Ill. Cent. R.R. Co. v. Young

Decision Date05 September 2013
Docket NumberNo. 2010–CA–00468–COA.,2010–CA–00468–COA.
Citation120 So.3d 992
PartiesILLINOIS CENTRAL RAILROAD COMPANY and Fred A. Herndon, Appellants/Cross–Appellees, v. Tasandra YOUNG, Shiron Young, Minors, by and Through Sandra Young, as Grandmother and Next Friend, Appellees/Cross–Appellants.
CourtMississippi Court of Appeals


Harris Frederick Powers III, Glenn F. Beckham, Greenwood, Edward Blackmon, Canton, attorneys for appellants/cross–appellees.

Pat M. Barrett Jr., Lexington, Alexander Frederick Guidry, Jackson, Jonathan Peeples Barrett, attorneys for appellees/cross–appellants.


BARNES, J., for the Court:

¶ 1. After an Illinois Central Railroad Company (Illinois Central) train struck and killed Sharon Young, a wrongful-death action was filed on behalf of Young's two children, Tasandra and Shiron Young (collectively referred to as Appellees), against Illinois Central and the train's locomotive engineer, Fred Herndon (collectively referred to as Appellants). A Holmes County Circuit Court jury found Illinois Central and Herndon negligent and awarded the Appellees $2,000,000 in compensatory damages, which was later reduced by the circuit court to $1,174,761. The Appellants appeal the judgment, and finding error, we reverse and remand the case for a new trial.


¶ 2. On November 28, 2005, at approximately 12:05 p.m., Young was struck and killed by a southbound Illinois Central train while walking beside railroad tracks near her home in Tchula, Mississippi. Young was walking home and had allegedly accessed the railroad tracks from a worn path in the vegetation along the track. When first spotted by the train's engineer, Herndon, Young was several hundred feet ahead of the train, slowly walking about 10–12 feet from the west rail. When the train's conductor, J.R. Marchisio III, spotted Young, she was walking down the east track with her head down and did not appear to be attentive to the approaching train. When Herndon realizedYoung might be in imminent danger of not clearing the track in time, he initiated the train's emergency brakes; however, the train struck Young and continued its forward progress for approximately 2,500 feet. The train was traveling at approximately 43 miles per hour, below the posted speed limit of 60 miles per hour. At the point of impact, Young was walking beside the east side of the rail, with her back to the train.

¶ 3. Young, who was twenty-four years old, suffered from schizophrenia. Between 2000 and 2004, she had been involuntarily committed ten times to the Mississippi State Hospital in Whitfield. Young's mother, Sandra Young, again attempted to have Young committed in January 2005. Young was non-compliant with her medication and treatment for her schizophrenia and had a well-documented pattern of harmful and erratic behavior, such as drug use, and violent outbursts.

¶ 4. In October 2005, Young gave birth to her second child, Shiron. Sandra, who already had full custody of her granddaughter, Tasandra, obtained custody of Shiron as the hospital would not release the newborn into Young's care. At the time of the accident, Young and her two children lived at Sandra's home in Tchula. According to her family's testimony, Young had been acting “fine” in the months leading up to her death. There was no evidence of drugs or alcohol in Young's system at the time of her death.

¶ 5. A wrongful-death action was filed on behalf of the Appellees, alleging “negligence, gross negligence and willful and wanton conduct” by Illinois Central and Herndon, and requesting compensatory and punitive damages. Specifically, the Appellees contended that Herndon never blew the train's horn to warn Young of the train's approach and that Illinois Central knew that the tracks were routinely accessed by pedestrians and should have been aware of the danger of injury.

¶ 6. After a five-day trial in October 2009, the circuit court jury returned a verdict, assigning percentages of negligence as follows: (1) Young—20%; (2) Herndon—40%; and (3) Illinois Central—40%. The jury awarded a general verdict of $2,000,000 in damages to the Appellees. The circuit court subsequently entered a judgment that amended the jury's verdict to comply with Mississippi Code Annotated section 11–1–60 (Supp.2005), reducing the net award to the Appellees to $1,174,761.1 This amount included economic damages of $5,116 for funeral expenses; $169,646 for loss of Social Security disability benefits; and noneconomic damages of $1,000,000. 2

¶ 7. The Appellants filed a motion for a judgment notwithstanding the verdict (JNOV), or in the alternative, for a new trial, and a motion for remittitur. The circuit court denied the motions. The Appellants cite several assignments of error, and the Appellees have filed a cross-appeal, contesting the circuit court's denial of their request to submit the issue of punitive damages to the jury. Finding that the jury's apportionment of fault was against the overwhelming weight of the evidence, we reverse the judgment and remand this case for a new trial consistent with this opinion.


