Arthur Irby v. Mary Travis

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2004-CA-00414-SCT
ARTHUR IRBY AND ILLINOIS CENTRAL
RAILROAD COMPANY
v.
M ARY TRAVIS, INDIVIDUALLY, AND AS
A DM IN ISTR ATRIX OF THE ESTATE OF
MICHAEL TRAVIS, DECEASED, AND ON BEHALF
OF ALL WRONGFUL DEATH BENEFICIARIES OF
MICHAEL TRAVIS, DECEASED
DATE OF JUDGMENT: 10/17/2003
TRIAL JUDGE: HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED: HOLMES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: GLENN F. BECKHAM
HARRIS FREDERICK POWERS
EDWARD BLACKMON, JR.
ATTORNEYS FOR APPELLEES: DONNA BROWN JACOBS
ANITA K. MODAK-TRURAN
JOHN C. HENEGAN
DENNIS C. SWEET, III
ALYSON LEE BUSTAMANTE
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: ON DIRECT APPEAL: REVERSED AND
REMANDED. ON CROSS-APPEAL:
DISMISSED - 05/25/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLSON, JUSTICE, FOR THE COURT:
¶1. Illinois Central Railroad Company and Arthur Irby, its locomotive engineer,
(collectively Illinois Central) appeals to us from an adverse judgment entered pursuant to a
jury verdict awarding damages to the wrongful death beneficiaries of the decedent driver due
to a fatal accident at a grade crossing in Holmes County. The plaintiffs have also cross-
appealed based on the trial court’s failure to conduct an evidentiary hearing on the issue of
punitive damages. Finding several reversible errors committed at trial, we reverse the trial
court judgment and remand this case to the Circuit Court of Holmes County for a new trial
consistent with this opinion. Based on our disposition of Illinois Central’s direct appeal, we
find it unnecessary to address the issue raised in the plaintiffs’ cross-appeal. Accordingly,
we dismiss the cross-appeal.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶2. This fatal accident involving a collision between a westbound truck driven by Michael
Travis (Michael) and a southbound Illinois Central train occurred on May 16, 1997, at a rural
Holmes County grade crossing known as Mileston crossing. Around 10:00 a.m., that day
Michael was driving his truck in a westerly direction toward Mileston crossing. At the same
time, a farm tractor was approaching the Mileston crossing, traveling in an easterly direction,
and approaching the grade crossing from the west. Michael stopped at the tracks, backed up
to allow the farm tractor to cross over, and then proceeded on to the tracks, where the truck-
train collision occurred.
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¶3. As a result of Michael’s death in this collision, Michael’s mother, Mary Travis,
individually, and as administratrix of Michael’s estate, and on behalf of Michael’s wrongful
death beneficiaries, filed this wrongful death suit against Illinois Central and certain railroad
employees. The plaintiffs asserted, inter alia, that Illinois Central and its locomotive
engineer, Arthur Irby, caused the accident by (1) failing to make a proper and timely
application of the train brakes; (2) failing to keep a proper and reasonable lookout; (3) failing
to properly train the crew on the train; (4) failing to adopt and enforce adequate policies and
procedures relating to train operation under similar circumstances; and, (5) failing to properly
warn of the dangerous conditions at the Mileston crossing, at a time when Illinois Central and
Irby knew, or should have known, that the Mileston crossing was unreasonably dangerous.
¶4. In its subsequently filed answer and affirmative defenses, Illinois Central asserted,
inter alia, a federal preemption issue, resulting in this state court action being removed to
federal court. In due course, the United States District Court for the Southern District of
Mississippi (Jackson Division) entered summary judgment on all issues in favor of Illinois
Central. The plaintiffs appealed to the United States Court of Appeals for the Fifth Circuit
which found that the federal courts lacked diversity jurisdiction over this case; therefore, the
Fifth Circuit vacated the district court judgment and remanded this case with instructions that
the case be returned to state court. Travis v. Irby, 326 F.3d 644 (5 th Cir. 2003).
¶5. Upon remand to the Circuit Court of Holmes County, Illinois Central filed numerous
pre-trial motions, including a motion for summary judgment, a motion for change of venue,
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and a motion to exclude evidence of two prior accidents at Mileston crossing. The two prior
accidents were referred to as the 1990 “Haymer accident,” and the 1994 “Hawkins accident.”
The trial court denied Illinois Central’s motion for summary judgment and motion for change
of venue; however, the trial court granted Illinois Central’s motion in limine to exclude
evidence of these two prior accidents. However, on the day of trial, the trial court, evidently
sua sponte, reconsidered its prior ruling on the motion in limine and granted the motion to
the extent that evidence of the 1994 Hawkins accident would be allowed. The trial of this
case resulted in a jury verdict as to liability, assigning percentages of fault as follows:
Michael Travis – 25%; Illinois Central – 75%; and, Arthur Irby – 0%. The jury also assessed
damages in favor of the plaintiffs in the amount of $5,000,000. The subsequently entered
trial court judgment took into account the jury’s assessment of damages and fault by entering
judgment against Illinois Central and in favor of the plaintiffs in the amount of $3,750,000.
¶6. Upon the trial court’s denial of the customary post-trial motions, Illinois Central
appealed to this Court on February 27, 2004; and, after briefing was completed by the parties,
this case was submitted to us on November 9, 2005, for a decision. Illinois Central assigns
numerous issues concerning perceived trial court error in (1) denying Illinois Central’s
motions for instructions D-1, D-2, and D-3; (2) allowing testimony regarding other accidents
and other alleged near accidents at the Mileston crossing, and in failing to grant Illinois
Central’s motions for mistrial after (a) the plaintiffs’ presentation of evidence regarding the
Haymer accident; (b) Thelma Washington’s testimony of other accidents at the Mileston
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crossing; (c) Annie Marie Sago’s testimony regarding other accidents at the Mileston
crossing; and, (d) R. C. Howard’s testimony regarding “near accidents” he experienced at the
Mileston crossing; (3) denying Illinois Central’s Daubert motion to exclude the testimony
of Dr. David Lipscomb, the plaintiffs’ audiologist; (4) overruling Illinois Central’s objection
to Dr. Lipscomb’s testimony regarding the manufacturer’s specifications for the horn on the
subject locomotive; (5) denying Illinois Central’s motion in limine seeking to preclude the
plaintiffs’ expert, Jim Scott, from testifying due to his illegal trespass onto Illinois Central’s
property, and in denying Illinois Central’s Daubert motions regarding Scott’s testimony; (6)
allowing Scott to testify regarding a video which he made of the Mileston crossing on July
28, 1997; (7) allowing the plaintiffs to conduct a redirect examination of Scott as to the speed
of the subject locomotive; (8) denying Illinois Central’s objections to portions of the
depositions of Illinois Central’s train crew (A. C. Isaac and Arthur Irby) regarding the
training they received from Illinois Central; (9) denying Illinois Central’s motion in limine
and Daubert motion to exclude the expert witness testimony of Dr. Kenneth Wayne
Heathington; (10) allowing Dr. Heathington to testify that the City of Tchula and Holmes
County cannot install safety devices at the Mileston crossing; (11) allowing Dr. Heathington
to testify that the conditions at the Mileston crossing on September 14, 1994, (the date of the
Hawkins accident) were substantially similar to the conditions existing on the date of
Michael’s accident; (12) allowing Dr. Heathington to testify that other railroads voluntarily
place active warning devices at their crossings; (13) denying Illinois Central’s objections to
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the plaintiffs’ jury instructions, and allowing Instructions P-2, P-3, P-4, P-9, and P-12 to be
given either in whole or as amended; (14) denying or amending Instructions D-1, D-2, D-3,
D-6, D-7, D-8, D-8A, and D-9, as proposed by Illinois Central; (15) allowing portions of
Steven Edwards’s deposition to be presented to the jury during Dr. Heathington’s testimony;
(16) allowing the plaintiffs to introduce, via the testimony of Dr. Heathington, a plan view
of the Mileston crossing depicting irrelevant quadrants of the subject intersection; (17)
allowing Dr. Heathington to testify regarding photographs and what Michael saw on the date
of the accident, and whether these photographs accurately reflected Michael’s view of the
crossing on the date of the accident; (18) admitting into evidence and allowing testimony
regarding the revised report of the plaintiffs’ economist, Dr. G. Richard Thompson; (19)
allowing the plaintiffs to present testimony regarding meetings which allegedly took place
in the Mileston community before and after Michael’s accident; (20) denying Illinois
Central’s motion for mistrial when the plaintiffs’ counsel elicited testimony from Illinois
Central’s risk manager, Kenneth Robinson, concerning a 1991 survey of Holmes County
railroad crossings; (21) denying Illinois Central’s “for cause” jury challenges to the potential
jurors who admitted to driving across the Mileston crossing in the previous year; (22) failing
to dismiss for cause the potential jurors in the venire who admitted to taking medication
which made them drowsy; (23) denying Illinois Central’s Batson challenges to the plaintiffs’
peremptory jury strikes; (24) allowing the plaintiffs to include in the record as an offer of
proof the letter dated December 3, 1990, from Thomas Zeinz to Joe Clark; (25) denying
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Illinois Central’s motions for change of venue; (26) excluding portions of the federal court
record from the record in this cause; and, (27) failing to grant certain post-trial motions
because the jury’s assessment of fault and the amount of damages were against the
overwhelming weight of the evidence.
¶7. We find that the trial court appropriately denied Illinois Central’s motion for a
judgment notwithstanding the verdict, however, on the other hand, we find that several
reversible errors occurred during the course of the trial which required the trial court to grant
Illinois Central’s motion for a new trial. Because the trial court failed to grant Illinois
Central’s motion for a new trial, we reverse the trial court judgment and remand this case to
the Holmes County Circuit Court for a new trial consistent with this opinion.
DISCUSSION
¶8. While we have already set out Illinois Central’s numerous assignments of error, we
will restate and reorder certain issues for the sake of clarity. Since we are remanding this
case for a new trial, we will discuss only certain issues which we find to mandate a remand,
and which we find will aid the trial court and the attorneys upon the retrial of this case.
I. WHETHER THE TRIAL COURT ERRED IN DENYING
ILLINOIS CENTRAL’S MOTION FOR A JUDGMENT
NOTWITHSTANDING THE VERDICT.
¶9. In today’s case, Illinois Central, in being dissatisfied with the trial court’s entry of a
judgment against it, both as to liability and damages, quite understandably filed a post-trial
motion for a judgment notwithstanding the verdict, asserting that the evidence before the trial
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court was legally insufficient to undergird a verdict for the plaintiffs. Our cases are legion
where we have been called upon to consider the issue of whether the trial court appropriately
denied a jnov motion. We recently stated:
The standard of review in considering a trial court's denial of a motion for
judgment notwithstanding the verdict is de novo. Wilson v. Gen. Motors
Acceptance Corp., 883 So. 2d 56, 64 (Miss. 2004). The trial court must view
the evidence in the light most favorable to the non-moving party and look only
to the sufficiency, and not the weight, of that evidence. Id. at 63. Here, when
considering all of the evidence in the light most favorable to [the non-moving
party], if such evidence were insufficient to uphold the verdict, the trial court
must grant the motion for a j.n.o.v. [The moving parties] claim through this
motion that the evidence, when taken as a whole, and when viewed in the light
most favorable to [the non-moving party], will leave no reasonable doubt in
the jury's minds that [the non-moving party] was negligent. They claim that the
verdict was against both the weight and the sufficiency of the evidence. That
weight and sufficiency of the evidence are not synonymous bears repeating
both here and in the final issue below. Our recent opinion in Bush v. State, 895
So. 2d 836, 843 (Miss. 2005), discussed sufficiency versus weight of the
evidence. When determining whether the evidence was sufficient, the critical
inquiry is whether the evidence is of such quality that reasonable and
fairminded jurors in the exercise of fair and impartial judgment might reach
different conclusions. Jesco, Inc. v. Whitehead, 451 So. 2d 706, 713-14 (Miss.
1984) (Robertson, J., specially concurring). When looking at all of the
evidence, even that which [the moving parties] argued was objectionable, we
cannot say that the jury could have only properly found for [the moving
parties]. Conflicting evidence exists which could cause fairminded jurors to
reach different conclusions and thus, granting this motion would have been
improper.
Poole ex rel. Poole v. Avara, 908 So. 2d 716, 726 (Miss. 2005).
¶10. In applying this standard of review, we return now to the relevant facts of today’s case
in addressing the jnov issue. A brief description of the Mileston crossing is helpful. The
railroad tracks run generally north and south. Highway 49 runs generally parallel with the
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tracks, and in the area of the Mileston crossing, Highway 49 is located a mere seventy-five
feet west of the tracks. A relatively short distance north of the Mileston crossing, the tracks
curve. A southbound train approaching Mileston crossing from the north would curve to the
right. If a southbound train is approaching this curve as the driver of a westbound vehicle
is approaching Mileston crossing from the east, that driver, if the driver is looking, should
be able to notice the headlights of the train as it comes into the curve. On the date of the
accident, Michael was driving his truck in a westerly direction as he approached Mileston
crossing. At the same time, a tractor with an oversized farm implement was approaching
Mileston crossing traveling in an easterly direction. Throughout the trial, the west side of
Mileston crossing was referred to as the “highway side” and the east side of Mileston
crossing was referred to as the “field side.” Certain “day-of-the-accident” color photographs
introduced at the trial revealed that the driver of a westbound vehicle approaching Mileston
crossing from the field side should have a clear, unobstructed view of a southbound train as
far north of the crossing as the curve. Once Michael reached the crossing, he had to back up
his truck in order to allow the eastbound tractor to cross the tracks. Once the tractor
approaching from the highway side had cleared the tracks on the field side (Michael’s side),
Michael then slowly drove his truck up on the tracks where the southbound train collided
with his truck. We admittedly find questionable certain trial testimony indicating that once
the tractor was on the field side, it would have blocked Michael’s view of the southbound
train. Once the tractor was on the field side of the tracks and passing Michael’s truck, the
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tractor would have been on the south side of Michael’s truck. The southbound train was
approaching Mileston crossing from the north side of Michael’s truck. If Michael is looking
to his right, he should see, not the tractor, but instead the southbound train traveling fifty-two
miles per hour. It also appears to be indisputable that, as the southbound train was
approaching Mileston crossing, the train’s horn was blowing. Additionally, there is no
dispute about the fact that there were no crossing gates, flashing lights and ringing bells at
the Mileston crossing.
¶11. However, based on conflicting testimony as to the existing vegetation at the Mileston
crossing on the date of the accident, and the actions of Michael and the crew members on the
train, we are constrained to find, as a matter of well-established law, that there exists in the
record evidence of such quality and weight that reasonable and fair-minded jurors, in the
exercise of impartial judgment, might have reached different conclusions as to the
appropriate verdict. Id. Thus, we are unable to find that the trial court committed error in
denying Illinois Central’s motion for a judgment notwithstanding the verdict; therefore this
issue is without merit.
II. W H ETH ER THE TRIAL COURT E RRED IN
ADMITTING EVIDENCE OF PRIOR ACCIDENTS AT
THE MILESTON CROSSING.
¶12. At a pretrial conference, the trial judge granted a motion in limine filed by Illinois
Central, to the extent that evidence of two prior accidents at Mileston crossing would not be
admissible. The two prior accidents at issue were referred to as the “Hawkins accident,”
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which occurred in 1994, and the “Haymer accident,” which occurred in 1990. However, on
the day of trial, the trial judge, evidently sua sponte, reversed herself to the extent that she
reconsidered and decided to allow evidence of the 1994 Hawkins accident to be considered
by the jury. Although the trial court offered little by way of an on-the-record analysis to
support its decision to allow evidence of the Hawkins accident, we do know from the record
that the trial judge relied on this Court’s decision in Illinois Cent. R. Co. v. Williams, 242
Miss. 586, 135 So. 2d 831 (1961), to undergird her decision to allow evidence of the Hawkins
accident. The gist of the trial judge’s reconsidered sua sponte ruling was that based on
Williams, the Hawkins accident was “substantially similar” to Michael’s case.
¶13. We are fortunate to have a detailed account of the Hawkins accident since the
Hawkins case was appealed to this Court. Illinois Cent. R. Co. v. Hawkins, 830 So. 2d 1162
(Miss. 2002). In Hawkins, we generally described the Mileston crossing as it existed on
September 14, 1994, the date of the “Hawkins accident.”
The collision that is the subject of this appeal occurred at the Mileston crossing
in Holmes County. The railroad tracks there run north and south parallel to
U.S. Highway 49E. A public gravel road intersects Highway 49 on the east
side, crosses the track, then forks into two directions. The Mileston crossing
is marked by one railroad crossbuck sign on each side.
On September 14, 1994, Cox was visiting her mother, Bertha Winters.
Winters's home is approximately 125 feet from the Mileston crossing.
Testimony at trial showed that Cox backed out of her mother's driveway
sometime around 4:00 P.M. and headed west toward the crossing.
830 So. 2d at 1168. Also, a review of the facts in Hawkins reveals that while the vehicle
involved in the train collision was traveling west across the Mileston crossing (the same
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direction as Michael’s vehicle), the northbound train was coming from the south, to the left
of the vehicle. (“...that [the decedent] was not even looking at the train, but that she was
looking north and appeared to be pointing at a passenger in the car.” Id. at 1169). The
record in today’s case also confirms that the train in the Hawkins accident was northbound,
and not southbound, as was the train in the case sub judice. Additionally, the train in
Hawkins suddenly appeared from an existing tree line on the east side of the tracks and south
of the Mileston crossing. Id. Further, the plaintiffs’ own witness, Alvin P. Haymer, testified
that between the time of the 1994 Hawkins accident and the time of Michael’s accident in
1997, trees had been removed from the Mileston crossing area all the way north to the curve,
and that the “[o]nly thing we got now is the growing up vegetation; that’s what we got.”
¶14. Turning now to the trial court’s reliance on Williams, we will discuss this Court’s
decision in Williams as it relates to the relevant facts of today’s case. It is interesting to note
that while the accident in Williams occurred at a railroad crossing on Northside Drive in the
City of Jackson, the case was tried in the Choctaw County Chancery Court before a
chancellor, sitting, without a jury, with jurisdiction having been obtained by way of a
nonresident attachment. The accident occurred at 1:00 a.m., and involved a decedent driver
who was not familiar with the Northside Drive railroad crossing, and involved, inter alia, the
issue of whether the decedent driver could have seen the train which was already occupying
the crossing at the time of the collision (the decedent driver collided with the forty-seventh
car of a ninety-one car freight train). This Court discussed the poor lighting at the railroad
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crossing, such as the lack of adequate City of Jackson street lights; the inability of the
decedent driver to see the headlights of another car on the other side of the crossing due to
the angle of the grade crossing; and, the bright lights of a generating plant on the opposite
side of the tracks from the decedent driver, which lights were reflecting in the nighttime sky,
thus making it difficult for the decedent driver to see the unilluminated box cars already
occupying the grade crossing. Williams, 242 Miss. at 596-98, 135 So.2d at 834-35.
¶15. While we can unhesitatingly state that Williams stands for the proposition that prior-
accident evidence may be properly admitted for the purpose of showing that the railroad had
notice of the existence of a dangerous condition at the subject crossing, that is not all
Williams has to say on this subject. This Court, in Williams, stated:
The trial court admitted into evidence, over objections of defendants, answers
to complainants' interrogatories concerning two other accidents which
happened at the Northside Drive crossing with the Y. & M. V. line, within less
than nine months before Williams was killed. On January 1, 1959, a
locomotive struck a car, and four people were killed. In the second accident on
March 19, 1959, the automobile struck the side of a locomotive, and four
young people were injured. Appellant contends that the facts and
circumstances of these accidents were entirely different from those in the
instant case, so the evidence should have been excluded; and that prior
occurrences must involve substantially similar facts having a bearing on the
litigated case.
This evidence was admitted for the purpose of showing notice to the railroad
of the unusual danger and the existence of a dangerous condition. S. H. Kress
& Co. v. Markline, 117 Miss. 37, 77 So. 858 (1917); Anno., 128 A.L.R. 595
(1940). 20 Am.Jur., Evidence, Sec. 304, summarizes the general rule as
follows: ‘* * * evidence of other similar accidents or injuries at or near the
same place or by the use of the same appliance suffered by persons other than
the plaintiff and in other and different times, not too remote in point of time
from the particular occurrence, is admissible. Evidence of prior similar
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accidents, when admissible, is generally admissible for the following purposes
only: (1) To show the existence of a defective or dangerous condition or
appliance and the dangerous character of the place of injury or of the machine
or the appliance, and (2) to show the defendant's notice or knowledge thereof.'
242 Miss. at 605-06, 135 So.2d at 839 (emphasis added).
¶16. Illinois Central asserts in the case sub judice that the trial court improperly relied on
Williams in deciding to admit evidence of the Hawkins accident because Williams was
decided under the “occupied crossing doctrine,” meaning that the train entirely occupied the
crossing at the time of the subject accident, and that vegetation did not factor into our
decision in Williams. The plaintiffs counter these arguments by stating that as in this case,
the railroad in Williams argued that the facts of two other accidents at the same crossings
were entirely different, that the prior occurrences must involve “substantially” similar facts,
and thus the evidence of the prior accidents should have been excluded; however, the
plaintiffs conclude that, notwithstanding this argument by the railroad in Williams, this Court
allowed the evidence for the purpose of showing notice to the railroad of an unusual danger.
