portion
surplusage. ............................................................................................ 24
2. Section 234.225 establishes a floor, not a fixed

standard.................................................................................................. 25
3. The court of appeals construed Section 234.225 in

isolation and out of context. ......................................................... 26
9
D. The court of appeals analytical[ly] closest authority
misconstrues 49 C.F.R. 234.225. ......................................................... 28
II. The court of appeals incorrectly concluded that UP could

unilaterally change the designed warning time and that the
Master Agreement between UP and the State of Texas is void............ 29
A. No regulation gives preclusive effect to the design in the

signal box............................................................................................................ 30
B. The Master Agreement is not void......................................................... 31
1. The court of appeals erred by ignoring 23 C.F.R.

chapter 646, which requires a contract between the
State and the Railroad. .................................................................... 32
2. FRAs 1995 regulations enforce the designs included

in State-railroad contracts, including those
contracts already in existence at that time. .......................... 34
3. Ignoring State-mandated designs in favor of

unilateral railroad fiat is dangerous. ........................................ 34
C. The court of appeals ignored a federal regulation that bars

precisely the kind of unilateral railroad action the court
approved. ............................................................................................................ 36
Prayer ............................................................................................................................................ 37
Certificate of Service .............................................................................................................. 39
Certificate of Compliance .................................................................................................... 40
10
INDEX OF AUTHORITIES
Cases
Cadena Comercial USA Corp. v. Tex. Alcoholic Bev. Commn,

518 S.W.3d 318 (Tex. 2017) ............................................................................................ 26
Chevron Corp. v. Redmon,

745 S.W.2d 314 (Tex. 1987) ............................................................................................ 25
Crystal Semiconductor Corp. v. TriTech Microelec. Intl Inc.,

246 F.3d 1336 (Fed. Cir. 2001) ....................................................................................... 25
CSX Transp., Inc. v. Easterwood,

507 U.S. 658 (1993) ............................................................................................................. 22
Entergy Gulf States, Inc. v. Summers,

282 S.W.3d 433 (Tex. 2009) ............................................................................................ 24
Gafen v. Tim-Bar Corp.,

No. 01-7626-CIV, 2002 WL 34731033 (S.D. Fla. Oct. 25, 2002) .......................28
Kallinen v. City of Houston,

462 S.W.3d 25 (Tex. 2015) ............................................................................................... 25
Mills v. Warner-Lambert Co.,

581 F. Supp. 2d 772 (E.D. Tex. 2008) ........................................................................... 22
Rite-Hite Corp. v. Kelley Co.,

56 F.3d 1538 (Fed. Cir. 1995).......................................................................................... 26
TGS-NOPEC Geophysical Co. v. Combs,

340 S.W.3d 432 (Tex. 2011) ............................................................................................ 24
Statutes
35 U.S.C. 284 ............................................................................................................................... 25
49 U.S.C. 20106(b)(1)(A) ............................................................................... 17, 21, 22, 29
TEX. GOVT CODE 311.011 ........................................................................................................ 26
11
Regulations
23 C.F.R. 646.214(a)(1).......................................................................................................... 36
23 C.F.R 646.216(d)(1) .......................................................................................................... 32
49 C.F.R. 234.1(b) ..................................................................................................................... 36
49 C.F.R.234.201 ............................................................................................................... 21, 30
49 C.F.R. 234.225 ............................................................................................... 21, 23, 24, 26
49 C.F.R. 234.259 ...................................................................................................................... 27
12
STATEMENT OF THE CASE
Nature of the Plaintiffs sued Union Pacific for wrongful death and
Case: personal injuries after UPs train crashed into a parade
float carrying wounded war heroes and their spouses.
The collision killed four and wounded many others. The
lawsuit alleged that UP violated safety regulations, that
the trains crew was negligent in causing the deaths and
injuries, and that a contract between the railroad and the
State of Texas confirmed the relevance of Texas law and
the jurisdiction of Texas courts.
Trial Court: Hon. James M. Rush, 441st District Court, Midland

County, Texas
Trial Courts The trial court concluded that federal law preempts all
Disposition: of Plaintiffs claims and granted a take-nothing
summary judgment. (App.1, 2)
Court of Eleventh Court of Appeals, Eastland, Texas. Opinion by

Appeals: Chief Justice Wright, Justices Bailey and Wilson.
Stouffer v. Union Pac. Ry. Co., ___ S.W.3d ___, No. 11-
15-00052-CV, 2017 WL 3923514 (Tex. App.Eastland
Aug. 31, 2017, pet. filed). (App.4)
Court of Affirmed
Appeals
Disposition
13
STATEMENT OF JURISDICTION
This appeal presents questions that are important to the jurisprudence
of the statequestions that a Texas court is fully competent to answer.
Without those answers, the safety of highway-railroad crossings in Texas is
significantly compromised. The Court should
(i) enforce a federal railroad-safety regulation that gives drivers the
warning drivers need, and which would have prevented the
catastrophe here;
(ii) enforce the Master Agreement that the State of Texas and UPs
predecessor signed, which prevents a railroad from setting its own
warning time to the detriment of the traveling public; and
(iii) enforce the statutory amendment Congress enacted in 2007, which
expressly rejects any congressional attempt to preempt state law in this
case.
14
ISSUES PRESENTED
1. The warning system here was designed to give a driver 30 full
seconds of warning time at the state highway-railroad crossing before a train
arrived. But the confluence of Union Pacific setting the timer to provide 25
seconds of warning and a defect in the warning systems circuitry caused the
system to provide only 20.4 seconds of warning. In holding Plaintiffs claims
preempted, did the court of appeals misconstrue federal railroad-safety
regulation 49 C.F.R. 234.225 by holding that even though the system was
designed to provide 30 seconds of warning time, the railroad was entitled to
maintain the system to provide 20 seconds of warning time?
2. The Federal Railroad Administration passed new safety
regulations in 1995, none of which repealed the warning-time provisions in
contracts between the State of Texas and railroads for the improvement of
grade crossings. Did the court of appeals err in concluding that the 1995
regulations negated those warning times?
3. Unbriefed Issue: Did the court of appeals err in holding that
Plaintiffs action for train-crew negligence is preempted by federal law?
4. Unbriefed Issue: Did the trial court err in granting summary
judgment against Plaintiffs on their claim for exemplary damages, an issue
that the court of appeals did not reach?
15
REASONS TO GRANT REVIEW
A train struck a parade float carrying wounded veterans of this nations
military conflicts. The floats operator was entitled to, but did not receive, a
30-second warning of the trains arrival. The railroad promised Texas it
would provide that 30-second warning. But the railroad decided it could
ignore its promise and unilaterally reduce that warning span. That decision,
unsupported by any law, state or federal, caused death and injury. A federal
statute says the families Texas claims are not preempted. And yet the
families have been barred from a Texas court.
The questions here are not difficult. Did UP have the right to undercut
its obligation to provide a 30-second warning? And are the veterans families
claims preempted? Each answer is no. The court of appeals answered them
incorrectly.
Under a Master Agreement between UP and Texas, the warning system
was designed to provide 30 seconds warning. App.8. UP was prohibited
from changing that warning time without approval. App.7 7. A federal
regulation, 49 C.F.R. 234.225, required UP to maintain the system as
designed. In violation of both the Master Agreement and the regulation, UP
unilaterally reduced the warning time to 25 seconds.
16
That breach, coupled with UPs failure to correct a circuitry defect it
knew about, caused the system to provide 20.4 seconds of warning rather
than 30. Ten seconds is the dividing line between life and death in this case.
If the warning system had activated 30 seconds before the trains arrival, the
gate arm would have come down in front of the float, the driver would have
stopped, and the collision would not have occurred. CR5:169, 174-75, 509.
Congress made exceptionally clear that an action under State law
seeking damages for personal injury [or]death alleging that a party has failed
to comply with the Federal standard of care established by a regulation
with respect to railroad safety matters is not preempted. 49 U.S.C.
20106(b)(1)(A). Plaintiffs brought precisely such a state-law cause of action
against UP here.
Texas has far more crossing collisions than any other state in the
country. https://oli.org/about-us/news/statistics/collisions-by-state (last
visited 11/15/2017). If, as the court of appeals concluded, railroads are free
to set their own warning times, Texas will retain that ignominious ranking.
This Court should grant review.
17
STATEMENT OF FACTS
Exactly five years ago, on November 15, 2012, an eastbound Union
Pacific train traveling 62 miles per hour demolished a parade float crossing
the tracks in Midland. CR3:683; 10:248. That float carried wounded war
heroes and their spouses. 10:248. The collision occurred at the South
Garfield Street crossing. App.4 *1. The Plaintiffs, petitioners here, are
survivors of three of the four veterans killed. CR10:249-50, 314, 391.
Years before, a Diagnostic Team, including UP, the State of Texas, and
the City of Midland, determined that this crossing required that drivers have
at least 30 seconds between the time lights at the crossing start flashing and
the train arrives. App.5; CR9:327. Engineers for UP and Texas reinforced the
30-second warning in the final signal plans. App.6. The Master Agreement
between UP and Texas provided: No changes are to be made in the design,
operation or location of the warning systems without the written approval of
the STATE or MUNICIPALITY of jurisdiction. App.7 7.
UP repeatedly tested the warning system at Garfield Crossing as
required by federal regulation 49 C.F.R. 234.259. It always achieved
warning times that met or exceeded the designed-for 30 seconds. App.9. UP
achieved 30 seconds by setting the timer at 35 seconds. App.10; CR6:481.
But the 35-second threshold concealed a defect in the warning systems
18
circuitry, which produced shorter warning times for eastbound trains than
the systems program envisioned. See App.9 at 5.
Though a contractor told UP, ten months before the collision, that this
defect was a CRITICAL ISSUE, CR3:843-44; 11:197, 347-48, UP did not
correct the problem. In fact, eight months before the collision, UP reduced
the timer to 25 seconds. App.11; CR1:304, 3:287. It was not until after the
carnage that UP finally answered the contractors SOS. CR11:216-17.
The confluence of UP reprogramming the warning system to provide
only 25 seconds of warning time, coupled with its failure to correct the
circuitry defect, was catastrophic. Instead of giving a driver at least 30
seconds warning on the day of the collision, as it had for years, the system
provided 20.4 seconds. CR1:303.
There is no question that UPs conduct proximately caused the deaths
and injuries. If the warning system had activated in accordance with its
design, the gate arm would have come down in front of the truck pulling the
parade float rather than behind it; the driver would have stopped before
crossing the tracks; and the collision would not have occurred. CR5:169, 174-
75, 509. Two expert animations Plaintiffs submitted as part of their
summary-judgment evidence illustrate this. Animations 1, 2. UPs motion for
summary judgment on causationarguing that its reducing the timer to 25
19
seconds did not cause the collisionwas denied by the trial court and that
denial was undisturbed by the appellate court. App.3 7.
The NTSBs Railroad Signal & Train Control Group issued a Factual
Report about the collision. App.12. One of the Groups members was UP. Id.
at 2. The report falsely stated that in 1991, the Texas Department of
Transportation approved a change to 25 seconds of warning time at Garfield
Crossing. Id. at 6. TxDOT and UP have since confirmed there is no evidence
that TxDOT ever approved such a change. CR9:213, 216, 239; CR14:129.
The State-approved warning time was 30 seconds. The court of appeals
held this didnt matter because (i) the 25 seconds UP unilaterally set without
the States approval exceeded the minimum warning time of 20 seconds
required by [49 C.F.R.] Section 234.225, App.4 *6, and (ii) the approval
required by the Master Agreement was superseded when Section 234.225
was adopted 15 years later, id. *5-6. This petition challenges these two
foundations of the court of appeals preemption holding, a holding which
fails if either of these foundations falls.
20
SUMMARY OF ARGUMENT
Depending on a crossings specific characteristics, a crossing warning
system might be designed to activate 30 seconds[,] 35 seconds or more
before a train being operated at the maximum authorized speed arrives at
the crossing. App.13. The crossing here was designed for 30 seconds. App.5.
UP had a federal duty to maintain the system to activate in accordance with
that 30-second design. 49 C.F.R. 234.225. And, under its Master Agreement
with Texas, UP could not change that 30-second designed time without
written approval. App.7 7.
UP breached that 30-second obligation under 49 C.F.R. 234.225.
Eight months before the collision, UP reduced the timer to a mere 25 seconds
of warning. UPs claimed excuse was that plans in the signal box purportedly
specified a warning time of 25 seconds. That is a disputed fact issue, but
regardless of what the plans showed, UP never solicited or obtained approval
for a change to 25 seconds, thus UP failed to keep the correct plans at the
crossing. 49 C.F.R.234.201. Congress has clarified that Plaintiffs cause of
action for UPs breach is not preempted. 49 U.S.C. 20106(b)(1)(A). The
court of appeals erroneously held to the contrary because it misconstrued 49
C.F.R. 234.225, and concluded that UP could set its own warning time
without approval because the Master Agreement is no longer in effect.
21
ARGUMENT
I. Plaintiffs cause of action is expressly not preempted.
A. State-law causes of action based on a railroads failure

to comply with the federal standard of care established
by a railroad-safety regulation are not preempted.
In 2007, Congress confirmed that federal law does not preempt a cause
of action for a railroads failure to comply with a federal safety regulation:
(b) Clarification regarding State law causes of action.

(1) Nothing in this section shall be construed to preempt an
action under State law seeking damages for personal injury,
death, or property damage alleging that a party
(A) has failed to comply with the Federal standard of care

established by a regulation or order issued by the
Secretary of Transportation (with respect to railroad
safety matters) .
49 U.S.C. 20106(b)(1)(A). This amendment changed the common law,
which had previously held such claims barred under field-preemption
principles. See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 671 (1993);
see also Mills v. Warner-Lambert Co., 581 F. Supp. 2d 772, 780 (E.D. Tex.
2008) (referring to Easterwood as superseded by statute). Following this
amendment, state-law causes of action based on a railroads violation of a
federal railroad-safety regulation are expressly not preempted.
22
B. There was abundant evidence that UP violated 49 C.F.R.
234.225, therefore Plaintiffs claims are not
preempted.
Plaintiffs claims against UP are for personal injury and wrongful
death. These state-law tort claims allege that UP violated, among other
federal railroad-safety regulations, a duty of care to maintain its warning
system as designed under 49 C.F.R. 234.225. Because Plaintiffs causes of
action fit like a glove the plain language of 49 U.S.C. 20106(b)(1)(A),
Plaintiffs claims are not preempted.
49 C.F.R. 234.225 provides:
A highway-rail grade crossing warning system shall be

maintained to activate in accordance with the design of the
warning system, but in no event shall it provide less than 20
seconds warning time for the normal operation of through trains
before the grade crossing is occupied by rail traffic.
The court of appeals held Plaintiffs claims preempted because it erroneously
concluded the warning system at the Garfield Street crossing performed in
accordance with the federal standard of care for warning time systems.
App.4 *6. But UPs conduct cannot be reconciled with its maintenance duty
under this federal regulation. By reducing the warning time to 25 seconds,
UP disabled the warning system from activat[ing] in accordance with the
design of the warning system. 49 C.F.R. 234.225. UP thereby violated its
23
Section 234.225 duty to maintain the warning system to activate in
accordance with its design.
C. The court of appeals erroneously held that UP complied

with 49 C.F.R. 234.225 because the court
misconstrued that regulation.
The court of appeals concluded that the warning system complied with
Section 234.225 by misconstruing that regulation in three independent ways.
1. The court of appeals judicially rewrote Section

234.225, which rendered a material portion
surplusage.
The court of appeals held that, as written, Section 234.225 only
requires 20 seconds of warning time. App.4 *3. But that is not what the
regulation says. By misconstruing it that way, the court of appeals judicially
rewrote the regulation to say:
A highway-rail grade crossing warning system shall be

maintained to activate in accordance with the design of the
warning system, but in no event shall it provide less than 20
seconds warning time for the normal operation of through trains
before the grade crossing is occupied by rail traffic.
49 C.F.R. 234.225 (as modified by court of appeals).
This Court interprets regulations like statutes. TGS-NOPEC
Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011). Courts should
always refrain from rewriting text that lawmakers chose. Entergy Gulf
States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009). A court may not
judicially amend a regulation by deleting words because it is a duty of
24
statutory interpretation to give effect to all the words of a statute and not
treat any statutory language as surplusage if possible. Kallinen v. City of
Houston, 462 S.W.3d 25, 28 (Tex. 2015) (quoting Chevron Corp. v. Redmon,
745 S.W.2d 314, 316 (Tex. 1987)).
When the court of appeals held that Section 234.225 only requires 20
seconds of warning time, App.4 *3, it rendered surplusage UPs obligation
to maintain the warning system to activate in accordance with its 30-second
design.
2. Section 234.225 establishes a floor, not a fixed

standard.
Several statutes use in no event less than language in a way that is
analogous to Section 234.225. That language is uniformly interpreted as
establishing a floor that performance must equal or exceednot a fixed
performance standard.
For example, U.S. patent laws provide that damages for patent
infringement must be adequate to compensate for the infringement, but in
no event less than a reasonable royalty. 35 U.S.C. 284. Many federal courts
have held this language establishes a reasonable royalty as the minimum
measure of damages. E.g., Crystal Semiconductor Corp. v. TriTech
Microelec. Intl Inc., 246 F.3d 1336, 1353 (Fed. Cir. 2001). As one decision
explained:
25
[T]he purpose of this alternative is not to direct the form of
compensation, but to set a floor below which damage awards may
not fall. Thus, the language of the statute is expansive rather than
limiting. It affirmatively states that damages must be adequate,
while providing only a lower limit and no other limitation.
Rite-Hite Corp. v. Kelley Co., 56 F.3d 1538, 1544 (Fed. Cir. 1995) (citation
omitted).
Section 234.225s language is likewise expansive rather than limiting
and establishes a lower limit and no other limitation. Id. In practical terms,
at crossings without designed warning times, the railroad is required to
maintain the warning system to provide no less than 20 seconds warning.
But at crossings where, as here, the State and railroad designed a warning
time that exceeds 20 seconds, the warning system shall be maintained to
activate in accordance with the design of the warning system. 49 C.F.R.
234.225.
3. The court of appeals construed Section 234.225 in

isolation and out of context.
Words and phrases shall be read in context and construed according
to the rules of grammar and common usage. Cadena Comercial USA Corp.
v. Tex. Alcoholic Bev. Commn, 518 S.W.3d 318, 325 (Tex. 2017) (quoting
TEX. GOVT CODE 311.011). Thus, the words and phrases [in 49 C.F.R.
234.225] are not to be considered in isolation, but in the context of the
[regulation] as a whole. Id. at 326.
26
The court of appeals disregarded Section 234.225s context when it
ignored a companion regulation that provides:
Each crossing warning system shall be tested for the prescribed

warning time at least once every 12 months and when the
warning system is modified because of a change in train speeds.
49 C.F.R. 234.259.
Pursuant to Section 234.259, UP tested the warning system at Garfield
Crossing every 12 months. See App.9. The Predetermined Warning Time
(Seconds) UP was aiming for in each of those tests was 30. Id. And the
Actual Warning Time (Seconds) UP achieved in each test met or exceeded
30:
12/28/2007: Predetermined Warning Time (Seconds): 30

