Full opinion text
OPINION ON MOTION FOR REHEARING ELLIS, Justice. After granting appellees’ motion for rehearing in part, we withdraw our opinion on original submission and substitute the following. Appellants’ motion for rehearing is denied. Appellants, Missouri Pacific Railroad Company d/b/a Union Pacific Railroad Company (MoPac) and its engineer, Raymond Douglas Johnson (Johnson), are appealing from a judgment assessing $2,218,018.28 in actual damages and $10,000,000 in exemplary damages in favor of Dewey Lemon, individually, and as Next Friend of Alfred DeJuan Franklin, a minor, and Charles A Richard and Ruby L. Warren as Representatives of the Estate of Sharon Elaine Lemon, appellees. MoPac and Johnson allege error in the trial court, and set out their points of error under the four specific headings of liability, contributory negligence, exemplary damages and admission of evidence. They raise approximately forty-two points of error under these headings, although it is difficult to determine because many of these points are multifarious and repetitious. We affirm as modified. On the night of December 13, 1989, a freight train operated by MoPac and driven by Johnson struck and killed Sharon Elaine Lemon at the Martin Luther King (MLK) railroad crossing in Sweeny, Texas. The MLK crossing had no signals, flashing lights, gates, or flagmen despite numerous complaints seeking better warning devices and/or improved safety at the crossing. Specifically, Sweeny residents complained railroad cars which were illegally and improperly parked obstructed the vision of drivers attempting to cross the tracks. The jury determined the collision was proximately caused by (1) Johnson’s negligence in failing to keep a proper lookout, operating the train at an excessive rate of speed, and failing to sound the train’s horn and bell, and (2) MoPac’s negligence through its employees in failing to keep a proper lookout and improperly parking railroad cars near the MLK crossing. The jury then determined the MLK crossing was “extra-hazardous,” and the collision was proximately caused by MoPac’s negligence in failing to provide automatic signals or a flagman at the MLK crossing. The jury found MoPac was grossly negligent and this negligence was committed with malice. Based on these findings, the jury awarded actual damages against MoPac and Johnson, and exemplary damages against MoPac. GROUP ONE POINTS OF ERROR LIABILITY Under Group One, appellants raise what appear to be thirteen points of error. Their argument makes it clear they are complaining generally about the submission of jury questions one, two, three and four. Additionally, they contend jury questions one, three and four are defective on the basis that “operating the train at an excessive speed” and “failure to install active warning devices” are both grounds of liability pre-empted by federal law. Further, appellants complain the evidence is legally and factually insufficient to support the jury’s finding of failure to keep a proper lookout under questions one and two. Appellants allege appellees “embarked on a risky gambit” in submitting questions which: required the jury to consider disparate groups of factual negligence theories in reaching an answer; conditioned exemplary damages upon the answers to the preceding jury questions regarding liability; and did not require the jury to specify each factual theory it found to be negligent. Such allegations are not well founded. The trial court has no discretion to submit separate questions as to each element or ground of recovery under a cause of action, and separate findings by the jury are not required. Texas Dept, of Mental Health and Mental Retardation v. Petty, 848 S.W.2d 680, 682 & n. 2 (Tex.1992); Texas Dept, of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.1990). The rule is now well-settled in Texas that “broad-form submission ‘shall’ be used “whenever feasible.’ ” Texas Dept, of Human Servs., 802 S.W.2d at 649 (Tex.1990) (quoting Tex.R.Civ.P. 277). The phrase “whenever feasible” means “in any or every instance in which it is capable of being accomplished.” Id. The trial court is to submit to the jury the controlling questions in a case and this does not include asking “what specific ground or grounds ... the jury relied on to answer ... the questions posed.” Id. Thus, “[t]he fact that a jury question contains more than one factual predicate to support an affirmative answer to a controlling question, or more than one element of a cause of action, does not render it defective.” 4 Roy W. McDonald, Texas Civil PRActice in DistRict and County Courts § 22:6 (rev. 1992). In the present case, the trial court properly submitted the controlling questions regarding Johnson’s and MoPac’s negligence to the jury accompanied by appropriate instructions limiting the jury’s consideration to the specific acts of negligence pled. The trial court had no discretion to do otherwise. As to appellants’ other complaints we will begin with jury question one which asked: “Was the negligence, if any, of R.D. Johnson, a proximate cause of the collision in question?” Under this question the jury was instructed to “consider only the following acts of negligence, if any, by R.D. Johnson: (1) failure to keep a proper lookout, (2) operating the train at an excessive rate of speed, (3) failure to sound the train’s horn and bell.” Contrary to the implication in appellants’ brief that the jury was instructed to consider: act of negligence (1) regarding lookout, or act of negligence (2) regarding train speed, or act of negligence (3) regarding the train’s horn and bell, the jury was instructed to consider all three of these acts and only these three acts. Appellants contend the jury should not have been instructed to consider act of negligence (2), operating the train at an excessive rate of speed, because this claim has been pre-empted by the Federal Railroad Safety Act (FRSA). They cite the recent United States Supreme Court opinion in CSX Transportation, Inc. v. Easterwood, — U.S.-, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993) as support for this proposition. Based upon the specific facts of this case and the language of the Easterwood case, we disagree with their contention. In the Easterwood case, the Supreme Court found Mrs. Easterwood’s excessive train speed claim was pre-empted. Id. at -, 113 S.Ct. at 1742-43. However, the Court in a footnote specifically stated it was not addressing the FRSA’s preemptive effect on tort law duties such as the duty to slow or stop a train to avoid a specific, individual hazard. Id. at-n. 15, 113 S.Ct. at 1743 n. 15. In this case there was a line of tank cars improperly parked, in violation of Mo-Pac’s safety rules and section 5.620(b) of the Texas Administrative Code, within one hundred and five feet from the MLK crossing. See 16 Tex.Admin.Code § 5.620(b) (West 1988) (Tex.R.R.Comm’n, Visual Obstructions at Public Grade Crossings). Johnson testified these tank cars obstructed his view of the intersection at MLK and the railroad tracks. He also indicated the tank ears obstructed his view of the southern approach to the MLK crossing, the side from which Sharon Lemon was approaching. Johnson testi- fied he would have seen Sharon Lemon’s car sooner if the tank ears had not been improperly set out on the track. Although he stated he was always concerned with grade crossings, Johnson testified it never