Parmes v. Illinois Cent. Gulf R.R., 53851

• Decision Date: 31 August 1983
• Docket Number: No. 53851,53851
• Citation: 440 So.2d 261
• Parties: Phyllis A. PARMES v. ILLINOIS CENTRAL GULF RAILROAD.
• Court: Mississippi Supreme Court

Page 261

440 So.2d 261

Phyllis A. PARMES v. ILLINOIS CENTRAL GULF RAILROAD.

No. 53851.

Supreme Court of Mississippi.

Aug. 31, 1983.

Rehearing Denied Nov. 16, 1983.

Satterfield & Allred, Michael S. Allred, James D. Holland, Jackson, for appellant.

Wise, Carter, Child & Caraway, Charles T. Ozier, Jackson, for appellee.

Before BROOM, P.J., and ROY NOBLE LEE and BOWLING, JJ.

BROOM, Presiding Justice, for the Court:

Railroad overpass accident in which plaintiff/appellant Phyllis A. Parmes was injured when the 18-wheeler truck carrying her (a passenger) struck the underside of the Gallatin Street overpass which had inadequate clearance height is featured by this case, appealed from the Circuit Court, First Judicial District, Hinds County. Jury verdict there exonerated defendant/appellee, Illinois Central Gulf Railroad (ICGR herein), and judgment was entered against plaintiff Parmes. We affirm.

On appeal, she argues that the lower court erred as to jury instructions, and in several evidentiary rulings. As stated in her brief, she charged ICGR with negligence in the maintenance and construction of the railroad overpass. She also charged ICGR with failing to keep and maintain the railroad at a reasonable height, failing to place there reasonable and adequate signs, warning devices, and lights.

Miss Parmes rode with her truck-driver-friend, Michael Haney, ¹ on June 18, 1977, in a large tractor/trailer rig owned by Wilcox Truck Lines, Inc., from Memphis to Jackson. They arrived in Jackson at about 9:00 p.m. and were headed north on Gallatin Street when the truck struck the overpass which had a vertical height clearance of 11'10"; the truck rig was 13'6" high. When approximately 1 1/2 trailer lengths from the overpass, driver Haney realized the rig could not fit under it and applied his brakes, but nevertheless hit the underside of the overpass, flipping the rig over on its side, seriously injuring Miss Parmes. The truck did not, however, leave any skidmarks.

As Parmes and her driver approached the overpass on Gallatin Street, two vertical warning height clearance signs were there. One of the signs was suspended from Gallatin Street's intersection with nearby Rankin Street, and another was attached to the overpass itself. The signs indicated a clearance of 11'2" and apparently the sign at Rankin Street intersection (through which the rig passed) was somewhat faded. Large lights illuminated the area on the night in question. Gallatin Street overpass is owned and maintained by ICGR, which constructed the overpass in 1926 in compliance with the Jackson city ordinances. The warning signs on the approaches to the overpass are maintained by the City of Jackson.

In her suit, Miss Parmes named ICGR, driver Haney, and Wilcox Truck Lines, Inc., owner of the truck, as defendants, but her claim was settled against all the defendants and dismissed except as to ICGR, which was exonerated by a jury verdict at the trial.

Argument is that the trial court, by its jury instruction, erred in excluding evidence of prior and subsequent accidents at the railroad overpass, and in excluding evidence of police accident reports involving prior accidents at the overpass. These contentions were made separately but are closely related and will be discussed together.

Under certain conditions, reports of prior accidents or subsequent accidents at a certain location may be admissible into evidence. Admissibility of such reports can only be passed upon here at the appellate level by examination of the reports themselves or their contents. However, the record does not indicate that plaintiff, Miss Parmes, ever made proffert of the accident reports and we are unable to find that she ever introduced the reports for identification. Analogous is Arrow Food Distributors v. Love, 361 So.2d 324, 328 (Miss.1978), which states:

Even if the records on Riley at the Mississippi State Hospital at Whitfield were not privileged and were admissible in evidence, Arrow has not preserved this point because these records were never introduced into evidence, nor were they even offered into evidence.

Without the accident reports, we cannot now determine on appeal whether the trial judge committed error--either on the issue of hearsay or substantial similarity of conditions--in excluding the reports. Howell v. General Contract Corp., 229 Miss. 687, 697, 91 So.2d 831, 834 (1957). Thus the court did not err by its jury instruction which excluded the use of evidence of prior and subsequent accidents or in excluding the reports themselves.