Actual Warning Time (Seconds): 32 Id. at 1



12/13/2011: Eastbound
Predetermined Warning Time (Seconds): 30
Westbound
Predetermined Warning Time (Seconds): 30
Actual Warning Time (Seconds): 36 Id.
27
The only conceivable reason that a railroad would be required to
annually test warning times at each crossing is to ensure that the railroad is
complying with its duty to maintain the warning system to achieve its
prescribed warning timein this case, 30 seconds.
D. The court of appeals analytical[ly] closest

authority misconstrues 49 C.F.R. 234.225.
The court of appeals concluded: From an analytical perspective, the
case that comes closest to the contentions in this appeal is Gafen v. Tim-Bar
Corp., No. 01-7626-CIV, 2002 WL 34731033 (S.D. Fla. Oct. 25, 2002).
App.4 *6. In Gafen, it was unclear whether the warning system at [the
crossing] provided as much warning time as it was designed to provide.
2002 WL 34731033 at *4.
But the Gafen court considered that fact issue irrelevant because it had
concluded that 49 C.F.R 234.225 ... substantially subsume[d] the issue of
grade crossing safety including specifically the appropriate amount of
warning time that must be provided at a grade crossing. Id. It [was]
uncontroverted, however, that the system provided at least 26.7 seconds of
warning ... [and] therefore, provided Gafen the 20 seconds of warning
required by law. Id.
The trial court in Gafen misinterpreted Section 234.225 the same way
the court of appeals did here: without analyzing the regulations language, it
28
assumed the duty of care established was the 20-second minimum rather
than the duty to maintain a warning system to activate as designed, so long
as the design exceeds the 20-second floor. And while it was not an error to
apply field-preemption principles in 2002, that is error in this case, which is
governed by the 2007 Preemption Clarification Amendment. 49 U.S.C.
20106(b)(1)(A).
If Gafen is indeed the analytically closest authority, that only
underscores the imperative for this Court to grant review.
II. The court of appeals incorrectly concluded that UP could

unilaterally change the designed warning time and that the
Master Agreement between UP and the State of Texas is void.
To reach its result despite UPs acknowledgement that the original
design plans call for 30 seconds of active warning time, App.4 *5, the court
of appeals had to reach a disturbing conclusion: that UP was free to set the
design time itself, id. *6 (noting Union Pacific set the designed warning
time ... at 25 seconds). It reached this result by misconstruing a regulation
about where design plans must be kept, by incorrectly holding the Master
Agreement has been voided, and by ignoring a federal regulation barring UP
from unilaterally reducing safety precautions. The court of appeals erred in
holding UP complied with its duty of care by achieving a warning time within
29
the permissible performance range of its own, impermissibly shortened
warning time.
A. No regulation gives preclusive effect to the design in the

signal box.
The court of appeals erred by considering the plans allegedly in the
signal box at all, because that late-filed, disputed document is not proper
summary-judgment evidence. See Appellants Reply Br., Arg. II. More
importantly, even if a document reflecting a 25-second warning time was in
the signal box, that merely begs the legal question: Did UP have the right to
unilaterally change the designed warning time from 30 seconds to 25
seconds such that the change could be given any effect? The answer is
unequivocally no.
The court of appeals conclusion that the design on the plans in the
signal box must be given conclusive effect, App.4 *5, is wrong. The regulation
says:
Plans required for proper maintenance and testing shall be kept

at each highway-rail grade crossing warning system location.
Plans shall be legible and correct.
49 C.F.R.234.201 (emphasis added).
Nothing in that provision gives a railroad authority to override the
federal and state approved warning-system design and create its own design
with lesser protections. It does not say the plan in the signal box shall be
30
deemed correct. Instead, it imposes on UP the duty to ensure that correct
plans are stored in that location. As explained below, the only correct plans
were those made part of UPs Master Agreement with the State of Texas.
Thus, UP violated this regulation if, as it asserts, it removed the plans
required by its contract with the State of Texas and replaced them with a
new, unapproved design. The regulation does not immunize UPs failure to
maintain a designed warning time of 30 seconds.
B. The Master Agreement is not void.
The court of appeals gave UP this unwarranted power to unilaterally
decide how safe to make its own crossings by erroneously concluding that
UPs Master Agreement with the State of Texas has been void since 1995.
App.4 *6. It accepted UPs assertion that the adoption of Section 234.225
vitiated railroads obligations to Texas because it was adopted after the
Master Agreement was signed as part of the FRAs new regulatory field
requiring railroads to test and maintain the warning systems at highway-rail
grade crossings. Id.
But there is no conflict between the federal maintenance-and-testing
regulations and the Master Agreement: both imposed on UP the duty to
ensure that the warning system performed as designed. The Master
Agreement incorporates the design in its Exhibit B, and requires UP to
31
obtain signed consent for any change. App.7 7. Nothing in the regulations
abrogates either the design or the consent requirement.
1. The court of appeals erred by ignoring 23 C.F.R.

chapter 646, which requires a contract between
the State and the Railroad.1
Two sub-agencies of the Department of Transportation are involved in
railroad-safety regulation. The first is the FRA, which issued the safety
regulations in 49 C.F.R chapter 234. The second is the Federal Highway
Administration (FHWA), which issues regulations for federal funding of
safety improvements at railroad crossings, such as 23 C.F.R chapter 646.
Since 1975, FHWA regulations have required, as a condition for
receiving federal funding to improve a railroad crossing, that there shall be
an agreement in writing between the State highway agency and the railroad
company. 23 C.F.R 646.216(d)(1). The State-railroad agreement shall, as
a minimum include (inter alia) a provision regarding [m]aintenance
responsibility and an [a]ppropriate reference to or identification of plans
and specifications. Id. 646.216(d)(2)(viii), (x).
1Plaintiffs fully briefed these issues to the court of appeals. See Br. of Appellant, Arg. III;
Reply Brief of Appellant at 20; Appellants Post-Submission Br., Arg. I-III, Post-
Submission Reply Br. at 7-8. But these federal regulations are not mentioned in that
courts opinion.
32
These requirements for the State-railroad contract were in place before
the Master Agreement went into effect, they remained the same before and
after chapter 234 Part D went into effect in 1995, and they remain in effect
today. They governed exactly five years ago, when UPs train killed and
maimed veterans and their spouses.
The 1979 Master Agreement honored this federal scheme. It requires
UP to maintain and operate the warning system at Garfield Crossing by
reference to the plans in the contract:
7. MAINTENTANCE. The RAILROAD shall maintain and

operate these highway-railroad grade crossing warning systems
as installed and in accordance with the design of operation as
shown in the EXHIBIT B [plans]. No changes are to be made in
the design, operation or location of the warning systems without
the written approval of the STATE or MUNICIPALITY of
jurisdiction.
App.7 7.
This MAINTENANCE requirement was UPs federally mandated
contractual obligation to Texas. Under it, UP was obligated to maintain the
30-second designed time. App.8. It is undisputed that UP did not obtain
written approval to redesign the warning time at Garfield Crossing. Thus,
when UP unilaterally reduced the warning time to 25 seconds, CR1:304,
3:287, it violated federal regulations and breached its State contract.
33
2. FRAs 1995 regulations enforce the designs
included in State-railroad contracts, including
those contracts already in existence at that time.
49 C.F.R 234.225 gives teeth to pre-1995 warning-system designs.
The requirement that a highway-rail grade crossing warning system shall be
maintained to activate in accordance with the design of the warning system
imposes a federal standard of care on railroads, based on the design that
must be part of the federally mandated contract. The language of the
regulation is in no way limited to warning-system designs that came into
effect under Master Agreements executed after 1995.
3. Ignoring State-mandated designs in favor of

unilateral railroad fiat is dangerous.
The court of appeals holding would enable each railroad in Texas to
ignore the State-mandated warning-system design at every railroad crossing
in Texasindeed, everywhere in the countryif that design came into
existence before 1995. See App.4 *6 (concluding the chapter 234, Part D
regulations apply to railroads to the exclusion of state or municipal
requirements). This vitiates the important work of TxDOTs engineers who
work with Diagnostic Teams to create warning-system designs that are
appropriate for the specific characteristics of each crossing. It gives
exclusive authority to the fox for guarding the hen house. It is equivalent to
34
allowing trucking companies to set their own speed limits for eighteen-
wheelers, even on highways that run through cities with cross streets.
The difference between the State-approved design for this crossing and
the plan supposedly in the signal box illustrates the dangers of ceding sole
responsibility for highway-railroad grade crossing safety to the railroad:
State-approved design: 30 seconds active warning time

+ 5 seconds for equipment lag time + 10 seconds for signal
preemption based on a train speed of 25 miles per hour,
App.8.
v.
UPs new, unapproved design: 25 seconds active

warning time + 5 seconds buffer + 10 seconds for signal
preemption based on a train speed of 79 miles per hour,
CR16:748.
UP reduced the active warning time while increasing train speed by more
than 50 miles per hour, notwithstanding that TxDOT recognizes train speed
as a factor for requiring additional warning time. CR9:190.
In sum, the court of appeals held that decades worth of written
contracts between Texas and railroads should be thrown out. In their place
only the minimal, floor-level warning time established by federal regulation
may be consideredregardless of whether characteristics of specific
crossings require longer warning times to ensure vehicle safety. That is
dangerous for the citizens of Texas and at odds with the comprehensive
35
federal scheme for railroad safety. As this case demonstrates, the
consequences can be devastating. Because the decision below is wrong, there
is still time to remedy the error and to protect future travelers who are
entitled to rely on contracts Texas and railroads enter for their safety.
C. The court of appeals ignored a federal regulation that

bars precisely the kind of unilateral railroad action the
court approved.
While the court of appeals is correct that the FRAs 1995 regulations
were intended to improve railroad-crossing safety by imposing new
maintenance and testing requirements, App.4 *6, those regulations did not
give railroads the right to unilaterally decrease warning timeswhether by
placing unapproved, non-compliant plans into signal cabinets or otherwise.
By federal regulation, railroads may adopt more stringent safety
requirements without approval. 49 C.F.R. 234.1(b). But they may not
decrease warning times without approval by both the State and federal
governments:
Facilities that are the responsibility of the railroad for

maintenance and operation shall conform to the specifications
and design standards used by the railroad in its normal practice,
subject to approval by the State highway agency and FHWA.
23 C.F.R. 646.214(a)(1) (emphasis added). The court of appeals ignored the
duties imposed by this federal regulation.
36
Because UP did not obtain the requisite approval to reduce the warning
time at Garfield Crossing, it was bound to maintain the warning time in
accordance with the design approved by the State of Texas and incorporated
into its federally mandated contract. The court of appeals erred in
interpreting the applicable regulations otherwise.
PRAYER
The Plaintiffs claims are not preempted. The railroad breached its
federal duty to maintain the warning system to provide 30 seconds warning.
The war heroes families are entitled to ask a jury for compensation. This
Court should grant review, reverse the judgment of the court of appeals, and
remand this case to the trial court.
37
Respectfully submitted,
/s/ Douglas W. Alexander

Douglas W. Alexander
dalexander@adjtlaw.com
Wallace B. Jefferson
wjefferson@adjtlaw.com
J. Woodfin Jones
wjones@adjtlaw.com
Jennifer Josephson
jjosephson@adjtlaw.com
ALEXANDER DUBOSE
Telephone: (512) 482-9300
Facsimile: (512) 482-9303
Jim Moseley
jmoseley@grayreed.com
GRAY REED & MCGRAW, P.C.
1601 Elm Street, Suite 4600
Dallas, Texas 75201
Telephone: (214) 954-4135
Facsimile: (469) 320-6820
COUNSEL FOR PETITIONERS
38
CERTIFICATE OF SERVICE
I hereby certify that on November 15, 2017, a true and correct copy of
this Petition for Review, including any and all attachments, is served via
electronic service through eFile.TXCourts.gov on Respondent through
counsel of record, listed below:
Kent Rutter William H. Bill Hoffmann, Jr.

State Bar No. 00797364 State Bar No. 09791500
kent.rutter@haynesboone.com hoff2@sbcglobal.net
Haynes and Boone HOFFMANN LAW OFFICE
1221 McKinney Street, Suite 2100 P.O. Box 875
Houston, Texas 77010 Eastland, Texas 76448
Telephone: (713) 547-2000 Telephone: (254) 629-2679
Facsimile: (713) 547-2600
John W. Proctor
jproctor@browndean.com
BROWN DEAN
306 W. Seventh Street, Suite 200
Fort Worth, Texas 76102
Telephone: (817) 332-1391
Facsimile: (817) 870-2427

39
CERTIFICATE OF COMPLIANCE
Based on a word count run in Microsoft Word 2016, this brief contains
4,495 words, excluding the portions of the brief exempt from the word count
under Texas Rule of Appellate Procedure 9.4(i)(1).

40
INDEX OF APPENDICES
1. Order of Severance and Final Judgment
2. Order Granting Partial Summary Judgment on Warning-Time Claims
3. Order Denying Partial Summary Judgment on Causation
4. Court of Appeals Opinion and Judgment
5. Crossing Evaluation Report
6. Final Signal Plans for Garfield Crossing
7. Master Agreement
8. Exhibit B to Master Agreement
9. Union Pacific Annual Warning-Time Tests
10. Garfield Crossing Timer Set at 35 Seconds
11. Garfield Crossing Timer Set at 25 Seconds
12. NTSB Factual Report
13. FRA Technical Bulletin
14. 49 C.F.R. 234.225
1
APPENDIX 1
8939
8940
8941
APPENDIX 2
CAUSE NO. CV50285
CATHERINE STOUFFER, INDIVIDUALLY

AND ON BEHALF OF THE ESTATE OF
GARY LEE STOUFFER, JR., AND AS
NEXT FRIEND OF SHANNON STOUFFER
AND SHANE STOUFFER; ADA
STOUFFER; AND GARY STOUFFER, SR.
Plaintiffs,

AND

ANGELA BOIVIN, INDIVIDUALLY, AND
AS PERSONAL REPRESENTATIVE OF
THE ESTATE OF LA\AJRENCE BO!V!N,
Intervenor,

AND

LEONCE AND LUCETTE BOIVIN,
Intervenors

AND

RICHARD SANCHEZ, HEATHER SANCHEZ,
TODD KING AND LACY KING, AARON KIRBY,
LAURA KIRBY, THOMAS PLEYO, KELLI
PLEYO, SHANE LADNER, MARGARET (MEG)
LADNER, MARY DAYLYN MICHAEL,
INDIVIDUALLY AND AS INDEPENDENT
EXECUTRIX OF THE ESTATE OF JOSHUA
C. MICHAEL, DECEASED, AND AS NEXT
FRIEND OF RYAN P. MICHAEL AND MAGI
D. MICHAEL, MINORS, TRAVIS REICHERT,
ELISE REICHERT, MICHAEL R. LUBBERS,
KAREN S. LUBBERS, PATRICK L MICHAEL,
AND SHERYLE D. MICHEL,
Intervenors,

vs. MIDLAND COUNTY, TEXAS

UNION PACIFIC RAILROAD COMPANY AND
SMITH INDUSTRIES, INC.,
Defendants 441 8r JUDICIAL DISTRICT
ORDER ON MOTIONS TO CLARIFY AND RECONSIDER COURT'S RULINGS ON

MOTIONS FOR PART!AI ~~1M MARY JUDGMENT
On December 16,2014, the Court heard further argument on pending motions. The
Court has heard extensive arguments from counsel and makes the following rulings:
1. The Court GRANTS the Motions to Reconsider and Clarify to the extent that
the Court's prior rulings are revisited herein.
7947
2. The Court GRANTS Union Pacific's motion for partial summary judgment on
train speed as to the fo!lovving claims:
a. The Union Pacific train should have approached the Garfield crossing
at a speed other than the speed in which it was iraveiing.
b. Union Pacific violated the maximum timetable speed for the train
involved in the accident.
c. Union Pacific violated the maximum class of track speed for the train
involved in the accident.
d. Union Pacific violated the City of iviidiand train speed ordinance of 25

