Irby v. Travis, No. 2004-CA-00414-SCT.

Decision Date25 May 2006
Docket NumberNo. 2004-CA-00414-SCT.
Citation935 So.2d 884
PartiesArthur IRBY and Illinois Central Railroad Company v. Mary TRAVIS, Individually, and as Administratrix of the Estate of Michael Travis, Deceased, and on Behalf of all Wrongful Death Beneficiaries of Michael Travis, Deceased.
CourtMississippi Supreme Court

Glenn F. Beckham, Harris Frederick Powers, Edward Blackmon, Jr., attorneys for appellants.

Donna Brown Jacobs, Anita K. Modak-Truran, John C. Henegan, Dennis C. Sweet, III, Alyson Lee Bustamante, attorneys for appellees.


CARLSON, Justice, for the Court.

¶ 1. Illinois Central Railroad Company and Arthur Irby, its locomotive engineer, (collectively Illinois Central) appeals to us from an adverse judgment entered pursuant to a jury verdict awarding damages to the wrongful death beneficiaries of the decedent driver due to a fatal accident at a grade crossing in Holmes County. The plaintiffs have also cross-appealed based on the trial court's failure to conduct an evidentiary hearing on the issue of punitive damages. Finding several reversible errors committed at trial, we reverse the trial court judgment and remand this case to the Circuit Court of Holmes County for a new trial consistent with this opinion. Based on our disposition of Illinois Central's direct appeal, we find it unnecessary to address the issue raised in the plaintiffs' cross-appeal. Accordingly, we dismiss the cross-appeal.


¶ 2. This fatal accident involving a collision between a westbound truck driven by Michael Travis (Michael) and a southbound Illinois Central train occurred on May 16, 1997, at a rural Holmes County grade crossing known as Mileston crossing. Around 10:00 a.m., that day Michael was driving his truck in a westerly direction toward Mileston crossing. At the same time, a farm tractor was approaching the Mileston crossing, traveling in an easterly direction, and approaching the grade crossing from the west. Michael stopped at the tracks, backed up to allow the farm tractor to cross over, and then proceeded on to the tracks, where the truck-train collision occurred.

¶ 3. As a result of Michael's death in this collision, Michael's mother, Mary Travis, individually, and as administratrix of Michael's estate, and on behalf of Michael's wrongful death beneficiaries, filed this wrongful death suit against Illinois Central and certain railroad employees. The plaintiffs asserted, inter alia, that Illinois Central and its locomotive engineer, Arthur Irby, caused the accident by (1) failing to make a proper and timely application of the train brakes; (2) failing to keep a proper and reasonable lookout; (3) failing to properly train the crew on the train; (4) failing to adopt and enforce adequate policies and procedures relating to train operation under similar circumstances; and, (5) failing to properly warn of the dangerous conditions at the Mileston crossing, at a time when Illinois Central and Irby knew, or should have known, that the Mileston crossing was unreasonably dangerous.

¶ 4. In its subsequently filed answer and affirmative defenses, Illinois Central asserted, inter alia, a federal preemption issue, resulting in this state court action being removed to federal court. In due course, the United States District Court for the Southern District of Mississippi (Jackson Division) entered summary judgment on all issues in favor of Illinois Central. The plaintiffs appealed to the United States Court of Appeals for the Fifth Circuit which found that the federal courts lacked diversity jurisdiction over this case; therefore, the Fifth Circuit vacated the district court judgment and remanded this case with instructions that the case be returned to state court. Travis v. Irby, 326 F.3d 644 (5th Cir.2003).

¶ 5. Upon remand to the Circuit Court of Holmes County, Illinois Central filed numerous pre-trial motions, including a motion for summary judgment, a motion for change of venue, and a motion to exclude evidence of two prior accidents at Mileston crossing. The two prior accidents were referred to as the 1990 "Haymer accident," and the 1994 "Hawkins accident." The trial court denied Illinois Central's motion for summary judgment and motion for change of venue; however, the trial court granted Illinois Central's motion in limine to exclude evidence of these two prior accidents. However, on the day of trial, the trial court, evidently sua sponte, reconsidered its prior ruling on the motion in limine and granted the motion to the extent that evidence of the 1994 Hawkins accident would be allowed. The trial of this case resulted in a jury verdict as to liability, assigning percentages of fault as follows: Michael Travis — 25%; Illinois Central — 75%; and, Arthur Irby — 0%. The jury also assessed damages in favor of the plaintiffs in the amount of $5,000,000. The subsequently entered trial court judgment took into account the jury's assessment of damages and fault by entering judgment against Illinois Central and in favor of the plaintiffs in the amount of $3,750,000.

