Illinois Cent. R. Co. v. Hawkins, No. 2001-CA-01124-SCT.

• Decision Date: 03 October 2002
• Docket Number: No. 2001-CA-01124-SCT.
• Citation: 830 So.2d 1162
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY, Herbert Bennett and J.R. Wright v. Demetrius HAWKINS; Lucious Robinson, Individually, and as Father and Next Friend of Shuntai Robinson, Sherita Robinson, and Juanita Robinson, Minors; Kevin Mabry; Tibithal O. Selders; Alvin P. Haymer, Jr.; Dennis Haymer; Ira Haymer; Miller Haymer; Annette Haymer Fort; Larry Haymer; Stephanie Haymer Perkins; and Bertha Lee Winters.
• Court: Mississippi Supreme Court

830 So.2d 1162

ILLINOIS CENTRAL RAILROAD COMPANY, Herbert Bennett and J.R. Wright v. Demetrius HAWKINS; Lucious Robinson, Individually, and as Father and Next Friend of Shuntai Robinson, Sherita Robinson, and Juanita Robinson, Minors; Kevin Mabry; Tibithal O. Selders; Alvin P. Haymer, Jr.; Dennis Haymer; Ira Haymer; Miller Haymer; Annette Haymer Fort; Larry Haymer; Stephanie Haymer Perkins; and Bertha Lee Winters.

No. 2001-CA-01124-SCT.

Supreme Court of Mississippi.

October 3, 2002.

Glenn F. Beckham, Greenwood, Edward Blackmon, Jr., Canton, attorneys for appellants.

Pat M. Barrett, Jr., Lexington, Isaac K. Byrd, Jr., Hiawatha Northington, Jackson, attorneys for appellees.

Before SMITH, P.J., WALLER and CARLSON, JJ.

SMITH, Presiding Justice, for the Court.

¶ 1. This case comes to the Court on appeal following a long, arduous process in the courts of Holmes County. It stems from a September 14, 1994, accident where a locomotive belonging to Illinois Central Railroad ("ICR") collided with a vehicle driven by LouBertha Cox and occupied by two of her sons, Terry Hawkins ("Terry") and Christopher Hawkins ("Christopher"). Cox and her two sons died in the collision. A wrongful death action was filed the following year against ICR and two employees ("ICR" collectively) in charge of the subject locomotive, Herbert Bennett, the engineer, and J.R. Wright, the conductor. Bertha Winters, Cox's mother, filed an action for negligent infliction of emotional distress, as a result of her having witnessed the accident.

¶ 2. Both the wrongful death and Winters's suit were stayed during the pendency of a lawful heir determination. On October 1, 1998, after the heirship determinations were finalized, an order was entered lifting the stay. The two actions were consolidated for trial in March of 1999. Following this, discovery continued resulting in contempt sanctions against ICR, which resulted in an earlier appeal to this Court, Illinois Cent. R.R. v. Winters, 815 So.2d 1168 (Miss.2002).

¶ 3. A trial in this matter began on October 4, 1999. It, however, resulted in a mistrial after one of the Plaintiffs' experts violated a pre-trial order while testifying. The trial presently being appealed from began on September 11, 2000. It resulted in $4.8 million in actual damages being awarded to Plaintiffs in the following amounts: the Beneficiaries of Terry were awarded $150,000; the Beneficiaries of Christopher were awarded $150,000; Cox's sole beneficiary, her remaining son, Demetrius Hawkins, was awarded $3 million; and Winters was awarded $1.5 million. The jury found ICR 85% liable, Bennett 5% liable, Wright 5% liable and Cox 5% liable. The trial court then found that there was sufficient evidence to allow the jury to consider the issue of punitive damages. The trial court did find that Winters was not eligible for punitive damages. The jury returned with a $5.2 million punitive damage verdict against ICR. Aggrieved, ICR, Bennett, and Wright appeal from the judgment entered on the verdicts below.

FACTS

¶ 4. 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.

¶ 5. 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. Testimony also showed that she was going slowly, somewhere between three and ten miles per hour, however, the bulk of the testimony below suggests ten miles per hour is the more appropriate figure.