MPH for the train involved in the accident.
e. Claims that a slow order should have been placed on the Garfield
crossing prior to November 15, 2012.
3. However, the Court further finds that a specific, individual hazard existed at
the Garfield crossing on the date and time of the accident. Whether the truck
and float's approach was an "unwavering approach" and wr1ether the train
crew exercised ordinary care are fact issues. Thus, summary judgment is
DENIED on this issue.
4. With regard to the warning time motions, this Court FINDS that a main
purpose of the provisions of federal la,.~v cited by the parties is to create
uniformity in the regulation of railroad crossings, and uniformity in the
requirements for the warning systems located at said crossings. The Court
further FINDS that the ''warning time" ciaims asserted by Claimants pertain
to the "warning system" identified in 49 CFR 234. Each of the alleged
failures, acts and omissions pertaining to the design, installation, operation,
maintenance and repair pertain to the same "warning system." As defined in
49 CFR 234.5, an activation failure means the failure of the warning system
to indicate the approach of a train at least 20 seconds prior to the train's
arrival at the crossing. This Court FINDS that 49 CFR 234.5 and 234.225
define the 20 second standard of care for the warning system in this case.
Utilizinq the definition and standards set forth in 29 CFR 234.5 and 234.225,
and acknowledging the agreement of all parties that the train in question
provided at least 20 seconds notice prior to the train's arrival at the crossing,
this Court FINDS that no activation failure of the system occurred at the date
and time of the accident in question. In the absence of an activation failure
at the date and time of the accident, the post accident identification of
alleged failures or discrepancies in the warning systern which may have
7948
occurred days or months or years prior to an accident does not automatically
give rise to a cause of action. This Court FINDS that since there vvas no
activation failure, that no cause of action exists in this case pertaining to the
warning system.
5. Because there was no activation failure at the Garfield crossing at the date
and time of the accident and because federal law preempts Claimants'
claims that the warning time provided by the warning system was
inadequate, this Court GRANTS summary judgment on all claims pertaining
to the warning system, including but not limited to claims of inadequate
design, operation, maintenance, and inspection, as each is premised on the
alleged inadequacy of the warning time and the warning system.
6. Claimants' Motion for Permission to Appeal the Interlocutory Order of

December 1, 2014, is DENIED.
7. Claimants' motion to extend the mediation deadline until January 6, 2015, is

GRANTED.
8. All other requested relief is hereby DENIED.
SIGNED on the 291h day of December, 2014. 11

/J II
.~(f)11~/\
Tfr;{P /
-LI - . -
I' { ~
Jw PRESIDI~"G
(/
7949
APPENDIX 3
CAUSE NO. CV50285
CATHERINE STOUFFER, Individually and on

behalf of the ESTATE OF GARY LEE STOUFFER,
JR. and as Next Friend of SHANNON STOUFFER ''
and SHANE STOUFFER; ADA STOUFFER; and )['!;, tq:J\~~
GARY STOUFFER, SR., t) nr~r:>J~..J;?J.ll Y
'-'"' '!...<:>3.)3~'\'lle;t(l.):s;:
Plaintijft,

AND

ANGELA BOIVIN, Individually, and as Personal
Representative of the Estate of LAWRENCE BOIVIN,
intervenor,
AND

LEONCE AND LUCETTE BOIVTI.J,
Intervenors,

A.ND

TIFFANIE LUBBERS, Individually and on behalf
of the ESTATE OF WILLIAM L. LUBBERS and
as Next Friend of SYDNIE LUBBERS and
ZACHARY LUBBERS,
Intervenors, ~
IN THE DISTRICT COURT OF
AND MIDLAND COUNTY, TEXAS
441ST illDICIAL DISTRICT
RICHARD SANCHEZ and HEATHER SANCHEZ,
Individually and as Next Friends of CALEB
SANCHEZ, ALEX SANCHEZ and AVA SANCHEZ,
Minors; TODD KING and LACI KING; AARON
KIBBY; LAURA KIBBY; THOMAS PLEYO and
KELLI PLEYO, Individually and as Next Friends of
ADDISON DAILEIGH JONES, JADEELISE J01'-.1;S
and CHRISTOPHER ANDREW PLEYO, Minors;
SHANE LADNER; MARGARET (MEG) LADNER;
M.t\.RY DAYLYN MICHAEL, Individually a.11d as
Independent Executrix of the ESTATE OF
JOSHUA C. MICHAEL, DECEASED, and as
Next Friend of RYAN P. MICHAEL and MAC! D.
MICHAEL, Minors; TRAVIS REICHERT; ELSIE
REICHERT; MICHAEL R. LUBBERS; KAREN S.
LUBBERS; PATRICK L. MICHAEL; and
SHERYL D. MICHAEL,
Intervenors,

vs.

UNION PACIFIC RAILROAD, INC. and
Sr.v1:ITH ll'IDUSTRIES, ll'~C.,
Defendants.
ORDER ON PENDING MOTIONS Page 1

5802
ORDER
On this 25th day of :t~overnber, 2014, the Court heard further argument on pending
motions. After considering the motions, responses, evidence, and arguments of counsel, the
Court makes the following rulings:
I. Claimants' Motion to Strike the NTSB Report and Prohibit Union Pacific
Railroad's Use of the 1'.JTSB Report in this Litigation is GRANTED IN PART in that the Court
will not consider the Final Report of the NTSB in connection with the summary judgment
motions. The motion is DENIED IN PART, with respect to the "factual accident reports."
2. Union Pacific's Objections to Exhibits Filed with Responses of Plaintiffs and
Intervenors to Union Pacific's lvfotions for Summary Judgment are DENIED.
3. Union Pacific's Objections to Exhibits Filed with Plaintiffs' and Intervenors'
Motion for Summary Judgment are DENIED.
4. Claimants' Motion for Leave to Supplement the Summary Judgment Record on
Union Pacific's Motion for Partial Summary Judgment (Adequacy of Warning Time) is
GRANTED.
5. Union Pacific's Motion for Partial Summary Judgment (Train Speed) rs
GRANTED.
6. Union Pacific's Motion for Partial Summary Judgment (Adequacy of Warning
Time) is GRANTED.
7. Union Pacific's Traditional and No-Evidence Motion for Partial Summary
Judgment on Foreseeability, Duty, and Causation is DENIED.

5803
8. Plaintiffs" and Intervenors" Joint Motion for Partial Summary Judgment on the
Designed Warning Time of the Garfield Crossing and Joint No-Evidence Motion for Partial
Summary Judgment that UP had no Written Authorization to Depart from the Designed Warning
Time is DENIED.
9. Claimants' Motion to Strike James Atchison and Show of Support Military Hunt,
Inc. as Responsible Third Parties is DENIED.
10. Claimants' Motion to Strike the City of Midland and Midland County as
Responsible Third Parties is DENIED.
11. Claimants' Motion to Strike Smith Industries, Inc. as a Responsible Third Party is
DENIED.
JU[JE PRESIDING

5804
APPENDIX 4
Stouffer v. Union Pacific Railroad Company, --- S.W.3d ---- (2017)
2017 WL 3923514
2017 WL 3923514
Only the Westlaw citation is currently available.
Court of Appeals of Texas,
Eastland.
Catherine STOUFFER et al., Appellants

v.
UNION PACIFIC RAILROAD COMPANY, Appellee
No. 11-15-00052-CV
|
Opinion filed August 31, 2017
Synopsis
Background: Survivors of victims of a traffic accident involving a train brought an action for wrongful death and
personal injuries against the railroad company. The 441st District Court, Midland County, No. CV50285, granted partial
summary judgment in favor of the railroad company. Survivors appealed.
Holdings: The Court of Appeals, John M. Bailey, J., held that:
[1] claim that company's warning system did not provide adequate notice was federally preempted, and
[2] claim of train-crew negligence in failing to slow or stop did not fall within the specific, individual hazard exception
to federal preemption.
Affirmed.
On Appeal from the 441st District Court, Midland County, Texas, Trial Court Cause No. CV50285
Attorneys and Law Firms
J. Woodfin Jone, Charla G. Aldous, Douglas W. Alexander, Austin, Zachary Lynn Boyd, Copperas Cove, Jim Moseley,
Stephen F. Malouf, Jeremy Charles Martin, Peter Giles Malouf, Jonathan Nockels, Brent R. Walker, Dallas, Jack P.
Hill, Dicky Grigg, Austin, Richard O. Leeper, Broadus A. Spivey, Austin, Christian D. Searcy, for Appellant.
Sheryl Sipes Norman, Kent Rutter, Karen Dow, Christina Crozier, Houston, William H. Hoffmann, Jr., Eastland, Sheryl
Anne Falk, Houston, John W. Proctor, Fort Worth, for Appellee.
Panel consists of: Wright, C.J., Willson, J., and Bailey, J.
OPINION
JOHN M. BAILEY, JUSTICE
*1 This appeal arises from a tragic accident where four veterans riding on a flatbed tractor-trailer during the
Show of SupportHero Parade 2012 in Midland were killed when a Union Pacific train collided with their parade
2017 Thomson Reuters. No claim to original U.S. Government Works. 1

2017 WL 3923514
float. Appellants 1 sued Union Pacific for wrongful death and personal injuries, alleging violations of various federal
regulations pertaining to railroad crossings. The trial court resolved many of the claims asserted by Appellants by
granting partial summary judgment in favor of Union Pacific prior to trial.
The case proceeded to trial on Appellants' remaining claim alleging negligence on the part of the train crew. As the trial
progressed, the trial court made an evidentiary ruling concerning expert testimony that Appellants' counsel deemed to
be the equivalent of a directed verdict for Union Pacific. The trial court subsequently granted summary judgment on
this matter, which resulted in a final judgment in favor of Union Pacific on all claims asserted by Appellants. On appeal,
Appellants assert that the trial court erred by (1) granting summary judgment against their warning-time claims based on
federal preemption grounds, (2) granting summary judgment against their train-crew negligence claim based on federal
preemption grounds, and (3) granting summary judgment on their gross negligence claims. We affirm.
Background Facts
On November 15, 2012, during the Show of SupportHero Parade 2012 in Midland, two tractor-trucks pulling flatbed
trailers served as floats in the parade. Each tractor-trailer carried twelve veterans and their wives sitting in folding chairs
on top of the trailers. The tractor-trailers traveled southbound on South Garfield Street.
Michael Sayre Morris, one of the veterans riding on the first trailer, testified that, as the first tractor-trailer was crossing
the Union Pacific railroad tracks located south of West Front Avenue, he heard the railroad crossing bell and saw the
Union Pacific train on the tracks. The warning lights at the Garfield crossing activated as the first tractor-trailer was
moving off the tracks. At first, Morris thought the train was stopped, but once he was past the tracks, he could tell it
was moving fast. Morris saw the gate arm coming down behind the cab of the second tractor-trailer. He then realized
the train was going to hit the second tractor-trailer.
When the eastbound Union Pacific train was approximately 2,500 feet away from the Garfield railroad crossing, the
engineer aboard the train spotted the first tractor-trailer proceeding through the crossing and said to the conductor,
Look at that idiot. Can you believe this? But neither the engineer nor the conductor slowed the train. Shortly thereafter,
when the train was approximately 1,200 feet away, the second tractor-trailer proceeded through the Garfield railroad
crossing. The train crew sounded the train's horn when the train was about 799 feet from the crossing. The train crew
applied the emergency brake when the train was about 462 feet from the crossing, but the brakes did not engage until the
train was about 46 feet from colliding with the tractor-trailer. The train, traveling at approximately 62 miles per hour,
crashed into the last 39 inches of the second tractor-trailer. Four of the veterans riding on the second tractor-trailer were
killed in the collision, and several other riders were injured. Appellants are survivors of three of those veterans.
Analysis
Warning-Time Claims
*2 [1] We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
Appellants assert in their first issue that the trial court erred in granting Union Pacific's motion for partial summary
judgment on their warning-time claims on the basis of federal preemption. Union Pacific presented its federal preemption
contention as a traditional ground for summary judgment. A party moving for traditional summary judgment bears the
burden of proving there is no genuine issue of material fact as to at least one essential element of the cause of action
being asserted and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire
Ins. Co., 508 S.W.3d 254, 257 (Tex. 2017). When reviewing a traditional motion for summary judgment, we review the
evidence in the light most favorable to the nonmovant, indulge every reasonable inference in favor of the nonmovant,
and resolve any doubts against the motion. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). A defendant who

2017 WL 3923514
conclusively negates a single essential element of a cause of action or conclusively establishes an affirmative defense is
entitled to summary judgment on that claim. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 509 (Tex. 2010).
Union Pacific asserted that Appellants' warning-time claim was preempted because federal regulations cover the timing
operation of a railroad's warning systems. Appellants contend that their warning-time claim is exempt from preemption
because Union Pacific violated federal regulations that establish a federal standard of care. Specifically, Appellants assert
that Union Pacific failed to comply with federal regulations pertaining to designed-warning-time and frequency-
overlap claims. 2
[2] The parties do not dispute that state tort law actions challenging the adequacy of railroad crossing warnings are
preempted whenever federal regulations address the applicable warning devices. See Mo. Pac. R.R. Co. v. Limmer, 299
S.W.3d 78 (Tex. 2009) (addressing federal preemption under federal law and regulations for the selection of the types
of warning devices used at a railroad crossing). Congress enacted the Federal Railroad Safety Act of 1970 (FRSA) to
promote safety in all areas of railroad operations and to reduce railroad-related accidents and injuries to persons. Id.
at 82 (quoting Pub. L. No. 91458 101, 84 Stat. 971 (1970), codified as amended at 49 U.S.C. 20101). The FRSA calls
for [l]aws, regulations, and orders related to railroad safety [to] be nationally uniform to the extent practicable, and to
that end, the FRSA authorizes the Secretary of Transportation to prescribe regulations and issue orders for every area
of railroad safety. Id. (alterations in original) (quoting 49 U.S.C. 20103(a), 20106(a)(1)).
[3] As noted by the court in Limmer, under Section 20106, federal regulations covering the subject matter of a railroad
safety requirement preempt state law, including common law tort liability. Id. (citing Norfolk S. Ry. Co. v. Shanklin,
529 U.S. 344, 35758, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000); CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 67071,
113 S.Ct. 1732, 123 L.Ed.2d 387 (1993)). However, when a party alleges that a railway failed to comply with a federal
standard of care established by a federal regulation, preemption does not apply. 49 U.S.C. 20106(b)(1)(A); see Nunez v.
BNSF Ry. Co., 730 F.3d 681, 682 (7th Cir. 2013) (A state may provide a remedy for negligence resulting from violation
of federal railroad safety regulations.); see also Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1214216 (10th Cir.
2008), cited in Limmer, 299 S.W.3d at 80 n.3.
*3 Union Pacific asserts it is entitled to summary judgment on federal preemption grounds because it established as
a matter of law that it did not violate the applicable federal regulation concerning warning time. See Gauthier v. Union
Pac. R.R. Co., 644 F.Supp.2d 824, 838 (E.D. Tex. 2009) (Federal preemption precludes claim when railroad establishes
as a matter of law that it did not violate relevant federal regulation.). The warning time regulation that is relevant to this
case is 49 C.F.R. 234.225, entitled Activation of warning system. This regulation provides as follows:
A highway-rail grade crossing warning system shall be maintained to activate in accordance with
the design of the warning system, but in no event shall it provide less than 20 seconds warning time
for the normal operation of through trains before the grade crossing is occupied by rail traffic.
The warning time regulation is relevant to this appeal because it governs the amount of notice required between the
flashing of warning lights at a railroad crossing and the arrival of the train at the crossing. Appellants assert that the
warning lights at the Garfield Street railroad crossing should have started sooner and that, if they had done so, the gate
arms on the crossing would have started their descent sooner, possibly causing the truck driver to stop before driving
across the tracks. See 49 C.F.R. 234.223 (Each gate arm shall start its downward motion not less than three seconds
after flashing lights begin to operate and shall assume the horizontal position at least five seconds before the arrival of
any normal train movement through the crossing.).
We first note Union Pacific's contention that its partial summary judgment under Section 234.223 on the timing of the
gate arms is dispositive of Appellants' warning-time claim because Appellants have not challenged it on appeal. Union
Pacific bases this contention on the fact that the gate arms do not have to finish their descent until five seconds before

2017 WL 3923514
the train arrived at the crossing. We disagree with Union Pacific's contention that this ruling is dispositive of Appellants'
warning-time claims. Appellants' claims are not based on the contention that the gates were not fully horizontal in a
timely manner but, rather, that the gates should have started moving downward sooner. Under Section 234.223, the
downward movement of the gates is triggered by the flashing lights beginning to operate. Accordingly, we direct our
analysis toward Section 234.225, the warning-time regulation.
Appellants and Union Pacific disagree on the interpretation of Section 234.225. In summary, Appellants assert that the
initial, approved design of the warning system at the Garfield Street crossing required a warning time of 30 seconds
and that the warning time of 20.4 seconds was not sufficient under the design of the warning system component of
Section 234.225. Conversely, Union Pacific asserts that the programmed design of the warning system only required
25 seconds of warning time and that, as written, Section 234.225 only requires 20 seconds of warning time.
[4] [5] [6] The resolution of Appellants' first issue requires an interpretation of Section 234.225. The construction of a
federal regulation is a question of law. See Nakimbugwe v. Gonzales, 475 F.3d 281, 284 (5th Cir. 2007). Accordingly, our
review is de novo. See State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). In construing a statute, we would first look to
the plain meaning of the text, giving undefined terms the ordinary meaning unless a different or more precise definition is
apparent from the context. See Greater Houston P'ship v. Paxton, 468 S.W.3d 51, 58 (Tex. 2015). We would only resort to
rules of statutory construction or extrinsic aids when a statute's words are ambiguous. See id. We apply these same rules to
our interpretation of Section 234.225, with one notable exception. See Elgin Nursing & Rehab. Ctr. v. U.S. Dep't of Health
& Human Servs., 718 F.3d 488, 49495 (5th Cir. 2013) (applying rules of statutory construction to the interpretation of
regulations). The exception arises from the fact that Section 234.225 is a federal regulation promulgated by the Federal
Railroad Administration (FRA), an agency within the Department of Transportation. See Grade Crossing Signal System
Safety, 61 Fed. Reg. 31802-01 (June 20, 1996). An agency's interpretation of its own regulation becomes of controlling
weight unless it is plainly erroneous or inconsistent with the regulation. Elgin Nursing & Rehab. Ctr., 718 F.3d at 492
(quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945)). In this regard,
an agency's opinion letters, handbooks, and other published declarations of its views are authoritative sources of the
agency's interpretation of its own regulations. Id.
*4 The FRSA granted the Secretary of Transportation authority to prescribe regulations and issue orders relating to
railroad safety. 49 U.S.C. 20103(a). Section 234.225 is contained within Subpart D entitled Maintenance, Inspection,
and Testing of 49 C.F.R. Part 234 dealing with Grade Crossing Safety. The FRA promulgated Subpart D between
1994 and 1996 to establish rules requiring that railroads comply with specific maintenance, inspection, and testing
requirements for active highway-rail grade crossing warning systems. Grade Crossing Signal System Safety, 61 Fed.
Reg. 31802-01, 31802 (June 20, 1996) (emphasis added).
As originally proposed, Section 234.225 simply provided that [a] highway-rail grade crossing warning system shall
activate to provide a minimum of 20 seconds warning time before the grade crossing is occupied by rail traffic. Grade
Crossing Signal System Safety, 59 Fed. Reg. 3051-01, 3066 (January 20, 1994). The commentary that accompanied the
originally proposed rule indicated that a 20-second minimum was consistent with the Manual on Uniform Traffic Control
Devices (MUTCD) issued by the Federal Highway Administration and that it was consistent with current industry
practices. Id. at 3059; see Oliver v. Ralphs Grocery Co., 654 F.3d 903, 909 (9th Cir. 2011) (The federal MUTCD is
a regulation promulgated by the Department of Transportation (DOT) that sets the national standard for all traffic
control devices installed on any street, highway, or bicycle trail open to public travel. (quoting 23 C.F.R. 655.603(a))).
MUTCD Section 8C.08 provides that [f]lashing-light signals shall operate for at least 20 seconds before the arrival
of any rail traffic. U.S. DEP'T OF TRANSP., FED. HIGHWAY ADMIN., MANUAL ON UNIFORM TRAFFIC
CONTROL DEVICES FOR STREETS AND HIGHWAYS 775 (2009).
The regulation that was finally adopted added additional language. Instead of simply requiring a minimum warning of
20 seconds, the adopted regulation provides as follows:

