Carson v. CSX Transp., Inc.

• Decision Date: 07 November 2012
• Docket Number: No. 27186.,27186.
• Citation: 400 S.C. 221,734 S.E.2d 148
• Court: South Carolina Supreme Court
• Parties: Connie CARSON, as Personal Representative of the Estate of Beryl Harvey, Appellant, v. CSX TRANSPORTATION, INC., Respondent.

400 S.C. 221

734 S.E.2d 148

Connie CARSON, as Personal Representative of the Estate of Beryl Harvey, Appellant,

v.CSX TRANSPORTATION, INC., Respondent.

No. 27186.

Supreme Court of South Carolina.

Heard Feb. 9, 2012.

Decided Nov. 7, 2012.

J. Christopher Wilson, of Wilson, Luginbill & Kirkland, of Bamberg; John E. Parker, R. Alexander Murdaugh, William F. Barnes III, and Matthew V. Creech, all of Peters, Murdaugh, Parker, Eltzroth & Detrick, of Hampton, for Appellant.

Elizabeth A. McLeod and Mark C. Wilby, both of Fulcher Hagler, of Augusta, Georgia; John C. Millberg, of Millberg Gordon & Stewart, of Raleigh, North Carolina, and Jonathan P. Harmon, of McGuire Woods, of Richmond, Virginia, for Respondent.

Chief Justice TOAL.

In this wrongful death and survival action involving a train collision, Connie Carson (Appellant), as personal representative of the estate of Beryl Harvey, argues the circuit court erroneously excluded certain evidence, charged the jury, and permitted an inconsistent verdict in the survival action. We affirm the circuit court's evidentiary determinations and jury charge, but reverse the circuit court's decision denying Appellant's request for a new trial nisi additur and remand the survival action for a new trial absolute.

Facts/Procedural Background

On May 30, 2004, at approximately 7:05 p.m., Frances Harvey (Ms. Harvey) was driving her son, Beryl Harvey (Decedent), to go fishing when she approached a grade crossing on Honeyford Road in Denmark, South Carolina. The crossing did not have lights or a crossbar, but was marked with crossbucks, a stop sign, and white stop lines and railroad markings on the pavement. Ms. Harvey testified that she stopped, looked left, turned and looked right, and slowly proceeded across the tracks after not seeing or hearing a train. She does not remember anything after proceeding forward. The engineer trainee who was operating the train testified that he noticed a tan van stop momentarily before pulling onto the crossing and stopping on the tracks. The train was travelling at approximately 46 miles per hour when it collided with Ms. Harvey's van. Decedent was a quadriplegic,¹ and was secured in his wheelchair in the rear of the van, facing the opposite direction of the oncoming train, when the van was hit by the train. Decedent was ejected from the van and was still alive when he landed in some briar and bushes near the train track. A witness to the scene testified he heard Decedent call out for his mother from the brush, and two other witnesses testified they heard Decedent moaning. Decedent died at the scene from blunt trauma to his head and chest.

Appellant filed a wrongful death action against both CSX and the South Carolina Department of Transportation (SCDOT) on February 21, 2006,² and then filed a survival action against both parties on May 25, 2006. ³ Appellant settled her claims against SCDOT prior to trial.

Appellant and CSX continued to trial before a jury. Central to Appellant's claim of negligence were the allegations that CSX failed to eliminate trees and vegetation that obstructed Ms. Harvey's view and that CSX failed to adequately sound its horn in compliance with South Carolina law and CSX's internal operating rules. Appellant offered evidence that at the time of the accident, the vegetation surrounding the Honeyford Road crossing did not accord with the specifications prescribed by CSX's internal crossing clearing program. CSX offered into evidence pictures of the scene, taken by an investigator working for the law firm representing Appellant days after the accident, which tended to show an unobstructed view of the tracks. CSX also offered the testimony of an eyewitness, who was stopped on the opposite side of the tracks as the train approached, that he could clearly see the train approaching.

Regarding the claim of an inadequate warning signal, Appellant argued that CSX was negligent per se for failing to comply with section 58–15–910 of the South Carolina Code, which mandates that a train begin to sound its whistle or horn at 1,500 feet from a road crossing and to continue whistling until the train crosses the intersection. S.C.Code Ann. § 58–15–910 (1976). Appellant additionally offered testimony regarding CSX's operating rule that the train horn must be sounded at the whistle post and be blown in two long blasts, followed by a short blast, followed by another long blast. The train that collided with Ms. Harvey's van was equipped with a data event recorder that revealed the train operator first sounded the horn at 1,347 feet from the crossing, and then blew the horn three additional times before striking Ms. Harvey's van. There was testimony that the duration of the horn blasts and the time between the horn blasts did not comply with CSX's operating rules. CSX offered the testimony of the eyewitness that the horn was very loud and that the engineer “sat down” on the horn as it approached the intersection and it did not stop until after the collision.