¶ 6. Bennett testified that he saw Cox's car when the train was about 300 feet from the crossing and that she appeared to be about 100 feet from the crossing. As the engineer, Bennett sat on the right side of the locomotive closest to Cox's vehicle. Wright, as the conductor, was on the left side of the train, and he estimated that when he saw Cox's car it was approximately 50 to 60 feet from the crossing and that the train was approximately 300 feet from the crossing. Bennett stated that the locomotive's two headlights were on that day. ICR stipulated that the train was traveling between 52 and 54 miles per hour and that the time table for trains in the area was 49 miles per hour.

¶ 7. Wright testified that Bennett began sounding the train whistle shortly before reaching the whistle post for the Mileston crossing. The post is about 1100 feet from the crossing. Wright stated that Bennett sounded two long whistles, one short whistle, and then another long whistle as they approached the Mileston crossing. Other witnesses at the trial, however, disputed this testimony. Winters claimed that she never heard a whistle at all. Although she stated that she heard the train approaching as she was walking back to her house after seeing Cox off. Marvin Greer stated that he heard the rumble of the train as it approached, but did not hear a whistle until he saw it hitting the car. Markee Harris, thirteen years old at the time of the accident, stated that he heard the train blow its whistle for the Good Hope Crossing, which is approximately 1.8 miles before the Mileston Crossing. He stated that he did not hear the whistle again until the train came out of the tree line. Harris did note that one can hear the train blow its whistle for the Good Hope crossing all over the Mileston neighborhood.

¶ 8. Wright stated that when it became apparent that Cox was not going to stop, Bennett sounded the whistle a few times very quickly trying to get the driver's attention. He testified that Bennett began applying the emergency brake about 50 feet from the crossing. Wright further stated that about 50 feet from the crossing he stood up and he saw that Cox was not even looking at the train, but that she was looking north and appeared to be pointing at a passenger in the car. However, Harris, who was on the other side of the tracks from Cox's vehicle and slightly north of the crossing, stated that he saw Cox stop her vehicle and look both ways for a train. Cox's car, however, continued onto the crossing, and the train collided with it. All occupants of the vehicle were killed.

¶ 9. The two actions, which are the subject of this appeal, were filed claiming that ICR was negligent for failing to properly sound a warning and that for failing to control vegetation along its right of way which resulted in the dangerous obstruction of Cox's view. Following a $10 million verdict in favor of Plaintiffs and the entry of judgment based on that verdict. ICR filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial or in the alternative for a remittitur. Following the trial court's denial of these motions, ICR brought this appeal in this Court.

STANDARD OF REVIEW

¶ 10. This Court's standard of review for the denial of a judgment notwithstanding the verdict, peremptory instructions, and directed verdict is as follows:

[T]his Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. The above standards of review, however, are predicated on the fact that the trial judge applied the correct law.

Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997). This Court will reverse a trial court's denial of a request for new trial only when the denial amounts to an abuse of discretion. Id.

DISCUSSION

¶ 11. ICR raises twenty-nine issues on appeal. Those issues include the weight and sufficiency of the evidence, Batson problems, numerous evidentiary decisions, failure of the jury to deliberate adequately, a claim that the verdict was excessive, that the punitive damages verdict violates the United States and Mississippi Constitutions, and that the 15% statutory penalty is unconstitutional.

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE PLAINTIFFS TO RECOVER AGAINST ICR BASED ON A CONTENTION THAT THE CROSSING WAS EXTRA HAZARDOUS DUE TO VEGETATION, IN GRANTING INSTRUCTIONS P-1 AND P-4, AND IN FAILING TO GRANT D-8A.

¶ 12. The trial court granted plaintiffs' requested instructions P-1 and P-4. P-1 reads as follows:

You are instructed that at the time of the collision Lou Bertha Cox was not required by Mississippi law to stop before attempting to cross the tracks if

(1) neither the horn or the bell were sounded beginning at least 900 feet from the crossing, or

(2) the approaching train was not plainly visible and [not] in hazardous proximity.

Instruction P-4 states that

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 was a proximate, contributing cause of the accident, then you must return a verdict for the

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