¶17. We read the plaintiffs’ argument to be that, notwithstanding the fact that the “prior-
accident” evidence in Williams involved prior accidents which “were entirely different,” this
Court held that the evidence was still admissible for the purpose of showing that the railroad
had prior notice of an unusually dangerous crossing. However, we disagree that Williams
stands for this proposition. First of all, the Court, in Williams, did not provide the details
concerning the two prior accidents. All we know is that this Court, in Williams, merely
stated that the railroad contended that the facts and circumstances of the prior accidents were
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“entirely different” from the facts of the accident in Williams. Id. at 605, 839. A fair
reading of Williams cannot lead one to conclude that this Court found that the two prior
accidents in question were factually dissimilar from the facts of the accident under
discussion. In fact, a close reading of Williams undergirds our long-held position that prior-
accident evidence is admissible to show the railroad’s knowledge of a dangerous condition
at the crossing, only when the prior-accident evidence involves accidents which are “similar.”
Id. Also, we have to remember that the “city street” railroad crossing in Williams, which did
not involve a vegetation issue, had more permanent conditions than does the Mileston
crossing, which has vegetation changing due to the seasons, and due to the evidence of tree-
cutting by the railroad between the 1994 Hawkins accident and the 1997 accident which is
the subject of today’s appeal.
¶18. Even accepting as true Alvin P. Haymer’s opinion that in 1997, the conditions of the
Mileston crossing were “worser” than they were in 1994, a review of the record reveals the
fact that the conditions of the Mileston crossing on May 16, 1997, at the time of Michael’s
accident, were substantially different than the conditions of the crossing on September 14,
1994, at the time of the Hawkins accident. Stated differently, the substantially dissimilar facts
in these two accidents are, inter alia: (1) the Hawkins accident involved a northbound train
suddenly appearing from an existing tree line on the east side of the tracks and south of the
Mileston crossing, while today’s accident involved a clearly visible southbound train coming
out of the curve north of the Mileston crossing; (2) after the 1994 Hawkins accident, and
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prior to the occurrence of Michael’s accident, there had been extensive tree-cutting from the
Mileston crossing all the way to the curve north of the crossing; (3) the decedent driver in
Hawkins drove up on the tracks at the crossing without stopping, while Michael drove up to
the tracks, stopped, backed up and stopped to allow the farm tractor to cross the tracks, and
then started again, and drove up on the crossing; (4) the Hawkins accident occurred in
September, while Michael’s accident occurred in May, meaning, there would most likely
have been a difference in the color and extent of the vegetation; and, (5) the decedent driver
in Hawkins would have been looking into the sun at 4:00 p.m. on the day of her accident,
whereas Michael would have had the sun to his back as he approached the Mileston crossing
at 10:00 a.m. on the day of his accident. These are but a few of the substantial differences
which we find between the Hawkins accident and the accident which is the subject of today’s
appeal.
¶19. In Mitcham v. Illinois Cent. Gulf R. Co., 515 So. 2d 852 (Miss. 1987), this Court
stated that “[w]here evidence of other accidents or injuries is used to show the risk that a
defendant’s conduct has created, the requirement of substantial similarity is applied strictly.”
Id. at 855 (citing McCormick on Evidence, § 200 (3 rd ed. 1984)). In Mitcham, which, like
today’s case, was a “vegetation” case, this Court stated:
In the case sub judice, it must be noted that there is no record of the hearing on
the motion in limine, but it can be gathered from the trial record that the lower
court found that this situation lacked the requisite permanence of conditions,
in that the conditions of the crossing that would have been put into issue, the
height of vegetation on ICGRR’s right-of-way, change with the seasons.
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Id. at 856. Even though this Court acknowledged that there was very little in the record to
aid it in comparing the similarity or dissimilarity of the three prior accidents with the train
accident under discussion, we stated:
[W]e must assume that there was never a substantial showing of similarity of
conditions so as to satisfy the lower court. Under these circumstances the
evidence was not admissible to show either the existence of a dangerous
condition or knowledge of hazardous circumstances.
Id. (citing Parmes v. Illinois Cent. Gulf R.R., 440 So. 2d 261, 265 (Miss. 1983)).
¶20. In Illinois Cent. Gulf R.R. v. Ishee, 317 So. 2d 923, 925-26 (Miss. 1975), this Court
held an experiment that depicted conditions of a train accident was inadmissible where the
issue involved the line of sight. At the time of the accident, a dense amount of weeds was
growing along the railroad’s right of way. Id. at 925. However, at the time of the
experiment, the right of way had been cleared of the weeds. Id. We held the experiment was
inadmissible, stating “the presence of weeds substantially in the amount that existed at the
time of the accident was of vital importance to the experiment for it to have had any
probative value whatsoever.” Id. at 926. Although the issue in Ishee involved a
reconstruction of the conditions at the time of the accident, we find this case to be instructive.
¶21. Thus, in the case at bar, as to the issue of a motorist being able to see an oncoming
train, trees and vegetation are quite different. Moreover, the fact that the train was traveling
in a different direction from the train in Hawkins weakens the plaintiffs’ claim that the
conditions of the Hawkins accident were substantially similar as to those in the case sub
judice. Because the Hawkins accident was not substantially similar to the case sub judice,
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the trial judge erred in allowing such evidence, and as such, the evidence “result[ed] in harm
and prejudice or adversely affect[ed] a substantial right of [the defendant].” Miss. Dep’t of
Transp. v. Cargile, 847 So. 2d 258, 263 (Miss. 2003).
¶22. In reliance on Mitcham, we unquestionably find that the substantial differences
between the facts and circumstances of the 1994 Hawkins accident and the 1997 accident
involving Michael, caused evidence of the Hawkins accident, and its surrounding facts and
circumstances, to be inadmissible. Because the trial court allowed evidence of the Hawkins
accident in today’s case, it committed error which we find to be reversible.
¶23. We again considered prior-accident evidence in our recent decision in Richardson v.
Norfolk Southern Ry., 923 So. 2d 1002 (Miss. 2006). Richardson involved “other accident
evidence” by way of a prior accident which occurred at the same crossing over thirteen years
prior to the accident under discussion, and a “yet-to-happen 2003 accident” which occurred
more than three and one-half years after the accident under discussion. Richardson, Id. at
1010. In Richardson, we found this prior accident evidence to be inadmissible, and affirmed
the trial court’s exclusion of this evidence. Id. One could argue that in Richardson, we did
not state that evidence of an accident which happened three years prior to the accident under
discussion could not be used to prove that a railroad was on notice that a dangerous condition
existed.” However, what we unquestionably did state in Richardson is the following:
The rule has been long established in Mississippi that evidence of prior
accidents may be introduced at trial to show two things: (1) the existence of a
dangerous condition; and, (2) the defendant's notice or knowledge of such
dangerous condition. Yoste v. Wal-Mart Stores, Inc., 822 So. 2d 935, 936
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(Miss. 2002); see also Miss. R. Evid. 404(b). However, evidence of prior
accidents will only be admitted upon a showing of substantial similarity of
conditions. Yoste, 822 So. 2d at 936. This Court has made it clear that when
evidence of other accidents is introduced, it may not be too remote in time
from the accident in issue. Illinois Cent. R.R. v. Williams, 242 Miss. 586, 135
So. 2d 831, 839 (1961). We found in Williams that “other accident” evidence
occurring within nine months of the subject of the dispute was not too remote
in time for the evidence to be inadmissible. Id. This Court has also found
“other accident” evidence occurring over time periods less than one year close
enough in time to be admissible. Barrett v. Parker, 757 So. 2d 182, 188-89
(Miss. 2000) (one year); S.H. Kress & Co. v. Markline, 117 Miss. 37, 77 So.
858, 864 (1918) (two years).
923 So. 2d at 1009-10.
¶24. As noted in Richardson, we cited our 2000 decision in Barrett, which involved, not
a train-vehicle collision, but instead, a suit against a cattle owner by the driver of a motor
vehicle which struck one of the cows which had wandered on to a county road in Lamar
County. At trial, the plaintiff attempted to offer evidence of other incidents where the same
cattle owner’s cows had escaped from a field and wandered on to the county road. The trial
court allowed limited evidence of these other incidents as long as there was proof that these
other incidents had occurred no more than one year prior to the car-cow accident in question.
On this point we stated:
Rather than absolutely prohibiting all evidence of incidents involving Parker's
cattle, the trial court allowed Barrett to introduce this type of evidence as long
as these alleged events occurred no more than one (1) year prior to Barrett's
accident. This one-year limitation is reasonable under the holding in Massey,
as it is certainly possible that the circumstances surrounding any alleged
incidents occurring more than one (1) year prior to Barrett's accident may not
have existed when Barrett's accident happened.
19
757 So. 2d at 188-89. In Barrett, we cited to Hartford Insurance Group v. Massey, 216
So. 2d 415 (Miss. 1968). Massey also involved a car-cow accident, this time on a highway.
In Massey, the plaintiff also attempted to offer evidence of other prior accidents involving
cows in the same location. In addressing this issue, this Court stated:
The evidence of the commission of similar acts or the occurrence of prior
accidents is admissible mainly where there is some special connection which
tends to show plan, notice or knowledge of danger, or a dangerous condition.
29 Am.Jur.2d Evidence s 298 (1967). Mississippi has long followed the rule
of admitting evidence of prior acts or accidents for the purpose of showing a
dangerous condition and notice thereof, but this evidence has been admitted
only in cases where other proof of negligence is present. Gulf Hills Dude
Ranch, Inc. v. Brinson, 191 So. 2d 856 (Miss. 1966); Illinois Cent. R.R. Co.
v. Williams, 242 Miss. 586, 135 So. 2d 831 (1961); and S. H. Kress & Co. v.
Markline, 117 Miss. 37, 77 So. 858 (1918).
In general, the admissibility is limited to conditions of permanency and the
evidence must show that former accidents happened under substantially the
same circumstances as those existing at the time of the accident. 29 Am.Jur.2d
Evidence s 298 (1967).
216 So. 2d at 417.
¶25. In the end, in “strictly applying” the proof-of-substantial-similarity requirement for
prior-accident evidence, as prescribed by Mitcham, and for all the reasons discussed, we find
that the trial court abused its discretion in allowing evidence of the 1994 Hawkins accident,
and that this error rises to the level of being reversible, especially when considering the
questionable extent of liability/fault on the part of Illinois Central, as found by the jury, and
certain other trial court errors which we will discuss, infra.
20
¶26. In discussing the Hawkins accident, Annie Marie Sago testified as to other “accidents”
(plural), to which Illinois Central objected, and the trial court sustained the objection, but
denied the motion for a mistrial, because it was no more than a “slip of the tongue.” The
plaintiff argues Illinois Central suffered no prejudice as a result of this testimony. However,
we disagree, especially when this evidence on non-similar accidents is coupled with Thelma
Washington’s testimony. The plaintiffs’ attorney questioned Washington about an area
meeting to try to get additional signalization at the Mileston crossing. Washington testified,
in part, as follows:
Q: Tell the ladies and gentlemen of the jury what this meeting was concerning.
A: It was concerning – talking about the meeting?
Q: Before Michael Travis’ death.
A: It was concerning getting some lights up at that crossing.
Q: And why was it concerning – what was the reason that was being
discussed?
A: Because there were so many accidents.
Illinois Central’s counsel immediately objected and moved for a mistrial. The trial court
overruled the objection and denied the motion for a mistrial. Again, based on the totality of
the record before us, we find this testimony to be highly prejudicial and reversible error.
¶27. Finally, we consider the testimony of R. C. Howard, who testified at trial, via
deposition, as to his experiences regarding “near-accidents” at the Mileston crossing. Over
Illinois Central’s objection, the trial court allowed Howard’s deposition testimony that he
was almost hit by a train at the Mileston crossing on two different occasions prior to
Michael’s accident. As to Howard’s experiences, there was no evidence presented to the
21
jury as to possible fault on the part of Howard which placed him in the position of a “near-
accident.” In Sawyer v. Illinois Cent. Gulf R., 606 So. 2d 1069 (Miss. 1992), we found that
the trial court did not commit error in excluding “near-accident” evidence. En route to this
finding, we stated:
We have no doubt there are cases (sic) where evidence of near accidents may
be admissible for the purpose of showing the dangerous character of a place
and to show notice thereof to the person in control. Rules 401, 402,
Miss.R.Ev.; S.H. Cress & Co. v. Markline, 117 Miss. 37, 77 So. 858, 862
(1918); Missouri-Kansas-Texas Railroad Co. v. McFerrin, 279 S.W.2d 410
(Tex.Civ.App.1955). On the other hand, the fact of a near miss, and, for that
matter, a hit, in and of itself proves very little and indeed may be quite
prejudicial. See Rule 403, Miss. R. Ev. The fact that an accident almost occurs
at a particular location does not necessarily imply any fault or neglect on the
part of the person in control of the premises. The point has an important
context. Railroad crossings are dangerous places, and they are no less so that
we encounter the danger with less frequency than in other days. Wilner v.
Mississippi Export Railroad Co., 546 So. 2d at 681. Accepting these realities,
our statute law mandates a motorist “look and listen as he approaches a
crossing.” Mitcham v. Illinois Central Gulf Railroad Co., 515 So. 2d at 855;
Slay v. Illinois Central Gulf Railroad Co., 511 So. 2d at 880; Dale v. Bridges,
507 So. 2d 375, 377 (Miss.1987). When trains approach sounding their signals,
roadway travelers must give heed. Miss.Code Ann. § 77-9-249 (1972).
Accordingly, to be admissible, prior-accident-and certainly near-miss-
testimony-must be carefully qualified. Mitcham, 515 So. 2d at 855-56; Parmes
v. Illinois Central Gulf Railroad, 440 So. 2d 261, 265 (Miss. 1983).
606 So. 2d at 1075-76 (emphasis added). There is absolutely no question that Howard’s
“near-miss” testimony was not “carefully qualified” by the trial court, consistent with
Sawyer, prior to determining admissibility. The admission of this testimony was error.
¶28. In the end, we have discussed but mere examples of only some of the errors which
were committed regarding the trial court admission of prior-accident and “near-accident”
22
evidence. Because of the cumulative effect of these various errors in allowing “other-
accident” evidence, we are compelled to find that a new trial is required; however, we will
proceed to a discussion of certain other issues.
III. WHETHER THE TRIAL COURT ERRED IN
ADMITTING EVIDENCE OF THE VOLUNTARY
ACTIONS OF OTHER RAILROAD COMPANIES
CONCERNING THE PLACEMENT OF ACTIVE
WARNING DEVICES AT THEIR GRADE CROSSINGS.
¶29. Getting right to the point on this issue, we find that it was also highly prejudicial, and
reversible error, to allow Dr. Kenneth Wayne Heathington to testify that other railroad
companies had voluntarily placed active warning devices at their grade crossings, and that
Illinois Central could have upgraded the Mileston crossing by installing gates and flashing
lights if it had only chosen to do so. The effect of this and other similar evidence is that it
was drilled into the collective head of the jury that Michael would be alive today if Illinois
Central had only installed gates and flashing lights at the Mileston crossing. That is wholly
unfair, because while it is true that fatalities at railroad grade crossings would become
virtually nonexistent if every railroad crossing in the United States had gates, flashing lights
and ringing bells, such a requirement would be unquestionably impractical.
IV. WHETHER THE TRIAL COURT ERRED IN GRANTING
CERTAIN JURY INSTRUCTIONS SUBMITTED BY THE
PLAINTIFFS.
¶30. The trial court granted Jury Instruction Number 8 (submitted by the plaintiffs as Jury
Instruction P-4). This instruction stated:
23
The Court instructs the jury that if you find from a preponderance of the
evidence that, prior to May 16, 1997, Illinois Central Railroad failed to
exercise reasonable care in erecting adequate warning devices at the Mileston
Crossing so that the crossing was not reasonably safe for motorists like
Michael Travis, or that the railroad should have placed more or different
warnings than it did, and if you further find by a preponderance of the
evidence that such failure, if any, by Illinois Central Railroad proximately
caused or contributed to the injuries to and death of Michael Travis, then you
must return a verdict for the Plaintiff Mary Travis, as Administratrix of
Michael Travis’s estate and on behalf of Michael Travis’s Wrongful Death
Beneficiaries.
We agree with Illinois Central that this jury instruction was impermissibly vague and
confusing in using terms and phrases such as “adequate warning devices,” and “that the
railroad should have placed more or different warnings than it did,” without any guidance
to the jury as to the use of these terms. See Clark v. Illinois Cent. R.R., 872 So. 2d 773, 777
(Miss. Ct. App. 2004). After all, we have stated: “The test of whether a railroad crossing
is unusually dangerous has been said to be the ability of the traveler to observe the approach
of a train from the direction in which it is coming.” Illinois Cent. R. v. McDaniel, 246 Miss.
600, 615, 151 So. 2d 805, 811 (1963) (citing 74 C. J. S. Railroads § 711, page 1306).
¶31. The trial court’s granting of this instruction was error, and when combined with the
other errors, such as “other-accident” evidence and Dr. Heathington’s improper testimony
about the gates and flashing lights, the giving of this jury instruction certainly rises to the
level of reversible error. Again, improper evidence had already planted the seed in the jury’s
mind that Michael would be alive today if Illinois Central had only spent a little money and
placed gates, flashing lights, and ringing bells at the Mileston crossing; and, the giving of this
24
jury instruction only etched in stone that all the jury had to do in order to find for the
plaintiffs was to find that Illinois Central failed to erect “adequate warning devices” and that
Illinois Central “should have placed more or different warnings than it did.”
¶32. Additionally, we cannot overlook the fact that the record unquestionably reveals that
prior to the date of the accident which claimed his life, Michael had traveled across the
railroad tracks at the Mileston crossing on numerous occasions. In fact, there is evidence that
Michael crossed the railroad tracks at the Mileston crossing on an average of 3-4 times per
week. Thus, Michael was unquestionably familiar with the crossbuck signs which were
present at the Mileston crossing. In other words, on this clear day on May 16, 1997, Michael
knew that he was approaching the railroad tracks. Somewhere along the way during the trial
of this case, the jury’s attention most assuredly had been diverted away from such critical
issues as the condition of the vegetation at the crossing, Michael’s actions before the
accident, and what Michael could have seen if he were looking to his right as he approached
the Mileston crossing from the field side of the crossing.
¶33. For these reasons, we find that the granting of the plaintiffs’ jury instruction number
P-4 was reversible error, especially in light of the highly prejudicial evidence which the trial
court erroneously allowed to be considered by the jury.
¶34. Because of our disposition of the issues thus far discussed, we deem it unnecessary
to discuss the remaining issues raised by Illinois Central on direct appeal; therefore, we now
proceed to briefly mention the issue raised by the plaintiffs on cross-appeal.
25
V. WHETHER THE TRIAL COURT ERRED IN DENYING
THE PLAINTIFFS’ REQUEST FOR A HEARING ON
THE ISSUE OF PUNITIVE DAMAGES.
¶35. After the jury returned its verdict awarding compensatory damages, the plaintiffs
requested that the trial court proceed to conduct an evidentiary hearing on the issue of
punitive damages; however, the trial court denied the plaintiffs’ request. Based on our
disposition of the issues raised by Illinois Central in its direct appeal, we find it unnecessary
to address the this issue raised via the plaintiffs’ cross-appeal. Accordingly, we dismiss the
cross-appeal as moot.
CONCLUSION
¶36. Every party to civil litigation – whether a private citizen, rich or poor, or a corporation
which has a multi-billion dollar bottom line in a financial statement – is entitled to fair
treatment in the courts of this state. We unquestionably conclude that the record in today’s
case is fraught with inadmissible evidence which could only have impermissibly aroused the
emotions of the jury so as to divert the jury’s attention away from focusing on the properly
admitted evidence in order to calmly and rationally decide first the issue of liability, and, if
necessary, then the issue of damages.
¶37. While we find that the trial court properly denied Illinois Central’s motion for a
judgment notwithstanding the verdict, we find that the trial court erred in denying Illinois
Central’s motion for a new trial. Additionally, because of our grant of a new trial, it becomes
26
unnecessary to address the issue of the trial court’s denial of a hearing on punitive damages,
as raised on cross-appeal by the plaintiffs.
¶38. Accordingly, the trial court judgment entered against the Illinois Central Railroad
Company and in favor of Mary Travis, Individually, and as Administratrix of the Estate of
Michael Davis, Deceased, and on behalf of all wrongful death beneficiaries of Michael
Travis, Deceased, is reversed, and this case is remanded to the Circuit Court of Holmes
County for a new trial on all issues, consistent with this opinion. Plaintiffs’ cross-appeal is
dismissed as moot.
¶39. ON DIRECT APPEAL: REVERSED AND REMANDED. ON CROSS-
APPEAL: DISMISSED.
SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY AND DICKINSON, JJ.,
CONCUR. RANDOLPH, J., CONCURS IN PART AND IN THE RESULT
WITHOUT SEPARATE WRITTEN OPINION. GRAVES, J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY DIAZ, J.; RANDOLPH, J., JOINS IN
PART.
GRAVES, JUSTICE, DISSENTING:
¶40. My colleagues have chosen to reverse and remand this case for a new trial. However,
based upon the evidence presented in the record, I am compelled to dissent. Although the
majority elected not to address all of the issues raised by the parties, I will address those
issues. A comprehensive review and analysis of the issues clearly demonstrates that the
learned trial judge, when faced with a myriad of issues, was careful, thorough and correct in
the handling of those issues. A more detailed examination of the issues, in full context, is
27
essential to an unabridged view of the correctness of the rulings made throughout the course
of the trial below. For clarity, I will address each separate issue as presented by the parties.
I. Did the trial court err in denying Illinois Central’s Motion for
JNOV and Instructions D-1, D-2, and D-3?
¶41. Illinois Central contends that the trial court erred when it denied Illinois Central’s
Motion for JNOV and Peremptory Instructions D-1, D-2, and D-3. At the close of Travis’
case in chief, Illinois Central moved for a directed verdict. Illinois Central based the Motion
for Directed Verdict on the fact that Travis’ witness, Thelma Washington, testified that the
train’s horn was blowing and was audible to a motorist on the date of the accident, and that
Travis’ witness, Jimmy Calvin Scott, testified that the horn was blown in excess of the
distance required under Mississippi law; that there were no obstructions to a motorist’s view
of the crossing in the southeast quadrant on the date of the accident, and that the failure of
the train crew to apply the brakes prior to the accident played no part in the accident since
Travis drove into the path of the approaching train.
