Bowman v. Csx Transp., Inc.

• Decision Date: 30 May 2006
• Docket Number: No. 2004-CA-02383-COA.,2004-CA-02383-COA.
• Parties: Jewel L. BOWMAN, Appellant v. CSX TRANSPORTATION, INC. and The City of Pascagoula, a Mississippi Municipality, Appellees.
• Court: Mississippi Court of Appeals

931 So.2d 644

Jewel L. BOWMAN, Appellant v. CSX TRANSPORTATION, INC. and The City of Pascagoula, a Mississippi Municipality, Appellees.

No. 2004-CA-02383-COA.

Court of Appeals of Mississippi.

May 30, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Elmer L. Fondren, Jackye C. Bertucci, for appellant.

Matthew Philip Lachaussee, Raymond L. Brown, Patrick R. Buchanan, Pascagoula, John B. Edwards, for appellees.

Before MYERS, P.J., SOUTHWICK and BARNES, JJ.

SOUTHWICK, J., for the Court.

¶ 1. Jewel Bowman brought suit for injuries resulting from a collision with a train at a railroad crossing near Highway 90 in Pascagoula. A jury reached a verdict in favor of defendant CSX Transportation, Inc. The trial judge denied her claims against the City of Pascagoula. On appeal, Bowman alleges multiple errors regarding the admission and exclusion of evidence, the jury instructions, and the denial of post-trial motions. We find no error and affirm.

FACTS

¶ 2. In February 2003, at approximately 5:30 p.m., Bowman was driving her pick-up truck north along Hospital Road in Pascagoula. When she reached the crossing of Hospital Road over the CSX railroad tracks, Bowman came to a stop. Approximately seventy feet beyond the railroad crossing was a traffic light that controlled the intersection of Highway 90 and Hospital Road. When the traffic light turned green, vehicles in front of Bowman began to move until finally the car immediately in front of her pulled forward. Bowman moved forward as well towards her planned right turn onto Highway 90. She testified that she stopped near the tracks, looked both ways, then began to proceed across. However, the vehicle in front of her stopped before she got over the railroad, blocking her on the crossing. While at this spot, Bowman testified that she became aware of a train coming towards her from the right. Blocked from the front by the next vehicle, Bowman drove sharply to her right to get around. That maneuver apparently caused her right front wheel to leave the pavement and for the front of the vehicle to drop down. The bottom of her truck became stuck on the edge of the pavement since the layer of asphalt was so thick that the right front wheel was suspended in the air above the dirt next to the pavement. The truck was immobilized.

¶ 3. Bowman remained in the truck as the train struck her vehicle twice, first in the right rear, and again when the cab of her vehicle hit the train because the first impact spun the vehicle around. Bowman suffered physical injuries and the total loss of her truck.

¶ 4. Bowman brought suit against the City of Pascagoula and CSX. She alleged that her front right tire fell into a "pothole" that was the result of the City's negligence in maintaining the street. Bowman alleged that CSX had been negligent in designing and then maintaining the crossing, and failed to begin braking its train at a reasonable time.

¶ 5. A five-day trial was held in October 2004. Since the City of Pascagoula is subject to the Mississippi Tort Claims Act, the trial court judge served as fact-finder for those claims. He ruled in favor of the City. The jury returned a verdict, by a 10-2 vote, in favor of CSX. After denial of the usual post-trial motions, Bowman appealed. The Supreme Court deflected her case here.

DISCUSSION

¶ 6. Bowman alleges eleven points of error. We combine the first and last in our discussion.

ISSUE 1: Weight of evidence contrary to jury verdict and to court's findings of fact

¶ 7. Bowman alleges that the jury verdict and the trial court's findings were in opposition to vast evidence in her favor. The weight of the evidence will not be found overwhelmingly contrary to a jury verdict unless we are convinced that an unconscionable injustice has occurred. Patterson v. Liberty Associates, L.P., 910 So.2d 1014, 1018 (Miss.2004). Similarly, a trial judge sitting as a trier of fact is entitled to be affirmed on fact-findings unless the findings are clearly erroneous. Rice Researchers, Inc. v. Hiter, 512 So.2d 1259, 1264 (Miss.1987).

¶ 8. Bowman finds support for reversal in a precedent regarding a similar event. Mobile & O.R. Co. v. Bennett, 127 Miss. 413, 90 So. 113 (1921). Bennett also involved a personal injury stemming from a car and train collision at a railroad crossing. The Supreme Court reversed a jury verdict for the plaintiff based on the weight of evidence. The Court found the jury verdict to be counter to the testimony of eyewitnesses who each testified that the driver of the car had been sufficiently warned about the oncoming train. Id., 90 So. at 113.