She contends that the trial court's granting of instruction D-17 was error. D-17 charges the jury that

... testimony concerning prior accidents at the overpass in question is not evidence that the posted clearance signs were not adequate or that the overpass was unreasonably dangerous, but such testimony may only be considered in determining whether or not the defendant had knowledge of such prior accidents.

Illinois Central Railroad Company v. Williams, 242 Miss. 586, 605-06, 135 So.2d 831, 839 (1961), held that evidence of other similar accidents, or injuries, at or near the same place when admissible is

... for the following purposes only: (1) To show the existence of a defective or dangerous condition or appliance and the dangerous character of the place of injury or of the machine or the appliance, and (2) to show the defendant's notice or knowledge thereof. (emphasis added).

Similarly, S.H. Kress v. Markline, 117 Miss. 37, 47, 77 So. 858, 862 (1917), held:

In the cases that allow testimony of collateral facts or issues to be introduced this testimony is allowed for two purposes: One is to show that the defect or manner of operation has continued for such a length of time that the master has knowledge or is charged with notice of the defect or negligent manner of operation. The other ground of admissibility is to show the dangerous character or nature of the place.

Under the authorities, evidence of prior accidents is not admissible to show negligence per se, and therefore could not be used to show adequacy of the allegedly low clearance in this case. In this connection, it is important to note that Miss Parmes did not introduce proof showing similarity of conditions at the time of her accident as contrasted with other prior accidents under discussion. Under these circumstances, instruction D-17 was not a misstatement of the law but was appropriate when the plaintiff was allowed during the trial to introduce into evidence, without a showing of substantial similarity of conditions, the number and dates of the occurrence of prior accidents at the overpass.

In summary, Illinois Central Railroad Company v. Williams allows evidence of prior accidents to be used to show only two things--the existence of a dangerous condition, and knowledge of such condition. This evidence is admissible for these purposes only upon a showing of substantial similarity of conditions. Moreover, evidence of prior accidents is not admissible to show negligence vel non nor specific acts of negligence. Inasmuch as appellant never made a showing of substantial similarity of conditions, the evidence was not admissible for either purpose. Therefore, the granting of jury instruction D-17 does not warrant reversal.

Further argument is that the court erred in instructing the jury as to the character of the agent to receive notice on behalf of the railroad. This error is purported to have occurred in the granting of jury instruction D-20 which charged the jury,

The Court instructs the jury that the defendant did not have knowledge or notice of prior accidents at the overpass in question, unless you find from a preponderance of the evidence that knowledge of the occurrence of those accidents was known, or in the exercise of ordinary care should have been known, by an officer or agent of defendant who had the power or authority to regulate or deal with such matters, or by an officer or agent of defendant who held such a job or position that it was his duty to communicate such matters to his superiors.

Plaintiff urges that because of this instruction,

This case went to the jury on instructions of the court that the defendant did not have knowledge of the dangerous nature of the overpass, unless they found that there was actual knowledge of accidents known to an employee of the defendant, who had the power or authority to regulate or deal with such matters, or an officer or agent of the defendant who has such a position that it was his duty to communicate such matters to his superiors.

She argues that the giving of instruction D-20 placed a burden on her "to show that a certain class of employee of the railroad had knowledge of the dangerous condition." She continues by asserting that this condition was "constructively known" to the railroad under the dictates of Illinois Central Railroad Company v. Farris, 259 F.2d 445, (5th Cir., 1958). Farris involved an accident in which an 11-foot truck struck an Illinois Central overpass with a vertical clearance of 9'6". At that time, the legal limit for truck heights was 12'6", and there were no vertical clearance markers indicating the height of the overpass. Farris, a federal case, states that the railroad was held to have constructive notice that trucks up to 12'6" would use the roads and would be subjected to the dangers of overhead structures. However, Farris does not discuss the character of an employee necessary to give notice to a railroad of prior accidents at a railroad overpass.

As a matter of agency law, it has long been the rule that "a corporation is bound by the knowledge acquired by, or notice given to, its officers or agents which is within the actual or apparent scope of their authority or employment and which is in reference to a matter to which their authority extends." 19 Am.Jur.2d "Corporations" Sec. 1263, at 669 (1967).

Plaintiff's contention in her brief to the contrary...