occurred to him to slow his train down for the MLK crossing even after he realized his view of part of the crossing was obstructed. He stated he had made a slight, one to two mile an hour, reduction in speed after entering Sweeny because the signal block at the east end of Sweeny had gone from clear to dark, but the speed reduction was not prompted by, or related to, the parked tank cars. He testified he made no attempt to slow or stop the train until immediately prior to impact when he threw the train into emergency after Sharon Lemon’s car had pulled in front of the train. Johnson testified he had been going through this crossing ever since he started working for the railroad and he had 14 years experience as an engineer. He was aware his train could not stop on a dime in an emergency. He was also aware this crossing was very dark, i.e., unlit, was not protected by any device to warn an approaching motorist that a train was actually coming, contained multiple tracks, was elevated above the road level, and the road curved approaching the tracks from the south. The realization that his view of one side of the crossing was obstructed, coupled with his knowledge of this crossing, triggered a duty for Johnson to slow his train as he approached the MLK crossing. These illegally and improperly parked tank ears created a specific, individual hazard which required Johnson to continue to slow his train until he had a clear view of both sides of the intersection at MLK and the railroad tracks. His failure to slow the train under these conditions is evidence he was operating his train at an excessive rate of speed and is a claim that is not preempted by federal law. The improper parking of tank cars which obstruct the view of a crossing is not a hazard which the Secretary took into consideration when determining train speed limits under the FRSA. See Eastenuood, — U.S. at-, 118 S.Ct. at 1742, 1743. The trial court properly submitted appellees’ claim that Johnson was “operating the train at an excessive rate of speed” for the jury to consider. Appellants also contend there was legally and factually insufficient evidence to support the jury’s finding that Johnson failed to keep a proper lookout. When reviewing a complaint that the evidence is legally insufficient to support a finding, we will consider only the evidence and inferences which tend to support the jury’s finding, and disregard all contrary evidence and inferences. Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990). After such a review, if we find any evidence of probative force to support the finding, then the finding must be upheld. Responsive Terminal Sys., Inc. v. Boy Scouts of Am., 774 S.W.2d 666, 668 (Tex.1989). See Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989). When there is a complaint that the evidence is factually insufficient to support the jury’s finding, we must review all of the evidence and determine if the weight of the record supports the finding. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); In re King’s Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951). The jury is the sole judge of the credibility of the witnesses and the evidence, and is entitled to resolve any conflicts or inconsistencies in the evidence. See Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792 (Tex.1951); M.J. Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620, 623 (Tex.App.—Houston [1st Dist.] 1987, no writ). On the issue of Johnson’s lookout, he testified generally he can see all the way down to the MLK crossing from the west end of Sweeny. Regarding the night of the accident, he stated “it was dark, so [he couldn’t] say exactly when” he saw the MLK crossing, but he knew where the crossing was and he did not see any obstruction or any kind of headlight on the crossing. However, he also testified he had been going through this crossing for at least 14 years. The evidence was uncontested that motorists approaching from the south have to negotiate a curve in the road in order to cross the tracks. Additionally, the evidence was uncontested that the railroad grade crossing was so elevated that a ear stopped on one side of the tracks cannot even see the roof of a car stopped on the other side. For a car’s headlights to be on the crossing, the car would have to have already negotiated the turn and the incline leading up to the tracks, and at least be to the first of the four sets of tracks. Thus, the lack of headlights on the crossing does not indicate there are not cars approaching the crossing. Johnson also indicated he was concentrate ing on the signal block at the east end of Sweeny, which had gone dark. He stated he had a lot of things on his mind such as making his initial one to two mile an hour reduction in speed in response to the signal change, commenting to M.R. Phillips (Phillips), the conductor, about the change in signal color, and watching with Phillips to see if the signal block changed back to clear or green. However, the tank cars blocking his vision were not a concern for his lookout. As he got closer to the intersection he stated that he noticed a car stopped on the north side of the crossing and Sharon Lemon’s car coming up on the south side of the crossing bringing to his attention that there were cars at the MLK crossing. On the night of the accident, Johnson told Mark Landrith (Landrith), Manager of Train Operations, he was five or six car lengths or approximately 300 to 350 feet back from the grade crossing when he first saw Sharon Lemon’s car. Johnson gave Landrith no information about where Sharon Lemon’s car was located when he first saw it. The evidence, however, established it would have been physically impossible for him to have seen her car from that distance away from the crossing because he would have had to be able to see through the improperly parked tank cars to see the south side of the crossing. When Johnson met with Deree Owens (Owens), the accident investigator for MoPac, he told her he was 150 feet back from the crossing when he first saw Sharon Lemon’s car, and her car was located near some bushes by the railroad crossbuek sign. Sometime after meeting with Owens, Johnson, accompanied by his lawyer, MoPac’s lawyer, Owens, Phillips and H.R. Wiley (Wiley), the brakeman, went out to the MLK crossing and walked off some distances. After this expedition, Johnson decided he was really about 200 feet back from the crossing when he first saw Sharon Lemon’s car, and her car was located just before the railroad crossbuck sign. Interestingly, Dr. Neilon J. Rowan, who reconstructed the accident for appellants, testified the location of Sharon Lemon’s car “just to the right of the cross-buck” would have been Johnson’s “first opportunity to see it” from the train. Additionally, Dr. Rowan’s calculations indicated that if Sharon Lemon’s car were located at the first possible location for Johnson to have seen it, Johnson would have been 207 feet back from the crossing when he first saw her car. Although Johnson testified Sharon Lemon’s ear was moving when he first saw it, he never stated that he kept his eye on the ear to see if it was going to stop. In fact, he stated his first indication that Sharon Lemon’s car was not going to stop was when the car pulled onto the tracks in front of the train immediately prior to impact. However, on the night of the accident, Johnson told Landrith Sharon Lemon’s ear never