Clark v. Columbus & Greenville Ry. Co.

• Decision Date: 31 July 1985
• Docket Number: No. 54922,54922
• Parties: Alyce R. CLARK v. COLUMBUS & GREENVILLE RAILWAY COMPANY, et al.
• Court: Mississippi Supreme Court

Page 947

473 So.2d 947

Alyce R. CLARK v. COLUMBUS & GREENVILLE RAILWAY COMPANY, et al.

No. 54922.

Supreme Court of Mississippi.

July 31, 1985.

Douglas J. Smith, Jr., Robertshaw, Terney & Noble, Greenville, for appellant.

Howard Q. Davis, Jr., Clark, Davis & Belk, Indianola, for appellee.

Before ROY NOBLE LEE, P.J., and DAN M. LEE and ROBERTSON, JJ.

ROBERTSON, Justice, for the Court:

This appeal arises out of a wrongful death action in the Circuit Court of Sunflower County and presents a rather novel theory as to why an unsuccessful plaintiff should get a second bite at the apple. The plaintiff/appellant represents the wrongful death beneficiaries, parents and sister of Holly Hendricks Clark, the nineteen year old decedent, a guest passenger on the occasion in question. See Miss.Code Ann. Sec. 11-7-13 (Supp.1984). Two defendants were named in this case, Teresa Aycock, the nineteen year old driver of the automobile in which the decedent was a passenger, and Columbus & Greenville Railway Company, with whose train the Aycock automobile collided. C & G Railway is the sole appellee here.

On July 9, 1982, the jury returned a verdict for Clark against the host driver Aycock for $3,015.00 but found in favor of C & G and against Clark, who thereupon filed a motion for a new trial against C & G and for an additur or in the alternative a new trial on damages only as to Aycock. The motion was overruled as to C & G but sustained as to Aycock, the damages portion of the verdict against Aycock having been found against the overwhelming weight of the evidence and evincing bias, passion and prejudice on the part of the jury in favor of Aycock and against Clark. Aycock had the option of accepting an additur of $50,000.00 or suffering a new trial on the issue of damages only. Clark subsequently settled with Aycock and the appeal here is against C & G only.

The single assignment of error is that the trial court erred when it refused plaintiff a new trial against C & G. Plaintiff's rationale is that the undisputed evidence shows, and the trial court held, that the jury was irresponsible in its deliberation on damages as to Aycock and these circumstances give rise to a conclusive presumption that the jury also acted irresponsibly and out of bias, passion and prejudice against Clark in returning a verdict for C & G on the liability phase of the case.

The fatal accident which has given rise to this action occurred on August 10, 1981, around 11:00 p.m. The scene was the C & G intersection with Highway 49 southeast of Indianola, Mississippi. The intersection is roughly perpendicular, with the railroad tracks running east and west and the highway running north and south. Holly Clark, the deceased, and Teresa Aycock were riding in a car driven by Teresa returning from a party they had attended that evening. The train was stopped, blocking the entire intersection of the railroad tracks and Highway 49, as the Aycock car approached from the north.

There was testimony by several witnesses that the C & G's red warning lights were malfunctioning in the sense that they had been continuously blinking for several days before the accident occurred. One point never disputed was that at and immediately prior to the time of the accident, the red danger lights at the crossing of Highway 49 and C & G Railroad were flashing.

For example, William McMurtray, Jr., a witness for plaintiff who was stopped on the South side of the tracks waiting for the train to clear the intersection at the time of the accident, testified, "When I approached the intersection of the C & G Railroad and Highway 49, I saw the signal lights at the intersection flashing, and I slowed down ..." Plaintiff's witness Leslie Anderson, who arrived immediately after the accident, testified, "When I arrived at the scene, I observed the Railroad's signal lights were blinking, I saw them blinking as I approached the Railroad track prior to the accident."

The Aycock automobile struck the north side of the train at the twelfth boxcar and went up under the train. The driver, Teresa, was rendered semiconscious and bleeding. Holly Clark was killed. The Aycock vehicle left skid marks for fifty-five feet and four inches. Plaintiff's theory against C & G at trial was reminiscent of the familiar fable of the boy who cried, "Wolf". Plaintiff charged that, by allowing the red warning lights to flash continuously for several days while no train approached the C & G lulled motorists such as Aycock into a false sense of security. The jury's verdict if taken at face value, suggests that Aycock should in any event have heeded the red flashing wolf cry.

In this context, Plaintiff Clark tells us that "The precise question presented on this appeal is:

(a) If it is undisputed that:

(i) The Court [correctly] instructed the jury that Clark was not chargeable with contributory negligence as a matter of law; and

(ii) The Trial Court [correctly] instructed the jury to return a verdict, for the ... [Plaintiff] against Aycock; and

(iii) The ... [Plaintiff's] damages range from $3,200.00 (actual funeral expenses) to $207,298.00 (testimony of an economist); and

(iv) The trial started at approximately 2:00 p.m. on Tuesday, July 6, 1982, and a total of 32 witnesses testified for all parties; and

(v) The jury deliberated for only 45 minutes and in the face of an Order from the Court to return a verdict for the ... [Plaintiff] against Aycock, without considering any contributory negligence by Clark; and

(vi) The jury returned a verdict in favor of the Plaintiff against Aycock for only $3,015.00 ($185.00 less than the actual funeral expenses) and in favor of C & G [on liability].

(b) If the above is undisputed, then should there be a conclusive presumption that the jury failed to do its duty and acted out of bias, passion and prejudice by returning a verdict favorable to C & G since it is undisputed and manifest that the jury failed to do its duty and did, in fact, act out of bias, passion and prejudice by failing to respond to the evidence on damages as to Aycock?

The answer, in a word, is, "No." The jury verdict returned in so much of the case as was an action by Alyce R. Clark against Columbus & Greenville Railway Company is to be judged according to our familiar and well established rules respecting when a new trial may be ordered, notwithstanding that such verdict as may have been returned against the codefendant must be vacated on the issue of adequacy of damages.

The question necessarily tendered by Clark's assignment of error is whether the trial judge erred in overruling Clark's motion for a new trial filed against the C & G. The grant or denial of a motion for a new trial is and always has been a matter largely within the sound discretion of the trial judge. Dorr v. Watson, 28 Miss. 383, 395 (1854). See Rule 59, Miss.R.Civ.P. The credible evidence must be viewed in the light most favorable to the non-moving party. The credible evidence supporting the claims or defenses of the non-moving party should generally be taken as true. When the evidence is so viewed, the motion should be granted only when upon a review of the entire record the trial judge is left with a firm and definite conviction that the verdict if allowed to stand would work a miscarriage of justice. Our authority to reverse is limited to those cases wherein the trial judge has abused his discretion. Jesco, Inc. v. Whitehead, 451...