2017 WL 3923514
A highway-rail grade crossing warning system shall be maintained to activate in accordance with
the design of the warning system, but in no event shall it provide less than 20 seconds warning time
for the normal operation of through trains before the grade crossing is occupied by rail traffic.
49 C.F.R. 234.225. The addition of the phrase the design of the warning system is significant to this appeal because this
phrase is the source of the conflict in the parties' interpretation of Section 234.225. The FRA indicated in its notice that
accompanied this change that the additional language was added on the recommendation of [t]he labor/management
group to reflect a maintenance, rather than a design requirement. See Grade Crossing Signal System Safety, 59 Fed.
Reg. 50086-01, 50099 (Sept. 30, 1994). The FRA further indicated that the 20-second minimum was retained in the
regulation to maintain a minimum activation standard for warning systems. Id.
The FRA has issued other publications addressing Section 234.225. The FRA's Office of Railroad Safety has issued a
Signal and Train Control (S&TC) Technical Manual. 3 The overview portion of the Technical Manual addressing
49 C.F.R. Part 234 indicates that it provides authoritative guidance regarding the correct application of the Federal
requirements. It also states that:
The rules contained in Part 234 are used by inspectors in their inspection and investigation activities,
and are the minimum standards by which highway-rail grade crossing warning systems are evaluated
for compliance. It is pertinent to note that many railroads have adopted their own standards that
are more stringent than those set forth in Part 234. However, the FRA and State inspectors can
enforce only the minimum standards set forth in Title 49 CFR Part 234.
*5 Volume II of the Technical Manual contains a section entitled Application addressing Section 234.225. It refers
to the design of the warning system as the intended warning time. Specifically, the Compliance Manual provides
that [b]oth the intended warning time and the 20 seconds' provision applies to the design and maintenance of warning
systems to provide warning for the normal operation of through trains. The Compliance Manual also contains a section
entitled Classification of Defects where it indicates that Defect 234.225.A1 occurs when the crossing warning time
is not in accordance with the design of the warning system and Defect 234.225.A2 occurs when the crossing warning
system does not provide at least 20 seconds of warning time. The Compliance Manual also contains a Note, which
states: Defect 234.225.A1 applies to instances where the system warning time differs significantly from the designed
warning time.
The FRA also issued Technical Bulletin S-08-02 in 2008 that addressed Section 234.225. The Technical Bulletin provides
that crossing warning systems might be designed to activate at different times other than the minimum of 20 seconds.
It further provides:
The designed warning time typically utilizes railroad industry design standards but is, on occasion
(as determined by an engineering study that involves the applicable highway agency and railroad
representatives), calculated based on criteria such as equipment used, particular crossing intricacies,
vehicular traffic patterns, and roadway configurations.
The Technical Manual also provides guidance about the defect classification for when the crossing warning time is not
in compliance with the designed warning time. This defect applies in instances where the system warning time differs
significantly from the prescribed warning time.... It defines a significant difference as one that is meaningful or
important to the safety and/or credibility of the warning system and a situation in which an expected corrective action
must be taken. It further suggests an acceptable range of plus or minus 5 seconds or more.
[7] With this guidance from the FRA pertaining to Section 234.225, we analyze the parties' contentions. Appellants assert
that the design of the warning system is the original design of the system. They rely on a 1979 Railroad Signal Master

2017 WL 3923514
Agreement between Union Pacific's predecessor, the State of Texas, and the City of Midland. Exhibit B of the master
agreement shows an original designed warning time of 30 seconds for the Garfield Street crossing. Appellants contend
that Union Pacific did not have the unilateral authority to reprogram the warning time system to another warning time
based on the terms of the master agreement that its predecessor executed with the State and the City of Midland.
Union Pacific acknowledges that the original design plans called for 30 seconds of active warning time; however, it
contends that it was permissible for it to reprogram the warning system to provide a designed warning time of 25 seconds,
which included five seconds of buffer time. Union Pacific asserts that, since Section 234.225 was adopted after the
execution of the master agreement, the regulation supplanted the terms of the master agreement. Union Pacific contends
that the design of the warning system is the current setting of the warning time system as reflected by the plans located
at the crossing. Union Pacific cites 49 C.F.R. 234.201 in support of this proposition. This regulation provides that
[p]lans required for proper maintenance and testing shall be kept at each highway-rail grade crossing warning system
location. Union Pacific further argues that Section 234.225 sets a federal minimum warning time of 20 seconds, which
they complied with by providing at least 20 seconds of warning time at the Garfield crossing at the time of the accident.
The warning time setting for the Garfield Street crossing at the time of the accident was entered into the warning system in
March of 2012 by Union Pacific. The reprogramming occurred as the result of a field inspection involving representatives
of Union Pacific, the City of Midland, and Campbell Technology Corporation. Campbell noted that the design plans for
the crossing required 25 seconds of warning time but that the system had been set for a longer warning time. Union Pacific
accepted Campbell's recommendation by reprogramming the warning system to provide a warning time of 25 seconds.
*6 We disagree with Appellants' contention that the original design for the warning system as reflected in the 1979
Master Agreement is the controlling design of the warning system under Section 234.225. Neither Section 234.225 nor
any of the other documents issued by the FRA support this conclusion. The final notice documentation pertaining to 49
C.F.R. Part 234 indicated that maintenance, inspection, and testing and timely response to warning device malfunctions
is a new regulatory field. Grade Crossing Signal System Safety, 61 Fed. Reg. 31802-01, 31802 (June 20, 1996) (emphasis
added). The FRA promulgated Section 234.225 in the mid-1990s, approximately fifteen years after the execution of
the Master Agreement. That section is contained within Subpart D, which contains regulations directed at railroads
rather than other entities or governmental units. As indicated in one of the summaries issued by the FRA pertaining to
Part 234: FRA is issuing a final rule requiring that railroads comply with specific maintenance, inspection, and testing
requirements for active highway-rail grade crossing warning systems. Grade Crossing Signal System Safety, 59 Fed.
Reg. 50086-01, 50086 (September 30, 1994) (emphasis added).
Union Pacific set the designed warning time for the Garfield Street crossing at 25 seconds, which included 5 seconds
of buffer time. This exceeded the minimum warning time of 20 seconds required by Section 234.225. Furthermore, the
performance of 20.4 seconds at the time of the accident did not constitute a defect of the design warning time under
the FRA's technical bulletin and Technical Manual because it did not constitute a significant difference because it fell
within the acceptable performance range of plus or minus 5 seconds. Accordingly, we conclude that the warning system
at the Garfield Street crossing performed in accordance with the federal standard of care for warning time systems. Thus,
Union Pacific was entitled to summary judgment on Appellants' warning-time claim on the basis of federal preemption.
Our conclusion is supported by the few cases that have addressed Section 234.225. Some of these cases have simply
determined that a warning that provides at least 20 seconds of warning time satisfies the federal standard of care required
by the regulation. See Nunez v. BNSF Ry. Co., 936 F.Supp.2d 969, 97778 (C.D. Ill. 2012), aff'd, 730 F.3d 681 (7th Cir.
2013). We note that this construction is consistent with the statement in the FRA Technical Manual that FRA and
State inspectors can enforce only the minimum standards set forth in Title 49 CFR Part 234.
From an analytical perspective, the case that comes the closest to the contentions in this appeal is Gafen v. Tim-Bar Corp.,
No. 01-7626-CIV, 2002 WL 34731033 (S.D. Fla. Oct. 25, 2002). The plaintiffs in Gafen asserted that the warning system

2017 WL 3923514
did not provide as much warning time as it was designed to provide. Gafen, 2002 WL 34731033, at *4. In reliance upon
Section 234.225, 4 the trial court held as follows in Gafen:
It is uncontroverted, however, that the system provided at least 26.7 seconds of warning prior to
the Amtrak train's occupation of the grade crossing at Cypress Creek Road on May 20, 2000. The
warning system, therefore, provided Gafen the 20 seconds of warning required by law. Thus, the
Court finds that an action for failure to provide adequate warning is preempted and CSX is entitled
to judgment as a matter of law.
Id. at *4. Thus, the allegation in Gafen was almost identical to Appellants' allegation of a design warning time being in
excess of the 20-second minimum. The court rejected the contention that the failure to achieve a design warning time in
excess of 20 seconds constituted a violation of Section 234.225.
*7 As noted previously, the MUTCD provides that flashing-light signals shall operate for at least 20 seconds before
the arrival of any rail traffic. U.S. DEP'T OF TRANSP., FED. HIGHWAY ADMIN., MANUAL ON UNIFORM
TRAFFIC CONTROL DEVICES FOR STREETS AND HIGHWAYS 775 (2009). The MUTCD provides two
exceptions: a shorter signal operating time when all rail traffic operates at less than 20 miles per hour and additional
warning time when determined by an engineering study. Id. at 77576. Thus, a signal warning time greater than 20
seconds is the exception rather than the rule. The Federal Highway Administration's Railroad-Highway Grade Crossing
Handbook notes that [c]are should be taken to ensure that warning time is not excessive.... Excessive warning time
has been determined to be a contributing factor in some collisions. U.S. DEP'T OF TRANSP., FED. HIGHWAY
ADMIN., RAILROAD-HIGHWAY GRADE CROSSING HANDBOOK 125 (2007). Excessive warning time may
cause a motorist to cross the track despite the operation of the flashing light signals. Id. Accordingly, a longer warning
time does not necessarily result in greater safety.
We overrule Appellants' first issue pertaining to the summary judgment on their warning-time claims. In doing so, we do
not reach Union Pacific's cross-points asserting that Appellants cannot satisfy the tort elements of duty and causation
with respect to the warning-time claims.
Gross Negligence Claims

Appellants assert in their third issue that the trial court erred in granting Union Pacific's motion for summary judgment
on their gross negligence claims. They premise this claim on their warning-time claims addressed in their first issue,
relying upon their frequency-overlap claim to establish the objective and subjective elements of a gross negligence claim.
See Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008). Accordingly, our resolution of
Appellants' first issue is dispositive of their gross negligence claims. We overrule Appellants' third issue.
Train-Crew Negligence
In their second issue, Appellants contend that the trial court erred by granting summary judgment on their train-
crew negligence claim because the claim is exempt from preemption under the specific, individual hazard exception
recognized in Easterwood, 507 U.S. at 675 n.15, 113 S.Ct. 1732. The Supreme Court held in Easterwood that federal
preemption does not foreclose a lawsuit against a railroad for breaching the duty to slow or stop when confronted with a
specific, individual hazard. Id. Appellants contend that the first tractor-trailer constituted a specific, individual hazard
that placed a duty upon the Union Pacific train crew to begin slowing the train when they saw the first tractor-trailer.
Union Pacific contends that the first tractor-trailer does not fall within the specific, individual hazard exception because
the train crew knew that the first tractor-trailer would clear the tracks before the train arrived and because the first
tractor-trailer was not involved in the accident.

2017 WL 3923514
[8] [9] [10] The U.S. Supreme Court has not defined what constitutes a specific, individual hazard. Anderson v. Wis.
Cent. Transp. Co., 327 F.Supp.2d 969, 977 (E.D. Wis. 2004). Courts have generally interpreted the exception narrowly.
Partenfelder v. Rohde, 356 Wis.2d 492,850 N.W.2d 896, 899 (2014). 5 A specific, individual hazard is a unique occurrence
that could cause an accident to be imminent, rather than a generally dangerous condition. Hightower v. Kan. City S.
Ry. Co., 70 P.3d 835, 847 (Okla. 2003). The exception almost always relates to the avoidance of a specific collision.
Hesling v. CSX Transp., Inc., 396 F.3d 632, 640 (5th Cir. 2005) (quoting Armstrong v. Atchison, Topeka & Santa Fe Ry.
Co., 844 F.Supp. 1152, 1153 (W.D. Tex. 1994)). The classic examples of a specific, individual hazard are a child standing
on the tracks or a motorist standing on the tracks. See Driesen v. Iowa, Chicago & E. R.R. Corp., 777 F.Supp.2d 1143,
1156 (N.D. Iowa 2011). Imminence and specificity are crucial components of the specific, individual hazard exception
to preemption. Partenfelder, 850 N.W.2d at 900.
*8 Appellants rely on Anderson to support their argument that the first tractor-trailer constituted a specific, individual
hazard. In Anderson, the court found that a prior vehicle that passed through the railroad crossing could constitute a
specific, individual hazard even though it was not involved in the collision between the train and the following vehicle.
Anderson, 327 F.Supp.2d at 97779. The prior vehicle unsuccessfully attempted to stop at the crossing after the warning
lights started flashing and then accelerated across the tracks prior to the train reaching the crossing. Id. The plaintiff
argued that, based on the first vehicle's failed attempt to stop, the train crew should have been alerted that there was a
problem at the crossing that should have caused the train crew to slow or stop the train. Id. at 977. The court found that,
if the movements of the [first] vehicle should have alerted the crew that something was wrong ... and created a duty to
slow or stop the train, such duty would be a duty to avoid a specific, individual hazard. Id. at 97879.
[11] This case differs from Anderson because the first tractor-trailer did nothing to alert the train crew that there was
a problem at the Garfield Street crossing causing them to slow or stop the train. Although the train crew saw the first
tractor-trailer proceed through the crossingcausing the engineer to say, Look at that idiot. Can you believe this?
the first tractor-trailer successfully drove through the crossing ahead of the train. A collision with the first tractor-trailer
did not occur, and nothing in the record shows that, based on the actions of the first tractor-trailer, the train crew knew
the second tractor-trailer would proceed through the crossing. Thus, the train crew's observation of the first tractor-
trailer did not indicate that a collision with the second tractor-trailer was imminent. Accordingly, the first tractor-trailer
did not constitute a specific, individual hazard. Appellants' second issue is overruled.
This Court's Ruling
We affirm the judgment of the trial court.
All Citations
--- S.W.3d ----, 2017 WL 3923514
Footnotes
1 Appellants are Catherine Stouffer, individually and on behalf of the Estate of Gary Lee Stouffer, Jr. and as next friend of
Shannon Stouffer and Shane Stouffer; Ada Stouffer; Gary Stouffer, Sr.; Tiffanie Lubbers, individually and on behalf of the
Estate of William L. Lubbers and as next friend of Sydnie Lubbers and Zachary Lubbers; and Angela Boivin, individually
and as personal representative of the Estate of Lawrence Boivin.
2 Appellants premised their frequency-overlap claim on the allegation that a defect in the circuitry caused eastbound trains
to trigger shorter warning times than westbound trains. Appellants contend that a frequency overlap for eastbound trains
contributed to the particular eastbound train that was involved in the accident not giving the requisite warning time required
by the original design of the warning system. We will collectively refer to these claims as Appellants' warning-time claims.

2017 WL 3923514
3 The most recent Technical Manual was issued in April 2012 and consists of two volumes. The cover of the manual identifies
it as Signal and Train Control Regulations, Technical Applications, and Defect Codes. It can be found at https://
www.fra.dot.gov/eLib/details/L01187 and https://www.fra.dot.gov/eLib/details/L01188.
4 The opinion in Gafen contains citations to 49 C.F.R. 234.255. Gafen, 2002 WL 34731033, at *34. These citations were
obviously intended to be citations to Section 234.225 because that is the regulation quoted by the court. Id. at *3.
5 In Partenfelder, the Supreme Court of Wisconsin determined that a parade was not a specific, individual hazard because the
parade only created a generally dangerous traffic condition. 850 N.W.2d at 896.
End of Document 2017 Thomson Reuters. No claim to original U.S. Government Works.

11TH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT
Catherine Stouffer et al., * From the 441st District Court

of Midland County,
Trial Court No. CV50285.
Vs. No. 11-15-00052-CV * August 31, 2017
Union Pacific Railroad Company, * Opinion by Bailey, J.

(Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.)
This court has inspected the record in this cause and concludes that there
is no error in the judgment below. Therefore, in accordance with this courts
opinion, the judgment of the trial court is in all things affirmed. The costs
incurred by reason of this appeal are taxed against Catherine Stouffer,
individually and on behalf of the Estate of Gary Lee Stouffer, Jr. and as next
friend of Shannon Stouffer and Shane Stouffer; Ada Stouffer; Gary Stouffer, Sr.;
Tiffanie Lubbers, individually and on behalf of the Estate of William L. Lubbers
and as next friend of Sydnie Lubbers and Zachary Lubbers; and Angela Boivin,
individually and as personal representative of the Estate of Lawrence Boivin.
APPENDIX 5
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APPENDIX 6
ST ATE OF TEXAS OlHll 6 MIDLAND
STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION

INDEX OF SHEETS ---========~oc:::======---
SHEET NO, DESCRIPTION
I TITLE SHEET PLANS OF PROPOSED
42-a. LAYOUT SHEET
WIRING DIAGRAM - --- ----
. . .
-----------------
STATE HIGHWAY IMPROVEMENT
- ~-
I RR-SIG-75
PROJECT NO RRP OOOSC700>

MI OLAND COUNTY
.. GARFIELD ST IN MIDLAND & MISSOURI-PACIFIC RAILROAD
GRADE CROSSING PROTECTION DEVICES .,
DOT NO 796-331L
79~9
-
FINALED 5-1-91
i
I /0
THE RAILROAD COMPANY SHALL ERECT AND MAINTAIN SUCH

I j
' BARRICADES AND WARNING SIGNS OR USE SUCH PRECAUTIONS
:~!-i~ AS MIGHT BE NECESSARY, IN THE OPINION OF THE STATE
ENGINEER-DIRECTOR, TO INSURE AND SAFEGUARD THE NORMAL
., ''
.
.
'
1i"-1~"
' USE OF THE HIGHWAY DURING THE INSTALLATION OF THIS
PROJECT
tiii
:: !
l
I
THE ASSOCIATION OF AMERICAN RAILROADS, SIGNAL SECTION,

SPECIFICATIONS SHALL GOVERN FOR THIS PROJECT.
Ml OLAND,
1980 Pop
APPROVED 7-2e 101.1
~_M~ MAYOR, C I TY OF WI DLJ.NO
PROJECT NO.a RRP OOOS<700l

GARFIELD STREET - RAILROAD GRADE CROSSING STATE DEPARTMENT OF HIGHWAYS
AND PUBLIC TRANSPORTATION
LAYOUT SCALE I IN 10,560 FT
BOIVIN 004805
Tl Ti F 4
1529
CK CURS.
WIOI T
?;
z
0
z
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t:w
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rcn; CROrm 8LOf'S FLATTENED TO ~
FIT RR ELEV. .V.D GRADE
0
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TYPICAL SECTION
~0
IN VICINITY f6 CROSSIN& u
SCO POWER t.INE
.Ill
~
R.O.W. R W.
- WEST INDUSTRIAL INf..

- 100'
-w10-2
MP RR. lt.O.\ll.
BURIED LJ$. TELCOM CAii.
l!llPRR
L A -
4X84LF/
CONDUIT PROP. INSTRUMENT
35' CASE
RR SIGNAL LINE
t t
12' 14.151 /
/
/
,,
SIGNAL LINE
T C.A8L
/
OVERHEAD UN
PROPOSED
WIOrl
- RMI TEO
-
EXISTIN&
I"
-IOO'
- CONTINUOUS Ll::FT TUHN LANE

- , - -
-- - --. STATE DEPARTMENT OF HIGHWAYS MO PUBLIC
Wl::ST FRONT AVE.
(iii HW't 80)
.. TRANSPORT4TION
MIDL4HO COUNTY
--. SOUTH
COHTROL
GARFIELD ST
PARKING NOT
II' 4 COND.
EXISTING
,,
DOT " 8~&1
786 HIL
SKETCH SHOWING MPRR CROSSING AT

R.R. MILEPOST 514.ss IN MIDLAND
ROW
1 ROW
N
l
~ TEXACO SEIW ST/i.TION
CONVENENCE
UfTOPllGOI
STORE :i:
t t
'
lE WIOI
~
BOIVIN 004806
, .. <:
1530
1000' 1000'
28101
-' . '-''
15001 1Tt5.t'
MPRR R.O.W.
RR MILEPOST 554 I RR Mll..EPOST 654.GD R.R.11.P. H&.00

INTERSECTI0'11 o
ST. INTERSECTION GARFIELD 8.UPRR-
allPRR
,, . lllPRR R.0.W.
--
I
11,.CONSTANT WARNING CONTROL CIRCUIT
V''--~~~~~--.t-
I
!t>+S+IO Plf-1'/lf" SH@ 25 MPH
_;'
VICINITY L~YOUT
_. GENERAL HOTEi
SCALE ,. , eo
l SICML Cl1JJITS N rESIC1D 10 GIVE 30 SEam> CHRATUJi AUCI!

10 ARRIVPJ. CF ll FASTEST TRAIN AT nus O\OSSll; PUJS 5 SElllm
ADiflJ fUl INSTIUIJIT ~ fo ID SEC PIE E~fr.
2. CXliSTIWT IMHt-; CXJITR!l. CHUJITS N 10 1 lID CW lHIS ,._
CT Alli>. PMD7r C/~lll/f$ roBE " ' " ' 11rA-V11116 K
Foti' C11ttA11r C#M,lfr/Jll~l'!'"Y
I. TMFFIC DATA: 12,ol 'Ml Al 30 It'll NlJ 61Hlruil TRAINS ltR WIY
AT 25 lfll.
4. 11 X 811' 1TllL CXJOJIT m 1 RmlSIED AND FUa:D 8't TIE PAIL--
fMJ Cfff'fffl AT j)" lllCM ID' CF TIE EJVATICJI,
IS. Fill. '4ID mJSIED <lM:R IOO< fUl INSTIUf.NT CN Nil SllM..
fUKt'\Tl<JlS 10 1 RRllSIED IN RNE BY 11 STATE. l.80CY Fill)
16 Cf IW<l.
6. 11 RAILIDVJ rom Will. IEMM: 11 EXISTlt; SllWtS lffJ
DIS'lllE CF 11 RlJOITICJlS,
l 11 RAllID'ID UWN lllU. F!MllSH NID INSTAll A IE.AV 10 PRWllE
ml INTER!XUCTICJl lffJ amDltil\TICJI CF 11 EXISTlt; TRAFFIC
SIClW.S .
.. ~~~ 1 \fu~~~l~ ~~1r.r;&; ~c&m.11

STRIPING Nil fJJNNU WMHING Sims. TIE CllY JV.jiff$ 10 ~VllNTAIN
PAVf}f]lf l'ARl(Jt{jS NIJ f!J.NMU ~l!l Sims IN AWlll:WU Wl1H STATE
NfJ FIRllL StnIDVIDS fflER POOCT aJ1'1TICJI.
9. CllY Will. POOVIJI FOR OMltulJS L.T.L. <IDUlmNll IETifEN DESCRIPTION OF PROJECT
UlljSmJPJ. AVE. mJ US 80 !AmT ST.),
IQ STATE WIU. AMll9l Nil INSTAil. "00 tm STIP (JI TlWX" SllM>. cnv 00 AASHlt; LIGIT SIGii1L$, 1m: F <Mt 11189) Wl1H
IBEIH GATE Alff>,
S.Jo; ifDfOOT
1. SIGNAL CIRCUITS IE!mi. ARE DESIGNED TO GIVE 30 SECONDS OPERATION
WIU. WllNTAIN lla SllM>. . _
lEl.S 00 AS SOii
PRIOR TODITICJIS.
ARRIVAL OF llWl THE FASTEST
12" LAlf' HJJSUH> Swu BE USED IVID 9-lllil 1 EWlfffll Wl1H 25 ~lT
LIGIT Gl.CllES, CFERATED AT 10.0 \QTS
-- -.
ffJllW.. (ffRATlr;
-
cm- TRAIN AT THIS CROSSING PLUS 5
SECONDS ADDED FOR INSTRUMENT LAG + 10 SEC PREEMPT.
' ~
GRADE CROSSING
INTERSECTION GARFIEL.D a llPRR IN L.AYOUT SHEET -
MIDL.AND, TEXAS
RAIL.ROAD MIL.EPOST NO. 554.65
DOT NO. 796 HIL.
BOIVIN 004807
1531
"
....:...._
-----tOll.NIO otn. IDT '1111111' AWL TD BIG Sl'RJNG
11122'28 SEC
lli
1642" 30+5+10 PRE-EWT SEC. e 25 M.P.H. 25 11.P 1122' 28 SEC.a 2511.PJL
HOTEi HOTEi CUTS TO IE RELOCATED TO PllOYlllE
l
'( fl\O)'IRED APPROACH DISTAHCS,
X = INSULATED JOINTS TO BE REMOVED
o: & I I
~lttr Jl
TO TRAFFIC
SIGNALS
0
6'X6'
Tas 0
A
'i
:;t~1
I G'X6'686 HZ 979 HZ :
R 8 R
- Jf.
_:;
;.:~:
'':!f
.::!
t t t -~
----w
llOTESI
~ CONIECT TO HEAVY DUTY CONTACTS. SHOW
LV CONTACT NUllBERS If DIFFERENT THAN SHOllH. @ TVISTED VIRES
~ CONNECT TO REGULAR DUTY CONTACTS. SHOW
:I= RI.IN NEG.LEAD FROM AECT,
I
DIRECTLY TO NEG. TERM. OF
i;V CONTACT NUMBERS IF DIFFEREHT THAN SHOllH. BATT, RI.IN POS. LEAD FROM
~ SHOW HEAVY DUTY CONTACTS RELAY RES. HEEL OF "CHARGE" TEST SW,
bl"' If DIFFERENT THAN SHOWN. DIRECTLY TO POS. TERM. OF llATJ
!)..,. WIRE #16 AWG-1 CONDUCTOR STRANDED 0 OllSERVE CORRECT POLARITY,
IY S.D. COPPER 19 STRANDS. INSLA.ATED WITH
2164' ETHYLENE PROPYLENE. 1164' NEOPRENE frWm:':JT~ \~
JACJ(ET. lll/64' O.D. RATED 31!11 V. IBA. CASE WIRE. ~L TRACIC lllRES 2C, -a
~ WIRE ;9'12 AWG-1 CONDUCTOR STRANDED
S.D. COPPER 19 STRANDS. INSLA.ATED WITH
fi'ti~IET~1L1"'/~Plll "
3/64" ETHYLENE PROPYLENE. 1/64" NEOPRENE POLYETHYLENE JACltET
JACKET.14/64" O.D. RATED 6110 V. 26A. CASE WIRE. l.H.E6S OTHERWISE &l'EClfllO
(i) HOUSE TO BE 22.5'FADM HEM
~
SAME WIRE AS ~ 8UT Tl. IH PAIRS.
RAIL OF TRACK AND 35' FllOM
ALL WIRES CONNECTED TO BATT. TO BE TW. E0GE OF llOADVAY,
#Ill AWG-1 CONDUCTOR SOLID. S.D. COPPER 6 TRANSMITTER AND RECEIVEJl ,l.PDS
ANNEALED, INSULATED WITH 2164' CROSS
LINK POLYETHYLENE. TYPE RHH OR RHW U.S..
13/64' O.D. RATED, 75 DEG.C. WET, 98 DEG.C. ORY,
RATED 61l8V. 42A. BATTERY WIRE.
~ WIRE# Ill AWG-1 CONDUCTOR STRANDED
* ,OF HXP TO BE SEPARATED tr
AT LEAST 12" IH TRENCH.
POWER OFF INDICATION
2/i9'6 TO BE USED ON ALL TRACK CONNECTIOHS,
THE SUM TOT AL OF THE HXP REC. lUITR. TllACK llllf;
ll"" S.D. COPPER 19 STRANDS. INSll.HED WITH LENGTHS SHOULD NOT EXCEED 588'.
3/64' ETHYLENE PROPYLENE, l/64' NEOPRENE TOP OF FOUNDATION TO BE AT SAME ELEVATION
JACJ(ET, 1/4' 0.0. RATED 601!1Y. 25A, CASE llRE. AS THE SURFACE OF THE TRAVELED WAY HO
.. ~ MORE THAN 4' ABOVE THE SURF ACE Of THE s IN
~ SAME llRE AS ~ BUT Tl. IN PAIRS. GllOUNO, w:TH CURB TD BE llAXllolllil OF 4' ABOVE Qll8,
,. ALL LIGHTS TO BE 12" ROUNDELS.

::::::: 4'X 84'PJP )( )( )( ~OUT
0 GROUNDING UGllTS. ~ t : kk'~

LAYOUT
~
GATE AIW
GATE 8141J'
UNION PA IF C RAILROAD
BIG SPRING,, TEXAS
TO EL PASO, TEXAS
BOIVIN 004808 A.B.S, CIRCUITS
1532
.'
t. PAVEMENT --l
~ .. PAVEllENT
- - - - - - - - - - - ) = - -- . -- ... ... ' : ...... .~ . ..... .. . .... ..
. : ... GROUND UYEL
J . .. . :. -:..
GROUND &.CYQ.
HIGHWAY CROSSING SIGNAL

WITH GATE
HIGHWAY CROSSINt S18NAL TYPE F ( AAR 1489)

TYPE A (AAR 1653)
JO
i.-----.z,,o.---iLEHGTH VARIEI _ _ _,,__ _ __ GENERAL NOTES
All slgnals and lnstallatlons shall conform 'to the
c:::::=n 11
, Association of American Rallroads Signal Section Specifications.
Unfinished metal parts shall receive a prime coat of
~_,.1..1,... __ ,
~-...r;-rs-- .... paint and a finish coat of aluminum paint. Finished aluminum
/~'111,f~.. , parts wilt not require painting.
'"'"""."''
-...._-c..,..i.a::=:.....,..-<=:=:.__~-=~=--~~'.....l:l
UTRA LIGHTI
Railroad Company standard type signal foundations may
be used. Concrete foundation surfaces exposed to view shall be
finished by rubbing with a carborundum stone or equal
OPTIONAL f'OR LENGTH$ abrasive until o smooth uniform appearance results.
OVER ZO' . Top of foundation to be at the some elevation os the
traveled woy ond no more than 4 Inches obove the surface of the
9round.
!
'!::
12' USUAL
i.---W-IT_,H...,.UNPAVED llHOVl..lll',......,..=.=-----+i
!
!,
tl USUAL'
TEXAS HIGHWAY DEPARTMENT
EDGE OF
PAVEMENT
~8E
PAVED SHDULDQI
OF HIGHWAY-RAILROAD CROSSING SIGNALS
j-t- PAVQIENT STANDARD TYPES
: .... ...::: ..
GROUND :yr;j.
5
RR:...SIG-75
.
HIGHWAY CROSSING llGNM.

CANTILIVH SPAN
TYPE E (AAR 1746)
BOIVIN 004809
1533
APPENDIX 7
c (
CONTRACT NO. 454XXX2009

STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION
RAILROAD SIGNAL MASTER AGREEMENT

FOR FEDERAL AID PROJECTS
THIS AGREEMENT, made and entered into this 13th day of

July , 19 12_, by and between the State of
Texas, hereinafter called the STATE, and the Missouri Pacific Railroad
Company , hereinafter called the RAILROAD.
WITNESSETH:
WHEREAS, the STATE and the RAILROAD propose to install highway-

railroad grade crossing warning systems at the crossings shown on the
lists marked EXHIBIT L, attached hereto and made a part hereof,
NOW, THEREFORE, in consideration of the mutual undertakings as

herein set forth, the parties hereto agree as follows:
1. RIGHTS. The RAILROAD hereby gives the STATE and certain

MUNICIPALITIES the right to install the grade crossing warning systems
and to use the crossings across its property at the intersections of
the track, highways and streets listed on EXHIBIT L.
2. CONDITIONS. These rights, given hereby, shall not in any way

conflict or interfere with any prior or existing rights of the RAILROAD
at the crossings. It is agreed that if there are future track modifi-
cations at the crossings, the RAILROAD will restore the highways or streets
to proper condition and restore the functional operation of the warning
systems.
3. PLANS AND DESIGN. The STATE and the RAILROAD agree jointly to
prepare plans and estimates based on specifications approved by the STATE
for the proposed grade crossing warning systems and after having been
approved in writing by the STATE, said plans and estimates are to be
marked EXHIBIT B which, by reference to, are to be made a part hereof.
4. RESPONSIBILITIES.
a. The RAILROAD, unless otherwise provided, shall make changes

or alterations in the tracks , wire lines, drainage or other facilities
located in the crossing rights-of-way which may be required by construction
1 ~SAA
5-11-79
1542
( )
Such work will i nclude continuous rail and road operation and restoration
t o forme r condi tion upon completion of the projects .
b. The STATE shall furnish the MUNICIPALITIES (with juris-

diction over streets and roads not on the State Highway System as shown
in EXHIBIT L) , appropriate plans which shall be approved by signature
upon these p l ans by the duly authorized official representing the
MUNICIPALITY, prior to any work done at the site of the project.
c. The STATE shall make reimbursement to the RAILROAD for all

approved work performed, as specified under paragraph 6 , "PAYMENTS . "
The STATE will be reimbursed from Federa l funds for these projects:
therefore, the RAILROAD hereby agrees to abide by directives established
under the following:
( 1) Federal Highway Administration, Federal Highway

Program Manual (FHPM) , Volume 1, Chapter 4 ,
Section 3 . (Reimbursement)
(2) Federal Highway Administration, Federal Highway

Program Manual (FHPM) , Volume 6 , Chapter 6 ,
Section 2, Subsection 1. (Railroad- Highway Projects)
( 3) Federal Highway Administration, Federal Highway