stopped, but slowed and then sped up across the tracks. In any ease, had Johnson begun slowing the train as soon as he realized his view or lookout was obstructed on the south side and continued to slow the train until his view on the south side was completely clear, Sharon Lemon would have had extra time to either see the train and stop, or proceed on across the tracks. The jury has the benefit of observing the demeanor of the witnesses and is free to believe any, all or none of a witness’ testimony. The evidence is sufficient to support the jury’s finding as to Johnson’s lookout. Next, we will consider jury question two which asked: “Was the negligence, if any, of Missouri Pacific Railroad, through its agents or employees, a proximate cause of the collision in question?” Under this question the jury was instructed to “consider only the following three acts of negligence if any: (1) failure to keep a proper lookout by M.R. Phillips; (2) failure to keep a proper lookout by H.R. Wiley; and (3) improper parking of the railroad cars near the MLK crossing.” Appellants’ only challenge to question two is that the evidence is legally and factually insufficient to support the jury’s finding as to the lookout by Phillips and Wiley. Using the standards set out under jury question one, we will review the evidence for legal and factual sufficiency. Phillips was the conductor of the train which meant he was the boss of the crew. On the night of the accident he was sitting on the north side of the engine, approximately four feet from Johnson. He described his job as “[t]o be sitting there, being very alert of what was, you know, happening in front of me or all my surroundings.” He testified he was to “look and pay attention to what’s ... going on_” However, he testified he did not see Sharon Lemon’s car until it was struck by the train. He stated he first saw her “when she was hit and the fumes or whatever was coming up in front of the ... engine....” Although the conductor’s seat is equipped with a brake, Phillips stated he did not put the train into emergency because he did not need to use the emergency brake. He testified he did see the tank cars parked on the track and they did block his line of vision toward the south side of the crossing. He stated he could not see through the tank cars, and he could have seen more of the intersection and could have seen Sharon Lemon sooner if the tank cars had not been parked there. Phillips, like Johnson, was concentrating on the signal at the east end of Sweeny which had gone from clear to dark. He stated he and Johnson discussed the change in signal color and after that he was looking “to see was it going to turn back clear or what....” Additionally, Phillips stated he was “looking ahead ... at the crossing and on [his] side (the left or north side) and at the signal.” Unfortunately, Sharon Lemon’s car was approaching from Johnson’s side (the right or south side) of the train and not from Phillips’ side. He stated he could see to the right, straight ahead and to the left from his seat in the engine and did not indicate that anything, but the tank cars up to a certain point, blocked his view of the intersection. However, he still testified he did not see Sharon Lemon until the train hit her. Phillips from his testimony did not believe that if the train had slowed down Sharon Lemon would have had any extra time to see the train or get across the intersection. The jury heard other evidence that traveling at her estimated speed of 15 miles per hour, Sharon Lemon would have needed at most ten feet to stop. Even another quarter to one-half of a second in time could have made the difference between her life and death had the train slowed down. As to Wiley’s lookout, Wiley was not even certain where in the train he was located or whether he was “buckling up his pants” outside the bathroom just prior to the accident. On the night of the accident, he told Landrith that he was sitting on the lead engine when he first saw Sharon Lemon’s car and her car never stopped. At his deposition, he testified he was on the third engine because he had gone back there to use the restroom. He testified he was standing in the front of the third engine looking out of the right (south) side window buckling up his pants, and could see all the way to the intersection before he got there. He, like Johnson, stated he saw Sharon Lemon’s car as she was driving up the incline at the crossing and she started out going slow and then sped up. Wiley also stated he and Johnson talked about their testimony before having their depositions taken. Wiley, when asked about the tank cars, testified he remembered them being parked near the crossing. He testified the front of the engine he was in was beyond the last parked tank car on the track so that he could see through to the crossing. He then stated he first saw her “pretty much to the end of’ the last tank car and the part of the engine where he was standing was “pretty close to the end of the tank.” Then he thought the engine he was in was a little behind the end of the last tank car. He stated he saw Sharon Lemon’s car when it was located just past the crossbuck sign and followed it all the way across until it went in front of the train out of his sight. At trial, Wiley admitted that if the front of the third engine had been located, as he described in his deposition, where he could have seen the crossing and Sharon Lemon’s car, the lead engine would already have been through the MLK crossing. He admitted it would have been a physical impossibility for him to have seen Sharon Lemon’s car at the place where he testified it was located. Sometime between August 1990 and December 1990, he decided some of his deposition testimony was incorrect. He testified “it was a mistake” when he said at his deposition that he was in the third engine looking out the window when he first saw Sharon Lemon’s car. Therefore, he changed his testimony to state he was on the second engine and he was no longer buckling up his pants but was instead zipping up an insulated uniform. He was also mistaken in his deposition about where Sharon Lemon’s car was located when he first saw it. At trial, he testified her car was between the first and second set of tracks on the south side of the crossing. Additionally, he changed his mind about the view he had and stated the tank cars “obstructed [his] view in approaching the crossing.” The entire tenor of Wiley’s testimony was that he could not recall exactly what he told various people, he gave at least three different versions of events at varying times, and was generally “mistaken” about what he said. His deposition and trial testimony gave the impression he simply made up answers to questions and then if they were incorrect, or even if he thought they were incorrect, he would state he was mistaken and make up a new answer. His testimony leaves it unclear whether he was really keeping any kind of lookout. As discussed above, even a slight bit of extra time could have saved Sharon Lemon’s life. In order to slow or stop the train in response to a hazard, the crew would have to be keeping a'sufficient lookout to first perceive the hazard. There is ample evidence to support the jury’s affirmative answer to question two. We will now address jury question three which asked: “Was the MLK crossing an extra-hazardous crossing on the occasion in question?” Under this