¶ 6. Upon the trial court's denial of the customary post-trial motions, Illinois Central appealed to this Court on February 27, 2004; and, after briefing was completed by the parties, this case was submitted to us on November 9, 2005, for a decision. Illinois Central assigns numerous issues concerning perceived trial court error in (1) denying Illinois Central's motions for instructions D-1, D-2, and D-3; (2) allowing testimony regarding other accidents and other alleged near accidents at the Mileston crossing, and in failing to grant Illinois Central's motions for mistrial after (a) the plaintiffs' presentation of evidence regarding the Haymer accident; (b) Thelma Washington's testimony of other accidents at the Mileston crossing; (c) Annie Marie Sago's testimony regarding other accidents at the Mileston crossing; and, (d) R.C. Howard's testimony regarding "near accidents" he experienced at the Mileston crossing; (3) denying Illinois Central's Daubert motion to exclude the testimony of Dr. David Lipscomb, the plaintiffs' audiologist; (4) overruling Illinois Central's objection to Dr. Lipscomb's testimony regarding the manufacturer's specifications for the horn on the subject locomotive; (5) denying Illinois Central's motion in limine seeking to preclude the plaintiffs' expert, Jim Scott, from testifying due to his illegal trespass onto Illinois Central's property, and in denying Illinois Central's Daubert motions regarding Scott's testimony; (6) allowing Scott to testify regarding a video which he made of the Mileston crossing on July 28, 1997; (7) allowing the plaintiffs to conduct a redirect examination of Scott as to the speed of the subject locomotive; (8) denying Illinois Central's objections to portions of the depositions of Illinois Central's train crew (A.C. Isaac and Arthur Irby) regarding the training they received from Illinois Central; (9) denying Illinois Central's motion in limine and Daubert motion to exclude the expert witness testimony of Dr. Kenneth Wayne Heathington; (10) allowing Dr. Heathington to testify that the City of Tchula and Holmes County cannot install safety devices at the Mileston crossing; (11) allowing Dr. Heathington to testify that the conditions at the Mileston crossing on September 14, 1994, (the date of the Hawkins accident) were substantially similar to the conditions existing on the date of Michael's accident; (12) allowing Dr. Heathington to testify that other railroads voluntarily place active warning devices at their crossings; (13) denying Illinois Central's objections to the plaintiffs' jury instructions, and allowing Instructions P-2, P-3, P-4, P-9, and P-12 to be given either in whole or as amended; (14) denying or amending Instructions D-1, D-2, D-3, D-6, D-7, D-8, D-8A, and D-9, as proposed by Illinois Central; (15) allowing portions of Steven Edwards's deposition to be presented to the jury during Dr. Heathington's testimony; (16) allowing the plaintiffs to introduce, via the testimony of Dr. Heathington, a plan view of the Mileston crossing depicting irrelevant quadrants of the subject intersection; (17) allowing Dr. Heathington to testify regarding photographs and what Michael saw on the date of the accident, and whether these photographs accurately reflected Michael's view of the crossing on the date of the accident; (18) admitting into evidence and allowing testimony regarding the revised report of the plaintiffs' economist, Dr. G. Richard Thompson; (19) allowing the plaintiffs to present testimony regarding meetings which allegedly took place in the Mileston community before and after Michael's accident; (20) denying Illinois Central's motion for mistrial when the plaintiffs' counsel elicited testimony from Illinois Central's risk manager, Kenneth Robinson, concerning a 1991 survey of Holmes County railroad crossings; (21) denying Illinois Central's "for cause" jury challenges to the potential jurors who admitted to driving across the Mileston crossing in the previous year; (22) failing to dismiss for cause the potential jurors in the venire who admitted to taking medication which made them drowsy; (23) denying Illinois Central's Batson challenges to the plaintiffs' peremptory jury strikes; (24) allowing the plaintiffs to include in the record as an offer of proof the letter dated December 3, 1990, from Thomas Zeinz to Joe Clark; (25) denying Illinois Central's motions for change of venue; (26) excluding portions of the federal court record from the record in this cause; and, (27) failing to grant certain post-trial motions because the jury's assessment of fault and the amount of damages were against the overwhelming weight of the evidence.

¶ 7. We find that the trial court appropriately denied Illinois Central's motion for a judgment notwithstanding the verdict, however, on the other hand, we find that several reversible...

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