Program Manual (FHPM) , Volume 6, Chapter 6,
Section 2, Subsection 2 . (Insurance)
(4) Title VI of the Civil Rights Act of 1964.
(5) State Department of Highways and Public Trans-

portation current policies and practice on sub-
mission of plans , estimates and billings .
and any supplements thereto or revisions thereof , which, by reference

hereto, are made a part hereof.
5. CONSTRUCTION. The STATE agrees to furnish such construction

stakes and elevations as are required for the installation. The RAIL-
ROAD shall commence the installation of the individual projects within
two weeks after receipt of WORK ORDER from the STATE for such individual
projects, and shall proceed dil igently to completion of the installation.
Materials and labor requi red for the installation of the warning systems
are to be furnished by the RAILEOAD. Materials are to be of the kind
and quality detailed in the EXHIBIT B. Assembly of materials should be
undertaken sufficiently in advance to assure prompt delivery to the job
site. Payment for any expense whatsoever in connection with the project
will be contingent upon issuance of a WORK ORDER.
D-SRR
2 5 -11 - 79
1543
- - - - - - - - - - - - - - -------------
c c
6. PAYMENT - ACTUAL COST. Estimates for each individual project
shall be furnished to the STATE for review and approval prior to any
installation work. These estimates shall be sufficiently detailed to
show the work to be done and the materials to be installed.
The RAILROAD may submit monthly bills of at least ~500.00 prepared in

satisfactory form for work performed and materials installed. Payment
will be made for as much as 90% of the costs detailed on~e bill.
The RAILROAD will, in any event, submit a complete and final bill,
including all costs, when the project is completed and the STATE will
pay to the RAILROAD as much as 90% of the costs detailed on the bill.
After the final audit, the STATE will make a final payment of the re-
maining balance due the RAILROAD.
The RAILROAD may also request, under current STATE policies, payment
for materials in reasonable proximity to project, but not in place.
The RAILROAD shall retain adequate cos t accounting records for auditing
purposes for three years after the final payment.
7. MAINTENANCE. The RAILROAD shall maintain and operate these

highway-railroad grade crossing warning systems as installed and in
accordance with the design of operation as shown in the EXHIBIT B.
No changes are to be made in the design, operation or location of the
warning systems without the written approval of the STATE or MUNICIPALITY
of jurisdiction.
B. All provisions concerning the STATE which are stipulated herein

shall automatically cease and terminate upon official completion of the
projects and payments of the final bill, where the crossings covered
herein are not on the State Highway System. The MUNICIPALITIES of
jurisdiction in such case shall assume the rights of the STATE after
payment of the final bill.
9. PROJECT ADDITIONS AND CANCELLATIONS. Individual projects may

be added to or cancelled from the EXHIBITS L attached hereto and made
a part hereof with the mutual consent of the STATE and RAILROAD.
As the Federal Government plans to continue contributing funds for im-

provement and/or installation of warning devices for at least four years,
the STATE may submit additional EXHIBITS L listing additional individual
projects to be attached hereto and made a part hereof.
3 D-5RR
5-11-79
1544
c c
IN TESTIMONY WHEREOF, the parties hereto have caused these
presents to be executed in duplicate on the day above stated.
MISSOURI PACIFIC RAILROAD COMPANY THE STATE OF TEXAS
Certified as being executed

for the purpose and effect of
activating and/or carrying out
By: the orders, established policies,
Vice President or work programs heretofore
approved and authorized by the State
Highway and Public Transportation
Commission:
:~:/!i:~-~4---
ATTEST:
(Seal)
und authority of State Highway and

Public Transportation Commission
Minute Order No. 7010~ dated
June 20, 1975
RECOMMENDED FOR APPROVAL:
Director, Finance
D-5RR
4 5-11-79
1545
APPENDIX 8
TXDOT-MN-000441
;'1=........ -;;:=:0;--
STATE OF TEXAS -nl" 6 I _ UUIlO 11OIS1-.. 10ClI!CAlWIU!
STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION STATE ORIGINAL

INDEX OF SHEETS ----====~oc=====---
SHEET NO.
--1-
2-a
4
DESClUPTlON
TITLE $H[T
LAYClIr 5HET
WIRING D I _
PLANS OF PROPOSED EXHIBIT B
M-SIG-l5 STATE HIGHWAY IMPROVEMENT
PROJECT NO. RRP 0005(700)
La MIDLAND COUNTY
GARFIELD ST IN MIDLAND & MISSOURI-PACIFIC RAILROAD
GRADE CROSSING PROTECTION DEVICES
DOT' NO. 796-331L
THE RAILROAD CCIoPANT SIIAlL ERECT ANII IoIAINTAI" SUCII

BARRICADES AND .ARN INe SIGNS 011 USE SUCII PRECAUTIONS
AS WIGHT BE NECESSAIIT. IN THE OPINION OF THE STATE
ENGINEER-DIRECTOR. TO INSURE AND SAFEGUARD THE _
USE OF THE HIGHWAT lUliNG THE INSTAlLATION OF THIS
PROJECT.
~ct~mm:I~sl:t.~= ~cJL~~~. SECTION.
_7-26 JI
4Jl11.~ ~ ...... e
STATE OEPAlrMIIT OF HIGHWAYS

AND I'Ull.I C TlWISPORTAT ION
TlTLE4
LAYOUT SCALE. I III 10.510 FT
:#D.-
~_,.&..r;."
2-Tl ,oil - ;~ i
I:j!
7
..
1880
..... c-. 1141. . . . . . . - .
1881
I
. -
..... _ - . ... -J
l
,._ _l
~ .......
----
----
-~-
-
.J ...~t-1-'i .......
--
r-t JJ
_.3. ~
.. -
I'-" fa:.:."../ I . ,~ .. ,J,r: -
-------------....---.....
- --- n '
l ' l... rft.....
.U.I~ I Jb '!""" .. _ _ ......
_.........\liE"
"'
I \..
- ':::"":'_-
,. ~-t.._ r .... - -
-~.
... L_ ... , . . _ ::.:=---=-=:JI"'L..-----1
-';1 l
__ ---
- ------=
--- ---
c=
-
,..:111'--- - ---
w
- - ..,
naas
-----.1
_, ....... ,
fl~- ::;"":=
(.
..............
---
I T 1 la1'CII- ---~
-...
-- a ~1
.,J
1 1;
~
I t ;.r~---
-- ---
---.......... IKI'-
~
=r-.
.- -- ---
---
1000' 1000'
28101
-' . '-''
15001 1Tt5.t'
MPRR R.O.W.
RR MILEPOST 554 I RR Mll..EPOST 654.GD R.R.11.P. H&.00

INTERSECTI0'11 o
ST. INTERSECTION GARFIELD 8.UPRR-
allPRR
,, . lllPRR R.0.W.
--
I
11,.CONSTANT WARNING CONTROL CIRCUIT
V''--~~~~~--.t-
I
!t>+S+IO Plf-1'/lf" SH@ 25 MPH
_;'
VICINITY L~YOUT
_. GENERAL HOTEi
SCALE ,. , eo
l SICML Cl1JJITS N rESIC1D 10 GIVE 30 SEam> CHRATUJi AUCI!

10 ARRIVPJ. CF ll FASTEST TRAIN AT nus O\OSSll; PUJS 5 SElllm
ADiflJ fUl INSTIUIJIT ~ fo ID SEC PIE E~fr.
2. CXliSTIWT IMHt-; CXJITR!l. CHUJITS N 10 1 lID CW lHIS ,._
CT Alli>. PMD7r C/~lll/f$ roBE " ' " ' 11rA-V11116 K
Foti' C11ttA11r C#M,lfr/Jll~l'!'"Y
I. TMFFIC DATA: 12,ol 'Ml Al 30 It'll NlJ 61Hlruil TRAINS ltR WIY
AT 25 lfll.
4. 11 X 811' 1TllL CXJOJIT m 1 RmlSIED AND FUa:D 8't TIE PAIL--
fMJ Cfff'fffl AT j)" lllCM ID' CF TIE EJVATICJI,
IS. Fill. '4ID mJSIED <lM:R IOO< fUl INSTIUf.NT CN Nil SllM..
fUKt'\Tl<JlS 10 1 RRllSIED IN RNE BY 11 STATE. l.80CY Fill)
16 Cf IW<l.
6. 11 RAILIDVJ rom Will. IEMM: 11 EXISTlt; SllWtS lffJ
DIS'lllE CF 11 RlJOITICJlS,
l 11 RAllID'ID UWN lllU. F!MllSH NID INSTAll A IE.AV 10 PRWllE
ml INTER!XUCTICJl lffJ amDltil\TICJI CF 11 EXISTlt; TRAFFIC
SIClW.S .
.. ~~~ 1 \fu~~~l~ ~~1r.r;&; ~c&m.11

STRIPING Nil fJJNNU WMHING Sims. TIE CllY JV.jiff$ 10 ~VllNTAIN
PAVf}f]lf l'ARl(Jt{jS NIJ f!J.NMU ~l!l Sims IN AWlll:WU Wl1H STATE
NfJ FIRllL StnIDVIDS fflER POOCT aJ1'1TICJI.
9. CllY Will. POOVIJI FOR OMltulJS L.T.L. <IDUlmNll IETifEN DESCRIPTION OF PROJECT
UlljSmJPJ. AVE. mJ US 80 !AmT ST.),
IQ STATE WIU. AMll9l Nil INSTAil. "00 tm STIP (JI TlWX" SllM>. cnv 00 AASHlt; LIGIT SIGii1L$, 1m: F <Mt 11189) Wl1H
IBEIH GATE Alff>, _
S.Jo; ifDfOOT
WIU. WllNTAIN lla SllM>. .
00 lEl.S AS SOii IE!mi.
12" LAlf' HJJSUH> Swu BE USED IVID 9-lllil 1 EWlfffll Wl1H 25 ~lT
LIGIT Gl.CllES, CFERATED AT 10.0 \QTS llWl ffJllW.. (ffRATlr; cm-
DITICJIS. -- -. -
' ~
1. SIGNAL CIRCUITS ARE DESIGNED TO GIVE 30 SECONDS OPERATION

PRIOR TO ARRIVAL OF THE FASTEST TRAIN AT THIS CROSSING PLUS 5
SECONDS ADDED FOR INSTRUMENT LAG + 10 SEC PREEMPT.
GRADE CROSSING
INTERSECTION GARFIEL.D a llPRR IN L.AYOUT SHEET -
MIDL.AND, TEXAS
RAIL.ROAD MIL.EPOST NO. 554.65
DOT NO. 796 HIL.
1882
1883
1----a.- ------. -----
0
-
... IISI&.A11D .-n 'nil . . . . . . .
()!f
..... ...
I I
I!
I

*"M-*M
0
1884
, --
.. ~------------~--~---------=~1
....,--. . . . . ... -.......
r-
-
---
TYPE A (AAR 1653)
---
--
TYPE F lAAR M89)
--
----
--
t---
---
---
TYPE E (AAR 1746)
RR-SIG-75
APPENDIX 9
UNION PACIFIC RAILROAD SIGNAL DEPT. DOT-RS &. I TEST(frm 24239}
Signature Alcala M (ENG0517)
Recordina Mark
- Test complete. Equipment in satisfactory condition. IHeadquarters 1 ODESSA, TX
*A - Ad ustment made & test comolete. Eauloment In satlsfactorv condition.
*R - Repairs of replacement needed.
*5 - Repairs or replacement made. Equipment in satisfactory condition.
Recordina Mark-Warnina Time

Method Used
- Calculated
M - Measured
R - Recorded
Test must be made when placed in service, modified or disarranged, and at least once every designated time frame thereafter.
Monthly 13 Months 1 1 Year
Warning Time Ime/RelfTlme
Print in landscaDe mode 234.259 ela 234.265
Gl
'"
g c:
iir n '"~
o "g c:
""OJ11)
:J
iT
a
:J
~
Equip Tested or
'"a
::J
o
.0'
:J
Train Detection Date 3
Street,City, (GCP3000, D.O.T.
Inspected
Date of Found '"~ :J
en <D
i'l- Tested
MP (Batt, Timer,
Sub
ounty,State HXP3, DC, AFO, Number
AC, etc.)
Flasher, Gate,
Test ~equiring
Repair
'"'" ...'"w ...'"
w
By Seq
etc.) '" ";::!

~
"
VI
W
GARFIELD,
MIDLAND,
TOYAH SUB 554.65 3000 D2 796331L ALL 11/26/2007 C OSUE679 41
MIDLAND,
TX
GARFIELD,
MIDLAND,
TOYAH SUB 554.65 3000 D2 796331L B12 XB12 12/14/2007 C C OSUE679 42
MIDLAND,
TX
GARFIELD,
MIDLAND,
TOYAH SUB 554.65 3000 D2 796331L ALL 12/14/2007 C C OSUE679 43
MIDLAND,
TX
GARFIELD,
MIDLAND,
TOYAH SUB 554.65 3000 D2 796331L B12 12/14/2007 OSUE679 44
MIDLAND,
TX
GARFIELD,
MIDLAND,
TOYAH SUB 554.65 3000 D2 796331L ALL 12/28/2007 C C OSUE679 45
MIDLAND,
TX
GARFIELD,
MIDLAND,
TOYAH SUB 554.65 3000 D2 796331L EOR 12/28/2007 4 OSUE679 46
MIDLAND,
TX
GARFIELD,
MIDLAND, 30 32
TOYAH SUB 554.65 MIDLAND, 3000 D2 796331L GCP 12/28/2007 OSUE679 47
TX
2008
UP-Midland 011147
Recordina Mark

Method Used
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GARFIELD,
MIDLAND, 30 32
TOYAH SUB 554.65 3000 D2 796331L GCP 12/26/2008 ENGH99 89
MIDLAND,
TX
GARFIELD,
MIDLAND,
TOYAH SUB 554.65 3000 D2 796331L B12 XB12 12/30/2008 C C ENGH99 90
MIDLAND,
TX
GARFIELD,
MIDLAND,
TOYAH SUB 554.65 3000 D2 796331L ALL 12/30/2008 C C C ENGH99 91
MIDLAND,
TX
GARFIELD,
MIDLAND,
TOYAH SUB 554.65 3000 D2 796331L TIR 12/30/2008 ENGH99 92
MIDLAND,
TX
GARFIELD,
MIDLAND,
MIDLAND,
TX
GARFIELD,
MIDLAND,
TOYAH SUB 554.65 3000 D2 796331L ALL 01/27/2009 C C ENGH994 94
MIDLAND,
TX
GARFIELD,
MIDLAND,
TOYAH SUB 554.65 MIDLAND, 3000 D2 796331L TIR 01/27/2009 ENGH99 95
TX
2009
UP-Midland 011159
Recordina Mark

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GARFIELD,
MIDLAND,
MIDLAND,
TX
GARFIELD,
MIDLAND,
TOYAH SUB 554.74 3000 D2 796331L EOR 12/23/2009 4 ENGH99 130
MIDLAND,
TX
GARFIELD,
MIDLAND, 30 39
TOYAH SUB 554.74 3000 D2 796331L GCP 12/23/2009 ENGH99 131
MIDLAND,
TX
GARFIELD,
MIDLAND,
MIDLAND,
TX
GARFIELD,
MIDLAND,
MIDLAND,
TX
GARFIELD,
MIDLAND,
TOYAH SUB 554.74 3000 D2 796331L TIR 12/28/2009 ENGH994 134
MIDLAND,
TX
GARFIELD,
MIDLAND,
TOYAH SUB 554.74 MIDLAND, 3000 D2 796331L B12 XB12 01/25/2010 C C ENGH99 135
TX
2010
UP-Midland 011169
UNION PACIFIC RAILROAD SIGNAL DEPT. DOT-RS &. I TEST(frm 24239)
Recordina Mark Signature Alcala M (ENG0517)
- Test complete. Equipment in satisfactory condition. Headq uarters I ODESSA, TX

*A - Ad ustment made & test complete. Equipment In satisfactory condition.

Method Used
- Calculated
M - Measured
R - Recorded
Test must be made when placed in service modified or disarranoed and at least once every desionated time frame thereafter.
Monthlv 13 Months 1 Year
Warning Time [Tlme/RelfTlme
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GARFIELD ,
MIDLAND,
TOYAH SUB 554.74
MIDLAND,
3000 D2 796331L ALL 11/24/2010 C c c ENGH994169
TX
GARFIELD ,
MIDLAND,
TOYAH SUB 554.74 3000 D2 796331L TIR 11/24/2010 ENGH994170
MIDLAND,
TX
GARFIELD ,
MIDLAND,
TOYAH SUB 554.74 3000 D2 796331L B12 XB12 12/22/2010 C ENGJ664 171
MIDLAND,
TX
GARFIELD ,
MIDLAND,
TOYAH SUB 554.74
MIDLAND,
3000 D2 796331L ALL 12/22/2010 C C C C C ENGJ664 172
TX
GARFIELD,
MIDLAND,
TOYAH SUB 554.74 3000 D2 796331L EOR 12/22/2010 ENGJ664 173
MIDLAND,
TX
GARFIELD ,
MIDLAND, 30 R 38
TOYAH SUB 554.74 3000 D2 796331L GCP 12/22/2010 ENGJ664 174
MIDLAND,
TX
GARFIELD ,
TOYAH SUB 554.74 MIDLAND, 3000 D2 796331L TIR 12/22/2010 ENGJ664 175
MIDLAND,
2012
UP-Midland 011608
UNION PACIFIC RAILROAD SIGNAL DEPT. DOT-RS & I TEST(frm 24239)
Recording Mark Signature Marshall G E (ENGF310)
C - Test complete. Equipment In satisfactory condition. Headquarters ODESSA, TX

*A - Adjustment made & test complete, Equipment in satisfactory condition,
* R - ReDa irs of replacement needed.
*S - R::!p<:lir?gLI!.p19_~~m~Qtm_9q~._~ql,lipmt:!fltio_?(gi$f9gQrycondition.
Recording Mark-Warning Time

Method Used
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R - Recorded
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Print in landscaDe mode ~,arning Time (rime/ReI/Time
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GARFIELD,
~llDLAND,
TOYAH SUB 554.74 3000 D2 1796331L EOR 12/13/2011 144 ENGH9941 9
MIDLAND,
TX
GARFIELD,
~llDLAND, Gep ,301 R PIle
TOYAH SUB 554.74 3000 D2 1796331L 12/13/2011 ENGH994110
MIDLAND, EASTBOUND
TX
GARFIELD,
TOYAH SUB 554.74
MIDLAND,
MIDLAND,
3000 D2 1796331L
GCP
WESTBOUND
12/13/2011 30l R P6 1C ENGH994111
TX
GARFIELD,
MIDLAND,
TOYAH SUB 554.74 3000 D2 1796331L T1R 12/13/2011 C ENGH994112
MIDLAND,
TX
GARFIELD,
MIDLAND,
TOYAH SUB 554.74 3000 D2 1796331L B12 XB12 101/10/2012 C IC ENGH994113
MIDLAND,
TX
GARFIELD,
MIDLAND,
TOYAH SUB 554.74
MIDLAND,
3000 D2 1796331L ALL 11/10/2012 cjAlCle ENGH994114
C TX
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APPENDIX 10
1964
APPENDIX 11
1963
APPENDIX 12
RAILROAD SIGNAL &
TRAIN CONTROL GROUP
Fatal Grade Crossing Accident

