BNSF Railroad Company, f/k/a The Burlington Northern and Santa Fe Railroad Company v. Homer "Gene" Heath--Appeal from 47th District Court of Potter County

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NO. 07-08-0043-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL B JUNE 18, 2008 ______________________________ BNSF RAILROAD COMPANY F/K/A THE BURLINGTON NORTHERN AND SANTA FE RAILROAD COMPANY, APPELLANT V. HOMER GENE HEATH, APPELLEE _________________________________ FROM THE 47TH DISTRICT COURT OF POTTER COUNTY; NO. 91,285-A; HONORABLE HAL MINER, JUDGE _______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ. ON BNSF S MOTION TO REMAND FOR NEW TRIAL The above captioned matter was tried to a jury in Potter County, Texas. At the conclusion of the trial, the trial court entered a judgment for appellee, Homer Gene Heath, and overruled a motion for judgment notwithstanding the verdict and new trial filed by appellant, BNSF Railroad Company. BNSF subsequently perfected its appeal and requested the preparation of the reporter s record. The request for preparation of the reporter s record included all pretrial matters, trial testimony, and post trial matters. Upon receiving the request for the reporter s record, it was discovered that the proceedings for the first day of trial, May 21, 2007, had been lost due to the electronic disks having become corrupted. Efforts at retrieving the data have proven unsuccessful. The loss of the first day s proceedings is through no fault of BNSF. No other sources for recording of the trial proceedings that day are available. The parties have been unable to reach an agreement as to the exact content of the reporter s record for the day in question. Accordingly, BNSF s motion to remand for new trial is granted, the judgment of the trial court is reversed, and this case is remanded for a new trial. TEX . R. APP. P. 34.6(f). Per Curiam 2