Illinois Cent. R. Co. v. White, 89-CA-0781

• Decision Date: 26 August 1992
• Docket Number: No. 89-CA-0781,89-CA-0781
• Citation: 610 So.2d 308
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. Jeffrey L. WHITE, Joyce J. Malone, John R. White, Hilarie Anne White Tuminello, and Deposit Guaranty National Bank, Executor of the Estate of Hilary L. White, Deceased.
• Court: Mississippi Supreme Court

Page 308

610 So.2d 308

ILLINOIS CENTRAL RAILROAD COMPANY v. Jeffrey L. WHITE, Joyce J. Malone, John R. White, Hilarie Anne White Tuminello, and Deposit Guaranty National Bank, Executor of the Estate of Hilary L. White, Deceased.

No. 89-CA-0781.

Supreme Court of Mississippi.

Aug. 26, 1992.

Clifford K. Bailey, III, Wise Carter Child & Caraway, Jackson, for appellant.

Pat M. Barrett, Jr., Barrett Law Offices, Lexington, John S. Holmes, Holmes & Holmes, Yazoo City, Rebecca Lee Wiggs, Watkins & Eager, Jackson, Guthrie T. Abbott, University, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and McRAE, JJ.

DAN M. LEE, Presiding Justice, for the court:

This case comes to us from the Yazoo County Circuit Court presenting an appeal by the defendants below, Illinois Central Railroad, and a cross appeal prosecuted by the plaintiffs below, the beneficiaries of the estate of Hilary L. White.

On November 21, 1986, Mr. Hilary L. White, a Yazoo County farmer, was killed when he was struck by an Illinois Central train as he attempted to cross from one section of his farm to another. Mr. White's surviving widow ¹ and children filed a wrongful death action ² against the Illinois Central Railroad Company (railroad) and the train engineer in the Yazoo County Circuit Court alleging negligence by the railroad. The case proceeded to trial in the circuit court on November 21, 1988. Following a three day trial, the jury returned a verdict for the plaintiffs in the amount of $300,000.00 for actual damages; $15,000.00 for expenses to the estate; and $4,000,000.00 as punitive damages against the railroad.

Following the jury verdict, the railroad filed post trial motions for JNOV, New Trial, and Remittitur. The trial court entered an opinion wherein it denied the railroad post-judgment relief of JNOV, New Trial, and Remittitur as to liability. However, the lower court sustained the railroad's motion for JNOV for the judgment of punitive damages.

Now, the railroad brings this appeal alleging that the court below erred in denying the post-judgment relief on the issues of liability. Specifically, the railroad argues that Mississippi law imposes upon it no duty which it breached regarding the private farm railroad crossing where Mr. White was killed. Mr. White's children and estate bring a cross appeal alleging error in the trial court's entry of JNOV for the judgment of punitive damages.

After a thorough review of the record, briefs, and the benefit of oral argument before this Court, we are convinced that no error was committed in the court below. Consequently, we affirm on both direct and cross appeal.

FACTS

On a clear day, November 21, 1986, at approximately 1:15 p.m., Hilary White was driving a D-6B Caterpillar bulldozer on his farm from one pasture to another where he planned to clear a fence row. Mr. Judge Cowan, a farm employee, had preceded Mr. White to this location and was serving as a lookout for the dozer as it approached this private farm crossing. As the blade of the dozer met the first rail, a train appeared in the curve south of the crossing. Mr. Cowan saw the train when it came into view, and he motioned for Mr. White to hurry on across the railroad track. Mr. White also saw the train. He throttled the dozer all the way over and attempted to jump. Tragically, Mr. White was too late. Mr. White made it to the running board just below the seat when the train hit the rear of the dozer on the winch. The impact spun the dozer around, and Mr. White was killed instantly. No serious injuries were suffered by the train crew of four men.