¶42. Travis counters these allegations by arguing that Illinois Central violated two
Mississippi statutes governing its duties at crossings 1 and thus was negligent per se. Travis
further asserts that Illinois Central’s negligence in failing to make a proper grade and in
failing to sound the horn at repeated intervals both contributed to Michael’s death.
1
Miss. Code Ann. §§ 77-9-225, 77-9-251.
28
¶43. In order to determine if the trial court’s denial of Illinois Central’s Motion for a JNOV
was warranted, an examination of the record (specifically testimony given at trial) is
necessary. On direct examination, Thelma Washington testified as follows:
Q: Now, you were going to Jackson. And what route were you taking?
A: Highway 49 South.
Q: And about ten, tell the ladies and gentlemen of the jury what you saw
happened as you were traveling 49 South.
A: Well, I was driving down the road, a train was coming down the track.
Q: And what crossing were you approaching, if any?
A: Mileston.
Q: And tell the ladies and gentlemen of the jury what you saw as the train
was crossing – I mean, as you were coming down Highway 49 and the
train was on the track?
A: Well, what happened was, I was stopped at the crossing to let my
nephew out...and the train was coming so fast, and the track that went
across – the truck started up, and all at once the tractor was there - I
mean, the train was there, the truck was there. I was sitting there. It just
all happened at the same time. It just hit. He started up the track and it
just hit him.
¶44. In relation to the audibility and the pattern in which the horn was blown, Washington
had this to say during her testimony:
Q: Now, when you were running parallel with the train, did you hear a
horn?
A: Steady thing, just blowing, steady.
Q: And you heard that as you were driving?
29
A: Uh-huh. Yes, I mean.
Q: Where were you located in connection with the train?
A: About, a little bit ahead of the train, but I was like that all the way back
up by the trees, up near Tchula.
Q: Now, describe for the ladies and gentlemen what you heard on the horn.
Was it one continuous pattern, or was it a break or what?
Opposing Counsel: Objection. Leading.
The Court: Sustained.
Q: What, if any, break in the pattern of the horn did you notice?
A: No break.
¶45. Miss. Code Ann. § 77-9-225 states:
Every railroad company shall cause each locomotive engine run by it to be
provided with a bell of at least thirty (30) pounds weight and with a whistle or
horn which can be heard distinctly at a distance of three hundred (300) yards,
and shall cause the bell to be rung or the whistle or horn to be blown at the
distance of at least three hundred (300) yards from the place where the railroad
crosses over any public highway or municipal street. The bell shall be kept
ringing continuously or the whistle or horn shall be kept blowing at
repeated intervals until said crossing is passed.
Every person, company or corporation violating the provisions of this section
shall be guilty of a misdemeanor and upon conviction shall be fined not more
than Fifty Dollars ($50.00) or be imprisoned not more than thirty (30) days, or
be both so fined and imprisoned, in the discretion of the court.
The provisions of this section shall be enforced by the Mississippi Department
of Transportation.
(Emphasis added).
30
¶46. In this case, the issue is on the pattern in which the horn was blown. Neither party
addresses issues concerning a bell or a whistle. Based upon the testimony of Washington,
the record establishes that although the horn was audible, it did not sound at repeated
intervals, as required by Miss. Code Ann. § 77-9-225, until the crossing was passed. When
questioned on cross-examination, Washington testified that Michael could not have seen the
train if he had looked, because the tractor blocked his view of the approaching train from the
truck. Washington also testified on cross-examination that there was nothing else which
would have prevented Michael from looking up the track to detect a train approaching the
crossing. The jury took this testimony into consideration when it returned the verdict and
assigned 25% of the negligence to Michael.
¶47. Washington also testified to the condition of the track and the surrounding vegetation
on the day of the accident:
Q: Describe the condition of the crossing over the years in 1997 to the
ladies and gentlemen of the jury.
A: It was in poor condition, really. It was tearing- the crossing was like,
you know, like a high railroad, not like the one you would go across
regular.
Q: Okay. Tell the ladies and gentlemen of the jury about the condition of
the vegetation out there as you observed while you lived out there, at
the crossing.
A: There was tall bushes on the side of the track and some little trees and
some tall Johnson grass.
Q: Now, you traveled that crossing on that day?
31
A: Yes.
Q: And you remember that day?
A: Yes.
Q: Describe the vegetation for the ladies and gentlemen of the jury on that
day.
A: It was the same way. I had took the children across on the bus, and I
had come back across on the bus and kept on going around. It was the
same way.
Q: When you say “same way” same way as what?
A: Tall grass and little bushes.
¶48. On cross-examination, Ms. Washington had this exchange with counsel for Illinois
Central:
Q: So the weeds you were referring to where you responded to questions
by Mr. Sweet were weeds that were out there at a time other than on the
date of the accident?
A: It was the day of the accident.
Q: And this is the train that was traveling the day of the accident. Do you
see that Mr. Travis is lying here in the ditch next to the tracks?
A: Yeah, but could I say something?
Q: Yes.
A: See, what you’re looking at is down in the ditch where he was laying,
but if you’re looking across the ditch to the train, it wouldn’t look like
that. Do you see those green things back there? It would be blocking,
blocking you seeing the train and then, see, after he entered the ditch
32
here, its blowed up to look big now, but you know that, ditch ain’t that
big.
¶49. Illinois Central also asserts that plaintiffs’ witness, Alvin P. Haymer,2 a resident of the
Mileston community, testified that Exhibit D-118 shows the railroad track to be clear from
obstructing vegetation. Further, it was stated by Illinois Central that from Haymer’s preview
of D-95, Haymer stated that there was no obstruction to a driver’s view of the train
approaching from the north to the south. The actual testimony of Haymer on cross-
examination is as follows:
Q: All right. I’m looking at 118 here. Even from the pictures as it’s shown
here, can you tell the jury what we’re looking right at, where the light
is? What is that light on?
A: That’s the railroad.
Q: Is the railroad track above the weeds that you are referring to, the
vegetation?
A: Is the railroad above the weeds?
Q: Yes.
A: Yeah, the railroad is above the weeds.
Q: Let’s go to 132. Okay. That picture doesn’t show it good there. This is
132. Do you see that?
A: Uh-huh.
2
Alvin P. Haymer was not involved in the 1990 accident which took place at the
Mileston crossing.
33
Q: On that same track that we were looking at on the other exhibit, there’s
a train there; is it not?
A: Yeah.
Q: Is it your testimony that a person traveling on this road here with the
weeds which you can see below the tracks as you are approaching, that
a person would not be able to look up and see the train coming? Is that
your testimony? Because of this vegetation down here?
A: Yeah, because he’s down. He’s down. When the train get that close to
the track and you drive up on the track, you don’t see that train until
you get up on that track.
Q: You’re telling the jury that a person traveling on this road, going west
across those tracks, if a train that like this one shown in this picture is
up on the tracks, that a person could not see that train as they approach
that crossing, even though the train is above the weeds or vegetation
that you referred to?
A: Is above it. You look down that track and look back and that train
boogying,you’re hit if you’re up on that track.
Q: My question is, is it your testimony to this jury that the train, as it’s
shown in this picture here, Exhibit D-132, would not be visible to a
motorist traveling on this road if they looked north, up towards Tchula?
A: It’s visible because he’s coming up. When he get up, the train is in his
face.
Q: All right. So your answer would be yes, you would be able to see it?
A: You might see it, but it’s too late.
¶50. Haymer’s testimony supports the fact that the Mileston crossing hump is 289% steeper
than the grade recommended by industry standards.
34
¶51. Furthermore, Travis’ expert witness, Kenneth Wayne Heathington, offered testimony
on this issue during his direct examination:
Q: Do you have an opinion to a reasonable degree of professional certainty
whether Illinois Central provided proper and easy grade in the highway
so that the railroad would be conveniently crossed at Mileston crossing
back in May of 1997?
A: No. As stated a little bit earlier here, on the south side, the way that Mr.
Travis was going, that grade or hump area exceeded AAR, which is the
Association of American Railroad, and ASHTO by 289 percent. I mean
that is a huge, big percentage. You’re not supposed to have more than
a six-inch drop or a three-inch rise in 30 feet from the nearest rail. Well,
it exceeds almost 300 percent over that.
Heathington’s testified on direct examination that Illinois Central did not provide proper and
easy grades in the highway so that the railroad could be conveniently crossed. The testimony
offered by Alvin Prince Haymer and Kenneth Wayne Heathington gives validity to the
argument asserted by Travis that Illinois Central violated Miss. Code Ann. § 77-9-251 which
states:
Where a railroad is constructed so as to cross a highway, and it be necessary
to raise or lower the highway, it shall be the duty of the railroad company
to make proper and easy grades in the highway, so that the railroad may
be conveniently crossed, and to keep such crossings in good order. It shall
be the duty of the railroad company to erect and keep in order all bridges on
any highway, at such points as bridges may be necessary to cross the railroad.
Any company which shall fail to comply with these provisions within sixty
days from the filing of written notice by the board of supervisors of the county
in which said crossing is located, served upon the agent of said railroad
company located in said county by the sheriff, as other processes are served,
shall forfeit the sum of the cost of construction of said bridge or crossing, to
be recovered by action in the name of the county in which the bridge or
crossing is situated, upon an itemized bill of cost of said work.
(Emphasis added). In addition, Miss. Code Ann. § 77-9-247 provides that:
35
Every railroad corporation or company or person or persons operating or
controlling any railroad track intersecting a public road or street at grade
crossings shall erect and maintain at each such crossing the standard sign
known as "railroad crossbuck," the design of which has been standardized by
the Association of American Railroads and which appears in the "Manual on
Uniform Traffic Control Devices" for the State of Mississippi as adopted by
the Commissioner of Public Safety, the Mississippi Transportation
Commission and the United States Department of Transportation.
Provided, further, that said railroad crossbuck shall be reflectorized and be
placed in the right side of the road or street on both sides of the railroad and
shall indicate the number of tracks crossing the road or street in accordance
with the aforesaid manual on uniform traffic control devices.
The provisions of this section shall be enforced by the Mississippi Department
of Transportation.
¶52. While it is not in dispute that a crossbuck was in place at the Mileston crossing, the
testimony of plaintiffs’ adverse witness, Kenneth Robinson, on direct examination does place
into question the effectiveness of the crossbuck when applying the standards of the Manual
on Uniform Traffic Control Devices (MUTCD):
Q: Now, in having a duty to maintain a reasonably safe crossing, your duty
would be to make sure vegetation was, in fact, kept down; isn’t that
right? It’s your right of way?
A: That would be part of it, yes.
Q: I want to go to the crossbuck sign.
A: All right.
Q: Illinois Central’s responsibility is to put that crossbuck sign in place; is
that correct?
A: Yes.
36
Q: Now, I was asking this, on general maintenance, your job is to maintain
that crossing; isn’t that correct?
A: As general maintenance, yes, sir.
Q: And that crossbuck sign; isn’t that correct?
A: That would be part of it, yes.
Q: And just so we can look at the issue of maintenance, the maintenance
of this sign does not even comply with the requirements of Illinois
Central to maintain crossbucks, is it?
A: It’s not a new sign, and I, no is trying to deny that a newer sign would
be better than what we have there.
Q: I’m not saying a newer sign. You-all have a specific requirement about
the lettering and the condition of the crossbuck sign; isn’t that correct?
A: I have seen some diagrams to that effect. I don’t know what they
specifically say.
Q: Whatever they say, this sign doesn’t even comply with that, does it?
A: It’s faded, yes, sir.
Q: This sign doesn’t even comply with that?
A: No, si, it would not.
Q: So, just on the general maintenance of this crossing, the sign that you-
all talk about, that’s not even maintained?
A: That particular sign is not, no, sir.
Q: And this is at the sign at the Mileston crossing?
A: Yes, sir.
37
¶53. Illinois Central countered by arguing that it is not required to maintain an obstruction-
free crossing, nor is it required to maintain a crossing in a condition where no accident is
possible. Illinois Central cites Buffington v. Gulf & S.I.R.,186 Miss. 132, 188 So. 563
(1939) as an authority for this argument. The Court in Buffington stated that a railroad must
use reasonable care with regard to maintenance of a crossing so that they are reasonably safe
“for persons who, using the crossing, exercise reasonable care for their own safety.”
However, based on the evidence presented at trial, Illinois Central did not present facts that
overwhelmingly proved that Michael did not exercise reasonable care for his own safety.
Illinois Central also asserts that Miss. Code Ann. § 65-1-175 entrusts the sole, exclusive
jurisdiction to the Mississippi Department of Transportation for the installation of active
warning devices, such as lights and gates, at public highway/rail crossings. Illinois Central
also points out that in addition to Miss. Code Ann. § 77-9-249, “railroad companies may also
be required to install additional warning devices at the direction of the Mississippi
Department of Transportation” pursuant to Miss. Code Ann. § 65-1-175. Woods v. Amtrak,
982 F. Supp. 409, 411 (N.D. Miss. 1997).
¶54. Although Illinois Central alleged that no proof was presented at trial that it failed to
comply with any mandate order of the MDOT with regard to the warning devices at the
Mileston crossing, it is settled law that the authority granted to a state’s department of
transportation does not relieve individual railroad companies from common law duties to
maintain its privately-owned crossings. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 113
38
S. Ct. 1732, 123 L. Ed. 2d 387 (1993). Also, this Court in Illinois Cent. R.R. v. Williams, 242
Miss. 586, 135 So. 2d 831 (1961), found that inadequate signalization by a railroad and the
fact that there had been previous accidents at the crossing made this particular crossing
unreasonably dangerous.
¶55. Illinois Central urges this Court to follow one of its previous rulings issued in Illinois
Cent. R.R. v. Smith, 243 Miss. 766, 140 So. 2d 856 (1962). In that case, this Court concluded
that the reason the decedent did not see or hear the train in time to avoid the fatal accident
was that he was not looking or listening, and this was the proximate cause of the collision
with the decedent’s automobile. However, viewing all of the testimony given during this
particular trial and the statutes cited by both parties, I conclude that Travis presented
substantial evidence in support of the verdict and the facts did not so overwhelmingly favor
Illinois Central that reasonable persons could not have arrived at a contrary verdict.
Therefore, the trial court did not err in denying Illinois Central’s Motion for JNOV and
instructions D-1, D-2, and D-3, which were peremptory.
II. Did the trial court err in allowing testimony regarding other
accidents and other alleged near accidents at the Mileston crossing
and in failing to grant Illinois Central’s Motions for Mistrial?
¶56. The evidentiary rulings of a trial court are entitled to substantial deference and this
Court will review those rulings only for clear abuse of discretion. See Broadhead v. Bonita
Lakes Mall, Ltd. P’ship, 702 So. 2d 92, 102 (Miss. 1997). The “admissions or exclusion of
evidence is within the discretion of the trial judge and will not be reversed absent an abuse
39
of that discretion.” Miss. Dep’t of Transp. v. Cargile, 847 So. 2d 258, 263 (Miss. 2003). For
a case to be reversed on the admission or exclusion of evidence, the defendant must show
that it resulted in harm and prejudice to a substantial right of the defendant. Cargile, 847
So. 2d at 263 (citing K-Mart Corp. v. Hardy ex rel. Hardy, 735 So. 2d 975, 983 (Miss. 1999)).
¶57. On July 11, 2003, Illinois Central submitted its Motions in Limine, specifically
including Motion in Limine No. 6 seeking the exclusion of testimony regarding other alleged
collisions and/or “near” collisions at the Mileston crossing. At the Pretrial Conference, the
trial court ruled as follows on Illinois Central’s Motion in Limine No. 6: “No. 6: Testimony
regarding other alleged collisions and/or near collisions at the subject crossing. As to
substantially similar circumstances, the Motion is denied.” On September 22, 2004, the trial
court entered its Order on Motions in Limine submitted by Illinois Central, and ruled that
testimony regarding other alleged collisions and/or near collisions at the Mileston crossing
was denied to the extent such instances occurred under substantially similar circumstances.
¶58. On September 25, 2003, at the continuation of the Pretrial Conference, the trial court
ruled that Travis could not present evidence regarding the Hawkins 3 accident of 1994 or the
Haymer accident of 1990. Specifically, the trial court prohibited Travis from mentioning
other accidents, and required that notice be given to the railroad before any such accidents
would be admitted. However, on the first day of trial, the trial judge reversed her ruling
3
The Hawkins accident is the subject of this Court’s opinion in Illinois Cent. R.R.
v. Hawkins, 830 So. 2d 1162 (Miss. 2002).
40
regarding evidence of other accidents, and advised that she had reconsidered Travis’ Motion
regarding other accidents. The trial judge stated that based upon Illinois Central R.R. v.
Williams, 241 Miss., 586, 135 So. 2d 831, 839 (1961), the Hawkins case was substantially
similar to the Travis case, and that Travis could use the Hawkins case to show notice to
Illinois Central of a dangerous condition existing at the Mileston crossing.
¶59. The standard for admission of evidence of other accidents or near accidents at a
railroad crossing can be found in Mitcham v. Illinois Central Gulf R.R., 515 So. 2d 852, 855
(Miss. 1987), where this Court stated that evidence of prior accidents at a railroad crossing
is admissible to show the existence of a dangerous condition and knowledge of such
condition only upon a showing of substantial similarity of conditions. The admissibility of
prior accidents is limited to conditions of permanence and the evidence must show that
former accidents happened under substantially the same circumstances as those existing at
the time of the accident. Id. at 856. Williams,135 So.2d at, 839. states that in order for
accidents in other or different times to be admissible, cannot be too remote in time from the
particular occurrence. Williams also held that previous accidents at the same railroad
crossing are admissible in subsequent suits to show: “(1) the existence of a defective or
dangerous condition... and (2) to show the defendant’s notice or knowledge thereof.” Id.
¶60. Illinois Central argues that the trial court committed unfair prejudicial error in
admitting evidence of the 1994 Hawkins accident because the accident did not comport with
the standard for admissibility. The Travis accident occurred on May 16, 1997 and the
41
Hawkins accident occurred on September 14, 1994. Illinois Central further contends that
there was no showing that the conditions existing at the Mileston crossing for the Hawkins
accident were similar to the Travis accident. Illinois Central also suggests that the trial court
improperly relied upon Williams in deciding to admit evidence of the Hawkins accident
because Williams was decided under the “occupied crossing doctrine.” This means that the
train entirely occupied the subject crossing at the time of the accident and vegetation did not
factor into Williams at all.
¶61. Travis counters these arguments by stating that as in this case, the railroad in Williams
argued that the facts of two other accidents at the same crossings were entirely different, that
the prior occurrences must involve “substantially” similar facts, and thus the evidence of the
prior accidents should have been excluded. This Court disagreed with the railroad’s argument
in Williams, finding that the evidence was admitted for the purpose of showing notice to the
railroad of unusual danger.
¶62. Applying the standard set forth in Williams, the same conditions that made the
Mileston crossing unusually dangerous in May of 1997 existed in 1994. Specifically, the
rough surface approaching the crossing had not changed and the slope, 289% greater than
industry standards, had not changed. While the vegetation at the crossing was obviously not
the same, it remained substantially unchanged. The evidence admitted by the trial court was
used for the exclusive purpose of showing notice to the railroad of unusual danger.
42
¶63. Illinois Central makes the assertion that Travis’ own witness, Alvin P. Haymer,
testified subsequent to the trial court’s ruling on the issue that the conditions existing at the
Mileston crossing for the Hawkins accident and for the Travis accident had substantially
changed between 1994 and 1997. While Haymer did testify that there had been substantial
removal of trees between 1994 and 1997, he still had a concern about the vegetation. On
direct examination, Haymer stated:
Q: Were there any difference in the crossing between 1994 and 1997, that
you are aware of?
A: Was there any difference?
Q: Yes. Was there any change in the crossing from September of 1994 and
May of 1997, as far as you are aware?
A: Yeah. There is difference in it now, but it wasn’t then. It’s worser.
Q: I am not asking about now. I’m talking about between 1994 and 1997,
was the crossing essentially the same as you saw it in May of 1997 or
during that time period?
A: Yeah, they made changes from ‘94. I don’t know what year they
changed it, but they made changed in it because the trees was up then.
They cleared the trees down. Mostly you’ve got now is shrubs and
vegetation growing up.
Q: Did they make any changes in the signs between 1994 and 1997?
A: The same buck sign. They ain’t put no stop signs up there.
Q: Okay. Was there any changes - can you tell us whether or not there
were any changes made to that slope heading up to the track?
A: The slope is the same.
43
On cross-examination, Mr. Haymer continued to mention the vegetation:
Q: The train goes up the tracks a ways, and there’s a bunch of trees after
you get way down there.
A: That’s right.
Q: I believe - am I correct in 1994, those trees came down a lot further?
The trees towards the Mileston crossing?
A: They come right at the crossing.
Q: All right. But in 1997, those trees had been cleared up, back to that
curve.
A: Yeah.
Q: That’s the difference that you were talking about; right?
A: Yeah. Only thing we got now is the growing up vegetation; that’s what
we got.
¶64. After Illinois Central filed its appeal, this Court issued its opinion in Richardson v.
Norfolk Southern Railway Co., 923 So. 2d 1002 (Miss. 2006). This wrongful death case also
arose from an accident in which a train collided with a car crossing the railroad tracks at a
grade crossing. The driver of the car died as a result of his injuries from the accident. The
mother of the deceased driver sued the county in which the incident occurred and the railroad
company for negligence. The plaintiff in Richardson asserted that the trial court erred in
excluding evidence at trial of two other accidents at the same grade crossing. This Court
stated in Richardson:
Turning to this case, Richardson attempted to introduce evidence of a prior
accident which occurred at this same grade crossing on December 12, 1985.