question the jury was instructed “[a] railroad crossing is ‘extra-hazardous’ when, because of surrounding conditions, it is so dangerous that persons using ordinary care cannot pass over it in safety without some warning other than the usual cross buck sign.” Appellants allege Texas’ extrahazardous common law is incompatible with the priority system established by the FRSA and is preempted. They cite Judge Birch’s concurring opinion in Mahony v. CSX Transportation, Inc., 966 F.2d 644 (11th Cir.1992) in support of this proposition. Judge Birch in his separate opinion criticized the Easterwood opinion, written by a different panel of the 11th Circuit, for failing to find that the FRSA preempted the state common law claim based on the absence of proper warning devices. Id. at 646-47. The United States Supreme Court, however, affirmed the Easterwood opinion defeating appellants’ argument on this point as will be discussed in more detail under jury question four below. See Easter-wood, — U.S. at —, 113 S.Ct. at 1736-42. Finally, we consider jury question four which asked: “Was the negligence, if any, of Missouri Pacific Railroad, through its agents or employees, a proximate cause of the collision in question?” Under this question the jury was instructed to “consider only the following acts of negligence, if any: (1) failure to provide automatic signals (such as gates, cantilevers, or flashing lights) or (2) failure to provide a flagman at the MLK crossing.” Appellants’ only complaint about jury question four is that the failure to provide automatic signals is pre-empted by federal law. The Easterwood opinion, which found Mrs. Easterwood’s signal claims were not preempted, controls our disposition of this complaint. See id. The Court in East erwood found the provisions of 23 CFR § 646.214(b)(3) and (4), “when applicable,” were the only potential sources of pre-emption which actually pre-empted state tort law on the issue of warning devices. Id. at-, 113 S.Ct. at 1740-41. See 23 CFR § 646.-214(b)(3), (4) (1992). These two regulations apply only to projects in which federal funds participate in the installation of warning devices. Easterwood, — U.S. at -, 113 S.Ct. at 1741. Warning devices are defined to include both active and passive warning devices, /d The facts are undisputed in this case that the MLK crossing had only passive warning devices, i.e., a crossbuck sign and a yellow and black advanced warning sign. Thus, the only question which remains is whether federal funds participated in the installation of these warning devices at the MLK crossing, a precondition which must be met for either regulation. A review of the record reveals federal funds did not participate in the installation of these warning devices. The evidence indicates the MLK crossing ranked approximately 400 on the State’s funding index for the use of federal funds at railroad crossings and was nowhere near the cut-off point on the index to even be considered for federal funds. Additionally, Clifford Shoemaker (Shoemaker), the Director of Industry and Public Projects for MoPac’s parent company, Union Pacific Railroad, when asked specifically about what the railroad spent on warning devices at the MLK crossing, testified that “approximately every ten years you go out and spend a couple hundred dollars for a replacement sign plus labor.” Shoemaker was at trial on behalf of appellants to introduce evidence of the railroad’s safety efforts and the money it expended to protect the public at crossings, including the MLK crossing. Appellants now argue the record is not fully developed as to whether federal funds were used to install the warning devices at the MLK crossing. If indeed federal funds were used to install the warning devices at the MLK crossing then appellants have misled the jury with Shoemaker’s testimony. The reality about whether the railroad paid for these devices should have been investigated prior to putting Shoemaker on the stand to convey information that appellants now imply they were not even sure was correct. This lapse on appellants’ part does not require reversal for further development of the evidence. We will take Shoemaker at his word that the railroad paid for these warning devices at the MLK crossing. We find no preemption of appellees’ state common law claim regarding the absence of proper warning devices. Appellants’ points of error under Group One, regarding liability, are all overruled. GROUP TWO POINTS OF ERROR CONTRIBUTORY NEGLIGENCE Under Group Two, appellants raise four points of error. In point of error one, they complain the trial court erred in failing to submit excessive speed and failure to properly apply the brakes as grounds for Sharon Lemon’s contributory negligence. Appellants argue, in point of error two, the trial court erred by failing to submit their tendered instruction number four regarding the duty to reduce speed as required by statute under Tbx.Rev.Civ.Stat.Ann. art. 6701d, § 166(c) (Vernon 1977). Due to these erroneous omissions in the charge, appellants’ allege in point of error three they were denied the submission of a primary defensive theory raised by the evidence. Additionally, in point of error four they contend the jury’s answers to questions five and six, finding no contributory negligence on the part of Sharon Lemon, were against the great weight and preponderance of the evidence. The issue of contributory negligence was submitted to the jury in question five which asked: “Was the negligence, if any, of Sharon Elaine Lemon, a proximate cause of the collision in question?” Under this question the jury was instructed “consider only the following acts of negligence, if any: (1) failure to keep a proper lookout; and (2) failure to stop within fifty feet but not less than fifteen feet from the nearest rail.” Under question six the jury was asked to apportion the percentage of negligence attributable to each party. The jury found Johnson to be ten percent negligent, MoPac to be ninety percent negligent, and Sharon Lemon to be zero percent negligent. The trial court properly submitted the controlling question regarding Sharon Lemon’s contributory negligence under jury question five. The trial court has wide discretion in determining the proper instructions to accompany a jury question. Mobil Chem. Co. v. Bell, 517 S.W.2d 245, 256 (Tex.1974); Harris v. Harris, 765 S.W.2d 798, 801 (Tex. App.