¶ 9. In Bennett, eight witnesses contradicted the plaintiff's claim that he was not adequately warned about the oncoming train. Witnesses testified that he proceeded through a railroad crossing after the flagman waived a flag and rang a bell. Other individuals were shown to have made obvious attempts to warn him that a train was coming. No evidence was offered to impeach these eight witnesses, whose testimony went directly to the issue of the plaintiff's contributory negligence. Id.

¶ 10. Bowman pointedly refers to eight witnesses at her trial whose testimony she finds to support the defendants' negligence in allowing what she alleges was a "pothole" to remain. These eight witnesses, as well as the photographs of the area in controversy, Bowman believes provided the requisite overwhelming weight of evidence sufficient to reverse the jury's verdict.

¶ 11. We summarize the testimony of the significant witnesses. Tommy Barlow, a city employee at the time of the collision, went to the scene with fellow employee, David Groves. Barlow testified that they "saw a hole on the edge of the road." It was eight to twelve inches deep. Barlow called a crew to put a barrel over it following the accident. Testifying as to his usual procedure, Barlow testified that "if a pothole was actually in the street, my crews would patch it." A few days after the accident, the city placed asphalt over the hole.

¶ 12. Michael Odom was in the vehicle immediately behind Bowman prior to the accident. Odom testified that he saw the "right front end" of Bowman's truck "nosedive" and stop moving. He explained that the tire went into a hole and the left rear of the truck left the ground, which caused the truck to lose its traction. Cross-examination of Odom revealed that this testimony differed in part from what he had said in his deposition, but he responded that he had simply changed his mind. Odom also testified that his sister had once gotten stuck in the same hole and that the City had compensated her for resulting damages to a wheel.

¶ 13. Claude Ehlers testified to having once driven his vehicle beyond the outer white stripe of the road, near the area where Bowman alleges she fell into a "pothole." Ehlers testified that he was completely beyond the railroad tracks when his car was stuck while he was attempting to make a sharp right turn to get around cars in front of him. Ehlers admitted that had he stayed to the left of the white stripe painted on the roadway and which denoted the lane of travel, he would not have become immobilized.

¶ 14. Pascagoula Police Officer Shannon Broome testified that soon after the accident, he observed water standing in the hole. He notified the traffic division of a "hole" in the pavement. A barrel was placed as a warning, and the barrel was completely off the road. A fair reading of his testimony was that in order to get into the hole, a vehicle would have to leave the roadway. Broome testified that he had regularly observed people driving off the road at the location of the hole in order to enter the right turn lane which began closer to the intersection with Highway 90.

¶ 15. Pascagoula Police Officer Christian Blythe had investigated a previous accident at the crossing. As to the previous accident, Blythe testified that the driver got caught on the tracks themselves and had not told Blythe that his vehicle had fallen into this "hole." A disagreement with counsel was pursued at trial as to whether this was inconsistent with an earlier deposition. Blythe's testimony could be seen as supporting that the other driver got stuck on the tracks, or that he got stuck in the same hole as Bowman. Blythe was also aware of two or three other people who in some fashion had gotten stuck at this railroad crossing, but he did not investigate those events.

¶ 16. Pascagoula Police Officer Erin Dunston was the officer who wrote Bowman's accident report. On the report, Officer Dunston said the cause of Bowman's accident was a "defective shoulder." Dunston admitted that he used the term "defective shoulder" because Bowman told him to use the term. The report also reflected that Bowman had driven off the roadway.

¶ 17. The condition of the roadway is relatively undisputed. Photographs of the tracks and the "hole" were introduced. There was a drop-off on the right side of the roadway about six feet beyond the rails where the street crossed over the tracks. The pavement was fairly high above the ground level as the roadway began its slope down away from the tracks. There was testimony that there were three different applications of asphalt at that location at different times, adding to the elevation difference between the surface of the pavement and the ground to the right. The photographs reveal that small pieces of railroad ties, railroad track ballast, and dirt together formed the surface of what was at the bottom of the drop-off. The right edge of the pavement dropped down at a sharp angle to the ground. The use of the word "hole" or even "pothole" is apt to the extent that at one spot the pavement's edge does not extend to the right as far as the remainder, forming a rectangular cutout at the edge of the pavement that drops off more sharply compared to the pavement that is adjacent to it. The dispute about the accuracy of the word "pothole" may have rested on the fact that there is no...