44
This prior accident involving Matthew Bradley occurred over thirteen years
prior to Mikie’s accident on May 10, 1999. The other accident, involving
Wendy McClure, occurred in January, 2003, over three and one-half years
after Mickie’s accident. Richardson argues that because both McClure and
Bradley were traveling west across the same grade crossing when a Norfolk
Southern train traveling north collided with their cars, the accidents are
substantially similar and thus admissible. We do not agree. This Court has
never found a period of time such as over thirteen-years close enough in time
to be admissible. One accident occurring at the same location over thirteen
years before Mickie’s accident does not necessarily show an existence of a
dangerous condition or that the defendant had notice or knowledge of a
dangerous condition. Also, conditions at the scene obviously change over such
a long period of time. Likewise, an accident occurring at the same location
more than three and one-half years after Mikie’s accident could not possibly
be relevant to prove that a yet-to-happen 2003 accident put Norfolk Southern
on notice in 1999 that a dangerous condition existed at the grade crossing at
the time of Mikie’s accident.
For these reasons, we find that the trial court did not abuse its discretion in
excluding this “other accident” evidence. In excluding this evidence, the trial
court’s action was neither arbitrary, nor clearly erroneous, nor was it
manifestly wrong against the overwhelming weight of the evidence. This issue
is thus without merit.
Id. at 1010.
¶65. There are major differences, between the current case and Richardson. In
Richardson, one of the cases that the plaintiff sought to introduce happened thirteen years
prior to the death of her son. In this case, the 1994 Hawkins accident happened three years
prior to Michael Travis’ fatal accident at the Mileston crossing. In Richardson, this Court
stated that an accident which happened more than three and one-half years after the
decedent’s death could not be relevant in putting the railroad on notice that a dangerous
condition existed at the grade crossing in 1999. However, this Court did not state in
45
Richardson that a three-year accident which happened prior to another fatal accident at the
same crossing could not be used to prove that a railroad was on notice that a dangerous
condition existed.
¶66. Furthermore, in Richardson, the plaintiff sought to establish that the thirteen-year-old
accident and the 2003 accident were substantially similar because the victims in these
accidents were traveling west across the same grade crossing when a train hit them. In the
current case, Travis does not argue that just because the vehicle was traveling across the
same grade crossing is just cause for admitting the 1994 Hawkins accident. Travis
specifically discusses the unchanged condition of the rough surface approaching the crossing,
the slope, and vegetation. Therefore, the prior 1994 accident and the 1997 Michael Travis
case were not too remote in time and the conditions surrounding the accidents were
substantially similar.
¶67. Applying this analysis, the trial court did not abuse its discretion in admitting evidence
of the 1994 Hawkins accident based on the factors set forth in Williams. Michael’s accident
occurred under substantially similar conditions as the 1994 Hawkins accident and that
admission of this accident did not unfairly prejudice Illinois Central. Therefore, a reversal
for a new trial is not warranted.
46
A. Did the trial court err in denying Illinois Central’s Motion for
Mistrial due to Travis’ counsel’s presentation of evidence
regarding the Haymer accident?
¶68. Whether to grant a motion for mistrial is within the sound discretion of the trial court.
The standard of review for denial of a motion for mistrial is abuse of discretion. Pulphus v.
State, 782 So. 2d 1220, 1222 (Miss. 2001). The failure of a trial court to grant a motion for
mistrial will not be overturned on appeal unless the trial court abused its discretion. Bass v.
State, 597 So. 2d 182, 191 (Miss. 1992).
¶69. Uniform Circuit and County Court Rule 3.12 provides as follows: “Upon motion of
any party the Court may declare a mistrial if there occurs during the trial, either inside or
outside the courtroom, misconduct by the party, the party’s attorney, or someone acting at the
behest of the party or the party’s attorney, resulting in substantial and irreparable prejudice
to the movant’s case. Furthermore, the trial judge is in the best position to determine the
impact of a particular occurrence. Illinois Cen. R.R. v. Hawkins, 830 So. 2d 1162, 1176
(Miss. 2002).
¶70. Illinois Central argued that the trial court erred because it refused to grant a mistrial
when Travis’ counsel mistakenly referred to the Hawkins accident as the “Haymer” accident
of 1990. Illinois Central moved for a mistrial because the trial court specifically limited
Travis’ inquiry only into the Hawkins case. The mistaken reference to “Haymer” happened
during the direct examination of the Risk Manager for Illinois Central, Kenneth Robinson:
47
Q: Now, I want to go back to first on Mileston crossing. The death of
Michael Travis was not, in fact, the first death at that crossing; is that
correct?
A: That’s correct.
Q: Three other people died in 1994 at that crossing; isn’t that correct?
Mr. Beckham: Your Honor, may we have a continued objection to this form
of questioning?
The Court: You may have a continued objection.
Q: Isn’t that correct?
A: That’s correct.
Q: In the Haymer case; isn’t that correct?
Mr. Beckham: Your Honor, we object to that and would ask you to instruct the
jury to disregard that.
The Court: What’s the last part of that question?
Mr. Sweet: I’ll rephrase the question, Your Honor.
Mr. Beckham: May we approach the bench, your Honor?
The Court: You may.
Mr. Sweet: I’ve misspoken; I meant to say Hawkins.
Mr. Beckham: We move for a mistrial. There’s been on showing of any
substantial or similar circumstance. This Court has ruled that no accident was
admissible in this case, other than the Hawkins case; and he just said Haymer
case.
Now, the jury has already heard about the Haymer accident in voir dire. Now,
this – the Haymers were mentioned. They didn’t hear about the Haymer
accident. This is not relevant. They’ve heard about other accidents.
48
We ought to have a mistrial right now, just like the Court granted in the
Hawkins case in 1999. This is the same situation, exactly the same. There’s
been no showing of any substantial set of circumstances.
Mr. Sweet: I misspoke. I said I would withdraw the question before I even
went forward. I meant to say Hawkins case. And I will not question about
that. I will specifically follow the Court’s order.
The Court: Motion for mistrial is denied. Rephrase your question.
Mr. Beckham: Would the Court instruct the jury to disregard?
The Court: Defendant’s objection was sustained; you are, therefore to
disregard.
¶71. As previously discussed, the trial judge is in the best position to determine if a
particular occurrence warrants a mistrial. Also, this Court has upheld the trial court’s denial
of a mistrial based on a mistaken remark, where the defendant failed to prove that the speaker
was attempting to influence the jury. Lee v. State, 226 Miss. 276, 83 So. 2d 818 (1955).
Based upon her observation of the mentioned exchange during the trial, the trial judge
concluded that a mistrial was not warranted. Travis’ counsel explained to the trial judge that
he misspoke and offered to withdraw the question. The trial judge accepted this explanation,
sustained Illinois Central’s objection and told the jury to disregard the initial line of
questioning. Travis’ counsel was instructed to rephrase the question to the witness. The trial
judge made no mention or determination that the mistaken remark was an attempt to
influence the jury and she used her broad discretion to continue with the trial.
49
B. Did the trial court err in denying Illinois Central’s Motion for
Mistrial regarding Thelma Washington’s testimony of other
accidents at the Mileston crossing?
¶72. Illinois Central also requested a mistrial based on the following exchange between
Travis’ counsel and Thelma Washington:
Q: Tell the ladies and gentlemen of the jury what this meeting was
concerning.
A: It was concerning - talking about the meeting?
Q: Before Michael Travis’ death.
A: It was concerning getting some lights up at that crossing.
Q: And why was it concerning - what was the reason that was being
discussed?
A: Because there were so many accidents.
Mr. Beckham: Objection, your Honor.
Mr. Blackmon: Mr. Sweet promised that he had told her not to mention other
accidents, and she just did.
Mr. Beckham: Your Honor, we move for a mistrial. This is our third or fourth
motion for mistrial. The Court has made specific orders concerning prior
accidents. There’s been no showing of substantial or similar circumstances.
And not this jury just heard the word “prior accidents.”
Mr. Sweet: She was not- she was told not to mention any of those specific
accidents. And I specifically said, in a sensitive area, let me lead her so it
won’t even come up about other prior.
Mr. Blackmon: Your Honor, it doesn’t -
50
The court: – Wait. Objection is overruled. Motion for mistrial is denied. And
I will allow you to lead her for the specific purpose of directing her to this
incident -
Mr. Sweet: yes, Your Honor.
The Court: Add to the other incident I’ve allowed.
According to the record, Travis’ counsel informed the witness prior to trial that she could not
mention other accidents. When Illinois Central pressed the trial court for a mistrial, it was
denied. The trial court did not comment as to why she denied the motion for a mistrial, but
a careful reading of the record leads to the conclusion that nothing in the mistaken reference
to other accidents resulted in substantial or irreparable prejudice to Illinois Central.
Therefore, the trial judge did not abuse her discretion in denying Illinois Central’s motion for
a mistrial.
C. Did the trial court err by allowing Annie Marie Sago to testify
regarding other accidents at the Mileston crossing?
¶73. During Sago’s testimony, Illinois Central made a continuing objection to Sago’s
testimony regarding the 1994 Hawkins accident, which was noted by the trial court. Sago
testified in that in 1994, an accident occurred at the Mileston crossing, resulting in the loss
of life. Illinois Central contends that the testimony regarding the Hawkins accident from
Sago was at least the fourth time the jury heard evidence of the Hawkins accident at trial,
without any showing of similar circumstances surrounding the accident.
¶74. As stated previously, the same conditions that made the Mileston crossing unusually
dangerous in May of 1997 existed in 1994 and the trial judge did not abuse her discretion by
51
allowing evidence to be heard on the Hawkins accident. Therefore, the trial court did not err
by allowing Sago to testify regarding other accidents at the Mileston crossing.
D. Did the trial court err in denying Illinois Central’s Motion for
Mistrial during the testimony of Sago?
¶75. During Sago’s direct examination by Travis’ counsel, the following exchange
occurred regarding a meeting in the Mileston community regarding the Mileston crossing:
Q: And what was the subject of that meeting? What were y’all having a
meeting about?
A: We was trying to get a crossbar there because of the accidents.
Mr. Blackmon: Objection, Your Honor.
The Court: Sustained.
Mr. Blackmon: Your Honor, this witness made reference to accidents plural
and, of course, the only admissible accident that’s been mentioned thus far in
the Court - and the Court has ruled - has been in 1994, and she is making it
more than accidents; it’s in violation of the Court’s order. We have been up
here several times and discussed this.
Mr. Sweet: She has been instructed not to identify any other accident other
than 1994. I promise you that was a slip. I was telling her to make sure that you
only mention 1994. It was clearly just a slip when she said what was the
nature of the meetings. As best instance, I am allowed to lead so that people
will won’t slip. There is an objection and the Court sustained it. Your Honor,
I would submit that there has been no details of any other accident or anything
of that nature. She simply used plural when it was a slip on her.
The Court: Okay. The motion for a mistrial is denied and I will allow you to
in whatever way to lead to make sure we don’t have this occurring again.
Mr. Sweet: Yes, Your Honor.
52
¶76. Illinois Central contends that Travis failed to adequately inform and prepare the
witness for her testimony. Illinois Central also points out that the trial court’s prior ruling
made it clear that no mention of the accidents at the Mileston crossing was permitted other
than the 1994 Hawkins accident and the failure of Travis to follow the trial court’s order
resulted in the admission of prejudicial evidence. However, the trial judge once again used
her discretion to deny Illinois Central’s motion for a mistrial, but sustained its objection as
to Sago’s testimony concerning the use of the plural term “accidents.” After Travis’ attorney
asserted that there was not an identification of any other specific accidents other than the one
in 1994, the trial judge allowed him to lead Sago during questioning so as not to have
another slip of the tongue.
¶77. Under these circumstances, Illinois Central was not prejudiced since there was not a
specific identification of other accidents other than the 1994 Hawkins accident. Therefore,
the trial judge did not abuse her discretion in allowing Travis’ attorney to lead the witness
on this matter and in denying Illinois Central’s motion for a mistrial.
E. Did the trial court err when it denied Illinois Central’s Motion for
Mistrial regarding the testimony of R.C. Howard?
¶78. R.C. Howard’s testimony was presented by deposition at trial. Howard testified that
he was almost hit by a train a couple of time prior to Michael’s accident. At the conclusion
of Howard’s testimony, Illinois Central again moved for a mistrial regarding the admission
of the near collisions. The trial court again denied the motion. Illinois Central asserts that not
only was Illinois Central forced to defend the Travis accident, but it was also forced to
53
defend accidents which occurred years before Michael’s accident. Illinois Central cites
Sawyer v. Illinois Central Gulf R.R., 606 So. 2d 1069, 1076 (Miss. 1992), for the fact that
this Court, in Sawyer, excluded evidence of near accidents, without precluding motorist’s
fault in causing the near accident. This Court also stated that, “the fact of a near-miss, and,
for that matter, a hit, in and of itself proves very little and indeed may be quite prejudicial.
Id. at 1075. However, prior to these statements, this Court acknowledged “that there are
cases where evidence of near accidents may be admissible for the purpose of showing the
dangerous character of a place and to show notice thereof to the person in control.” Id. at
1075. In her discretionary authority, the trial judge admitted the deposition of Howard to
show the dangerous characteristics of the Mileston crossing and also to show that Illinois
Central had notice of the hazardous condition of the crossing. Therefore, the trial court did
not err when it again denied Illinois Central’s motion for a mistrial.
III. Did the trial court err in denying Illinois Central’s Daubert Motion
to Exclude the testimony of Dr. Lipscomb, Travis’ audiologist?
¶79. The standard of review governing the admission or suppression of evidence is abuse
of discretion. Haggerty v. Foster, 838 So. 2d 948, 958 (Miss. 2002). The admission of expert
testimony is addressed to the sound discretion of the trial judge. Roberts v. Grafe Auto Co.,
701 So. 2d 1093, 1098 (Miss. 1997). Unless the Court concludes that the discretion was
arbitrary and clearly erroneous, amounting to an abuse of discretion, that decision will stand.
Id. (citing Seal v. Miller, 605 So. 2d 240, 243 (Miss. 1992); Hooten v. State, 492 So. 2d 948,
950-51(Miss. 1986)). The standard for admissibility of expert witness testimony can be
54
found in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.
2d 469 (1993). Under the Daubert standard, the trial court is vested with a “gatekeeping
responsibility” and must make a preliminary assessment of whether the reasoning and
methodology can be properly applied to the facts in issue. Miss. Transp. Comm’n v.
McLemore, 863 So. 2d 31, 36 (Miss. 2003) (citing Daubert v. Merrell Dow Pharms., Inc.
509 U.S. at 592-93). The trial court must make the initial assessment of whether the
reasoning underlying testimony is scientifically valid, and whether the reasoning can properly
be applied to the facts at issue. 509 U.S. at 592-93. There must be a “valid scientific
connection to the pertinent inquiry as a precondition to admissibility.” Id. at 592. The party
offering the expert’s testimony must show that the expert has based his testimony on methods
and procedures of science, and not subjective or unsupported speculation. Id. at 590.
¶80. Illinois Central submitted its Motions in Limine on July 11, 2003, specifically
including a Motion in Limine to preclude testimony by Dr. David Lipscomb. On September
25, 2003, the trial court entered its Order on Illinois Central’s Motions in Limine, and
specifically reserved ruling on Illinois Central’s Motion in Limine until trial.
¶81. At trial, prior to Dr. Lipscomb’s testimony, Illinois Central renewed its Daubert
objection to Lipscomb’s testimony, and conducted a limited voir dire as to the foundation and
reliability of his expert opinions. Following this voir dire, Illinois Central made a Motion to
Exclude Lipscomb’s testimony under Daubert. Specifically, Illinois Central moved to
exclude Lipscomb’s testimony on the following subjects and bases: any testimony the train
55
horn violated the FRA standard; that Lipscomb could not testify to a reasonable degree of
scientific probability what the horn sounded on the date of the accident; any testimony that
the horn should have sounded at some higher level than required by the FRA standards; any
testimony interpreting any law or regulation, as Lipscomb was not a lawyer; any testimony
that the horn should have been located in some other position; any testimony that the horn
should have been sounded in short blasts; any testimony that short blasts of the horn would
have reached Travis sooner, and any testimony regarding Lipscomb’s tests of the surrogate
vehicle. The trial court denied Illinois Central’s Daubert Motion, finding the testimony to
be relevant and reliable.
¶82. Illinois Central argues that the Locomotive Inspection Act, 49 U.S.C.§ 20701 et seq.
preempts the field of locomotive equipment. Further, that the Federal Railroad Safety Act of
1970, repealed and transferred to 49 U.S.C. § 20101 et seq., likewise preempted the field
regarding audibility of locomotive train horns. Illinois Central asserts that since FRA
regulations have spoken to the issue of audibility of train horns, this issue is preempted as
a matter of federal law. United Transp. Union v. Foster, 205 F.3d 851, 861 (5th Cir. 2000).
Illinois Central also contends that Dr. Lipscomb’s testimony did not show that the train’s
horn sounded below the FRA standard on the date of testing three years following the
accident and that Lipscomb could not testify to a reasonable degree of scientific probability
that the train’s horn failed to sound below the FRA requirement on the date of the accident.
56
¶83. Dr. Lipscomb was accepted by the trial court as one of the leading audiologists in the
country4 and as an expert qualified to testify about whether the locomotive’s sounding device
failed to give Michael warning of the approaching train. Dr. Lipscomb opined that the
locomotive’s horn could not be distinctly heard from a distance of 300 yards on the day of
the accident (the distance required by law), and that it did not alert Michael of the train’s
approach until one second before the train struck his vehicle. In arriving at these opinions,
Dr. Lipscomb conducted a number of tests on both the vehicle and the locomotive horn.
Since Michael’s truck was destroyed when the locomotive struck it, Dr. Lipscomb obtained
two vehicles of the same model driven by Michael. He was unable to get the same year
model as Michael’s, but took steps to assure himself that there was no difference in the
model years that would affect his testing.
¶84. Furthermore, although Dr. Lipscomb does not possess a law degree, it would have
been error to preclude his analysis of FRA regulations because his theories and techniques
4
Dr. Lipscomb holds B.A. and M.A. degrees from the University of Redlands and
a Ph.D. in audiology from the University of Washington. He is a fully-tenured professor
in the Department of Audiology and Speech Pathology at the University of Tennessee,
and served as Director of the Notice Research Laboratory there from 1970 to 1987.
Dr. Lipscomb has served as an advisor to the Tennessee State Legislature on
audiology matters, has provided testimony and data to the United States Congress on
noise topics, and has been a panelist/consultant to the Federal Highway Administration.
He has published books, chapters, and numerous articles in the area of audiology. Dr.
Lipscomb is a member of the American Acoustical Society, American Auditory Society,
American Speech and Hearing Association, and Southern Audiology Society, the
National Hearing Conservation Association, the Washington Audiology Society, the
American Academy of Audiology, and the American Board of Forensic Examiners.
57
were subject to peer review and publication. Plus, being an expert in his field, Dr. Lipscomb
offered standard interpretations of the FRA regulations which are widely accepted in the
industry. Dr. Lipscomb met all the Daubert requirements and his testimony did not violate
any of these requirements.
¶85. Illinois Central also errs by asserting that Travis’ claims are preempted by federal law.
Federal law does not preempt state law negligence claims based on inadequate warnings
when federal funds were not used to improve the crossing. CSX Transp., Inc. v. Easterwood,
507 U.S. at, 665-73. (1993). In determining the scope of the Federal Railway Safety Act
(“FRSA”), the U.S. Supreme Court found that language in the FRSA permitting the “States
to adopt or continue to enforce any law, rule, regulation, order or standard relating to railroad
safety until such time as the Secretary has adopted a.. regulation...covering the subject matter
of such State requirement” indicates that preemption “will lie only if the federal regulations
substantially subsume the subject matter of relevant state law.” Id. at 658.
¶86. This Court has recognized this particular principle in a case that involves the same
railroad. See Clark v. Ill. Cent. R.R., 794 So. 2d 191 (Miss. 2001) (all parties agreed that
claim of whether Illinois Central Railroad negligently failed to properly sound the
locomotive’s whistle “escapes the grasp of federal preemption”); see also Norfolk S. Rwy.
v. Shanklin, 529 U.S. 344, 120 S. Ct. 1467, 146 L. Ed. 2d 374 (2000).
¶87. One of the railroad’s defenses included an assertion that federal law preempted the
plaintiff’s claim. In the previously discussed Richardson case, this Court agreed that the trial
58
court correctly applied federal preemption law to the plaintiff’s claims of inadequate
signalization. This being said, the distinction between the Richardson case and the current
case is that in Richardson, it was proven that federal funds were used for the installation of
warning devices. In this action, federal funds were not used to improve the crossing, and
there was no assertion by Illinois Central that federal dollars were used to improve the
crossing. Furthermore, the Mississippi Legislature has codified a railroad company’s duty
to operate and maintain its crossings in a reasonably safe manner. Therefore, the trial court
did not error in overruling Illinois Central’s Daubert Motion to Exclude Lipscomb’s
testimony.
IV. Did the trial court err by overruling Illinois Central’s objection to
Lipscomb’s testimony regarding the manufacturer’s specifications
for the horn on the subject locomotive?
¶88. Illinois Central argues that federal preemption bars any claim, rule, regulation, or
statute that a train’s horn should sound at a higher level. United Transp. Union v. Foster
205 F.3d 851 (5 th Cir. 2000). At trial, Travis’ counsel elicited testimony regarding the
manufacturer’s specifications for the horn on the Illinois Central locomotive on the date of
the accident. Illinois Central objected on the grounds that the federal regulations have
preempted this area. The trial court overruled this objection. Lipscomb testified that the horn
should have been at 114dba.