Midland, TX; 11/15/2012
HWY-13-MH-003
(10 Pages)
Midland, Texas Signal & Train Control Factual Report Page 1 of 10

HWY-13-MH-003
269
NATIONAL TRANSPORTATION SAFETY BOARD
OFFICE OF HIGHWAY SAFETY
WASHINGTON, D.C. 20594
A. ACCIDENT
LOCATION: At the intersection of South Garfield Street and the Union Pacific Railroad
(UPRR), Mile Post 554.65, DOT grade crossing inventory #796-331L,
Midland, Midland County, Texas
VEHICLE 1: 2006 Peterbilt truck-tractor in combination with a 2005 Transcraft Eagle
Drop Deck (Flatbed) Semitrailer
OPERATOR: Smith Industries of Midland, Texas
VEHICLE 2: Union Pacific Freight Train ZLCAI-14, consisting of 4 locomotives and
84 loaded cars
OPERATOR: Union Pacific Railroad (UPRR)
VEHICLE 3: 2008 Ford Crown Victoria Police Interceptor
OPERATOR: Midland County Sheriffs Office
DATE: November 15, 2012
TIME: Approximately 4:35 p.m. CST
NTSB #: HWY-13-MH-003
B. SIGNAL & TRAIN CONTROL GROUP
R. Payan
Electrical Engineer
NTSB, Office of Railroad, Pipeline & Hazardous Materials Investigations
D. Walsh, P.E.
Highway Accident Investigator
NTSB, Office of Highway Safety
T.J. Yetmar
Director Signal Maintenance
Southern Region South
Union Pacific Railroad

HWY-13-MH-003
270
S. Pyle
Traffic Signal Supervisor - Transportation
City of Midland, Texas
M. Ciurej
Vice President West
Brotherhood of Railroad Signalmen
G. Rasco
Signal & Train Control Inspector
U.S. Department of Transportation
Federal Railroad Administration
C. DETAILS OF THE SIGNAL & TRAIN CONTROL INVESTIGATION
1. Railroad Traffic Control Signal System

The UPRR, Ft Worth Service Unit, Toyah Subdivision runs between Sweetwater, Texas
(MP T447.8) and Sierra Blanca, Texas (MP T768.7). Railroad tracks were oriented by timetable
in an east-west direction with milepost numbers increasing westward. UPRR tracks in the
vicinity of the accident consisted of single main track territory with passing siding tracks. The
maximum timetable1 speed for freight trains operating in the vicinity of the accident was 70 mph.
Train movements on the Toyah Subdivision were governed by General Code of Operating
Rules2, timetable instructions, bulletins and the signal indications of a traffic control signal
(TCS) system. The train dispatcher (dispatcher position number 26) located at the UPRR
Dispatch Center in Omaha, Nebraska coordinated train movements with the signal system on the
Toyah Subdivision. The UPRR TCS system utilized dc coded track circuits and four-aspect
colorlight type signals.
1.1 Railroad Dispatch Center Data

Postaccident data was downloaded from the Union Switch & Signal computer aided
dispatching system at the UPRR, Harriman Dispatch Center located in Omaha, Nebraska. Table
1 summarizes signal and train control events recorded for control points (CP) Bounce (T558) and
Chub (T550) on the date of the accident. The table covers the events for the last two train
movements routed through the accident area. The eastbound signal at CP Chub was lined for the
accident train but the collision occurred between the two control points.
Table 1 Recorded events from Harriman Dispatch Center CAD log.

Time3 Control Point Event
3:44:53 pm Bounce (T558) Westbound signal 20 indicated clear for train ZMQLC-15
1
UP Railroad Sunset Area Timetable No. 3, effective Monday, November 22, 2010
2
GCOR, sixth edition, effective April 7, 2010
3
Time based on UPRR Dispatch Center system clock (central standard time) which was synchronized to UTC.

HWY-13-MH-003
271
3:58:51 pm Chub (T550) Track circuit 01 indicated occupied for train ZMQLC-15
4:00:37 pm Chub (T550) OS track circuit indicated unoccupied for train ZMQLC-15
4:02:35 pm Bounce (T558) Track circuit 01 indicated occupied for train ZMQLC-15
4:04:17 pm Chub (T550) Track circuit 01 indicated unoccupied for train ZMQLC-15
4:07:14 pm Bounce (T558) Westbound signal 20 indicated at stop
OS track circuit indicated occupied for train ZMQLC-15
Track circuit 11 indicated occupied for train ZMQLC-15
4:09:43 pm Bounce (T558) Track circuit 01 indicated unoccupied for train ZMQLC-15
4:09:45 pm Bounce (T558) OS track circuit indicated unoccupied for train ZMQLC-15
4:16:54 pm Bounce (T558) Track circuit 11 indicated unoccupied for train ZMQLC-15
4:23:31 pm Bounce (T558) Eastbound signal 18 requested clear for train ZLCAI-14
4:23:52 pm Bounce (T558) Eastbound signal 18 indicated clear for train ZLCAI-14
4:29:01 pm Bounce (T558) Track circuit 11 indicated occupied for train ZLCAI-14
4:30:17 pm Chub (T550) Eastbound signal 02 requested clear for train ZLCAI-14
4:30:53 pm Chub (T550) Eastbound signal 02 indicated clear for train ZLCAI-14
4:32:53 pm Bounce (T558) Eastbound signal 18 indicated at stop
OS track circuit indicated occupied for train ZLCAI-14
Track circuit 01 indicated occupied for train ZLCAI-14
4:34:22 pm Bounce (T558) Track circuit 11 indicates unoccupied for train ZLCAI-14
4:34:24 pm Bounce (T558) OS track circuit indicated unoccupied for train ZLCAI-14
4:39:40 pm Chub (T550) Eastbound signal 02 requested at stop by Dispatcher
1.2 Railroad Wayside Defect Detector Logs

Approaching eastbound to the vicinity of the collision, the UPRR had hot bearing
detectors located at MP T560.7 and T582.0. The defect detectors recorded data for train
movements traveling past those locations4.
The defect detector at MP T582.0 recorded eastbound train ZLCAI-14 at 4:02 pm. The
data recorded the eastbound train with 3 locomotive engines, 63 rail cars 308 axles. Train length
was recorded as 7,246 feet. The train was traveling at 61 mph and the temperature was recorded
as 71 Fahrenheit. The data log indicated no defects were noted for eastbound train ZLCAI-14.
The defect detector at MP T560.7 recorded eastbound train ZLCAI-14 at 4:30 pm. The
data recorded the eastbound train with 3 locomotive engines, 63 rail cars and 308 axles. Train
length was recorded as 7,210 feet. The train was traveling at 49 mph and the temperature was
recorded as 71 Fahrenheit. The data log indicated no defects were noted for eastbound train
ZLCAI-14.
1.3 Railroad Traffic Control Signal System Damages

The UPRR traffic control signal system did not sustain any damage as a result of the
collision.
4
The defect detectors only recognize locomotives at the front of the consist and do not recognize the distributed
power locomotive on the trailing end of the train. In addition, the defect detectors count axles and then calculate the
number of cars based on the number of axles detected. The axle configuration on intermodal cars is different from
the axle configuration of standard rail cars. Thus the detectors recorded 63 rail cars instead of the actual 84 cars.

HWY-13-MH-003
272
2. Highway-Rail Grade Crossing Warning System
The UPRR single main track through the City of Midland, Texas was paralleled by five-
lane West Front Avenue to the North and three-lane West Industrial Avenue to the South. At MP
T554.74, the UPRR main track and five-lane South Garfield Street crossed at grade5. The grade
crossing inventory number was DOT #796-331L. The highway-rail grade crossing was equipped
with an active grade crossing warning system. The grade crossing warning system consisted of
eight, 12-inch flashing LED light units, two warning bells and two fiberglass gate arms mounted
on two signal masts and arranged to provide warning for all directions of highway traffic6. The
gate arms extended across all lanes of South Garfield Street to a concrete median for each
direction of traffic. Three, 4-inch lights were mounted on each gate arm. When the warning
system was activated, the tip light was configured to be continuously lit while the other two
lights flashed alternately.
The grade crossing warning system operated on commercial electric power and was
equipped with a standby battery backup system. In addition, the South Garfield Street grade
crossing warning system had an interconnection to initiate a ten second advance preemption of
the highway traffic signals adjacent to the highway-rail grade crossing.
Train detection and warning system activation was configured through a Safetran Grade
Crossing Predictor (GCP), model 3000D2, microprocessor unit. The crossing was equipped with
a primary and standby GCP unit. Each GCP unit was configured in a bi-directional mode. The
GCP unit was a constant warning device and could calculate the speed of an approaching train by
measuring the rate of change in track circuit voltage, receiver signal level and signal phase
relationships. The GCP unit provided a relatively uniform warning time, but the time could
fluctuate slightly due to changing ballast and track conditions or variances in the speed of an
approaching train. The warning devices were configured to provide a minimum warning time of
20 seconds required by the Federal Railroad Administration (FRA) and recommended by the
Manual on Uniform Traffic Control Devices (MUTCD) for all train speeds up to 79 mph7. The
UPRR standard design for crossings with automatic warning devices was 20 seconds of warning
time plus five seconds of buffer time for a signal design time of 25 seconds. The five seconds of
buffer time was included to provide a margin of safety to ensure that a minimum of 20 seconds
of warning time is provided.
The signal prints designated the design times as 25-5-10. The number 25 represented the
mandated 20 seconds warning time plus the five seconds of buffer time. The number five
represented the equipment response time during which the system first detected the approach of a
train and made the necessary calculations to determine the speed and timing of the train. The
number ten represented the advanced preemption time during which the railroad equipment
alerted the highway traffic signals to activate a preemption sequence to manage traffic flow at the
crossing prior to the railroad warning system activating.
5
West Front Avenue had a posted speed limit of 45 mph. South Garfield Street and West Industrial Avenue had a
posted speed limit of 35 mph.
6
Reference the Highway Factors Group Factual Report for a description of highway signage and pavement
markings.
7
Maximum train speed was limited to 70 mph as listed in the timetable.

HWY-13-MH-003
273
In 1987, as part of the proposed signal upgrade project at the South Garfield Street
crossing, the initial design plans from the UPRR contained a design time of 30-5-10. In 1989, the
revised design plans from the UPRR contained modifications that included a change in the
design time to 25-5-10.
The upgraded grade crossing warning system was installed by the UPRR in 1991. The
Texas Department of Transportation inspected and approved the installed system which had the
specified signal design time of 25-5-10. In 2003, the grade crossing warning system at South
Garfield Street and several adjacent grade crossings were modified by the UPRR to
accommodate an increase in track speed. The modifications were completed in 2005, the design
times for the five crossings adjacent to and including South Garfield Street remained as
designated in the signal design plans at 25-5-10. In 2010, the FRA issued a nationwide safety
advisory regarding highway traffic signal preemption connections to grade crossing warning
systems. The UPRR hired a contractor to review numerous crossings and which also included
South Garfield Street. In March 2012, the contractor found that the South Garfield Street
crossing warning system had been changed to 35 seconds instead of the designated 25 seconds.
In consultation with the City of Midland, the crossing warning system was again set as specified
in the signal design plans.
2.1 Highway-Rail Grade Crossing Warning System Data Logs

The GCP unit at the South Garfield Street crossing was equipped with a data logger. The
data logger provided the capability to record information associated with the previous train
movements through that location. The data log contained the date and time of train movements,
the detected train speed8, the average train speed9, pre-emption initiation signal10, and island
speed11. The log could also retain any error alarms detected by the microprocessor.
The data logs recorded westbound UPRR train ZMQLC-15 activating the interconnection
circuit to preempt the highway traffic signals at 4:01:06 pm, and activating the South Garfield
Street grade crossing warning system at 4:01:23 pm. The logs recorded the average train speed
approaching the grade crossing at 47 mph and the warning devices activating for 28 seconds
before the train occupied the island circuit.
The data logs recorded eastbound UPRR train ZLCAI-14 activating the interconnection
circuit to preempt the highway traffic signals at 4:34:08 pm, and activating the South Garfield
Street grade crossing warning system at 4:34:17 pm. The logs recorded the average train speed
approaching the grade crossing at 64 mph and the warning devices activating for 21 seconds
before the train occupied the island circuit.
The data log for the South Garfield Street crossing contained over 600 data log entries. A
postaccident review of the data found all warning times to be in accordance with the minimum
8
Train speed calculated by microprocessor to determine warning device activation time.
9
Average speed of train as it traversed approach circuit.
10
Signal from railroad equipment to highway equipment to initiate the preemption sequence.
11
Train speed calculated by microprocessor as it enters the island circuit, typically in close proximity to edge of
paved roadway.

HWY-13-MH-003
274
requirements except a train movement that occurred at 2:05:08 am on October 29, 2012. The
data indicates the grade crossing warning system was activated for 19 seconds before the train
occupied the island circuit.
2.2 Inspection & Testing of Grade Crossing Warning System

Following the accident, NTSB investigators requested the signal bungalow for the grade
crossing warning equipment to be sealed. UPRR secured the signal bungalow with seal
#1430190. On November 16, 2012, representatives from the UPRR, the FRA, Brotherhood of
Railroad Signalmen, City of Midland, Texas and NTSB began conducting a field inspection and
investigation of the highway-rail grade crossing warning system and highway traffic light pre-
emption system at the South Garfield Street. The postaccident inspection of the grade crossing
warning equipment, found the signal bungalow and all flashing light units locked and secured.
The UPRR seal on the signal bungalow was confirmed and no evidence of vandalism or
tampering was found.
2.2.1 Track Circuits

Track components and connections were inspected and the approach track circuits were
verified. Approach track circuits extended from the South Garfield Street crossing in both track
directions. The eastbound and westbound approach track circuit lengths were configured in the
GCP unit at 4,636 feet for train speeds up to 79 mph, and in accordance with the signal circuit
plans for that location.
The eastbound approach track circuit length from the connection point of the track wires
on the rails to the 156 Hertz (Hz) narrow band shunt at the termination point was measured at
4,571 feet. A train moving at a constant 79 mph would travel 4,571 feet in 39.5 seconds.
The westbound approach track circuit length from the connection point of the track wires
on the rails to the 156 Hz narrow band shunt at the termination point was measured at 4,595 feet.
A train moving at a constant 79 mph would travel 4,595 feet in 38.8 seconds.
Trains moving at less than 79 mph would take additional time to travel the distances of
the approach track circuits.
2.2.2 GCP Microprocessor Unit

The signal circuit plans for the South Garfield Street grade determined the GCP unit was
configured to provide a minimum 20 seconds of warning time activation. The UPRR also added
five seconds of buffer time and ten seconds of advance preemption time.
The postaccident inspection found the South Garfield Street grade crossing warning
system to be operating on the standby GCP unit. The primary GCP unit was locked out and was
not used either before or after the accident. The clock time of the GCP unit was verified with the

HWY-13-MH-003
275
UPRR Dispatch Center clock. The GCP unit clock was ahead of the Dispatch Center time by 59
minutes and 7 seconds. The program configuration of the GCP microprocessor was recorded and
verified against the programming parameters on file. Operating values were recorded for the vital
relays used in the grade crossing signal bungalow. No discrepancies were identified in the
programming parameters of the GCP unit. The operating values of the vital relays were within
operating requirements.
Postaccident testing determined the 156 Hz frequency used on the approach track circuits
for the South Garfield Street crossing was sufficiently close to the 114 Hz frequency used on the
approach track circuits for the G Street crossing. The 114 Hz narrow band shunt was located
approximately 600 feet off the crossing and under certain conditions would load the 156 Hz
frequency. The frequency loading would result in a slight increase in the train detection time.
2.2.3 Gate Arms

The southeast gate arm was damaged as a result of the accident. Postaccident testing
measured the start of the descent time for the northwest gate arm to be about 6.8 seconds after
the flashing light units were activated. The gate arms assumed a horizontal position less than 15
seconds after the flashing light units were activated.
2.2.4 Flashing Light Units

Postaccident insulation resistance tests were completed for the lighting cables from the
signal bungalow to the signal masts. Testing determined the flashing light units were operating
at 42 flashes per minute. Lamp voltage measurements were taken with the warning devices
operating on primary commercial power (AC voltage reading) and on the standby battery backup
system (DC voltage reading). Lighting circuit voltages on the southeast signal mast measured
10.8 volts AC and 14 volts DC. Lighting circuit voltages on the northwest signal mast measured
10.2 volts AC and 14.5 volts DC.
2.3 Railroad Traffic Control Signal System Damages

The UPRR, highway-rail grade crossing warning system sustained damage to the
southeast gate arm as a result of the accident. Repair damages were estimated at $500.
3. Highway Traffic Signal System

The South Garfield Street-West Front Avenue intersection and the South Garfield Street-
West Industrial Avenue intersection were equipped with 12-inch LED indications and a TS1
cabinet which housed a Naztec microprocessor controller. The traffic signal lights used a
combination of color lenses and clear lenses with color LEDs to direct traffic in all directions
through both intersections. The highway traffic controller and lights operated on commercial
power and were equipped with a standby battery backup system. According to City of Midland
officials, the intersections had been in operation for over 15 years. The last major change at these
intersections was done on October 30, 2008 when the Naztec controller was changed.
The highway traffic signal system had an interconnection for preemption operation with
the highway-rail grade crossing warning system. The preemption operation was programmed
and referenced as "Preempt 1". The railroad equipment provided a normally energized relay
contact that opened a traffic signal circuit to initiate the preemption sequence of the highway

HWY-13-MH-003
276
traffic lights. The railroad equipment was configured to open the traffic light preemption circuit
when a train was detected on either one of the approach track circuits and 10 seconds before the
grade crossing warning system was activated. Neither intersection had crosswalks nor pedestrian
equipment so the highway traffic preemption phase or track clearance phase, sequenced the
traffic lights to provide a green light to traffic on South Garfield Street waiting between West
Front Avenue and West Industrial Avenue in both directions. The traffic lights were configured
to remain green for 25 seconds and then sequenced to red. The highway lights for traffic
approaching the grade crossing were sequenced to red and remained at red while the grade
crossing warning system was activated. Following the completion of the track clearance phase,
the traffic signals were permitted to cycle highway traffic movements that did not conflict with
railroad train operations through both intersections.
3.1 Highway Traffic Signal System Data Logs

Postaccident data was downloaded regarding preemption operation at the South Garfield
Street intersections. The data indicated that on November 16, 2012, the railroad preemption was
activated 4:02:02 pm and terminated at 4:04:46 pm. The data indicated the next railroad
preemption activation was at 4:35:05 pm. This activation did not terminate until the next day at
2:29:33 pm. This railroad preemption activation was correlated to the accident train.
3.2 Inspection & Testing of Highway Traffic Signal System

A complete description of the highway traffic signal preemption operation is included in
the Highway Factors Group Factual Report. Postaccident testing by the Signal & Train Control
Group included testing of the track clearance phases to verify programming of the highway
traffic signals with the timing plan specifications on file at the time of the accident.
Testing determined the highway traffic signals were programmed to provide about 25
seconds of Green light indication during the track clearance phase. The track clearance phase
provided solid Green light indications and a Green left turn arrow to northbound traffic on South
Garfield Street that was queued on the railroad tracks.
Testing further determined the track clearance phase also provided solid Green light
indications to southbound traffic on South Garfield Street that was queued on the railroad tracks.
The track clearance phase however did not provide a Green left turn arrow to southbound traffic
on South Garfield Street as specified in the timing plan. The Green left turn arrow for
southbound traffic was added to the track clearance phase following the postaccident testing.
4. Grade Crossing Regulations and Industry Standards

FRA regulations specified a minimum warning time in Title 49, Code of Federal
Regulations, Part 234.225, Activation of Warning Systems, which stated:
A highway-rail grade crossing warning system shall be maintained to activate in

accordance with the design of the warning system, but in no event shall it
provide less than 20 seconds warning time before the grade crossing is occupied
by rail traffic.

