An error in the jury charge means Union Pacific Railroad Company will be getting a new trial in a lawsuit brought by a woman who drunkenly fell asleep on the tracks in a seated position and sued the company for her injuries.
Because Mary Johnson was a trespasser on Union Pacific’s tracks, the First Court of Appeals held Tuesday, the jury should have been instructed to determine liability and apportion responsibility based on the railroad company’s gross negligence, if any, rather than ordinary negligence. At the conclusion of the original trial in March 2023, a Harris County jury awarded Johnson $57.1 million in compensatory damages and slammed UP with $500 million in punitive damages.
“In this case, the negligence standard to be applied by the jury was a critical issue for the additional reason that the jury, in apportioning responsibility, was required to compare Johnson’s ordinary negligence, if any, and any relevant negligence by UPRC,” the panel wrote in its 23-page opinion. “We thus sustain UPRC’s point of error regarding the trial court’s erroneous submission of ordinary negligence and refusal to instruct the jury to make its liability finding in response to Question No. 1 based on UPRC’s gross negligence, if any. Having found harmful error in the jury charge, we reverse the trial court’s judgment and remand the case to the trial court for a new trial.”
That $557.1 million award was the third largest handed out by any jury in Texas that year, according to Texas Lawbook data. But by the time Harris County District Judge Michael Gomez entered final judgment in September 2023, taking into account that the jury found UP 80 percent responsible and applying the statutory cap on exemplary damages, the award for Johnson ended up being about $73.4 million plus post-judgment interest.
Union Pacific said in a statement issued to The Texas Lawbook Tuesday that the company was “pleased” with the appellate ruling and remains “committed to sharing the facts” of the incident at the heart of the lawsuit.
“Mary Johnson trespassed onto Union Pacific’s property and sat on the tracks in the dark while severely intoxicated and failed to react to lights, bells and train horn heralding the approach of the train,” the statement reads. “Trains cannot turn to avoid an accident and require anywhere from hundreds of feet to more than a mile to stop, depending on the weight and speed of the train. For everyone’s safety, we strongly urge the public to stay off railroad property — trespassing is illegal and dangerous.”
The lawyers did not respond to requests for comment Tuesday.
According to court documents, Johnson went to the Last Concert Café — a Houston institution in business since 1949, known for live music and Tex-Mex food — March 4, 2016, where she later alleged she was overserved alcohol.
Sometime that night, or early the following morning, Johnson made her way less than a mile down the road, about 47 feet from the railroad crossing on Lyons Avenue just north of downtown and fell asleep on the railroad tracks in a seated position, according to the opinion.
Shortly after 2:30 a.m., a Union Pacific train traveling 19 miles per hour made its way toward the crossing at Lyons Avenue, triggering flashing lights and ringing bells that accompanied the crossing gates descending.
The train’s conductor also began sounding the train’s horn as it neared the crossing. The conductor and engineer would later testify they saw something on the tracks but did not immediately identify it as a person.
Once it was clear the object on the tracks was a person, according to court documents, the engineer engaged the emergency brake. The train needed 417 feet to come to a stop at the speed it was traveling.
Johnson was struck, taken to a hospital and placed in a medically induced coma. A blood sample taken at 3:25 a.m. revealed her blood-alcohol concentration was 0.197, nearly two-and-a-half times the legal limit.
Her injuries were substantial. Her left leg was amputated, much of her right palm and two fingers were also amputated. Her clavicle and six ribs were broken, she also suffered a traumatic brain injury and severe internal bleeding.
She woke up six weeks later.
On Nov. 22, 2016, she filed suit against Last Concert Café and added Union Pacific as a defendant in February 2018. Last Concert Café was later granted a summary judgment win and the case against Union Pacific went to trial.
The jury determined the negligence of both Johnson and Union Pacific caused the injuries in question, that Union Pacific was 80 percent responsible and Johnson was 20 percent responsible, and that Johnson was entitled to $9.6 million in economic damages and $47.5 million in noneconomic damages as a result.
The trial was bifurcated, and in phase two the jury considered punitive damages, eventually deciding to slam Union Pacific with a $500 million award.
Chief Justice Terry Adams and Justices Amparo “Amy” Guerra and Kristin Guiney sat on the panel.
Union Pacific is represented by Lynne Liberato, Kent Rutter and Ryan Pitts of Haynes Boone, Dale Wainwright and Nicole Córdoba of Greenberg Traurig and John W. Proctor of Brown, Proctor & Howell.
Johnson is represented by Kurt Arnold, Kyle Findley, John Grinnan and Kala Sellers of Arnold & Itkin.
The case number is 01-23-00900-CV.