¶89. As stated previously, in the Easterwood decision, the U.S. Supreme Court ruled that
federal law does not preempt state law negligence claims based on inadequate warnings when
59
federal funds were not used to improve the crossing. Also, in Clark, all parties agreed that
the claim of whether Illinois Central negligently failed to properly sound the locomotive’s
whistle “escapes the grasp of federal preemption.” Based on the precedent established by the
U.S. Supreme Court and this Court, federal preemption law does not bar Dr. Lipscomb’s
testimony concerning the manufacturer’s specifications of the horn. Therefore, the trial court
correctly overruled Illinois Central’s objection to Dr. Lipscomb’s testimony.
V. Did the court err by denying Illinois Central’s Motion in Limine
seeking to preclude Travis’ expert Jim Scott from testifying?
¶90. On July 11, 2003, Illinois Central submitted a Motion in Limine to exclude the
testimony of Jim Scott, one of Travis’ expert witnesses. Illinois Central sought to preclude
Scott’s testimony by alleging that he committed an illegal trespass onto Illinois Central’s
roadway on July 28, 1997. Illinois Central argued that this entry onto its roadway was not
preceded by a request from Travis under Mississippi Rule of Civil Procedure 34, and that on
this basis Scott’s testimony was inadmissible under the Daubert standards. The trial court
reserved ruling on Scott’s testimony until trial. At trial, Illinois Central again objected to
Scott’s testimony. The trial court denied Illinois Central’s Daubert Motion and the Motion
in Limine regarding Scott’s testimony.
¶91. Mississippi Rule of Civil Procedure 34(a) provides that a party must serve notice on
another party a request “to permit entry upon designated land or other property in the
possession or control of the party on whom the request is served for the purpose of inspection
and measuring, surveying, photographing, testing, or sampling the property or any designated
60
object or operation thereon, within the scope of Rule 26(b).” Mississippi Rule of Civil
Procedure 34(b) provides that any such request “shall set forth the items to be inspected
either by individual item or by category, and describe each item and category with reasonable
particularity. The request shall specify a reasonable time, place, and manner in making the
inspection and performing the related acts.” Illinois Central argues that it did not receive any
type of discovery document or request which preceded Scott’s inspection of the roadway.
Illinois Central sought to exclude the testimony of Scott as a sanction for Scott’s alleged
trespass.
¶92. Miss. Code Ann. § 97-17-97 states:
Except as otherwise provided in Section 73-13-103, if any person or persons
shall without authority of law go into or upon or remain in or upon any
building, premises, or land of another, including the premises of any public
housing authority after having been banned from returning to the premises of
the housing authority, whether an individual, a corporation, partnership, or
association, or any part, portion or area thereof, after having been forbidden
to do so, either orally, or in writing including any sign hereinafter mentioned,
by any owner, or lessee, or custodian, or other authorized person, or by the
administrators of a public housing authority regardless of whether or not
having been invited onto the premises of the housing authority by a tenant, or
after having been forbidden to do so by such sign or signs posted on, or in such
building, premises, or land, or part, or portion, or area thereof, at a place or
places where such sign or signs may be reasonably seen, such person or
persons shall be guilty of a misdemeanor, and upon conviction thereof shall be
punished by a fine of not more than Five Hundred Dollars ($500.00) or by
confinement in the county jail not exceeding six (6) months, or by both such
fine and imprisonment.
Within the record, there is no claim by Illinois Central that it issued notice to the public
(orally or in writing) prohibiting persons from entering the property. The record does indicate
61
that Scott did enter the right-of-way in inspecting the accident scene, but without clear notice
from Illinois Central prohibiting his entry on the right-of-way, it was not an actionable
trespass. Also, no action was pending at the time Scott entered the right-of-way and in this
situation the the trial court possessed broad discretion over discovery matters; therefore, its
ruling will only be reversed where there has been an abuse of discretion. Hayes v. Entergy
Miss., Inc. 871 So. 2d 743, 747 (Miss. 2004) (citing Cole v. Buckner, 819 So. 2d 527, 530
(Miss. 2002)). The trial judge weighed the evidence as presented by both parties and in her
broad discretion denied Illinois Central’s Motion in Limine to preclude Scott’s evidence.
Based upon the evidence, the trial judge did not abuse the broad discretion given to her
concerning the discovery matters in this case.
¶93. Illinois Central further contends that the trial court erred in admitting Scott’s expert
testimony on the basis of substance and foundations of that testimony. However, Jim Scott
is a licensed locomotive engineer whom the trial court accepted as an expert on the subject
of train operations.5 Scott met all of the Daubert requirements to be classified as an expert
and Illinois Central’s challenge to his testimony on these grounds are unfounded.
5
For nearly 25 years, Jim Scott worked for CSX Transportation and its
predecessor companies. At CSX, Scott was promoted to Road Foreman of Engines,
District Road Foreman of Engines, and General Road Foreman of the Central Division.
During his 23 years with CSX, Scott became familiar with the equipment on the train,
including the locomotive event recorder (the train’s black box). He was trained on the
proper use and down-loading requirements for the event recorder by Pulse Electronics,
which manufactured the event recorder on Locomotive 1005. Scott has also been
qualified as an expert witness numerous times in both federal and state courts.
62
Furthermore, Scott’s testimony did not serve to interpret Illinois Central’s operating rules,
but only to offer testimony concerning industry standards and how the physical evidence
measured in comparison to those standards.
¶94. Once again, Illinois Central’s argues that Scott’s testimony should have been excluded
because Travis’ claims are preempted by federal law. However, as previously discussed,
Travis’ claims are not preempted by federal law under the Easterwood analysis. Scott’s
testimony was correctly admitted by the trial court and there was no error by the trial court
that warranted reversal of this decision.
VI. Did the trial court err by allowing the jury to view and Travis’
expert witness Scott to testify regarding a video which Scott made
of the Mileston crossing on July 28, 1997?
¶95. Illinois Central filed a Motion in Limine to exclude Jim Scott’s video of the Mileston
crossing made on July 28, 1997. Illinois Central contends that the video was made while
Scott was trespassing on Illinois Central’s property, and that the video did not reflect the
conditions existing at the Mileston crossing on the date of the accident. The trial court
reserved ruling on the video until trial.
¶96. Illinois Central cites to Illinois Cent. Gulf R.R. v. Ishee, 317 So. 2d 923, 925-26
(Miss. 1975), where this Court held that photographs of a rail crossing taken after a crossing
accident are inadmissible, where they show circumstances other than those existing at the
time of the accident. However, Ishee is distinguishable from the present case because in
Ishee, the defendant railroad company had cleared the weeds from the right of way,
63
substantially changing the conditions and thus affecting whether the conditions of the
experiment provided a fair comparison. Furthermore, this Court in Ishee stated:
In order for a experiment of this type to be admissible, it is not required that
all conditions shall be exactly reproduced, but that they must be so nearly the
same in substantial particulars as to afford a fair comparison in respect to the
particular issue to which the test is directed.
Id. at 926.
¶97. Here, the weeds had not been cleared away between the time of the accident and the
time the video was made some two months later. Contrary to Illinois Central’s argument,
there is no evidence which suggests that the videotape shot only two months after the
accident did not provide a fair depiction of the crossing on May 16, 1997. The video tape was
properly admitted, and a new trial is not warranted.
VII. Did the trial court err when it allowed Travis to redirect Travis’
expert witness Jim Scott as to the speed of the of the subject
locomotive?
¶98. A Pretrial Order was entered in this case on October 7, 2003. Contained in the Pretrial
Order was the following stipulation: the maximum speed for a freight train is 60 mph at the
Mileston crossing. At the time of the collision, the train was traveling 52 mph (approximately
76.25 feet per second). Illinois Central alleges that during the redirect examination of Scott,
Travis’ counsel improperly questioned Scott as to the speed of the train and the throttle
position of the train prior to the accident. Illinois Central objected on the basis that this
testimony regarding the speed of the train was preempted by federal law.
¶99. During a bench conference to discuss this issue, the following exchange occurred:
64
Mr. Beckham: Your Honor, all allegations regarding the train speed are
preempted in this case. We are going 8 miles per hour below FRA speed limit
and any claim or inference at a lesser rate of speed should be precluded and we
wish that the Court would instruct this jury that we were going at a proper
speed and Mr. Sweet be precluded from inferring that one should have been
traveling any slower speed.
Mr. Sweet: Sir, I am not referring to that. They are required to blow the whistle
at that level. I am not arguing that they are speeding. There are several options
to blow the whistle as the pattern requires you.
The Court: Overruled.
¶100. The trial court heard the explanation of Travis’ counsel concerning this issue and
overruled the objection of Illinois Central. While Illinois Central is correct in that the speed
of its locomotive was within the federal guidelines and this issue was preempted by federal
law, Travis’ counsel made it clear that he was not arguing that the locomotive was speeding,
but that he was referring to the various options to blow the whistle within the prescribed
patterns listed in the Code of Federal Regulations. A discussion of the whistle pattern by
Travis’ counsel was not preempted by federal law for reasons previously mentioned;
therefore, a curative instruction by the trial court was not needed. Thus, Illinois Central’s
contention that the trial court abused its discretion by refusing to issue a curative instruction
to the jury is unwarranted, and a new trial should not be granted.
65
VIII. Did the trial court err by denying Illinois Central’s objections to
portions of Illinois Central’s train crew (A.C. Isaac and Arthur
Irby) depositions regarding the training they received from Illinois
Central?
¶101. The standard of review for the admission of evidence is abuse of discretion.
Thompson Mach. Commerce Corp. v. Wallace, 687 So. 2d 149, 152 (Miss. 1997). This
Court will not reverse the admission or exclusion of evidence unless the error adversely
affects a substantial right of a party. Floyd v.City of Crystal Springs, 749 So. 2d 110, 113
(Miss. 1999).
¶102. Illinois Central argues that it was unfairly prejudiced by testimony from A.C. Isaac
and Arthur Irby.6 Illinois Central contends that federal law preempts claims for negligent
training. However, once again, Illinois Central is mistaken in its repetitious use of federal
preemption to defeat Travis’ claims. In Clark v. Illinois Cent. R.R., 794 So. 2d 191, 195
(Miss. 2001), this Court stated:
Principles of federalism operate with particular force to preserve traditional
spheres of state law. The ultimate goal to be achieved, either through the
application of state negligence law or federal regulations, is reasonable safety
at grade crossings. It would be illogical and against firm public policy to find
that the railroad has been excused from its common law duty to maintain an
otherwise safe crossing simply because the FHWA signed off on a request for
funds to install the passive warning devices at the crossing.
Id. at 196.
6
Isaac and Irby were the conductors of the locomotive involved in the accident.
66
¶103. Both Irby and Isaac testified that they were not trained on certain aspects of grade
safety. The deposition testimony was relevant as to the type of training and safety measures
used by Illinois Central in order to make the Mileston crossing operational and safe.
Furthermore, Illinois Central has cited no case law which has held that a railroad company’s
common law duty to adequately train its crew members and equip the crew to handle
emergencies is preempted by federal law. The trial court did not commit prejudicial error by
allowing the testimony of the crew members, and a new trial is not warranted.
IX. Did the trial court err in denying Illinois Central’s Motion in
Limine and Daubert Motion to exclude the expert witness testimony of
Kenneth Heathington?
¶104. Illinois Central contends that Dr. Heathington’s analysis and resulting opinions
concerning the crossing utilized irrelevant factors under Mississippi law. Illinois Central also
sought to exclude Dr. Heathington’s testimony regarding Illinois Central’s duty to install
additional warning devices at the Mileston crossing. The trial court denied Illinois Central’s
Motions in Limine and its Motion to limit Heathington’s testimony.
¶105. Dr. Heathington was accepted as an expert on the subjects of traffic safety by the trial
court. 7 Dr. Heathington opined that the Mileston crossing was unreasonably dangerous on
7
He has been qualified as an expert witness on in federal and state courts. As a
licensed professional engineer, he holds a B.S. (Petroleum Engineering) and M.S. (Civil
Engineering) from the University of Texas (Austin) and a Ph.D. (Civil Engineering) from
Northwestern University. For more than 37 years he has been actively engaged in
highway safety, highway design and operations, and traffic engineering including
accident reconstruction. For 31 years, he worked specifically in railroad-highway grade
crossing design, operation safety. He has authored more than 170 papers, reports, and
67
and before May 16, 1997, based on the analysis of the factors set forth in the Railroad-
Highway Crossing Handbook. He arrived at this conclusion after a six-month safety analysis
of the crossing. As a part of his analysis, Dr. Heathington conducted a personal site
inspection of the crossing and other crossings in the rail corridor and reviewed numerous
documents, including photographs and videos of the crossing, train timetable speeds and the
number of trains using the crossing, depositions and other sworn witness statements, and
accident history for the crossing, and a plan view with elevations prepared by licensed
surveyors. He also oversaw and analyzed a traffic count prepared at his direction, which
included the number and types of vehicles, including school busses and hazardous materials
trucks, that use the crossing on a daily basis.
¶106. Dr. Heathington then evaluated this information under the standard of care established
by the American Association of State Highway and Transportation Officials and the U.S.
Department of Transportation, its Railroad Grade Crossing Handbooks, and requirements
found in the Code of Federal Regulations. He found that the crossing had severely deficient
books on transportation engineering and highway safety. Now retired from the University
of Tennessee, he holds the position of Professor Emeritus. Dr. Heathington has been
Associate Administrator for Traffic Safety Programs, U.S. Department of Transportation;
Associate Professor of Civil Engineering, Purdue University; and has held engineering
positions with the Illinois Division of Highways, Texas Highway Department, and
Continental Oil Company. In addition, Dr. Heathington has served as an advisor to the
Tennessee State Legislature in transportation matters. He has testified on transportation
policies and issue to the United States Congress and to various legislative and
governmental committees and agencies, including hearings on proposed rule-making for
the Federal Railroad Administration.
68
sight distances based on the speed of trains using the crossings and specifically based on 52-
miles-per-hour (76 feet per second) speed. Dr. Heathington stated that the “sight distance
restrictions may be even worse” based on the overgrown vegetation. Dr. Heathington
testified as follows:
Q: Do you have an opinion to a reasonable degree of professional certainty
whether Illinois Central could have and should have installed lights and
gates at the Mileston crossing before May 16, 1997?
A: It should have been installed a long time before that.
Q: What is the basis of your opinion?
A: All of the characteristics that we reviewed, some that’s still additional
he put in his report, all of the things that have happened there over time,
all of those such things are serious deficiencies in safety of the
crossing.
¶107. Relying on Illinois Cent. R.R. v. McDaniel, 246 Miss. 600, 151 So. 2d 805 (1963),
Illinois Central asserts that the only test of whether a railroad crossing is unusually dangerous
is the ability of the traveler to observe the approach of a train from the direction in which it
is coming. While it is true that this test was utilized by the Court to analyze the railroad’s
failure to control vegetation along the right of way, which obstructed the motorist’s view of
the approaching train, this Court did not apply the same standard to the allegations of the
railroad’s failure to sound adequate warnings. Id at 811. Furthermore, Illinois Central’s
manager of engineering services testified that the factors set forth in the Railroad Highway
Grade Crossing Handbook, which were the same factors Dr. Heathington applied to his
69
analysis of the Mileston crossing, were the proper factors to determine whether a railroad
crossing is unusually dangerous and in need of additional warning devices.
¶108. After a careful review of the testimony and the evidence presented in the record, I
conclude that all of Dr. Heathington’s opinions were made to a reasonable degree of
professional certainty. Dr. Heathington’s theories and techniques have been subjected to peer
review and publication. Dr. Heathington’s opinions satisfy the Daubert requirements, and
the trial court did not abuse its discretion by admitting his testimony.
X. Did the trial court err by allowing Dr. Heathington to testify that
the City of Tchula, Mississippi and Holmes County, Mississippi
could not install safety devices at the Mileston crossing?
¶109. On direct examination, Heathington testified that the city and the county could not
install safety devices, such as a sign, on Illinois Central’s right-of-way. Heathington further
testified that the railroad must grant permission to a city or county to install safety devices
on the railroad right-of-way. Illinois Central objected to Heathington’s statements because
he was a non-lawyer allegedly interpreting the law. The trial court overruled Illinois Central’s
objections.
¶110. On this point, Illinois Central’s argument is misplaced. Dr. Heathington relied upon
the deposition testimony of Stephen Edwards’s, the Head of the Rails Division for the
Mississippi Department of Transportation in developing his statements concerning the
installation of safety devices. Furthermore, Edward’s testimony was based on his
professional experience and understanding of whether Illinois Central had the power and
70
responsibility of installing additional warning devices at the Mileston crossing before
Michael’s accident. Dr. Heathington was not interpreting the law, as alleged by Illinois
Central, but utilizing testimony and factual data in order to present his professional opinion
to the trial court. As previously mentioned, his statements, theories, and techniques are
generally accepted within industry standards. Therefore, contrary to the views of Illinois
Central, the testimony of Dr. Heathington on this subject was not improper and did not
unfairly prejudice Illinois Central.
XI. Did the trial court err in allowing Dr. Heathington to testify that
the conditions at the Mileston crossing on September 14, 1994 were
substantially similar to the conditions existing on the date of the
Travis accident?
¶111. At trial, Travis questioned Dr. Heathington regarding whether the conditions at the
Mileston crossing existing on September 14, 1994, were substantially similar to the
conditions existing at the crossing on May 16, 1997. Illinois Central objected to this line of
questioning, and this objection was overruled by the trial court. Illinois Central asserts that
Dr. Heathington’s testimony regarding sight distances at the crossing was “patently false.”
On direct examination, Dr. Heathington testified as follows regarding the similarities of the
conditions existing on September 14, 1994, and May 16, 1997:
Q: Ok. Let’s go to Number 6, and in making your analysis did you look to
an accident that occurred on September 14th there, 1994.
A: Yes, ma’am.
71
Q: Do you have an opinion to a reasonable degree of professional certainty
whether the accident at the Mileston Crossing on September 14th, 1994
was substantially similar to the accident on May 16th, 1997?
Mr. Beckham: We object to this, Your Honor.
The Court: Overruled.
Q: What is your opinion?
A: They are essentially the same. The train was going from left to right
instead of right to left. Other than that, the vegetation, the trees and
things are about the same, the roadway is the same, the crossbucks are
the same, the motor vehicles going the same direction, the motor
vehicle operator has to look in both directions for a train, so he
essentially had the same - the same conditions.
Q: And -
A: They were both going about the same speed from all the information we
have. They were slow, in the order of ten miles an hour or so.
Based on the research done by Dr. Heathington, the evidence overwhelmingly establishes
substantial similarity between the two accidents. Dr. Heathington simply reviewed the
evidence before him and noted that there was no massive cutting or changing or overgrowth
in the intervening three years.
¶112. Illinois Central also states that Dr. Heathington testified on cross-examination that
there was zero sight deficiency in the southeast quadrant, supposedly the relevant quadrant
at the Mileston crossing accident. The actual testimony of Dr. Heathington is as follows:
Q: All right. Dr. Heathington, you don’t disagree that from 79 feet from
the nearest rail on the date of this accident, you can see that train like
it’s shown in D-112 all the way back as you described it in the area of
the whistle post?
72
A: I said - that’s the way I calculated it, 70 feet from it, looking to the
right, you had adequate sight distance. I said there’s been a lot of
people who’ve testified that there was a lot of vegetation out there, and
you couldn’t always tell that. I don’t know. I wasn’t there at the time.
So rather than try to recreate that, which I didn’t have adequate data to
do that, I didn’t use that.
Q: You were just talking about the grass on the road?
A: Wherever it may have been they are talking about.
Q: Okay.
A: Wherever that might be.
Q: Okay. D-160. The particular, I’m just looking here at a portion of your
sight distance analysis, Dr. Heathington, that you did in the year 2000.
A: Yes.
Q: And this deals strictly with the quadrant between - and I realize you
want to say that those quadrants are involved. Right now, I just want to
talk about the quadrant in the intersection between Michael Travis and
the train. And what you found in the year 2000 was that for the
Mileston Road - do you remember you said we got the roads mixed
up?
A: Yes.
Q: That should that be Epps Road, 20 miles per hour, and that means no
sight distance deficiency on Mileston Road; 10 miles an hour, no sight
distance deficiency for Epps Road; correct?
A: That’s correct. What you got -
Q: - Wait a minute. I’m going to let you explain, Dr. Heathington; I’m
fixing to be through. That is the quadrant between Michael Travis’s
truck and this train; isn’t it, sir?
73
A: That’s right. And that’s what I explained earlier. And what I said was,
you have a tractor in there and you have other things going on. And
that’s if he specifically looked and he was doing 10 miles an hour at 70
feet. Now, for all those other reasons of the tractor and things of this
nature, he didn’t look until - let’s say 60 or 55 - let’s say 55 feet from
the nearest rail, and he looked and saw it. Then he would have gone
through the perception reaction time, stopped the distance at 10 miles
an hour, and his bumper would have been on the front rail, fell on the
track, and he would have got it, just like he got hit. So, if he had to look
at the 70 feet in order to be able to do that, and there was a lot of other
activity going on - fairly substantial eyes activity.
Illinois Central’s contention that Dr. Heathington testified that there was a zero sight
deficiency in the southeast quadrant is flawed because the complete testimony offered by Dr.
Heathington stated that there was substantial activity going on in this particular quadrant and
that there would be a zero sight deficiency without all the other activity happening in this
quadrant. The trial judge heard all testimony offered by this particular witness and in her
broad discretion allowed the jury to consider it.