—Houston [14th Dist.] 1989, writ denied). Under broad form submission, “the extent of the jury’s consideration of the elements comprising the controlling issue becomes a matter of evidence and argument, subject to appropriate instruction of the [trial] court.” Members Mut. Ins. Co. v. Muckelroy, 523 S.W.2d 77, 82 (Tex.Civ.App—Houston [1st Dist.] 1975, writ ref d n.r.e.). A review of the record reveals appellants presented evidence and argued that if Sharon Lemon “had been going slow enough, if she had stopped before crossing the crossing and looking, she would have seen, this accident would not have taken place.” We find the instructions complained of in point of error one, regarding the claims of excessive speed and failure to properly apply the brakes, were subsumed in the instructions given by the trial court. Proper lookout and stopping within the statutorily prescribed number of feet from the crossing require the jury to consider whether Sharon Lemon was proceeding at an excessive rate of speed and had properly applied the brakes. We find no reversible error in the trial court’s refusal to submit these two claims. Next, appellants complain in point of error two the trial court improperly refused to submit to the jury their requested instruction number four. Appellants’ requested jury instruction number four stated: “ ‘Negligence’ when used with respect to the conduct of Sharon Elaine Lemon means the failure to drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing.” Appellants allegedly based this instruction on the language of Tex.Rev.Civ.Stat.Ann. art. 6701d, § 166(b), (c) (Vernon 1977), which requires a motorist to proceed “at an appropriate reduced speed when approaching and crossing a railroad grade crossing” consistent “with legal requirements and the duty of all persons to use due care.” Id. The trial court in its charge submitted to the jury the following negligence instruction: “NEGLIGENCE” means failure to use ordinary care; that is to say, failure to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances. The trial court is not required to submit an instruction based upon statutory language if the statute’s standard of care is the same or substantially the same as the duty of ordinary care. Smith v. Central Freight Lines, Inc., 774 S.W.2d 411, 415 (Tex.App.—Houton [14th Dist.] 1989, writ denied). Such is the ease with the present instruction, the negligence per se instruction requested by appellants was subsumed by the broad-form negligence instruction given by the trial court. See id. Further, the trial court does not err in refusing a requested instruction if the substance of the matter contained in the requested instruction was included in the court’s charge. Dixon v. Van Waters & Rogers, 674 S.W.2d 479, 483 (Tex.App.—Fort Worth), writ refd n.r.e. per curiam, 682 S.W.2d 533 (Tex.1984). The instruction given by the trial court properly presented, and assisted the jury in determining, the issue of Sharon Lemon’s negligence. See 1 State Bar of Texas, Texas PatteRN Jury Charges PJC 2.01 (2d ed. 1987). The trial court did not abuse its discretion in refusing to submit appellants’ requested jury instruction number four. As to appellants’ allegation in point of error three that the trial court’s erroneous omission from the charge of their requested instructions denied them the submission of a primary defensive theory, we disagree. Having found no error in the trial court’s failure to submit any of the complained of instructions, we find no denial to appellants of the submission of a primary defensive theory. The issue of contributory negligence was properly submitted to the jury. Finally, we will address appellants’ contention in point of error four that the jury’s failure to find Sharon Lemon eontribu-torily negligent under questions five and six is against the great weight and preponderance of the evidence. In reviewing a great weight and preponderance challenge, we must examine the record to determine if there is some evidence to support the jury finding, and if so, then we must determine if the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Dyson v. Olin Carp., 692 S.W.2d 456, 457 (Tex.1985); Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973). In reviewing a great weight complaint such as this, which addresses the jury’s failure to find a fact, we must be mindful the jury was not convinced by a preponderance of the evidence that Sharon Lemon was contributorily negligent. Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex.1988). A review of the record reveals there was ample evidence that Sharon Lemon’s view of the crossing was obstructed by the improperly parked railroad tank cars. There was expert testimony that even without the tank cars, a motorist approaching from the south would have their vision diminished or impaired by 81 percent due to other obstructions and distractions at this crossing. Additionally, there was evidence from other motorists who had similar accidents at the MLK crossing during daylight hours, who were unable to see the train until they were right on the track. The only evidence indicating the engineer was actually blowing the horn or ringing the bell, came from Johnson himself whose credibility the jury obviously questioned as can be seen from its answer to jury question one. Neither Wiley nor Phillips could state under oath that Johnson was blowing the horn or sounding the bell. The eye-witnesses stated the horn was blown two to three blocks back down the line and was not blown again as the train approached the MLK crossing and struck Sharon Lemon. The evidence indicated that no one actually knew whether Sharon Lemon had stopped before the crossbuck. Wiley and Johnson both stated they only knew the car was moving when it came into their view. They also testified the car was going slowly and then picked up speed. However, Wiley admitted he and Johnson had discussed their testimony together before testifying to these facts. The eye-witnesses testified they saw headlights coming slowly up the incline on the other side of the crossing. The best estimate of Sharon Lemon’s speed was around 15 miles an hour and the speedometer on her car was frozen at 12 miles an hour after the accident. The only person who estimated her speed at significantly higher than 15 miles an hour was Johnson who said she was going 20 to 30 miles an hour. Johnson, however, admitted this was just an estimate and he could be mistaken. Further, the expert testimony indicated if she had been going 20 to 30 miles an hour she would have cleared the crossing and an accident would not have occurred. As it was, she was faced with a complex driving task of perceiving and reacting to the train without enough time to accomplish this task according to expert testimony. We find there was ample evidence to support the jury’s determination of no contributory negligence on the part of Sharon Lemon. Appellants’ Group Two points of error one through four, regarding contributory negligence, are all overruled. GROUP THREE POINTS OF ERROR EXEMPLARY DAMAGES Under Group Three, appellants apparently raise twenty-two points of error, many of which are duplicitous and repetitive. The first two points of error raise essentially the same complaint. Appellants complain the trial court erred in awarding exemplary damages because the charge did not contain questions inquiring whether MoPac’s gross negligence and malice as found by the jury was committed by a vice principal of MoPac. In appellants’ third point of error, they allege the evidence was legally and factually insufficient to show that the gross negligence and malicious conduct found by the jury was committed by a vice principal of MoPac, was previously authorized by MoPac or was ratified by MoPac. This theme is restated in two other points of error. Next, in a multifarious point of error which is essentially three points of error in one, appellants contend the exemplary damages are immaterial because they are based upon theories that are: (1) not supported by legally or factually sufficient evidence (crew lookout), an issue previously raised and already disposed of under Group One points of error; (2) preempted as a basis for common law liability by federal law (speed and negligence in connection with extrahazardous crossing), another issue previously raised and already disposed of under Group One points of error; or (3) procedurally and substantively defective (failure to require that gross negligence or malice be that of a vice principal of the railroad), basically the same complaint already raised by points of error one and two under this group of points. Exemplary damages may not be awarded as a result of ordinary negligence, but must be based on gross negligence, or intentional or willful conduct. American Nat’l Ins. Co. v. Navarrete, 758 S.W.2d 805, 809 (Tex.App.