Mr. White was approximately sixty years old and in excellent health. He owned several hundred acres of land at this location which was about a mile southeast of Tinsley, Mississippi, near milepost 186. On the morning of the accident, the train crew left Jackson northbound for Yazoo City with two diesel freight engines and 16 freight cars. After arriving in Yazoo City, the train dropped all but one car, and the crew picked up six new freight cars and started back on the southbound run to Jackson. There were two public crossings in close proximity to the private farm crossing where Mr. White was killed. One public crossing was located approximately one mile south of Mr. White's crossing, and another public crossing was located at Tinsley, near milepost 185. The public crossing at Tinsley was one mile north of Mr. White's crossing. Both of the public crossings in close proximity have whistle boards which are small metal signs consisting of a black "W" on a white background. The sole purpose of the whistleboard is to remind the train engineers to blow the horn as they approach these crossings. There was no whistle board in place for the private farm crossing at milepost 186 where Mr. White's farm was located, and there has never been one there. When the train left Yazoo City and was southbound back to Jackson, it was travelling approximately thirty-five miles per hour. The train passed through Tinsley and the engineer sounded his horn for the public crossing located there. There are two curves between Tinsley and Mr. White's crossing. The first curve bears to the right and the second winds to the left. The track in this area is on a downhill grade, and Mr. White's crossing was located immediately south and east of the second curve in an area that has a sight distance of only about 550-650 feet from the top of the curve to the crossing.

Mr. Judge Cowan, who had worked for Mr. White for three years, testified that it was Mr. White's custom to post an observer across the track whenever he needed to pass over the rails with farm equipment. On the morning in question, Mr. White and Mr. Cowan serviced the bulldozer a short time earlier in an equipment shed about half a mile away. Mr. Cowan preceded Mr. White and crossed the track in a pickup truck and cut two trees with a chain saw. After Mr. Cowan had cut the second tree, he turned the saw off and heard Mr. White approaching with the bulldozer. Mr. Cowan walked about 20 feet back to the tracks where he posted himself as a lookout for Mr. White. Mr. Cowan testified that he heard no train horn until well after the train had come into view, and he stated that the train didn't slow down very much at all before striking Mr. White.

During certain times of the year the crossing would be used approximately four or five times daily, and it was very common to have to wait on the train to pass whenever he tried to cross the track with farm equipment. Mr. Cowan testified that before Mr. White reached the track and was half a dozer's length away, Mr. White looked up and down the track, but the train was not yet in view.

The train engineer, E.R. Walker, testified that upon seeing Mr. White on the track, he immediately put the train into emergency operation, which included sounding the horn and applying the brakes. The undisputed testimony at trial was that because of the short distance between the curve and where Mr. White first came into view, the train brakes were successful in slowing the speed only five miles or less (35 to perhaps 30 miles per hour). Mr. Walker testified that he had never blown his whistle for the crossing at Mr. White's farm. He stated that if he sees someone at a private crossing where he is approaching, then he will blow the horn. Otherwise, the horn is not blown at private crossings.

The train derailed at the point of impact and straddled the left rail. The train came to rest 900 feet beyond the point of impact. The last car went past a trestle bridge which spanned a 32-foot-deep ravine just south of the crossing. Therefore, in order to visualize the track area where the collision occurred, it is important to remember that the private farm crossing where Mr. White was killed is approximately 550-650 feet south of a curve; and, just south of the crossing there is a railroad trestle where the tracks are suspended over a ravine. Hence, the plaintiffs presented evidence at trial that due to the curve north of the crossing and the wooden trestle to the south, this particular farm crossing is "extra hazardous."

Mr. George Clifton, a 65 year old resident of the Tinsley area, testified that the crossing where Mr. White was killed has been in existence, "since I can remember." Mr. Clifton would occasionally do farm work for Mr. White, and he had worked for other farmers who previously owned the property. According to Mr. Clifton, the railroad company kept the crossing maintained for as long as he could remember.

Mr. James Walton owned the property before selling it to Mr. White. According to Mr. Walton, he farmed this land from 1973 until 1981 or 1982. Mr. Walton used the crossing with pickups, tractors, combines, trailers and bulldozers. During the summer months when Mr. Walton was cutting hay, he would use the crossing four or five times daily, and in the winter he would typically use the crossing once or twice daily. Mr. Walton testified that sometime during his ownership of the land, the railroad improved the crossing by replacing wood timbers with gray fill gravel. According to Mr. Walton, trains would sometimes blow the whistle before coming into the curve at the crossing where Mr. White was killed. "At times they did and at times they didn't." Mr. John Walton, James Walton's brother and farming partner, testified to the same fact. According to John Walton, he would hear one blow of the horn at Tinsley at the public crossing, and then he would hear a second blowing of the horn in the curve before the farm crossing. According to John Walton, "I don't think they always blew the horn, but they blew it several times that I can remember." John Walton testified that the railroad maintained the crossing in good shape at all times. He also stated that when he had to cross the railroad track with a piece of slow-moving equipment, he would always post someone as a lookout so that he would know when it was safe to pass.

However, ...