¶113. Illinois Central also argues that the photographs viewed by Dr. Heathington clearly
showed that substantial vegetation was removed from 1994 and 1997. Illinois Central further
contends that the photographs taken on the day of the accident demonstrated that there was
no obstruction to Michael’s view of the approaching train. However, Dr. Heathington
testified that the panoramic photographs offered by Illinois Central as an accurate
representation of what Michael would have seen were not on point. Dr. Heathington
reviewed the photographs and panoramic compilations of the photographs. Dr. Heathington
then measured the sight distances in the “plan” view, which is a scaled diagram of the
74
crossing prepared by licensed surveyors retained by Travis, and compared the measurements
against those in Illinois Central’s photographs and panoramic compilations. Dr. Heathington
then explained to the jury how the panoramic compilations distorted what Michael actually
saw as the train approached the crossing:
Q: All right. Dr. Heathington, we have the plan view, and I have in front
of you D-132. Tell me how you compare this panoramic to this plan
view?
A: May I explain what is happening with the camera?
Q: Sure.
A: The scale on a photograph is not constant as it is here. This is one inch
equals 60 feet. As you move from where the focal point is, that camera
is shot away from that point, the scale changes.
If you use a 50-millimeter, which is the closest to what your eyes tend
to see, you change I from that, and if you go lower than that, it is called
a wide angle. I have one camera that has a 28, which is a real wide-
angle lens. If you go above the 50, we normally talk about zooming in
on something. So it looks closer than it really is and the scale is
changed.
Now, whenever you put 1,2,3,4,5,6,7 photographs together, you have
got a multiple of 7 times the scales of whatever they are in error on this
supposedly panoramic view. This does not look like what you see if you
are standing out there.
As it was previously stated in section IX, all of Dr. Heathington’s opinions were made to a
reasonable degree of professional certainty and he met all Daubert standards to be considered
as an expert in his field. Therefore, the trial court did not abuse its discretion in admitting his
testimony.
75
XII. Did the trial court err in allowing Heathington to testify that other
railroads voluntarily place active warning devices at their
crossings?
¶114. At trial, Travis’ counsel questioned Heathington regarding whether other railroads
installed lights and gates at their railroad crossings at their own expense. Illinois Central
promptly objected to this questioning, and the trial court overruled its objection. Illinois
Central argues that the testimony was irrelevant due to the fact that the Mileston crossing is
a public crossing, and railroads have separate and distinct obligations with respect to public
and private crossings. Illinois Central also contends that the testimony offered ignores the
mandates of Miss. Code Ann. § 65-1-175 which grants exclusive jurisdiction to the MDOT
over the decisions to make such installations.
¶115. However, Illinois Central to ignores the following portion of Dr. Heathington’s
testimony:
Q: Let me ask you this question.
A: Okay. That was just another example.
Q: Are there any restrictions on Illinois Central installing lights and gates
at the Mileston crossing, that you know of?
A: No, there is none. Other than you have to meet the MUTCD
requirement, and you would normally go to the MDOT and say, “We’d
like to put this in,” and they’ll give you permission to do it. It’s like a
building code in a city. A city determines the type and need of every
building that’s going to be built in the city. But if you’re a developer
and you go in with a set of building plans and you say, “I want to build
this,” you get permission to do it, unless you have got something weird.
76
Dr. Heathington testified as to what would be necessary in order for Illinois Central to install
lights and gates at the Mileston crossing had the company chosen to do so. He simply
provided an explanation as to the different requirements needed to install lights and gates at
a private crossing and a public crossing. The testimony was relevant in order to give the jury
a clear understanding of the procedures implemented to install safety devices at public and
private crossings. This testimony did not unduly prejudice Illinois Central because the
railroad does have a responsibility to maintain the Mileston crossing in good working order
and maintenance/installation of safety devices is a part of that responsibility.
XIII. Did the trial court err by denying Illinois Central’s objections to
Travis’ Jury instructions, and by allowing the following
instructions to be given either in whole or as amended?
¶116. Jury Instruction P-3 reads as follows:
The Court instructs the jury that if you find from a preponderance of the
evidence that Illinois Central Railroad Company failed to exercise reasonable
care to maintain its right-of-way at the subject crossing with regard to
vegetation during the period of time before the accident so that the crossing
was not reasonably safe in that vegetation growing on the railroad right-of-way
unreasonably and dangerously obstructed the view by such persons of
approaching trains, and if you further find by a preponderance of the evidence
that such failure, if any, by Illinois Central proximately caused or proximately
contributed to the injuries to and death of Michael Travis, then you must return
a verdict for Plaintiff Mary Travis, as Administratrix of Michael Travis’s
estate and on behalf of Michael Travis’s Wrongful Death Beneficiaries.
¶117. Illinois Central objects to this instruction stating that the instruction is contrary to law
and contrary to the facts presented by Travis’ own witnesses. Illinois Central contends that
the instruction omitted the fact that Illinois Central is only required to keep its right of way
77
in a reasonably safe condition for motorists taking reasonable care for their own safety.
However, the limitation requested by Illinois Central was expressed in Jury Instruction 6,
which was offered by Illinois Central and accepted by the trial court.8 Furthermore, this Court
upheld the same instruction in Hawkins, 830 So. 2d at 1172.
¶118. Illinois Central is also in error by arguing that there was no evidence presented that
vegetation on the right of way caused or contributed to Michael’s accident. Alvin Prince
Haymer testified tat the vegetation at the crossing, combined with the steep grade, meant that
a motorist would “have to get almost up there to see it [the train].” Dr. Heathington testified
that visibility in all four quadrants impacted Michael’s ability to see the approaching train
under the circumstances and contributed to the accident.
¶119. Jury Instruction P-4 reads as follows:
The Court instructs the jury that if you find from a preponderance of the
evidence, that prior to May 16, 1997, Illinois Central Railroad failed to
exercise reasonable care in erecting adequate warning devices at the Mileston
Crossing so that the crossing was not reasonably safe for motorists like
Michael Travis, or that the railroad should have placed more or different
warnings than it did, and if you further find by a preponderance of the
evidence that such failure, if any, by Illinois Central Railroad proximately
caused or contributed to the injuries to and death of Michael Travis, then you
must return a verdict for the Plaintiff Mary Travis, as Administratrix of
8
Instruction No. 6 provided: “You are instructed that a railroad company owning
rights-of-way in Mississippi such as Illinois Central under Mississippi law should
exercise reasonable care to maintain public crossings so that they may be reasonably safe
for persons who, using the crossing, exercise reasonable care for their own safety; a
railroad company such as Illinois Central is not under a duty to maintain a crossing where
no accident or injury is possible. You may not return a verdict against Illinois Central in
this case merely because an accident occurred at the crossing.”
78
Michael Travis’s estate on behalf of Michael Travis’s Wrongful Death
Beneficiaries.
¶120. Illinois Central argues that this particular instruction is vague, as it imposed a duty on
Illinois Central with regard to warning devices without giving the jury any rule of law as to
when such a duty arises and does not detail what warning devices would be adequate at the
Mileston crossing. Illinois Central also contends that this instruction imposed a duty on
Illinois Central to install other warning devices in the absence of finding that the crossing
was unusually dangerous.
¶121. Travis presented evidence that the warning device at the Mileston crossing was too
close to the tracks and that the location of the crossbuck influences where a motorist will
stop. Dr. Heathington testified that gates and lights at the crossing would have prevented this
accident. This testimony gave the jury the chance to consider whether the railroad violated
its duty to maintain a reasonably safe crossing and based on this testimony, the jury
determined that the railroad was 75% at fault for Michael’s death. The trial court did not err
in allowing instruction P-4.
¶122. Jury Instruction P-9 reads as follows:
This Court instructs the jury that there was in force in the State of Mississippi
on May 16, 1997 a certain statute which provides that: Every railroad company
shall cause each locomotive engine run by it to be provided with a bell of at
least (30) pounds weight and with a whistle or horn which can be heard
distinctively at a distance of three hundred (300 yards) and shall cause the bell
to be rung or the whistle or horn to be blown at the distance of at least three
hundred (300) yards from the place where the railroad crosses over any public
highway or municipal street. The bell shall be kept blowing at repeated
intervals until said crossing is passed.
79
This Court further instructs the jury that if you find from a preponderance of
the evidence that Illinois Central Railroad Company violated any of the
provisions of this law, and such conduct, if you so find, constituted negligence
per se. If you further find from a preponderance of evidence that this conduct
proximately caused or proximately contributed to the injuries to and death of
Michael Travis, then you must return a verdict for the Plaintiff.
¶123. Amended P-9 reads as follows:
If you find from a preponderance of the evidence in this case that the Mileston
Crossing was unusually dangerous as a result of the grade of the crossing, or
the manner in which the crossing was kept, or the position or condition of the
crossbuck at the crossing, then it was the duty of Illinois Central Railroad
Company to exercise caution appropriate to the danger to avoid collisions with
travelers on the roadway.
If you find from a preponderance of the evidence that:
1. The Mileston Crossing was usually dangerous as a result of the grade
of the crossing, or the order in which the crossing was kept, or the
position or condition of the crossbuck at the crossing; and
2. Illinois Central Railroad Company failed to meet the peril created with
necessary precautions; and
3. Illinois Central Railroad’s Company’s failure to take necessary
precaution proximately caused or proximately contributed to the
injuries to and death of Michael Travis, then you must return a verdict
for Mary Travis, as Administratrix of Michael Travis’ estate and on
behalf of Michael Travis’ Wrongful Death Beneficiaries.
¶124. Illinois Central objects to Instruction P-9 on the basis that this instruction is vague;
there was no evidence that the position of the crossbuck or condition of the crossbuck caused
or contributed to the accident and that Illinois Central did not fail to comply with any
mandatory condition contained in the Manual on Uniform Traffic Control Devices regarding
the placement of the crossbuck. Illinois Central further objects on the basis that the
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instruction allowed the jury to consider factors which were irrelevant in the determination
of whether a crossing is unusually dangerous.
¶125. The initial P-9 instruction quotes Miss. Code Ann. § 77-9-225 verbatim, and is an
accurate statement of the law and the railroad’s responsibility for sounding the horn. There
was also substantial evidence presented to the jury that the crew did not sound the horn in
repeated intervals. Also, Travis presented evidence that the crossbuck did not meet the
standards set forth in MUTCD; the grade at the crossing was 289% steeper than the grade
recommended by industry standards; and the crossing was unusually dangerous under federal
railroad standards, requiring active warnings. Furthermore, Illinois Central continues to assert
that the only test for whether a crossing is unusually dangerous is the ability of the motorist
to see the train from the direction in which it is approaching. This assertion is incorrect. As
stated in Section IX, this Court utilized this standard when analyzing the railroad’s failure
to control vegetation in the McDaniel decision. However, in this Court’s continued
discussion of the varying factors in McDaniel which denote whether a crossing is unusually
dangerous, this Court mentioned the blowing of the whistle and the ringing of the bell of an
oncoming train. Based on this discussion, the McDaniel opinion presents a two-part analysis
concerning the test for whether a crossing is unusually dangerous - a test which incorporates
sight and sound. Subsequently, Illinois Central’s elimination of one of the prong’s of this test
makes its assertion inaccurate. Therefore, the trial court did not err in allowing instruction
P-9 to be admitted for consideration by the jury.
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¶126. Instruction No. 12 (D-6) as amended reads as follows:
Under the law of the State of Mississippi, a motorist approaching a railroad
crossing has a duty to look at and heed any traffic signs, has a duty to look for
a train and has a duty to listen for a train’s horn.
Accordingly, if you find that Michael Travis either:
1. Failed to look for a train; or
2. Failed to listen for the horn of an approaching train; or
3. Failed to yield to the train upon hearing the train’s horn when he could
have done so through the use of reasonable care; or
4. Failed to yield to the train upon seeing it when he could have done so
through the use of reasonable care; then, in either of those events,
Travis was negligent.
If you find from a preponderance of the evidence that such negligence, if any,
was the sole, proximate cause of the accident, then in that event, you shall
return a verdict for the Defendants.
You are instructed that under the law of the State of Mississippi whenever any
person driving a vehicle approaches a railroad crossing the driver of such
vehicle shall stop within 50 feet but not less that 15 feet from the nearest rail
of such railroad, and shall not proceed until he can do so safely when:
a. A train is approaching within approximately 900 feet of the crossing
sounding its horn, and such train, by reason of its speed or nearness to
such crossing, is an immediate hazard; or when
b. An approaching train is plainly visible and is in hazardous proximity to
the crossing.
You are further instructed that under the law of the State of Mississippi, at any
crossing with a visible railroad crossbuck sign, the driver of an approaching
vehicle shall, in obedience to the crossbuck sign, yield the right-of-way and
slow to a speed reasonable for the existing conditions, and shall stop if
required for safety no closer than 15 feet from the nearest rail, and the vehicle
driver shall not proceed until he can safely do so.
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You are further instructed that a violation of this law by Michael Travis shall
not of itself defeat recovery, and the question of negligence or the violation
aforesaid shall be left to the jury.
¶127. Illinois Central contends that the trial court made “substantial deletions” from its
proposed four-page instruction. Illinois Central asserts that the instruction as offered would
have instructed that the jury could find Michael Travis solely responsible for the accident.
The instruction given did just that. The jury was instructed that Michael Travis was negligent
if the jury found that he failed to look or listen or yield and that they should return a verdict
for the defendants if Michael’s negligence was the sole proximate cause of the accident. The
instruction (and the court’s amendment) also incorporated the language of Miss. Code Ann.
§ 77-9-249.
¶128. Upon close review of this instruction, it seems that Illinois Central’s major objection
to the instruction is that the trial court’s amendment to the instruction made it a comparative
negligence instruction:
The Court: I’ll add to instruction D-6, at the end of the second paragraph page
two, you are further instructed that – you are further instructed that if you find
a violation of this section – of this law or if you find that Travis violated this
law, it shall not of itself defeat recovery, and the question of negligence for the
violation shall be left to the jury - and a comparative negligence shall be left
to the jury. So we will give a comparative negligence instruction.
The jury clearly understood this instruction because it found Michael Travis to be 25% at
fault. The instruction was not contrary to the law, and the trial court did not err in granting
this instruction.
¶129. Jury Instruction No. P-2 reads as follows:
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The Court instructs the jury that on May 16, 1997, the railroad crossing in
Milestone where the collision in this case happened was a public crossing and
that Mississippi law required Illinois Central Railroad Company to exercise
care in maintaining a reasonably safe crossing to the traveling public,
including Michael Travis.
¶130. Illinois Central objects to the instruction on the basis that it is an incorrect statement
of law because it did not specifically qualify the Illinois Central’s obligation as applicable
only to a person exercising reasonable care for their own safety. Standing alone, this
instruction would be questionable, but taken with Instruction No. 6, the trial court did not err
in allowing the instruction.
¶131. Instruction No. 6 provides:
You are instructed that a railroad company owning rights-of-way in
Mississippi such as Illinois Central under Mississippi law should exercise
reasonable care to maintain public crossings so that they may be reasonably
safe for persons who, using the crossing exercise reasonable care for their own
safety; a railroad company such as Illinois Central is not under a duty to
maintain a crossing where no accident or injury is possible. You may not
return a verdict against Illinois Central in this case merely because an accident
occurred at the crossing.
Instruction No. 6 does specify the railroad’s obligation as applicable to only persons
exercising reasonable care for their own safety. Furthermore, Instruction No. 6 was offered
by Illinois Central and granted by the trial court. Therefore, the trial court did not err in
granting Instruction P-2.
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XIV. Did the trial court err in denying or amending jury instructions
proposed by Illinois Central?
¶132. Jury Instruction D-1 reads as follows: “The Court instructs the jury to return a verdict
for oath of the Defendants, Arthur Irby and Illinois Central Railroad Company.” Jury
Instruction D-2 reads as follows: “The Court instructs the jury to return a verdict for Arthur
Irby.”Jury Instruction D-3 reads as follows: “The Court instructs the jury to return a verdict
for Illinois Central Railroad Company.”
¶133. As stated previously in Section I, the trial court did not err in denying proposed
instructions D1-D3 because Travis presented substantial evidence in support of the verdict
and the facts did not so overwhelmingly favor Illinois Central that reasonable persons could
not have arrived at a contrary verdict.
¶134. As previously discussed in Section XIII, contrary to the assertion made by Illinois
Central, the deletions and amendments to D-6 by the trial court do not warrant a new trial
because the jury clearly understood this instruction and found Michael Travis to be 25% at
fault. The instruction was not contrary to the law and the trial court did not err by amending
this proposed instruction.
¶135. Proposed Instruction D-7 reads as follows:
You are instructed that Michael Travis was negligent as a matter of law by
failing to yield to the approaching train which was plainly visible as he made
his final approach to the crossing.
If you find by a preponderance of the evidence that such negligence was the
sole, proximate cause of the accident, you shall return a verdict for all of the
Defendants.
85
Clearly, Illinois Central based this instruction upon its interpretation of the McDaniel case.
As stated previously in Section XIII, the McDaniel opinion presents a two-part analysis
concerning the test for whether a crossing is unusually dangerous - a test which incorporates
sight and sound and does not hinge solely on the whether nor not the motorist is able to see
the train. Therefore, the trial court did not err by refusing Instruction D-7.
¶136. As amended Instruction D-8 reads as follows:
You are instructed that the law governing the operation of trains is different
from the law applicable to the operation of automobiles. Accordingly, in
determining the facts of this case, you should disregard any preconceived
notions concerning the law governing the operation of automobiles, and follow
those instructions given to you by the Court concerning the operation of train
locomotives when considering the operation of the train in this case.
Under the law of the State of Mississippi a train is not required to stop or slow
down merely because it may be approaching an intersection with a public road.
Under the law of the State of Mississippi, railroad employees who operate
trains have a right to assume that vehicles approaching a crossing will observe
any visible traffic signs, and will yield to any train that is plainly visible and
in hazardous proximity to the crossing and will yield to the sounding of the
train’s horn, until such time as it should have reasonably become apparent to
the train crew that the vehicle is not going to yield to the train.
You are instructed that, as a matter of law, all legal responsibility for
determining the rate of speed for trains at a grade crossing is vested in the
United States Government and is determined by federal regulations.
You are further instructed that the Court finds as a matter of law that the speed
at which the train was traveling at the time of the accident was below the train
speed established for this crossing.
Accordingly, in your deliberations of this case, you may not consider in any
manner whatsoever whether the train should have been traveling at a lower
rate of speed or whether the train crew was negligent in failing to operate the
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train at a lower speed prior to the time that it should have appeared that Travis
would drive his vehicle into the path of the train.
¶137. D-8A as amended reads as follows:
The Court instructs you that the train crew was only required to sound its horn
at intervals at least 900 feet from the Mileston crossing in accordance with the
other instructions given to you by the Court. You may not base any verdict
against Illinois Central or Arthur Irby upon any contention that the horn should
have been sounded at a distance greater than 900 feet from the Mileston
crossing or based on any contention that any interval in the horn pattern was
not long enough.
¶138. Illinois Central contends that if left as written, D-8 would have instructed the jury that
Illinois Central could not be found liable for failure to slow the train or apply the brakes of
the train at an earlier point in time since these actions would not have prevented the accident.
Illinois Central also argues that there was no evidence that any failure to sound the horn in
a particular pattern caused or contributed to the accident. However, after hearing the
arguments of both parties, the trial judge (in her discretion) opted to amend Instructions D-8
and D-8A. Based on the record, there was nothing so overwhelming and convincing in the
evidence which necessitated that the trial court submit D-8 and D-8A to the jury as originally
drafted.
¶139. Instruction D-9 as amended reads as follows:
You are instructed that a railroad company owning rights-of-way in
Mississippi such as Illinois Central under Mississippi law should exercise
reasonable care to maintain public crossings so that they may be reasonably
safe for persons who, using the crossing, exercise reasonable care for their
own safety; a railroad company such as Illinois Central is not under a duty to
maintain a crossing where no accident or injury is possible. You may not
87
return a verdict against Illinois Central in this case merely because an accident
occurred at this crossing.
¶140. Illinois Central contends that as originally drafted, Instruction D-9 would have
instructed the jury on matters preempted by federal law. Illinois Central further asserts that
the instruction would have instructed the jury regarding the installation of other warning
devices at the crossing, and would have instructed the jury regarding Illinois Central’s
placement of the crossbuck sign at the crossing. Illinois Central continues to put forth legal
arguments which were considered by a jury in the presence of the trial judge. As stated
previously, the evidence was not so overwhelmingly in favor of Illinois Central as to warrant
a reversal due to the modification of Instruction D-9.
XV. Did the trial court err in allowing portions of Steven Edwards’
deposition to be presented to the jury during Dr. Heathington’s
testimony?
¶141. Illinois Central objected to the video testimony of Steven Edwards on the basis that
Edwards was not a witness at the trial in the case, Edwards was not an employee at MDOT
at the time of the accident, and Edwards therefore could have no personal knowledge of
MDOT’s policies in effect at the time of Michael Travis’ accident. The trial court overruled
Illinois Central’s objection. Illinois Central also argues that no proper foundation was laid
for Edwards’s opinion testimony under M.R.E. 702.
¶142. Initially, Illinois Central errs in its analysis of Edwards’ testimony by stating that
M.R.E. 702 governs the requirements of the admission of the Edwards’ opinion testimony.
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The proper rule under which to analyze Edwards’ opinion testimony is Rule 701 concerning
opinion testimony by lay witnesses:
If the witness is not testifying as an expert, the witness’s testimony in the form
of opinions or inferences is limited to those opinions or inferences which are
(a) rationally based on the perception of the witness, (b) helpful to the clear
understanding of the testimony or the determination of a fact in issue, and (c)
not based on scientific, technical, or other specialized knowledge within the
scope of Rule 702.
The comment to M.R.E. 701 states:
The traditional rule regarding lay opinions has been, with some exceptions, to
exclude them from evidence. Rule 701 is a departure from the traditional rule.
It favors the admission of lay opinions when two considerations are met. The
first consideration is the familiar requirement of first-hand knowledge or
observation. The second consideration is that the witness’s opinion must be
helpful in resolving the issues.