—El Paso 1988, writ denied). In this case, gross negligence was properly defined for the jury as “more than momentary thoughtlessness, inadvertence, or error of judgment. It means such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected.” See Tex.Civ.PRAC. & Rem. Code Ann. § 41.001(5) (Vernon Supp.1993). This conduct may be either active or passive in nature, which means a finding of gross negligence can be based on either MoPac’s acts or omissions. Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex. 1981). Conduct willfully committed with ill will, evil motive, or gross indifference or reckless disregard for the rights of others is malicious and will also support an award of exemplary damages. Dahl v. Akin, 645 S.W.2d 506, 515 (Tex.App.—Amarillo 1982), ajfd, 661 S.W.2d 911 (Tex.1983), cert. denied, 466 U.S. 938,104 S.Ct. 1911, 80 L.Ed.2d 460 (1984). Malice may be established by direct or circumstantial evidence, and a plaintiff need not prove the defendant acted with personal spite, but may simply prove the defendant committed negligent acts in reckless disregard of another’s rights and with indifference as to whether that party would be injured. In the present case, malice was properly defined for the jury as: conduct that is specifically intended by [MoPac] to cause substantial injury to Sharon Elaine Lemon; or an act that is carried out by [MoPac] with a flagrant disregard for the rights of others and with actual awareness on the part of [MoPac] that the act will, in reasonable] probability, result in human death, great bodily harm, or property damage. See Tex.Civ.Prac. & Rem.Code Ann. § 41.-001(6) (Vernon Supp.1993). As a general rule, an affirmative finding by the jury as to either gross negligence or malice will support an award of exemplary damages. However, the rule in Texas is well settled that exemplary damages may only be recovered against a corporation, such as MoPac, for the gross negligence or malicious acts of its employees under certain circumstances. A plaintiff must establish the agent who was grossly negligent or who acted with malice was acting within the scope of employment and was something more than a mere servant, i.e., is employed in a managerial capacity or is a vice principal of the corporation; or the acts of the agent were previously authorized, or subsequently adopted or ratified by the corporation; or the employee was unfit and the corporation was reckless in employing him. See Purvis v. Prattco, Inc., 595 S.W.2d 103, 104 (Tex.1980); Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 630 (Tex.1967); Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 926 (Tex. App.—Corpus Christi 1991, writ dism’d w.o.j.); Jim Walters Homes, Inc. v. Reed, 703 S.W.2d 701, 706 (Tex.App.—Corpus Christi 1985), affd in part, rev’d in part on other grounds, 711 S.W.2d 617 (Tex.1986). A vice principal of a corporation includes corporate officers, those who have authority to employ, direct, and discharge servants of the master, those engaged in the performance of non-delegable or absolute duties of the master, or those to whom the master has confided the management of the whole or a department or division of the business. Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 406-07 (Tex.1934); Shearson Lehman Hutton, Inc., 806 S.W.2d at 926; Southwestern Bell Tel. Co. v. Reeves, 578 S.W.2d 795, 800 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ refd n.r.e.). Using the standards set out under Group One points of error, we will review the legal and factual sufficiency of the evidence. In the present case, the trial court submitted the charge to the jury by properly conditioning the questions regarding exemplary damages, upon an affirmative answer to the gross negligence or malice question, which questions were in turn' conditioned upon an affirmative answer to the questions regarding MoPac’s negligence. One of the acts of negligence which the jury was instructed to consider in determining MoPac’s negligence under question two was the improper parking of the railroad tank cars near the MLK crossing. The jury was further instructed it was negligence under Texas law for a railroad company to cause or allow trains, railway cars or equipment to stand less than 250 feet from the center line of any public grade crossing unless a closer distance cannot be avoided. See 16 Tex.Admin.Code § 5.620(b) (West 1988) (Tex.R.R.Comm’n, Visual Obstructions at Public Grade Crossings). The fact that the railroad tank cars were parked approximately 105 feet away from the MLK crossing in violation of state law and MoPac’s company policy was uncontroverted. Kenneth Lott (Lott), the City Administrator of Sweeny, testified he drafted and mailed, in March 1979, a letter to Mr. O.E. Knox, Assistant to the General Manager of MoPac in Houston, Texas. This letter, a copy of which was introduced into evidence, informed MoPac that the city council had declared the MLK crossing (at that time named the Ash Street crossing) “an extra special hazard” because the “six sets of tracks present a problem in that when railroad cars are parked next to the crossing, this severely limits visibility [and] [o]ne or two accidents have occurred at this location ... involving a moving train and a motor vehicle.” There was no response to this letter by MoPac and it could not be found in their files. Another letter, introduced into evidence, was sent by Lott on November 8, 1988 to P.L. Tucker (Tucker), Division Superintendent, Union Pacific Railroad Company in Houston, Texas. This letter concerned safety at the MLK crossing, the multiple tracks, the lack of signals, asked the railroad to “[p]lease help” the City of Sweeny solve the safety problem at the MLK crossing, and informed Tucker the MLK “crossing [wa]s the only access to the Southend Subdivision where several hundred [Sweeny] citizens live.” In a letter dated November 17, 1988, Tucker responded by ignoring Sweeny’s plea for assistance, and referring the City to the State Highway Department which handles the funding index for the State and allots federal funds for signals and improvements at railroad grade crossings. The evidence was also uncontroverted that Shoemaker, MoPae’s Director of Industry and Public Projects, was responsible for maintaining an inventory of information on each of Union Pacific’s crossings, including MoPac’s MLK crossing. This inventory included information about accidents which occurred at the crossing between moving trains and motor vehicles. The jury heard further uncontroverted testimony from other Sweeny citizens who were struck by moving trains at the MLK crossing. These drivers testified that, even in daylight hours, they were unable to see the train until they pulled on the track in front of the train, because their vision was blocked by parked railroad cars. Their testimony showed they were fortunate to have enough time to punch the gas and get partially off the tracks before being struck by the train, a luxury Sharon Lemon did not have. These