HWY-13-MH-003
277
The 2009 edition of the MUTCD recommended national uniformity in traffic control
devices. In order to provide for uniformity, MUTCD was the adopted national standard for
traffic control devices. The MUTCD provided guidance through its recommended standards
regarding flashing light units, gates and traffic control signals.
The AREMA, Communication and Signal Manual of Recommended Practices

recommends the addition of buffer times and equipment response times to the warning time to
accommodate assurance of providing the minimum required warning time.
5. Quiet Zone Corridor through City of Midland

The City of Midland established a 24-hour quiet zone corridor that encompassed eleven
highway-rail grade crossings in the vicinity of the accident. The South Garfield Street grade
crossing is located within this quiet zone. The quiet zone restricts trains from sounding their
locomotives horns through this area.
The quiet zone was a Public Authority designated quiet zone and was established in
accordance with Federal Railroad Administration regulations by the City of Midland. The quiet
zone went into effect in May 2007 when a Notice of Establishment was issued to the UP railroad
by the City of Midland. A file copy is provided to FRA.
6. Additional Information
Oncor Electric Delivery was the electric power utility supplier in the vicinity of the
accident area. Both the highway traffic signals and the grade crossing warning system used
Oncor as their electric power utility supplier. Oncors outage management system indicated that
on November 15, 2012 at 3:01 pm12, Oncor experienced a service interruption13 to part of its
distribution grid at feeder MDDTN4321. The electric power service interruption affected both
the highway traffic signals and the grade crossing warning system. The outage management
system records indicate that electric power was restored at 4:23 pm.
End of Signal & Train Control Factual Report
12
Clock time was for system which was synchronized to UTC
13
Recorded as event number T98677 in outage management system log report

HWY-13-MH-003
278
APPENDIX 13
Memorandum
U.S . Department
of Transportation
Federal Railroad
Admin istratio n
Date: JUL 2 2 2008 Reply to Attn of: S-08-02
Subject: T
From:
ffice of Safety Assurance and Compliance
To: Regional Administrators, Deputy Regional Administrators, S&TC Specialists,

Chieflnspectors, Rail Safety Oversight Managers, State Program Managers,
and all Federal and State S&TC Inspector Personnel
This technical bulletin is provided to address and clarify the Federal Railroad
Administration's (FRA) expectations related to the performance of tests for prescribed
warning times at highway-rail grade crossing active warning systems, as is required by Title
49 Code ofFederal Regulations (CFR) Section 234.259-Warning Time. This technical
bulletin is also being provided to address and clarify FRA's expectations related to the level of
detail that should be contained in prescribed warning time test records.
Clarification of the Application of Prescribed Warning Time Testing Requirements

(49 CFR 234.259)
Title 49 CFR 234.259 requires that each highway-rail grade crossing warning system be
tested for the prescribed warning time at least once every 12 months and when the warning
system is modified because of a change in train speeds. This section applies to all train
detection equipment (including standby units, if equipped) used in each highway-rail grade
crossing warning system.
For purposes of the application of this Technical Bulletin, prescribed warning time can be
defmed as follows: Prescribed warning time is the designed warning time less any associated
"buffer time" and "equipment response time." Buffer time is added by the railroad to
compensate for speed variance (e.g., accelerating train) and ballast impedance variances (e.g.,
for motion detection equipment). Equipment response time is the inherent delay in the
equipment between the initial detection of a train and the actual activation of the warning
system. In other words, prescribed warning time is the length of time from the moment that
properly operating warning devices begin to provide their intended warning (e.g., the flashing
lights begin to flash) until an approaching train operating at maximum authorized speed enters
the crossing (i.e., reaches the edge of the crossing surface).
2013
2
A warning system location is not considered fully tested for the prescribed warning time
unless and until the crossing activation is proven for the required distance on all available
approaches at the crossing (i.e., all routes and in each direction), including while operating on
standby units, if so equipped. Examples of the application of this position include:
At a basic single-track location, the entire approach circuit in each direction (two
tests), or if equipped with standby units (four tests);
At a double-track location, the entire approach circuit in each direction on each track
(four tests), or if equipped with standby units (eight tests); and
At a location where a turnout or crossover is within an approach circuit, the straight
route approach and the diverging route approach must both be tested for each track,
including on standby units.
As stated in FRA's Grade Crossing Signal System Safety Technical Manual ("Technical
Manual''), testing may be accomplished by one of the following three methods: 1)
observation of a train movement, if practical; 2) by calculation and track shunt simulation of a
train movement; or 3) by use of an electronic device that accurately detennines warning time.
I. If the method used is "by observation of a train movement," the actual speed (or at
least a close approximate speed) of the movement must be known and it must be at (or
very near) the maximum authorized speed for the route approaching and through the
crossing. In the great majority of instances, "at or very near the maximum authorized
speed" will be within the lesser of 20 percent or 5 mph of the maximum authorized
speed (i.e., within 5 mph of any maximum authorized speed of 25 mph or more, or
within 2 mph of a maximum authorized speed of 10 mph). If the speed ofthe
movement were less than the maximum authorized speed by a margin beyond those
parameters, the full extent of the intended approach circuit would not be proven to be
effective by this method.
2. If the method used is "by calculation and track shunt simulation of a train movement,"
the process would require that the maximum authorized train speed be converted from
miles per hour to feet per second. The resulting feet-per-second train speed would
then be multiplied by the prescribed warning time (in seconds) for the location, not the
minimum of20 (representing a minimum of20 seconds warning time) as is indicated
in the current Technical Manual. This product would then represent a point, in feet,
that is a minimum distance from the edge of the grade crossing, where train detection
by the warning system must occur to assure the intended warning time. A shunt must
then be placed at that point, or at a location closely beyond that point, to ensure that
the system detects the presence ofthe shunt. If applicable, a train may be used to
provide the shunt in this method of testing. Where a crossing warning system train
detection is not provided through track shunting but rather the warning system is
activated through other means-such as presence-detection loops, transducers, wheel
counters, or other acceptable means-a simulation method appropriate to the type of
detection may be used.
2014
3
3. If the method used is "by use of an electronic device that accurately determines
warning time," again, the actual (or at least close approximate speed) of the movement
must be known and it must be at or very near the maximum authorized speed for the
route approaching and through the crossing. In the great majority of instances, "at or
very near the maximum authorized speed" will be within the lesser of20 percent or 5
mph of the maximum authorized speed. If the speed of the movement were less than
the maximum authorized speed by a margin beyond those parameters, the full extent of
the intended approach circuit would not be proven to be effective by this method. If
the data that was recorded during a period when normal train operations were in effect
(which would include trains operated at or very near maximum authorized speed as
described above) indicates appropriate warning times (i.e., none out of tolerance), the
shortest warning time provided must be used as the actual recorded warning time of
the testing.
Crossing Warning Time (49 CFR 234.225)
The standard for warning time is contained in 49 CFR 234.225. This section requires that
each highway-rail grade crossing warning system be maintained to activate in accordance with
the design of the warning system, but in no event shaH it provide less than 20 seconds warning
time for the normal operation of through-train movements before the crossing is occupied by
rail traffic. For example, a crossing warning system might be designed to activate 30 seconds
before a train being operated at the maximum authorized speed arrives at the crossing. At
another crossing, the crossing warning system might be designed to activate 35 seconds or
more before a train being operated at the maximum authorized speed arrives at the crossing.
The designed warning time typically utilizes railroad industry design standards but is, on
occasion (as determined by an engineering study that involves the applicable highway agency
and railroad representatives), calculated based on criteria such as equipment used, particular
crossing intricacies, vehicular traffic patterns, and roadway configurations.
Title 49 CPR 234.225 contains a defect classification (234.225.02) that may be applied
when the crossing warning time is found to not be in accordance with the design of the .
warning system. This defect applies in instances where the system warning time differs
significantly from the prescribed warning time, not the "designed warning time" as is
indicated in the current Technical Manual. A "significant difference" is one that is
meaningful or important to the safety and/or credibility of the warning system and a situation
in which an expected corrective action must be taken. This criteria is based on the fact that
train detection systems, such as motion detectors, constant warning time devices, and other
authorized systems, are designed to function for trains operating at varying authorized speeds
by providing warning times within an acceptable range of the prescribed warning time (e.g.,
plus or minus 5 seconds or more). This fact is considered when the applicable parties
determine what the prescribed warning time should be at each crossing. Thus, prudent
judgment must be exercised when reviewing the results of warning time testing to determine
whether the actual warning time provided during testing was compliant with the standard.
2015
4
Clarification of the Application of Recordkeepfng Requirements

for Warning Time Testing (49 CFR 234.273)
Title 49 CFR 234.273, Results ofInspections and Tests, requires railroads to record the
results of the warning time tests required by 49 CFR 234.259. It is a normal and acceptable
practice for railroads to find and record warning times where the actual warning time found
will differ insignificantly from the prescribed warning time (e.g., prescribed timcr30 seconds;
actual timcr26 seconds, or even 33 seconds). A primary purpose for the detail of information
required by FRA is to provide positive indication that the persons performing the testing
understand all the equipment or functions necessary to be tested, and they successfully
accomplish the testing to the full extent required. In Technical Bulletin S-99-06, dated
January 17, 2001, FRA highlighted the major elements that must be included in records of
tests and inspections required under 49 CFR Part 234. However, FRA has found that some
railroads are not maintaining records of warning time testing that contain all of the following
required elements:
Name of the railroad;

DOT Inventory Nwnber;
Place and date oftesting;
The equipment tested on each available approach at the crossing;
Results of tests, both on normal and standby operation, if so equipped ("results of
tests" shall be indicated by identifying the method of testing used, the prescribed
warning times, and the actual warning times found upon completion of the test.);
Any repairs, replacements, or adjustments made to individually identified warning
devices found to have an actual warning time that differs significantly from the
prescribed warning time; and,
Condition in which the apparatus was left. (Satisfactory condition would indicate the
test is complete and the actual warning times are found to be as prescribed or not
significantly different.)
The FRA cannot envision any other interpretation of the recordkeeping requirements
contained in 49 CFR 234.273. Nonetheless, some railroads have been proceeding under a
very narrow interpretation of these recordkeeping requirements. Even though most railroads
have been maintaining warning time test records that contain all of the required elements
listed above, FRA understands that certain railroads may need additional time to adjust to this
clarification. With respect to those railroads, FRA encourages inspectors to request that
action plans be submitted with the railroad's timeframe for full compliance. While that
process of adjustment is underway, and to the extent it is clear that the railroad is making an
appropriate response, railroads must record, at a minimwn, the total number of approaches
tested at a crossing location and the shortest actual warning time found on any route. Further,
any or all warning times found to be less than the federally required minimum of 20 seconds,
and any deemed to be significantly different from that prescribed (i.e., noncompliant), must be
individually identified and the corrective action taken must be recorded.
2016
5
Please keep in mind that where approach circuits are intended, a crossing warning system
must be designed or maintained to provide at least 20 seconds warning time before the
crossing is occupied by the normal operation of through-train movements on any available
route, and the warning time provided must not differ significantly from the prescribed warning
time, per 49 CFR 234.225.
2017
APPENDIX 14
234.225 Activation of warning system., 49 C.F.R. 234.225
Code of Federal Regulations

Title 49. Transportation
Subtitle B. Other Regulations Relating to Transportation
Chapter II. Federal Railroad Administration, Department of Transportation
Part 234. Grade Crossing Safety (Refs & Annos)
Subpart D. Maintenance, Inspection, and Testing
Maintenance Standards
49 C.F.R. 234.225
234.225 Activation of warning system.
Currentness
A highway-rail grade crossing warning system shall be maintained to activate in accordance with the design of the
warning system, but in no event shall it provide less than 20 seconds warning time for the normal operation of through
trains before the grade crossing is occupied by rail traffic.
SOURCE: 61 FR 31806, June 20, 1996; 63 FR 11623, March 10, 1998; 66 FR 49560, Sept. 28, 2001; 69 FR 30595, May
28, 2004; 74 FR 45342, Sept. 2, 2009; 74 FR 58560, 58561, Nov. 13, 2009; 75 FR 36558, June 28, 2010; 77 FR 35190,
June 12, 2012; 78 FR 16423, March 15, 2013; 80 FR 786, Jan. 6, 2015, unless otherwise noted.
AUTHORITY: 49 U.S.C. 20103, 20107, 20152, 20160, 21301, 21304, 21311, 22501 note; Pub.L. 110432, Div. A., Sec.
202, 28 U.S.C. 2461, note; and 49 CFR 1.89.
Notes of Decisions (12)
Current through November 2, 2017; 82 FR 50843.
End of Document 2017 Thomson Reuters. No claim to original U.S. Government Works.

Catherine Stouffer, Et Al. v. Union Pacific Railroad Co.

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Catherine Stouffer, Et Al. v. Union Pacific Railroad Co.

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FILED

IN THE SUPREME COURT

CATHERINE STOUFFER, ET AL.,

UNION PACIFIC RAILROAD CO.,

On Petition for Review from the

PETITION FOR REVIEW

Jim Moseley Douglas W. Alexander

COUNSEL FOR PETITIONERS

PETITIONERS: Catherine Stouffer, Individually and on

Appellate Counsel for all Douglas W. Alexander

Trial Counsel: Stephen F. Malouf

Counsel for Angela Boivin

Counsel for Stouffer Plaintiffs

Counsel for Tiffanie Lubbers,

Appellate Counsel: Kent Rutter

William H. Bill Hoffman, Jr.

Identity of Parties and Counsel ........................................................................................... 2

Index of Authorities ............................................................................................................... 11

Statement of the Case ............................................................................................................ 13

Statement of Jurisdiction .................................................................................................... 14

Reasons to Grant Review ..................................................................................................... 16

Summary of Argument ......................................................................................................... 21

I. Plaintiffs cause of action is expressly not preempted.............................. 22

A. State-law causes of action based on a railroads failure to

B. There was abundant evidence that UP violated 49 C.F.R.

C. The court of appeals erroneously held that UP complied

1. The court of appeals judicially rewrote Section

2. Section 234.225 establishes a floor, not a fixed

3. The court of appeals construed Section 234.225 in

II. The court of appeals incorrectly concluded that UP could

A. No regulation gives preclusive effect to the design in the

B. The Master Agreement is not void......................................................... 31

1. The court of appeals erred by ignoring 23 C.F.R.

2. FRAs 1995 regulations enforce the designs included

3. Ignoring State-mandated designs in favor of

C. The court of appeals ignored a federal regulation that bars

Certificate of Service .............................................................................................................. 39

Certificate of Compliance .................................................................................................... 40

Cadena Comercial USA Corp. v. Tex. Alcoholic Bev. Commn,

Chevron Corp. v. Redmon,

Crystal Semiconductor Corp. v. TriTech Microelec. Intl Inc.,

CSX Transp., Inc. v. Easterwood,

Entergy Gulf States, Inc. v. Summers,

Gafen v. Tim-Bar Corp.,

Kallinen v. City of Houston,

Mills v. Warner-Lambert Co.,

Rite-Hite Corp. v. Kelley Co.,

TGS-NOPEC Geophysical Co. v. Combs,

35 U.S.C. 284 ............................................................................................................................... 25

49 U.S.C. 20106(b)(1)(A) ............................................................................... 17, 21, 22, 29

TEX. GOVT CODE 311.011 ........................................................................................................ 26

23 C.F.R 646.216(d)(1) .......................................................................................................... 32

49 C.F.R. 234.1(b) ..................................................................................................................... 36

49 C.F.R.234.201 ............................................................................................................... 21, 30

49 C.F.R. 234.225 ............................................................................................... 21, 23, 24, 26

49 C.F.R. 234.259 ...................................................................................................................... 27

Trial Court: Hon. James M. Rush, 441st District Court, Midland

Court of Eleventh Court of Appeals, Eastland, Texas. Opinion by

This appeal presents questions that are important to the jurisprudence

of the statequestions that a Texas court is fully competent to answer.

Without those answers, the safety of highway-railroad crossings in Texas is

significantly compromised. The Court should

(i) enforce a federal railroad-safety regulation that gives drivers the

warning drivers need, and which would have prevented the