Sawyer v. Illinois Cent. Gulf R. Co.
| Decision Date | 05 August 1992 |
| Docket Number | No. 89-CA-1171,89-CA-1171 |
| Citation | 606 So.2d 1069 |
| Parties | Albert SAWYER and New Hampshire Insurance Company v. ILLINOIS CENTRAL GULF RAILROAD COMPANY and the Madison County Board of Supervisors. |
| Court | Mississippi Supreme Court |
Paul Snow, Paul Snow & Associates, James F. Mixson, Shell Buford Bufkin Callicutt & Perry, Jackson, for appellant.
Charles T. Ozier, Andrew D. Sweat, Wise Carter Firm, Rebecca B. Cowan, Montgomery Smith-Vaniz & McGraw, Jackson, C.R. Montgomery, Montgomery Smith-Vaniz & McGraw, Canton, for appellees.
Before ROY NOBLE LEE, C.J., and ROBERTSON and SULLIVAN, JJ.
I.
This appeal arises from a railroad crossing accident and presents principally problems of permissible evidence, one concerning a federal statute shielding the product of a crossing safety enhancement program. We find that the Circuit Court fairly followed the tracks laid down, at the end of which the jury found for the railroad.
We affirm.
II.
Our scene is near the rural Ragin Community not too far from the Kearney Industrial Park out from Flora in Northwest Madison County. A railroad track owned by the Illinois Central Railroad Company (ICG) runs generally north and south and intersects with an east-west county road alternatively known as the Grady Luke Road, the Vernon Anderson Road and the Moore Avenue Road. Our focus is upon the crossing's northwest quadrant whose angle is slightly less than the full ninety degrees. All agree the speed limit on the road is 35 miles an hour. 1
On July 31, 1986, in broad open daylight, Albert Sawyer was driving a delivery truck on Grady Luke Road heading in an easterly direction and approaching the crossing. Evidence suggests that he may have been driving as fast as 55 or 60 miles per hour. We know Sawyer left skid marks measuring from 167 feet to 201 feet before the point of impact. Some 322 feet west of the crossing, Sawyer met a standard railroad crossing sign--a circular sign with a large black X and an R on the right and left sections, all against a yellow background. The slightly elevated railroad crossing is clearly visible ahead from this point. Sawyer then sped over reflectorized railroad markings on the pavement approaching the crossing. An "X" cross-buck sign on a creosote pole stood in its customary spot on the right hand sign of the road just before the track. 2
As Sawyer approached from the west, a three engine, ninety-nine car, ICG-operated train approached from the north. The train was proceeding at approximately 35 miles per hour. The engineer sounded the air horn and bell some 900-1000 feet north of the crossing and continued so until the train occupied the crossing.
The engineer saw Sawyer's approaching vehicle a few seconds before the collision and made a full and complete emergency brake application, which concededly at this point could not stop the train short of the crossing. When Sawyer finally saw the train, he slammed on his brakes and his vehicle skidded across the center to the northernmost edge of the roadway when he struck the second engine roughly one-third aft its nose.
We are treated to a considerable debate how far back Sawyer should have reasonably seen the train and vice versa and what obstructions there were to view, all to the end of fussing over whether this was an unreasonably dangerous crossing. The photographs in evidence reflect, despite the lesser angle, a greater view in the northwest quadrant--the view for vehicles approaching from the west looking for trains coming from the north--than appears for the other quadrants of the crossing. It is clear the foliage was of little consequence. Weeds and brush range from three to six feet tall, while ICG's three locomotives were each nineteen feet high. We do note two buildings in the northwest quadrant, a larger one which appears to be a store farthest to the west and smaller tin roofed building which confounds a westbound motorist's view until he is some 165 feet from the crossing, after which point the motorist has a clear and unobstructed view of a southbound train. Other photographs make clear a motorist passing the store should be able to look to his left and see an approaching train before it passes behind the nearest building, that is, that an approaching train can be seen easily at 276 feet from the crossing.
Procedurally, this action began on August 21, 1986, when ICG filed its complaint in the Circuit Court of Hinds County for the First Judicial District, naming Sawyer and his employer as defendants and seeking recovery of damages done ICG's train. Rather clearly, Sawyer was within the course and scope of his employment when the accident occurred. Sawyer answered and made no objection to the Hinds County venue, a point of note below.