After seven days of trial before a jury, the jury returned a special verdict finding CSX forty percent negligent and Ms. Harvey sixty percent negligent. This fault allocation gave rise to a defense verdict on the Appellant's wrongful death claim. The jury found the damages in the survival action amounted to zero dollars. Appellant filed motions for judgment notwithstanding the verdict (JNOV), new trial absolute, and new trial nisi additur. The circuit court denied each of these motions. This action is before this Court pursuant to Rule 204(b), SCACR.

Issues

I. Whether the circuit court properly excluded all evidence related to SCDOT's pre-accident recommendation to install gates and lights at the crossing.

II. Whether the circuit court properly excluded all evidence related to post-accident vegetation cutting by CSX.

III. Whether the circuit court properly omitted the “particularly dangerous” language from section 56–5–2715 of the South Carolina Code when charging the jury on a driver's duty to stop.

IV. Whether Appellant is entitled to a new trial absolute or a new trial nisi additur due to the jury's finding of zero dollars in damages in the survival action.

Standard of Review

In an action at law, on appeal of a case tried by a jury, the jurisdiction of the appellate court extends merely to the correction of errors of law. Erickson v. Jones St. Publishers, LLC, 368 S.C. 444, 464, 629 S.E.2d 653, 663–64 (2006). The admission or exclusion of evidence, the decision of the circuit court as to particular jury instructions, and the denial of a motion for a new trial nisi additur are all actions within the sound discretion of the circuit court and will not be disturbed on appeal absent an abuse of discretion. See Historic Charleston Holdings, LLC v. Mallon, 381 S.C. 417, 434, 673 S.E.2d 448, 457 (2009) (admission of evidence); Cole v. Raut, 378 S.C. 398, 404, 663 S.E.2d 30, 33 (2008) (jury charge); O'Neal v. Bowles, 314 S.C. 525, 527, 431 S.E.2d 555, 556 (1993) ( nisi additur ). An abuse of discretion occurs when the conclusions of the circuit court are either controlled by an error of law or are based on unsupported factual conclusions. Kiriakides v. Sch. Dist. of Greenville Cty., 382 S.C. 8, 20, 675 S.E.2d 439, 445 (2009).

Analysis

I. Exclusion of Evidence Related to SCDOT's Pre–Accident Recommendation to Install Gates and Lights at the Crossing

On April 26, 2004, roughly a month before the accident, a diagnostic team with SCDOT evaluated the Honeyford Road crossing for the purpose of securing federal funding pursuant to section 130 of Title 23 to the United States Code (section 130) and recommended that gates and lights be installed using those funds. 23 U.S.C. § 130 (Supp.2011). The circuit judge excluded from evidence any reference to this recommendation on three grounds: it was subject to the evidentiary privilege of section 409 of title 23 to the United States Code, 23 U.S.C. § 409 (Supp.2011) (section 409), it is a subsequent remedial measure and therefore not admissible under Rule 407, SCRE, and its prejudicial value outweighed its probative value and should be excluded under Rule 403, SCRE. Appellant argues the circuit court erred on each of these grounds. We disagree.

Appellant sought to call Darrell Munn, a research engineer on SCDOT's diagnostic team that evaluated the Honeyford Road crossing, to testify about his observations of the Honeyford Road crossing and the resulting recommendation by the diagnostic team to install flashing lights and a crossbar. CSX objected to Munn's testimony on the ground it was inadmissible pursuant to section 409. Section 409 provides:

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 roadway conditions, or railway-highway crossings, pursuant to sections

130

,

144, and 148 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.

23 U.S.C. § 409 (emphasis added). The circuit judge sustained the objection, finding that the admission of Munn's testimony was preempted by this federal law and additionally, that Munn's testimony should be excluded on Rule 407 and 403, SCRE, grounds.

Appellant first argues that data collected for purposes of securing federal money under section 130 is not subject to evidentiary exclusion under section 409 because the United States Supreme Court in Pierce County Washington v. Guillen, 537 U.S. 129, 123 S.Ct. 720, 154 L.Ed.2d 610 (2003), held that section 409 only protects...