accidents were reported to Mo-Pac and would have been included in Shoemaker’s inventory on the MLK crossing. Additionally, the evidence indicated that Sweeny citizens complained to, and signed petitions to be sent to, MoPac concerning safety in general at the MLK crossing, and the railroad cars parked too close at the MLK crossing which blocked visibility. However, the City’s and its citizens’ pleas fell on deaf ears as MoPac took no action to enforce compliance with § 5.620(b) or its own rule, implemented in part to provide safety and visibility at grade crossings. See 16 Tex.Admin.Code § 5.620(b) (West 1988) (Tex. R.R.Comm’n, Visual Obstructions at Public Grade Crossings). Further, not only was compliance with the statute and rule not enforced, but compliance was not even required or expected by Mo-Pac. Ronald Daniel (Daniel), the engineer who set those tank cars out on the track too close to the MLK crossing, gave uncontro-verted testimony that the ordinary operating policy was not to measure the distance of the cars from the crossing but to do an eyeball estimate. In fact, Daniel testified the train crew is not provided any instrument, implement, or equipment with which to measure the distance between the last car and the crossing. Instead, the train crew eyeballs how much room they have to set out cars as they are passing the crossing on their way to set out the cars. Daniel testified no one on the crew goes back to check and see if they have pushed the end of the line of cars too close to the crossing when they were setting the cars out because MoPac does not have a rule requiring the crew to do so. He stated if a crew member felt the cars were too close he would say something and some of the cars could be moved to another track. His testimony, however, does not make it apparent how anyone on the crew would know the cars were too close since no measurement is required or made, and no one is required to, or actually does, go back to check the distance anyway. His testimony makes it clear the best guess estimate method of insuring visibility and safety at crossings, including the MLK crossing, is the authorized method of procedure for MoPac despite the fact MoPac was aware of accidents, and the City of Sweeny’s concern about safety at the MLK crossing. John D. Hopkins, Manager of Terminal Operations for MoPac, testified that part of his and Landrith’s duties were to make periodic checks on compliance with rules and safety procedures. He stated he had on one occasion noticed train cars parked too close to the MLK crossing and had ordered them moved. However, there was no indication he investigated to find out who set the cars out improperly and why it was done, or that he ordered anyone disciplined for the violation. In fact, Hopkins testified he was not concerned that the tank cars might have impaired Sharon Lemon’s vision. He appeared quite flip about the situation indicating that he knew 107 feet was a safe distance, despite the company rule and state regulation. Hopkins felt Sharon Lemon could see fine, and did not show any remorse about the safety hazard or violation. The next question in the jury charge to address MoPae’s negligence, is question four which was to be answered only if the jury found the MLK crossing to be extra-hazardous. The jury made such an extra-hazardous finding regarding the MLK crossing. Thus, under question four, the jury was instructed to consider the failure to provide automatic signals (such as gates, cantilevers, or flashing lights) and the failure to provide a flagman at the MLK crossing in determining MoPac’s negligence. The evidence discussed above makes it clear MoPac was well aware of the safety conditions at the MLK crossing. Despite this fact, the evidence was uncontro-verted that Johnson’s timetable contained instructions for the train to be preceded by a flagman at three different crossings in Hills-boro, Texas, but his timetable contained no such instruction for the MLK crossing in Sweeny. Further, despite MoPac’s knowledge of the safety conditions and accidents at the MLK crossing, it took no action to protect the citizens of Sweeny by installing some type of automatic signal as requested by the City of Sweeny. Shoemaker, MoPac’s Director of Industry and Public Projects, who had a three to five million dollar budget just for signal projects testified MoPac certainly had the ability to purchase automatic signal equipment and install it at the MLK crossing so long as it got State approval. Despite the fact there was nothing to prevent MoPac from purchasing signals or warning devices for the MLK crossing, Shoemaker testified MoPac did not do so because it was against their policy. Instead, their' policy was to utilize their funds only on projects which came up on the State’s funding index, an index which was not a safety index. Obviously, Tucker was acting within this company policy when he referred the City of Sweeny to the State Highway Department without any response or concern for the safety of the public using the MLK crossing. Along these same lines, the jury heard expert testimony from John Robert Dodson (Dodson), who worked for the Texas Highway Department for 36 years and was responsible for developing the funding index used by the State to distribute federal funds for railroad crossing improvements. Dodson testified the State program does not prevent municipalities or railroads from spending their own money to upgrade signals at unsafe crossings, and in fact it encourages them to do so. He indicated the only requirement is for the railroad to get State approval on the type of equipment they purchase and install. The evidence indicated the cost of an automatic warning device with arms and lights, however, ran approximately $100,000 and such devices were more expensive for MoPac to maintain than the passive devices MoPac had in place at the MLK crossing. The jury could reasonably infer from the evidence that MoPac was taking a cost versus safety gamble with the MLK crossing by waiting for the crossing to come up on the State funding index so that federal funds could pay for the brunt of signalization and improvement costs, and Sharon Lemon was the loser of this gamble. The factor which “lifts ordinary negligence into gross negligence is the mental attitude of the defendant_” Burk Royalty Co., 616 S.W.2d at 922. In addition, it is the knowledge of the defendant that a reasonable probability for serious harm to occur exists when he acts, which will lift negligent conduct into malicious conduct. The railroad argues the evidence discussed above is “at best, ... the result of misunderstanding, carelessness, or forgetfulness,” meaning the railroad’s conduct did not rise to the “level of gross negligence or malice[,]” and “the finding of malice is more than merely unsupported by evidence; it is absurd.” (emphasis added) We disagree. The evidence, as set out above, was sufficient to establish such an entire want of care on the part of MoPac as to show the setting out of the railroad cars too close to the intersection, or the failure to respond to requests and complaints about safety at the MLK crossing by installing some type of active warning devices, was the result of a conscious indifference to the rights, safety, or welfare of the citizens of Sweeny. These acts and omissions were carried out by MoPac with a flagrant disregard for the rights of the public and