On December 11, 1987, arising from the same crossing accident, Sawyer filed a personal injury damage suit in the Circuit Court of Madison County, Mississippi, naming as defendants, inter alia, ICG and the Madison County Board of Supervisors. No process was issued, however, and the Madison County matter lay dormant for some time.
On June 15, 1988, Sawyer returned to the Hinds County action and filed a counterclaim against ICG, stating the same personal injury claim he had previously pleaded (but not pressed) in Madison County. See Rule 13(a), Miss.R.Civ.P. ICG then settled its property damage claim against Sawyer and his employer, and an order of dismissal to that effect was entered on January 6, 1989. This left the Hinds County action alive in the form of Sawyer's counterclaim against ICG, a claim which became his principal claim.
On February 1, 1989, Sawyer moved in the Hinds County Court to have the case transferred to Madison County. Two days later, he finally had process issued and served upon ICG in his Madison County action. On March 23, 1989, the Circuit Court of Hinds County held venue settled in its county and denied transfer. On May 11, 1989, the Circuit Court of Madison County entered its order transferring the Madison County proceedings to be joined with the earlier-filed Hinds County action.
On September 11, 1989, the matter came to trial on Sawyer's personal injury claim against ICG in the Circuit Court of Hinds County, Mississippi. In due course, the jury returned a verdict for ICG. Sawyer then timely moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The Circuit Court denied this motion on October 17, 1989.
Sawyer now appeals to this Court. ICG cross-appeals, arguing the Circuit Court erred in denying its motion for a directed verdict. Rule 50(a), Miss.R.Civ.P.
III.
Sawyer first questions venue. He argues the Circuit Court of Hinds County erred when it denied his motion that this case be transferred to Madison County for trial. 3 The action commenced with ICG filing its complaint in the Circuit Court of Hinds County naming Sawyer and his employer as defendants. Sawyer was "found" in Hinds County, and process was served on him there at a location believed to be his residence. Sawyer now says he has been a resident of Yazoo County at all times since the accident.
What is important is that Sawyer answered and counterclaimed without making complaint regarding the Hinds County venue. Our law is settled that objections to venue are waived if not timely asserted. Rule 12(h)(1), Miss.R.Civ.P., provides a defendant waives any objection to venue if not made by motion or answer filed with the time allowed in Rule 12(a), thirty days or any extension thereof. Here Sawyer was the original defendant. He answered on September 18, 1986, but did not question the Hinds County venue. Two and a half years later--on February 1, 1989, he first moved to transfer venue. This was much too late. Atwood v. Hicks, 538 So.2d 404, 407 (Miss.1989); H & W Transfer and Cartage Service, Inc. v. Griffin, 511 So.2d 895, 901 (Miss.1987); Belk v. State Department of Public Welfare, 473 So.2d 447, 448-50 (Miss.1985); see also, Abbott, Venue of Transitory Actions Against Resident Individual Citizens in Mississippi, 58 M.L.J. 1, 19-22 (1988).
Waiver or no, venue is quite proper in Hinds County. Miss.Code Ann. § 11-11-5 (Supp.1989) provides venue for suits against railroads
in the county where the cause of action accrued, in the county where the defendant has its principal place of business or in the county where the plaintiff resides.
By the time this point was raised at trial, the parties had been realigned and ICG was the defendant. The record reflects without contradiction that ICG has its principal place of business in the First Judicial District of Hinds County, Mississippi. The fact that venue may also have been proper in other counties is beside the point. Nothing before us suggests prejudice or any other prevailing matter by reference to which it might be argued the Circuit Court abused its discretion in denying Sawyer's motion for a change of venue. See Maxwell v. Illinois Central Gulf Railroad, 513 So.2d 901, 909 (Miss.1987).
IV.
Sawyer argues the Circuit Court erred when it refused to allow him to place before the jury certain documents and exhibits and testimony from officials of the Mississippi State Highway Department regarding safety problems at the crossing. He points to four particulars:
(1) a letter of September 11, 1984, (2 years before this accident) from the Mississippi State Highway Department recommending that flashing lights be installed at this crossing; (2) the hazard rank inventory; (3) the testimony of Arnett Livingston concerning notice of the unusually dangerous condition two years before this accident to ICG; (4) the testimony of L.T. Livingston concerning the crossing's hazard which was in the top 1% most dangerous in Mississippi.
Context is all important. A number of years ago, the federal government developed a program for enhancing the safety of railroad crossings across the country. The states were encouraged to...
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