I. Whether the circuit court erred in denying the Appellants' motion for a JNOV.

¶ 8. The denial of a motion for a JNOV is reviewed de novo. U.S. Auto. Ass'n (USSA) v. Lisanby, 47 So.3d 1172, 1176 (¶ 8) (Miss.2010) (citing U.S. Fid. & Guar. Co. of Miss. v. Martin, 998 So.2d 956, 964 (¶ 19) (Miss.2008)). “A motion for [a] JNOV is a challenge to the legal sufficiency of the evidence, and this Court will affirm the denial of a JNOV if there is substantial evidence to support the verdict.” Id. Evidence is considered “in the light most favorable to the appellee, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence.” Id.

¶ 9. The Appellants claim that once Young, “a pedestrian trespasser or a licensee,” was discovered “on the tracks in a position of peril,” their duty was “to use ordinary care to refrain from injuring” her and to provide warning if time permitted. They cite Young v. Columbus & Greenville Railway, 165 Miss. 287, 294, 147 So. 342, 343 (1933), in which the Mississippi Supreme Court held:

[I]f the engineer after becoming aware of the presence of the trespasser does nothing to warn him by sounding the whistle, and by taking such other reasonable action as would save the trespasser from death or serious injury, the railway company is liable as for a wanton or willful injury.

¶ 10. At trial, the Appellees submitted Jury Instruction P–3, which stated that if the railroad had knowledge of the public use of the paths near the tracks and had not taken action “to prevent or reduce the number of persons walking along and across the tracks,” then the jury may find that the Appellants owed Young “an audible warning of the train's approach, and a duty to keep a proper lookout ahead for pedestrians on the tracks[.] Regarding the propriety of the jury instruction, the Appellees cited Archie v. Illinois Central Gulf Railroad, 709 F.2d 287 (5th Cir.1983),3 and contended that Illinois Central's acquiescence in allowing persons to utilize the pathways across the tracks elevated its duty to reasonable care. The circuit judge allowed the instruction and amended the language to reflect that if the jury believed that Illinois Central knew of the public's use and acquiesced to such use, then Illinois Central and Herndon owed Young a duty to exercise “reasonable care.” 4 The jury instruction stated that this “acquiescence ... [did] not create a duty or impose on the railroad an obligation to provide safeguards against accident/incidents to such use [.] The “duty to sound an audible warning” and keep a “proper lookout” remained in Jury Instruction P–3.

¶ 11. In this case, we find the argument regarding the type of duty owed by the Appellants to Young to be a distinction without a difference. The Appellees concede that the only basis for their negligence claim against Illinois Central and Herndon rests on whether or not Herndon blew the horn to warn Young of the approaching train. At oral argument before this Court, the attorney for the Appellees acknowledged that “if the horn did blow, we lose.”

¶ 12. The Appellants argue there was sufficient evidence that the train's horn was blown and that Young was provided with adequate warning, and they submit that the circuit court erred in denying their JNOV, as “there is no basis upon which they may be held liable.” At trial, the train's engineer, Herndon, testified that he blew the train's horn to warn Young and blew it “practically almost till we stopped.” As the train came out of a curve north of where the accident occurred, Herndon was on the right (west) side of the train, and he spotted Young several hundred feet ahead, “attempting to cross the tracks.” Herndon testified that Young was approximately 10–12 feet from the west side of the rail and that she was looking down.” As the train continued to advance, she moved towards the east side of the tracks and went out of Herndon's line of sight. The train's conductor, Marchisio, also testified that Herndon was blowing the horn coming out of the curve north of the impact site. Marchisio, who was located on the left side of the train opposite of Herndon, first observed Young on the east side of the track, “walking south.” He said Young walked straight down the track for approximately “25–30 feet.” Marchisio noted that Young's head was down and that she never acknowledged the train's presence. He yelled at her to “get out of the way,” but she did not.

¶ 13. Moreover, the train's event recorder data showed that the horn and bell were activated before the accident. The majority of locomotives are required to have an “in-service event recorder” on board. See49 C.F.R. § 229.135 (2011). The event recorder is similar to an airplane's “black box” in that it preserves pertinent data regarding the...

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