with actual awareness by MoPac that they would in reasonable probability result in human death, great bodily harm or property damage. Either the act or the omission would have been sufficient to support a gross negligence and malice finding by the jury. Having determined that the jury’s findings of gross negligence and malice are amply supported by the record, we now address whether this conduct was committed by a vice principal of MoPac, was committed during the performance of a non-delegable or absolute duty of MoPac, or was authorized, adopted or ratified by MoPac. Daniel testified that on the day of the accident his crew set out the tank cars at the MLK crossing and there was plenty of other empty track space available to set the cars out on had they realized they were too close to the crossing. He stated he was aware that under MoPae’s rules his crew was required to move some of the cars to one of the empty tracks if, by setting out some tank cars, the cars were less than 260 feet from the crossing. However, they did not realize the cars were too close, which is logical since ordinary operating procedure required no measurement of the distance, and so they left them parked within 105 feet of the MLK crossing. Landrith, Manager of Train Operations for MoPac, testified he measured the distance from where the wheel of the end tank car made contact with the rail to the edge of the grade crossing and it was 107 feet. He stated he reported to Hopkins, Manager of Terminal Operations for MoPac, there were some cars at the MLK crossing which needed to be moved. He further testified he determined it was Daniel’s crew which set the tank cars out too close to the crossing. Landrith testified he spoke with a member of Daniel’s crew about the tank cars, but did not discipline or recommend discipline for any member of the crew for violating the rule. In fact, the crew was not disciplined for this violation. Even if the common operating procedure used at the MLK crossing was not authorized by MoPac, it was certainly ratified by this conduct. MoPac attempted to establish, through the testimony of Hopkins, that none of the employees notified of safety hazards, concerns or problems, and actual train-automobile accidents at the MLK crossing were vice principals of the corporation. However, his description of his and Landrith’s duties, firmly established that they were responsible for, directed, and managed the activities of the crews in their area. In fact, Hopkins was additionally responsible for supervising and managing the activities of the other managers in his territory. In addition, despite evidence indicating Tucker was a vice principal of MoPac because he was in a management position and a division superintendent, Hopkins attempted to establish Tucker had no authority to hire and fire employees. However, Hopkins subsequent testimony made it evident he was basing this allegation on the fact that under MoPac’s collective bargaining agreement with the Union, employees could only be permanently terminated by a mediation board. This procedural step required by the collective bargaining agreement does not remove Tucker’s authority, which it was indicated he had, or for that matter the authority of any other of MoPae’s managers whose job description permits it, to hire and fire for purposes of the vice principal definition. These employees satisfy the definition of a vice principal. Further, the evidence ■ is uncontroverted that Shoemaker was a vice principal of MoPac. Even if this activity had not been authorized or ratified by a vice principal of MoPac, Daniel’s crew was carrying out a non-delegable or absolute duty of MoPac, when it set out the train cars. Compliance with the 250 foot requirement under § 5.620(b) is a company function which is non-delegable by MoPac and is an absolute requirement. See Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908, 910-11 (Tex.1981); Rainbow Express, Inc. v. Unkenholz, 780 S.W.2d 427, 432 (Tex.App. — Texarkana 1989, writ denied). Thus, Daniel’s crew would be vice principals of MoPac as a matter of law simply because of the nature of the duty they were performing. See 16 Tbx.Admin.Code § 5.620(b) (West 1988) (Tex.R.R.Comm’n, Visual Obstructions at Public Grade Crossings). As to the failure to install signals at the MLK crossing, there was no need for a question to establish vice principal or authorization, where the uncontroverted evidence established it was MoPac’s policy not to spend its funds on signals no matter what safety problems were brought to its attention. Such evidence is sufficient on its face to establish authorization by MoPac for the failure to provide automatic signals at the MLK crossing and the fact that this authorization came from vice principals of the corporation, as illustrated by Shoemaker’s testimony. A review of the record reveals there was no need to submit an issue on whether the gross negligence and malicious conduct of MoPac was committed by a vice principal of MoPac, was committed during the performance of a non-delegable or absolute duty of MoPac, or was authorized, adopted or ratified by MoPac, because these facts were established as a matter of law. See, e.g., Rainbow Express, Inc., 780 S.W.2d at 432; Jim Walters Homes, Inc., 703 S.W.2d at 706 (citing Tex.R.Civ.P. 279; and Pope v. Darcey, 667 S.W.2d 270 (Tex.App. — Houston [14th Dist.] 1984, writ refd n.r.e.)). Appellants’ first eight points of error under Group Three are all overruled. Next, in Group Three points of error nine, ten, and eleven, appellants complain of the trial court’s award of exemplary damages based on the jury’s verdict. They allege the evidence is legally and factually insufficient to support the jury’s exemplary damages answers to questions fourteen and fifteen. Additionally, they contend the amount of exemplary damages awarded by the jury was excessive. An award of exemplary damages is left to the sound discretion of the jury, and will not be set aside unless it is so large, based on the award of actual damages and all the surrounding circumstances of the case, as to indicate the award was the result of passion or prejudice, or the evidence was disregarded by the jury. Goswami v. Thetford, 829 S.W.2d 317, 321 (Tex.App.—El Paso 1992, writ denied). When reviewing the reasonableness of an award of exemplary damages, we must consider the factors set out in Alamo Nat’l Bank v, Kraus, 616 S.W.2d 908 (Tex.1981). These five factors “are (1) the nature of the wrong, (2) the character of the conduct involved, (3) the degree of culpability of the wrongdoer, (4) the situation and sensibilities of the parties concerned, and (5) the extent to which such conduct offends a public sense of justice and propriety.” Id. See Goswami 829 S.W.2d at 321. Further, the amount of exemplary damages awarded must be reasonably proportioned to the amount of actual damages awarded. Alamo Nat’l Bank, 616 S.W.2d at 910. Based on the facts discussed earlier in this opinion, we find the nature of the wrong, the character of MoPac’s conduct, the degree of culpability of MoPac, the situation and sensibilities of MoPac and the citizens of Sweeny, particularly those who use this crossing daily, and the extent to which MoPae’s conduct offends the public sense of justice and propriety is sufficient to support this award of exemplary damages. Additionally, we have found there was ample evidence to support the jury’s f