Under M.R.E. 701, the deposition testimony of Steven Edwards was clearly admissible as
lay testimony because it was helpful in assisting the expert witness (Dr. Heathington) in his
assessment of whether or not the Mileston crossing was unusually dangerous and whether
or not Illinois Central had the power and responsibility of installing additional warning
devices at the Mileston crossing before Michael’s accident. Also, the lay opinion of Edwards
was helpful to the jury in establishing a clear understanding of the testimony offered by Dr.
Heathington to resolve the issues surrounding the Mileston crossing-specifically those issues
of fact concerning whether the crossing was unusually dangerous and Illinois Central’s
responsibility of installing additional warning devices at the crossing. Therefore, the trial
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court did not err in allowing portions of the Edwards’ deposition to be presented to the jury
during Dr. Heathington’s testimony.
XVI. Did the trial court err in allowing Travis to introduce a plan view
of the Mileston crossing?
¶143. In its pretrial Motions in Limine, Illinois Central objected to any reference by Dr.
Heathington to other quadrants of the Mileston crossing. The trial court reserved ruling on
Dr. Heathington’s testimony on this point in its Order on Illinois Central’s Motions in
Limine. At trial, Illinois Central again objected to Dr. Heathington’s plan view of the
crossing, which was overruled by the trial court.
¶144. Illinois Central argues that Dr. Heathington’s plan view of the Mileston crossing
depicted irrelevant quadrants of the Mileston crossing and was prepared nearly three years
after the subject accident. Illinois Central continues to make the repetitive argument that
under the standards of the Ishee case, the conditions of Dr. Heathington’s plan view at the
Mileston crossing were substantially different than on the date of Michael’s accident.
However, as previously stated under Section VI, Ishee is distinguishable from the present
case because in Ishee, the defendant railroad company had cleared the weeds from the right
of way, substantially changing the conditions and thus affecting whether the conditions of
the experiment provided a fair comparison. Dr. Heathington reviewed the evidence and noted
that there was no massive cutting or changing in the overgrowth in the intervening three
years. Consequently, there is no evidence in the record that the trial judge abused her
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discretion in allowing Dr. Heathington’s plan view and testimony to be considered by the
jury.
XVII. Did the trial court err in allowing Heathington to testify regarding
photographs and what Travis saw on the date of the accident?
¶145. At trial, Travis’ counsel questioned Dr. Heathington regarding Illinois Central’s
photographs of the accident scene to determine whether they depicted what Travis saw on
the day of the accident. Illinois Central objected on the basis that Dr. Heathington was never
qualified as an expert on photographs or photographic comparisons. The trial court overruled
Illinois Central’s objection. Illinois Central also objected to Dr. Heathington’s testimony
regarding the photographic comparisons of Illinois Central’s panoramic photographs to Dr.
Heathington’s plan view. The trial court overruled Illinois Central’s objection to Dr.
Heathington’s testimony comparing Illinois Central’s panoramic photographs to the plan
view.
¶146. Dr. Heathington is a civil engineer, experienced in reviewing plans and angles. He
measured the sight distances in the plan view which is a scaled diagram of the crossing
prepared by licensed surveyors retained by Travis. As stated previously, all of Dr.
Heathington’s opinions were made to a reasonable degree of professional certainty and his
theories and techniques applied to formulate his opinions can and have been tested.
Therefore, his opinions were not mere speculations, but scientifically tested and accepted
by the general professional community. The trial court did not abuse its discretion on this
score.
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XVIII. Did the trial court err by admitting into evidence and in
allowing testimony regarding the revised report of Dr.
Thompson, Travis’ economist?
¶147. On the first day of trial, Travis’s counsel supplemented the expert opinion of Dr.
Thompson, Travis’s expert economist, regarding his opinions as to the present net cash value
for Travis’ earnings. Illinois Central objected to this supplementation as untimely because
the report doubled the present net cash value of Travis’ earnings from his previous report.
The trial court denied Illinois Central’s motion to exclude the supplementation of Dr.
Thompson’s opinions. The initial report submitted by Dr. Thompson assessed the present
value of Travis’ future earnings less personal consumption expenditures at $241,595.00
However, the supplemented report provided the present value of Travis’ future earnings less
personal consumption expenditures as $489,058.00.
¶148. Illinois Central also asserts that Mississippi Rule of Civil Procedure 26(f) requires a
party to seasonably supplement their discovery responses. While this is certainly true,
whether a discovery supplementation is reasonable must be determined on a case-by-case
basis looking at the totality of the circumstances. Blanton v. Bd. of Sup’rs, 720 So. 2d 190,
195-96 (Miss. 1998). In Blanton, this Court found that a supplemental expert witness
disclosure filed 6 days prior to trial was not seasonable under M.R.C.P. 26(f), was prejudicial
to the opposing party, and that the trial court’s exclusion of the supplemental report was
proper. This Court upheld the trial court’s exclusion of the supplemental report citing in its
reasoning that it was within the judge’s discretion to exclude the supplemental report given
92
the inherent complexity of the eminent domain proceeding coupled with the crucial nature
of the appraiser’s report. Id. at 196. See also Motorola Comm. & Elecs, Inc. v. Wilkerson,
555 So. 2d 713, 718 (Miss. 1989) (upholding supplementation identifying expert for first time
ten days before trial found reasonable given limited nature of testimony); McKenzie v.
Supervalu, Inc., 883 So. 2d 1188, 1191 (Miss. Ct. App. 2004) (upholding trial court’s
determination to admit supplemental report by expert because the expert used same formulas
for supplemental report that were used in the initial report).
¶149. Also, on direct examination Dr. Thompson testified as follows:
Q: Is that a copy of the report you prepared at our request?
A: Yes, sir, it is.
Q: In connection with the present value of future earnings of Mr. Michael
Travis?
A: That is correct.
Q: And was - did you originally prepare a report of this type in April of
2000?
A: I believe the first one was April 10th of 2000, and this was just revised
about
a week ago.
Q: And what was the purpose of your revision?
A: Basically the revision is that since the one on April 10th of 2000. There
have been new life expectancy tables which calculate the length of the
life a person is expected to live, and there have been some new personal
consumption expenditures, which I assume we’ll talk about, that have
been, for people of his age and marital status.
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¶150. On cross-examination Dr. Thompson testified as follows:
Q: I believe your first report was dated April 10th, 2000?
A: That is correct.
Q: And you - uh - I think recently amended that report?
A: That is correct. That is what we were talking about a moment ago.
Q: Okay. I believe you said you amended it or changed it because of
additional information, some changes that had occurred since you
issued your first report?
A: Actually, not changes, but additional information that I’ve received
since then.
Q: What additional information did you receive?
A: As I testified a moment ago, the new mortality tables.
Q: Hold up. I’m going to write it down. You’ve got a new mortality table.
Okay. From where?
A: The Department of Health and Human Services, Center for Disease
Control and National Vital Statistics.
Q: When did they issue that new report?
A: It was issued December 19th, 2002.
Q: December 19th, 2002. Okay, what else?
A: The other thing was the court case from the Mississippi Supreme Court
that used a personal consumption expenditure of 30 percent.
Q: When was that case rendered?
A: I’m not sure. I think in 2000, but I’m not sure exactly of the date.
94
¶151. Based upon the testimony given by Dr. Thompson, he supplemented his report due to
the changes in the life expectancy tables which were issued December 19, 2002, and a case
issued by this Court that used a personal consumption expenditure of 30 percent. Dr.
Thompson’s original report also made clear that an update might be necessary prior to trial.
The trial court judge heard the testimony, reviewed both reports, and in her broad discretion
admitted the supplemented report. Using the rationale as stated in Blanton, this Court must
determine on a case-by-case basis whether supplementation was reasonable under M.R.C.P.
26(f). Due to the issuance of the new life expectancy tables and this Court’s usage of a
personal consumption expenditure of 30 percent, the decision of the trial judge to admit the
supplemented report was justified.
XIX. Did the trial court err by allowing Travis to present testimony
regarding meetings which took place in the Mileston community
before and after the Travis accident?
¶152. Illinois Central submitted a Pretrial Motion Limine to exclude any mention of a
meeting which took place in the Mileston community following the Travis accident,
regarding the installation of lights and gates at the Mileston crossing. During the Pretrial
Conference, the trial court reserved ruling on this Motion in Limine. At trial, the trial court
excluded a film of the post-accident community meeting, but allowed testimony regarding
the meeting to show notice to Illinois Central of the dangerous conditions existing at the
Mileston crossing.
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¶153. Based upon the testimony and evidence presented at trial, the trial court did not abuse
its discretion in allowing evidence of a meeting that took place in the Mileston Community
prior to Michael’s death. The testimony presented did establish that a representative of
Illinois Central was present at the meeting and that the community discussed the dangerous
nature of the Mileston crossing, plus the need for additional warning devices. Evidence
pertaining to the meeting was directly related to whether Illinois Central had notice of the
dangerous conditions prior to Michael’s accident. Illinois Central also argued that this
evidence should have been excluded because some of the witness did not know the name of
the railroad representative and could not give the exact date of the meeting. Thus, it was well
within the discretionary authority of the trial judge to allow the jury to weigh the evidence
and decide who was more believable on these issues. It is within the sound discretion of the
jury to accept or reject testimony of a witness, and the jury may give consideration to all
inferences flowing from the testimony. Mangum v. State, 762 So. 2d 337, 342 (Miss. 2000).
¶154. Also, Illinois Central contends that the trial court erred by allowing Travis to present
testimony regarding a meeting which took place after the Travis accident. While it is true
that the trial court excluded the videotape of that meeting, there is no citation to any actual
testimony being given at trial discussing the meeting. However, during the pretrial motions
by the defense (in chambers), the trial court made the following findings:
The Court: The Court has taken the motion under advisement on the video tape
of the community meeting at Mileston Crossing. The Court has reviewed those
video tapes, which I saw both - there was the same thing, it was not two
96
separate, one was just longer than the other one. Make sure I did not miss
anything.
The Court finds that the meeting just - the prejudice is just so much
outweighed by any probative value that you could get from those - those video
tapes of that meeting at Mileston Crossing.
The Court will allow - I am not sure you have a witness that was at that
meeting, that that person was present at the meeting and the topics that were
discussed, and that basically goes to notice from the on the railroad company -
to the railroad company but as far as - and what railroad company
representatives were there at the meeting. But as far as allowing the video
tapes in, that is just too much prejudice that would truly outweigh any
probative value.
¶155. As stated in the trial judge’s comments, she reviewed the video tapes and found them
to be prejudicial to Illinois Central. However, she did allow testimony (to a certain degree)
concerning certain events relevant to the meeting. There was no testimony given on the post-
accident meeting, but the trial judge had the discretionary authority to allow the testimony
to be presented to the jury. Therefore, the trial court did not err in allowing testimony
regarding the meetings.
XX. Did the trial court err by denying Illinois Central’s Motion for
Mistrial when Travis discussed a 1991 survey of Holmes County
railroad crossings?
¶156. During Travis’ counsel’s direct examination of Kenneth Robinson, Illinois Central’s
Risk Manager, Robinson was questioned regarding the condition of the Mileston crossing
in 1991 and regarding a previous study from 1991 of Holmes County rail crossings. Illinois
Central moved for a mistrial on the basis that the 1991 survey was not relevant to the 1997
Travis accident and that further mentioning the 1991 study would cause it to experience
97
substantial prejudice. The trial court did not admit the study into evidence. However,
testimony was admissible to show Illinois Central’s notice of the dangerous conditions which
existed before Michael Travis’ death. See Young v. Ill. Cent. Gulf R.R., 618 F.2d 332 (5 th
Cir. 1980); Ill. Cent. R.R. v. Williams, 135 So. 2d 831, 839 (Miss. 1961).
¶157. Specifically, on direct examination by Travis, Robinson was questioned about
the study as follows:
Q: And prior to that time, you had received notice from the people in the
community and others that Mileston crossing was, in fact, not a safe
crossing but a hazardous crossing for individuals in that community;
isn’t that correct?
A: I’m sorry. I cannot answer that yes or no. I don’t know that. Prior to
1994, I was not involved with Mileston. If it happened - I am not going
to debate you on that; I just don’t know about it.
Q: Okay. So my initial question was, as early as 1991, you received such
assertions for allegations that it was not a safe crossing a hazardous
crossing; isn’t that correct?
A: Yes. May I explain?
Q: Yes.
A: I received the book in the mail. And if it is 1991, it’s 1991. I am not
going to debate the date. Dr. Gary Long is a college professor at the
University of Florida. He had done a study for Pat Barret[t], and
attorney across the street here in Lexington, about the crossing in
Holmes County.
I had just a very brief knowledge there was litigation going on as result
of a crossing incident. It might have been at Mileston. And when I got
the book, it came registered mail. And I simply gave it to our lawyers
because there was litigation pending. Did I read it? No. What general
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knowledge I had of the book, I think he had with every crossing in the
county.
The testimony given by Robinson was not so overwhelmingly prejudicial or improper as to
warrant a mistrial for Illinois Central. Robinson simply gave a very general and brief account
of his knowledge of the 1991 survey. Based on the evidence in the record, the trial court did
not abuse its discretion in denying Illinois Central’s Motion for a Mistrial and allowing
testimony regarding the 1991 survey of Holmes County crossings.
XXI. Did the trial court err by denying Illinois Central’s “for cause”
jury strikes of the potential jurors?
¶158. The trial court has wide discretion in determining whether to excuse any prospective
juror, including one challenged for cause. Scott v. Ball, 595 So. 2d 848, 849 (Miss. 1992).
The judge also has an absolute duty to see that the jury selected to try a case is fair, impartial,
and competent. Id. at 850. The trial court’s decision to refuse to excuse a juror for cause will
be reviewed and overturned only if the trial court abused its wide discretion. Howell v. State,
860 So. 2d 704, 727 (Miss. 2003); Jackson v. State, 791 So. 2d 830, 835 (Miss. 2001). “Voir
dire ‘is conducted under the supervision of the court, and a great deal must, of necessity, be
left to its sound discretion.”’ Id. (citing Ballenger v. State, 667 So. 2d 1242, 1250-51 (Miss.
1995)).
¶159. Illinois Central specifically mentions the trial court’s denial of its challenge for cause
to potential juror No. 30 (Ida Falls) who testified that she crossed the Mileston crossing two
months prior to trial, and in 1997 on a sometime basis, resulting in Illinois Central exercising
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peremptory challenge D-2. As stated previously, the trial court has wide discretion in voir
dire matters. While in chambers for jury selection, the trial judge ruled as follows:
Mr. Beckham: Let’s see. You struck Melton already. The next one is Tommie
Shaffer. He’s kin to the Haymers, who had family members involved in an
accident at this crossing in the 1990's, and know everybody out there in the
neighborhood. He’s been across the crossing in recent days or months.
The Court: Cause is granted on Shaffer.
Mr. Beckham: The next one is Juror Number 30, Ida Falls. Ms. Falls was
across the crossing two months ago.
The Court: Cause denied on Falls.
In this exchange, the trial judge granted cause as to one potential juror who was kin to
individuals who were involved in an accident at the crossing in the 1990's. However, the trial
judge denied a for cause jury strike against Ms. Falls. The trial judge had broad discretion
to make this decision concerning Ms. Falls, and there was nothing that was so
overwhelmingly prejudicial against Illinois Central as to warrant overturning the trial judge’s
ruling.
¶160. Illinois Central also specifically mentions its for cause challenge of potential juror No.
91, Lillie Miles, who testified that she passed over the Mileston crossing one week prior to
trial (this was the first time she had been over the crossing in more than 10 years) and every
weekend in 1992. She was seated as Juror No. 10. Illinois Central argues that it is entitled to
a new trial based on the decision by the trial court involving Ms. Miles. However, Travis was
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correct when she asserted that Illinois Central lost the right to argue this point under Adkins
v. Sanders, 871 So. 2d 732, 741 (Miss. 2004).
¶161. In Adkins, this Court stated as follows:
It is well settled in this state that before an appellant may challenge a trial
court’s refusal to excuse a juror for cause, he must show that he used all of his
peremptory challenges. The reason for this rule is that the appellant had the
power to cure substantially any error as long as he has remaining unused
peremptory challenges. We would put the integrity of the trial process at risk
were we to allow a litigant to refrain from using his peremptory challenges,
and suffering an adverse verdict at trial, secure reversal on appeal on grounds
that the Circuit Court did not do what the appellant wholly had power to do.
Davis v. State, 660 So. 2d 1228, 1243-44 (Miss. 1995) (quoting Hansen v.
State, 592 So. 2d 114, 129-30 (Miss. 1991). This rule has been applied by this
Court both where the appellant had not used all of his peremptory challenges
at the time he was confronted with whether to accept the juror in question and
also where he chose to exercise a peremptory challenge on a juror whom he
had not challenged for cause.
871 So. 2d. at 741. While Illinois Central did use all four of its peremptory challenges, it
exercised two peremptory challenges on potential jurors who were not challenged for cause.
Illinois Central had the opportunity to use the other two peremptory challenges on potential
jurors who were also challenged for cause (such as Lillie Miles). However, it chose to use
its remaining peremptory challenges on potential jurors not within the pool challenged for
cause. Since Illinois Central did not exercise its own power to remove Ms. Miles after the
trial court used its broad discretion to deny cause, Illinois Central should not now be allowed
to claim error.
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XXII. Did the trial court err by failing to dismiss for cause the potential
jurors in the venire who admitted to taking medication which made
them drowsy?
¶162. Four of the jurors identified by Illinois Central were challenged because they stated
that they took medicine that made them drowsy. As noted by the trial court, Juror No. 62
“stated she can work all day, she just gets sleepy when she gets home.” Juror No. 69 stated
that sometimes his headache medication makes him sleepy, but that he had not been sleepy
that day. Jurors No. 83 and 92 stated they take sinus pills as needed, but that they could take
a non-drowsy formula. These comments directly contradict Illinois Central’s claims that the
trial court granted challenges for cause on some jurors on this issue, but denied other such
challenges on other jurors without making any distinction for doing so. Contrary to Illinois
Central’s argument, the trial court’s ruling on these potential jurors did not deprive Illinois
Central of the opportunity to empanel an attentive, competent jury. Therefore a new trial is
not warranted.
XXIII. Did the trial court err in denying Illinois Central’s Batson
challenges to Travis’ peremptory jury strikes?
¶163. In reviewing a trial court’s decision on Batson challenges, this Court has stated:
We give great deference to the trial court’s findings of whether or not a
peremptory challenge was race-neutral... Such deference is necessary because
finding that a striking party engaged in discrimination is largely a factual
finding and thus should be accorded appropriate deference on appeal... Indeed,
we will not overrule a trial court on a Batson ruling unless the record indicates
that the ruling was clearly erroneous or against the overwhelming weight of
the evidence.
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Illinois Cent. R.R. Co. v. Hawkins, 830 So. 2d at 1177 (citing Thorson v. State, 721 So. 2d
590, 593 (Miss. 1998)). “The term ‘great deference’ has been defined in the Batson context
as meaning an insulation from appellate reversal of any trial findings which are not clearly
erroneous.” Forrest v. State, 876 So. 2d 400 (Miss. Ct. App. 2003).
¶164. “The striking party is not required to ‘provide the same degree of justification for a
peremptory challenge as is required for a challenge for cause.”’ Burnett v. Fulton, 854 So.
2d 1010, 1014 (Miss. 2003) (quoting Bush v. State, 585 So. 2d 1262, 1268 (Miss. 1991)).
In Barnett, this Court stated that “inattentiveness, demeanor, sleeping during voir dire, lack
of eye contact, educational level and hostility have all been held by this Court to be race
neutral reasons in keeping with Batson.” Id.; Harper v. State, 635 So. 2d 864, 868 (Miss.
1994); Lockett v. State, 517 So. 2d 1346, 1356-57 (Miss. 1987). The striking party is not
required to supply “an explanation that is persuasive, or even plausible.” Hawkins, 830 So. 2d
at 1177 (citing Randall v. State, 716 So. 2d 584, 588 (Miss. 1998)).
¶165. Here, Travis exercised peremptory challenges on four jurors - a white male and three
white females. Travis also accepted a white male juror while she had peremptory challenges
remaining. Travis articulated the following explanations for the strikes: Juror Ware did not
admit to owning a business despite repeated questions designed to elicit such information;
he would not look at Travis’s counsel, but was shaking his head and agreeing with Illinois
Central’s counsel; Juror Hill is a bank teller, and bank tellers have a tendency to not award
large sums of money; Juror McCain works as an operations coordinator for a major utility
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and her husband is in management with a large utility; both companies were involved in tort
reform efforts at the time; and Juror Diggs owned and worked in a beauty salon where she
was likely to hear “everything that goes on in the community.”
¶166. Illinois Central did respond when the trial court asked for a response to each race-
neutral reason, however, these responses did not cover the substance of the reasons
articulated by Travis. The following exchange occurred when counsel for Illinois Central
questioned Travis’ peremptory challenge of Lenard Ray Ware:
The Court: Defense have a response?
Mr. Blackmon: Your Honor, on his questionnaire, he listed himself as an–
Mr. Sweet: Air conditioner technician.
Mr. Blackmon: Yeah, service technician. He lists his employer as Carrier
or Courier, something like that.
Mr. Sweet: That’s he and his dad’s business.
Mr. Blackmon: He just says that he’s a service technician.
The Court: Court finds a race-neutral reason for number 15 and will accept
Ware as P-1. P-2?
¶167. The conversation concerning Juror Hill evolved as follows:
Mr. Sweet: Your Honor, we listed a witness, we were concerned about Pam
Rucker. And this lady said she went to church with Ms. Rucker. Her husband
is, is into logging, and is a mechanic involved in logging. We made the
determination that a person who is in that area, we did not, logging, that
concerned us. There was really another reason is in my experience on
plaintiffs’ cases, she’s a bank teller, Your Honor, and bank tellers have a
tendency not to want to award large sums of money. And I don’t have on my
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juries, if I can help it, have bank tellers, bank officials on my juries, and bank
tellers are very cheap with money.
The Court: Response?
Mr. Blackmon: Your Honor, this lady is Ms. Hill makes a reference with Pam
Rucker. That’s the plaintiffs’s witness, Your Honor. That’s the lady who Mr.
Travis was working with at the time that he was killed. So that’s their,
presumptively, that’s their kind of juror, you know, who’s going to be, have
some relationship with one of their witnesses that are going to testify for and
on behalf of Mr. Travis.
The Court: Court finds a race-neutral reason for plaintiffs Number 42, Self,
and will accept her as Plaintiffs P-2. P-3, McCain?
¶168. The exchange concerning Jackie McCain was as follows:
Mr. Sweet: Jackie McCain, Your Honor, she was, we have a, you have utilities
and railroad companies. She is an operations coordinator for Entergy, which
is a major utility, and ‘s in management with a major utility and just so, in
which people there tend to be clearly pro-business. That company is involved
in all this anti-tort reform stuff, and just in case her profession doesn’t do it,
her husband is a manager with BellSouth, which is another company involved
in all of this. And so, Your Honor, I think that no one would expect the
plaintiffs to want people on a railroad case, who, themselves, are in
management or employed by utilities.
The Court: Response?
Mr. Blackmon: Your Honor, it says on the questionnaire, and she wrote, and
nobody went into it, she’s an operations coordinator at Entergy. It doesn’t say
she has any supervisory responsibility, makes any management decisions.
The Court: Court finds a race-neutral reason for plaintiffs peremptory strike
P-3, will accept McCain as plaintiffs P-3. P-4, Diggs?
¶169. Finally, the record reflects the following conversation as it pertains to Juror Diggs:
Mr. Sweet: Your Honor, I specifically asked to elicit testimony. She is a
hairstylist who owns her own business. And she’s independent, owns her own
business and a hair stylist and they hear and talk with everything that goes on
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in the community, everything that goes on in politics, and hears everybody’s
views, and we prefer not to have an owner, a business person who has those
people throughout the community in their business on a regular basis.
The Court: Response?
Mr. Blackmon: And I don’t know , he said because she hears from folks from
around the community. It was nothing asked of her during the voir dire that a
hair stylist, such as she, actually heard about or inquired about anybody else’s
business.
Mr. Sweet: Your Honor, her father was hit by a drunk driver and filed no
claim. And people tend to say, have accidents and not file claims tend not to
believe in other people who file claims. I can’t imagine how anybody being hit
by a drunk driver - -
The Court: Well, you were doing better before you got into that.
(LAUGHTER) The Court finds a race-neutral reason for Diggs, and accepts
her as P-4. Panel is tendered to the defense.
Furthermore, as stated in the record, Travis’ race-neutral reasons were accepted by the trial
court and the record did not show the trial court was clearly erroneous or that the trial court’s
ruling was against the overwhelming weight of the evidence.
XXIV. Did the trial court err by allowing Travis to include in the
record as an offer of proof the letter dated December 3,
1990 from Zeinz to Clark.
¶170. At trial, Travis made an offer of proof of Exhibit P-166, a letter dated December 3,
1990, from Thomas Zeinz to Joe Clark. Illinois Central objected on the basis that the trial
court precluded this letter pursuant to 23 U.S.C. § 409. However, the trial judge allowed the
letter to be made an exhibit as an offer of proof.
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¶171. Illinois Central specifically states that the trial court erred by allowing Travis to
include in the record as an offer of proof the letter dated December 3, 1990, from Zeinz to
Clark. In her cross-appeal, Travis argues that the letter should have been admitted into
evidence because (a) it establishes that Illinois Central recognized ten years before Michael
Travis’s accident that it was not complying with the recognized safety requirements in the
industry; and (b) doing the right thing was not that expensive. The primary reason for an
offer of proof is to get the proposed answer and expected proof in the record for the benefit
of the appellate court, so that the appellate court may know what evidence is being excluded
by the trial court. Nalls v. State, 651 So. 2d 1074 (Miss. 1995) (citing Brown v. State, 338
So. 2d 1008 (Miss. 1976). By submitting the letter as an offer of proof, Travis’ purpose was
simply to afford this Court an opportunity to review the excluded evidence.
¶172. Furthermore, Illinois Central’s assertions tend to support why the letter should not be
admitted as evidence more than providing solid reasoning to prohibit the letter from being
submitted as an offer of proof. This is a very fine distinction which Illinois Central fails to
recognize and address when it framed its argument. In Freeman v. State, 204 So. 2d 842
(Miss. 1967), Chief Justice Ethridge stated in his dissent:
Where an objection has been sustained to a question, an offer of proof is
appropriate. The rejection of the evidence not apparently admissible is not
error, in the absence of an offer or sufficient statement of the purpose of its
introduction, by which the court may determine its relevancy or admissibility.
Accordingly, it is proper for the trial court to overrule an offer of proof where
the language of the offer is general, vague, and not sufficiently specific. An
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offer should clearly inform the court as to what is intended to be proved, and
the language should be as such as to enable the court to determine whether the
evidence sought to be offered is admissible.
Id. at 847-48 (Ethridge, C.J., dissenting).
¶173. Illinois Central did not allege that it was improper to admit the letter as an offer of
proof because the offer was general, vague, and not sufficiently specific, but that 23 U.S.C.
§ 409 precluded its use. However, based on the information submitted by Travis to the trial
court, the offer of proof was sufficiently specific for it to be accepted by the trial court for
review by this Court. Therefore, it was not erroneous for the trial court to accept the letter
as an offer of proof.
XXV. Was the jury’s assessment of fault and the amount of damages
awarded by the jury against the overwhelming weight of the
evidence?
¶174. Illinois Central contends that the jury’s assessment of only 25% fault to Michael
Travis is contrary to the weight of the evidence. Illinois Central also asserts that the
$5,000,000.00 verdict for one death is also against the overwhelming weight of the evidence
and is grossly excessive. Furthermore, Illinois Central characterizes the jury’s assessment of
fault and the amount of damages as biased and prejudicial.
¶175. It is the function of the jury to apportion causative negligence on conflicting evidence.
Golden Flake Snack Foods, Inc. v. Thornton, 548 So. 2d 382, 384 (Miss. 1989). The jury
in this case heard the testimony and examined the evidence as given. Based on what was
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presented before it, the jury made the decision that Michael Travis was 25% at fault and that
Illinois Central was 75% at fault.
¶176. Furthermore, it cannot be said that the jury’s award was outrageous or unreasonable.
The standard of review in determining whether a jury verdict is excessive is whether the
damages are so excessive as to strike mankind, at first blush, as being beyond all measure,
unreasonable, and outrageous, and such as manifestly show the jury to have been actuated
by passion, partiality, prejudice, or corruption. However, this Court has held that a jury
verdict cannot be disturbed simply because the amount of damages seems “too high” or “too
low.” Ill. Cent. R.R. v. Hawkins, 830 So.2d at1181. In reviewing a jury verdict, the Court
will resolve all conflicts of evidence in the appellee’s favor and determines all reasonable
inferences from the testimony in the light most favorable to the appellee’s position.
Thompson Mach. Commerce Corp. v. Wallace, 687 So. 2d 149 (Miss. 1997).
¶177. Some of the evidence before the jury included: Michael Travis was 33 years old when
the accident occurred. He sustained internal injuries, including contusions, fractures, bleeding
from the aorta, and hemorrhaging. Testimony by Dr. Stephen Hayne, an expert in forensic
pathology, established that the underlying cause of Michael’s death was traumatic injuries,
including lacerations and tears of the lung and internal bleeding of approximately three and
three-quarters quarts.
¶178. The evidence also established that Michael Travis was conscious at the scene of the
accident and begging bystanders to help him. Annie Sago testified that she saw Michael
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Travis crawling on the ground, bleeding from the head, and crying out, “Help me!” Michael
Travis was employed by Alcorn State University, and it was established that the net present
value of his lifetime earnings approached $500,000.
¶179. In this case, the jury awarded $5,000,000, but this figure was reduced to $3,750,000.
Based upon the given testimony, the $3,750,000 award was not outrageous, excessive or
“ludicrous” as suggested by Illinois Central.
XXVI. Did the trial court err in denying Illinois Central’s Motions for
Change of Venue?
¶180. On July 9, 2003, Illinois Central filed its Motion for Change of Venue. By Order dated
September 22, 2003, the trial court denied Illinois Central’s Motion for Summary Judgment
and Motion for Change of Venue. At trial, following voir dire, Illinois Central renewed its
Motion for Change of Venue. The trial court once again denied the Motion for Change of
Venue. Illinois Central asserts that it is entitled to a change of venue outside of Holmes
County because there was citizen bias and pretrial publicity which caused it to experience
substantial prejudice.
¶181. A Motion for Change of Venue is addressed to the discretion of the trial judge, and
the ruling will not be disturbed on appeal unless there has been abuse of discretion by the
trial judge, or the trial judge’s discretion has not been justly and properly exercised under the
circumstances of the case. Beech v. Leaf River Forest Prods., Inc., 691 So. 2d 446, 449
(Miss. 1997). However, this Court may reverse the trial court’s ruling upon the showing that
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the judge’s discretion was so abused as to be prejudicial to a party. Shearer v. State, 423 So.
2d 824, 826 (Miss. 1982).
¶182. Miss. Code Ann. § 11-11-51 provides that venue should be transferred only when
“prejudice exist[s] in the public mind, or for some other sufficient cause [that a party] cannot
obtain a fair and impartial trial in the county where the action is pending....” The defendant
is entitled to be tried in a county where a fair proportion of the people qualified for jury
service may be used as a venire from which a jury may be secured to try his case fairly and
impartially...” King v. Kelly, 243 Miss. 160, 137 So. 2d 808, 813 (1962).
¶183. Illinois Central presented two newspaper articles and a letter to the editor, all
appearing in the weekly Holmes County Herald as evidence of pre-trial publicity. The
evidence established that the Holmes County Herald has a circulation of less than 4,000. The
first article and the letter to the editor appeared six years and four months before the Travis
trial started; the second article appeared three years before the trial started. Illinois Central
stated that the 1997 article detailed facts and circumstances surrounding Michael’s accident.
The details provided were as follows: “Mr. Travis died from injuries sustained following a
truck/train collision at the Mileston crossing.” Illinois Central also stated that the 2000 article
gave a detailed prior accident history. This detailed prior accident history read as follows:
“there had been at least two other fatal accidents at this crossing, one in 1991 and the other
in 1997.” Illinois Central further claims that the citizen bias was confirmed during voir dire.
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Fifteen of the veniremen drove across the tracks at the Mileston crossing at some time; only
one had used the crossing near the time of Michael’s accident.
¶184. This Court upheld a denial of a change of venue under Section 11-11-51 in Maxwell
v. Ill. Cent. Gulf R.R., 513 So. 2d 901 (Miss. 1987). The record in the Maxwell case
demonstrated that a majority of the 31 veniremen personally knew plaintiffs, three were
related to plaintiffs, and two were connected to plaintiffs’ attorney. Id. at 908. Nevertheless,
this Court concluded that it was not an abuse of the trial court’s discretion to deny a transfer
pursuant to Section 11-11-51.9
¶185. Finally, during voir dire, the trial court inquired as to the juror’s ability to make fair
and impartial decisions. Specifically, the trial court instructed the jurors before either side
presented their case as follows:
Anything you have read in the newspaper, heard on the news, heard in the
streets, you can’t consider that as evidence because it is not evidence. And
your decision must be based on the evidence that comes from the witness on
the stand. Okay? So you all understand that you can’t make a decision based
on anything that doesn’t come from the witness stand? Do we understand that?
The jury replied, “Yes.”
¶186. Therefore, based upon the evidence, the trial court did not abuse its discretion in
denying Illinois Central’s Motion for Change of Venue.
9
See also Harris v. State, 537 So. 2d 1325 (Miss. 1989) (denial of criminal
defendants’ request for change of venue upheld where nineteen newspaper articles
(including The Clarion Ledger and The Commercial Appeal) publicized the crime and
there was full television coverage of the preliminary hearings).
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XXVII. Did the trial court err in excluding portions of the Federal
Court Record from the Record in this cause?
¶187. On May 25, 2003, the trial court entered an Order precluding Illinois Central from
designating for the Record on appeal the prior federal court proceedings in this case. Illinois
Central contends that nearly all of the course of discovery in this case took place in the
United States District Court for the Southern District of Mississippi, over the course of four
years.
¶188. However, Illinois Central fails to mention that the proceedings of the federal district
court were vacated by the Fifth Circuit Court of Appeals and remanded back to the Circuit
Court of Holmes County, Mississippi. The Fifth Circuit found that the federal district court
did not have subject matter jurisdiction over the case. See Travis v. Irby, 326 F.3d 644 (5th
Cir. 2003); Stockman v. Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998); B., Inc.
v. Miller Brewing Co., 663 F.2d 545, 554 (5th Cir. 1981). Furthermore, Illinois Central does
not cite in its brief any authority to support this argument, and this Court need not address
it.
CROSS-APPEAL OF TRAVIS
I. Did the trial court err when it denied Travis’ Motion for a
punitive damages hearing?
A. The Standard of Appellate Review.
¶189. An abuse of discretion standard is implemented when this Court reviews the trial
court’s decision of whether a case warrants punitive damages to be sent to the trier of fact.
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Gamble v. Dollar Gen. Corp., 852 So. 2d 5, 15 (Miss. 2003). The failure of the trial court to
apply the correct legal standard is an abuse of discretion. Bell v. City of Bay St. Louis, 467
So. 2d 657, 661 (Miss. 1985). When the abuse of discretion standard applies, the appellate
courts may also reverse when a trial court’s ruling is “arbitrary and clearly erroneous.” Weiss
v. Louisville, N.O. & T. Ry., 7 So. 390 (Miss. 1890). Travis contends that the ruling of the
trial court denying her motion for a punitive damages hearing should be reversed on both
grounds.
B. Did the trial court fail to apply the correct legal standard?
¶190. After the jury returned its compensatory award, Travis requested a punitive damages
hearing. The trial court denied the request, ruling as follows:
This Court under Hawkins v. Illinois Central Railroad Company, [830 So. 2d
1162 (Miss. 2002)], as well as Illinois Central Railroad Company v. White,
[610 So. 2d 308, 320 (Miss. 1992)], finds that the actions of the Illinois
Central Railroad Company amounts to that of ordinary negligence and that of
gross negligence, and there has been no evidence of any aggression on the part
of Illinois Central. Therefore, the issue of punitive damages will not be
submitted to the jury.
¶191. Mississippi’s punitive damages statute, Miss. Code § 11-1-65(a), establishes the
proper standard of care:
Punitive damages may not be awarded if the claimant does not prove by clear
and convincing evidence that the defendant against whom punitive damages
are sought acted with actual malice, gross negligence which evidences a
willful, wanton, or reckless disregard for the safety of others, or committed
actual fraud.
¶192. In Hawkins, this Court stated:
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This Court has repeatedly held that “[i]n order to recover punitive damages
under Mississippi law, there must be some element of aggression or some
coloring of insult reflecting malice, gross negligence, or ruthless disregard for
the rights of others.”
Illinois Cent. R.R. v. Hawkins, 830 So. 2d at 1172, quoting Illinois Cent. R.R. v. White, 610
So. 2d 308, 320 (Miss. 1992).
¶193. Travis contends that the trial court limited its legal inquiry simply to the first criterion
- “some element of aggression”- and that it failed to take into account the second criterion -
“some coloring of insult reflecting... gross negligence, or ruthless disregard for the rights of
others.” Therefore, the trial court did not abuse its discretion when it declined to submit the
issue of punitive damages to the jury. The trial court found that the actions of Illinois Central
amounted to that of ordinary negligence and not that of gross negligence. Furthermore, the
trial judge did not fail to apply the correct legal standard because she applied the standard
of Miss. Code Ann. § 11-1-65(a); and therefore, her decision was not erroneous.
C. Was the trial court’s ruling arbitrary and clearly erroneous?
¶194. When determining whether to proceed with a hearing on punitive damages, the trial
court must look to the totality of the circumstances to determine if a reasonable, hypothetical
trier of fact could find either malice or gross neglect/reckless disregard. Gamble v. Dollar
General Corp., 852 So. 2d at 15. While simple negligence is not enough to support a hearing
on punitive damages, “accompanying facts and circumstances may be used to show that the
portion of defendant’s conduct which constituted the proximate cause of the accident was
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willful and wanton or grossly negligent.” Choctaw Maid Farms, Inc. v. Hailey, 822 So. 2d
911, 924 (Miss. 2002).
¶195. As stated in the previous section, the trial judge found that Illinois Central’s conduct
and actions amounted to that of ordinary negligence. Therefore, her ruling was not arbitrary
and erroneous.
¶196. In her cross-appeal, Travis also argues that the letter dated December 3, 1990 from
Zeinz to Clark is relevant to punitive damages because (a) it establishes that Illinois Central
recognized ten years before Michael Travis’s accident that it was not complying with the
recognized safety requirements in the industry; and (b) doing the right thing was not that
expensive. The letter provides in pertinent part:
So why our decision to recommend gates? Prior to 1987, the IC generally still
held to a former industry-wide notion that gates should not be included on
projects at single track crossings. Some time in the late 1970's or early 1980's,
though, that notion was pretty much discarded by most of the rest of the
industry and many State & FHWA engineers. In early 1987, we recognized this
long held position was not in step with current FHWA guidelines as
promulgated in the FHPM, the Grade Crossing Safety Handbook and the
MUTCD, and as such, was causing us no small amount of problems in
crossing litigation. High speed trains, passenger trains, school buses,
hazardous materials vehicles and restricted clearing sight distances are all
factors which are included in the aforesaid publications as reasons to consider
gates, even in single track territory.
Although the operation of high speed trains alone may not in itself be
sufficient enough reason to warrant gates, we also recognized school buses,
haz-mat vehicles, and/or restricted sight distances (owing to adjacent
buildings, cars on side tracks, seasonal vegetation, etc) are also factors to some
degree at virtually every such crossing. Also, contrary to 20 years ago, the
additional cost of adding gates on a new installation is not that expensive.
Accordingly, we decided that from then on we would not only acquiesce to
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but, in fact, recommend gates be included in all new signal installations, or
significant upgrades, wherever passenger trains operate on our lines in excess
of 60 mph.
¶197. However, Illinois Central argues that 23 U.S.C. § 409 precludes the use of this letter
for any purpose and provides in relevant part:
Notwithstanding any other provision of law, reports, surveys, schedules, lists
or data compiled or collected for the purpose of identifying, evaluating, or
planning the safety enhancement of potential accident sites, hazardous
roadways, or railroad-highway crossings, pursuant to §§ 130, 144, and 152 of
this title or for the purpose of developing any highway safety construction
improvement project which may be implemented using federal-aid highway
funds shall not be subject to discovery or admitted into evidence in a Federal
or State Court proceeding for any other purposes in any action before damages
arising from any occurrence at a location mentioned or addressed in such
reports, surveys, schedules, lists, or data.
¶198. Illinois Central contends that this Court has specifically held that 23 U.S.C. § 409
precludes the admission of letters recommending flashers, crossing hazard rank inventories,
and testimony based thereon. Sawyer v. Illinois Cent. Gulf R.R., 606 So. 2d 1069, 1074
(Miss. 1992). However, since this Court’s decision in Sawyer, the statute has been amended,
including specifically the section which Illinois Central relied upon to exclude the letter. In
amending the statute, Congress intended that the amendment reflect that “the raw data
collected prior to being made part of any formal or bound report shall not be subject to
discovery or admitted into evidence” in court proceedings. H. Rep. No. 104 - 246 at 59
(1995).
¶199. Additionally, the United States Supreme Court placed significant limits on the
interpretation of Section 409 in 2003, after this Court issued its opinion in Sawyer. See
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Pierce County v. Guillen, 537 U.S. 129, 123 S. Ct. 720, 154 L. Ed. 2d 610 (2003); see also
Tel. Publ’g Co. v. Kan. Dep’t of Transp., 69 P.3d 578 (Kan. 2003) (narrowing the range of
documents protected under Section 409). In Guillen, the U.S. Supreme Court limited the
scope of Section 409 by finding that the statute “protects all reports, surveys, schedules, lists,
or data actually compiled or collected for” a purpose listed in Section 409, but “does not
protect information that was originally compiled or collected for purposes unrelated to” the
statutory objective “and that is currently held by agencies that compiled or collected it, even
if the information was at some point ‘collected’ by another agency for” a statutory objective.
Guillen, 537 U.S. at 144.
¶200. Based on this analysis of the statute, the letter is not a document covered by Section
409. It is not a report, a schedule, a list, or data compiled or collected for the Mileston
crossing. The letter was not written for the purpose of identifying, evaluating, or planning
the safety enhancement of the Mileston crossing. The letter was not written in anticipation
of or prior to any formal bound report or any crossing. The letter was simply a request from
Illinois Central Railroad to the Mississippi State Highway Department (now MDOT) seeking
reimbursement for gates that Illinois Central installed at a crossing in Batesville, Mississippi.
Even though the trial court did err in not allowing Travis to introduce this letter into evidence
because the letter was not a document covered by Section 409, the exclusion only amounted
to harmless error.
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¶201. It is abundantly clear that the rulings of the trial judge were fair, impartial, and correct.
They did not constitute an abuse of judicial discretion and should be affirmed. The majority
agrees that the verdict of the jury was not against the overwhelming weight of the evidence.
Hence, I would affirm the trial court’s judgment on both direct appeal and cross-appeal. A
new trial is not warranted, and I respectfully dissent from the majority’s decision to reverse
and remand this case for a new trial.
DIAZ, J., JOINS THIS OPINION. RANDOLPH, J., JOINS THIS OPINION IN
PART.
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