Strantz v. Pinion, 91-CA-01061-SCT

• Decision Date: 16 March 1995
• Docket Number: No. 91-CA-01061-SCT,91-CA-01061-SCT
• Citation: 652 So.2d 738
• Parties: Shirley STRANTZ, for and on Behalf of all the Wrongful Death Beneficiaries of Sharon Cox Minga, Deceased v. David W. PINION, Jr., and Illinois Central Railroad Company.
• Court: Mississippi Supreme Court

Page 738

652 So.2d 738

Shirley STRANTZ, for and on Behalf of all the Wrongful Death Beneficiaries of Sharon Cox Minga, Deceased v. David W. PINION, Jr., and Illinois Central Railroad Company.

No. 91-CA-01061-SCT.

Supreme Court of Mississippi.

March 16, 1995.

Arnold F. Gwin, Greenwood, for appellant.

Glenn F. Beckham, Upshaw Williams Biggers Page & Kruger, Greenwood, for appellees.

En Banc.

SMITH, Justice, for the Court:

Shirley Strantz (Strantz) appeals this case from the September 24, 1991, grant of summary judgment in the Circuit Court of Leflore County in favor of Illinois Central Railroad Company (Illinois Central) and David W. Pinion, Jr. (Pinion). Aggrieved, Shirley appeals the trial court's decision asserting as error the following:

THE TRIAL COURT ERRED IN ITS GRANT OF SUMMARY JUDGMENT BECAUSE THERE WAS A GENUINE ISSUE OF MATERIAL FACT AS TO THE IDENTITY OF THE DRIVER OF THE TRUCK IN THIS ACCIDENT, AND AS TO THE NEGLIGENCE OF DEFENDANTS ILLINOIS CENTRAL AND PINION.

This case arose from a truck-train collision occurring at approximately 2:00 a.m. on April 4, 1990 at the Rising Sun crossing in Leflore County. After staying at a bar for three hours, Sharon Cox Minga, the deceased, and her boyfriend, John Brent Hill, while driving to another bar, collided with an Illinois Central train. A subsequent blood test analysis would show Hill had a blood alcohol level of .14, and Minga, a blood alcohol level of .13.

Pinion, the conductor of the southbound Illinois Central train was located in the lead engine on the left-hand side. Pinion was the only person to see the entire accident.

The evidence demonstrates that there was no genuine issue of material fact. Pinion was the only witness to the movements of the truck. Strantz offered no expert or lay testimony in the record to refute Pinion's testimony. Pinion's testimony is uncontroverted. With no genuine issues of material fact present, the question becomes one of law.

This Court has held in a similar case, under these circumstances, that the conductor and railroad company was not negligent. Illinois Central R.R. v. Smith, 243 Miss. 766, 774, 140 So.2d 856, 859 (1962).

There is no genuine issue of material fact. The conductor's testimony is uncontroverted by either expert or lay testimony. Furthermore, Pinion's testimony about his conduct and that of his train crew, combined with his testimony about the truck's actions, demonstrate, as a matter of law, that the sole proximate cause of this accident lay with the plaintiffs. There is no merit to Strantz's issue presented this Court, therefore we must affirm the trial court.

FACTS

A truck-train collision occurred at approximately 2:00 a.m. on April 4, 1990 involving a vehicle in which Sharon Cox Minga (Minga) and John Brent Hill (Hill) were traveling. The previous evening, the deceased, and her boyfriend, went to a local bar, the Country Bumpkin. They stayed at this bar from 9:00 p.m. to between 12:30 and 1:00 a.m., when the bar closed. While there, both Minga and Hill had some drinks. Later test analysis would show Hill had a blood alcohol level of .14, and Minga had a blood alcohol level of .13.

Hill and Minga went directly to their apartment from the bar. Hill later stated that Minga wanted to go to another bar, while Hill did not. Hill stated that they agreed to go, but only if Minga would drive. However, accident reports would initially list Hill as the driver of the vehicle, as Hill had so reported to investigating officers.

Hill was the only surviving witness who occupied the truck involved in the collision. Hill testified that they left for the other bar, which brought them to the train crossing. Hill noted that Minga stopped at the Highway 49 intersection. Less than one mile separated the Highway 49 intersection and the train crossing, according to Hill. Hill then testified that he remembered nothing between their crossing Highway 49 and the aftermath of the accident. Hill's next memory was his being on his hands and knees on the road, after the accident. Hill stated that he did not pay attention to the road before the accident. Hill did not recall seeing or hearing the train before the accident.

Pinion, the conductor of the Illinois Central train, was leaving Greenwood at 1:25 a.m. The train was southbound. Pinion was in the lead engine, on the left-hand side. Kenny Foster (Foster), the engineer, was in the lead engine on the right-hand side. Two other members of the train crew, Willie Marsh, and E.B. Walker, were in the second engine. Marsh did not know of the collision until after its occurrence. The record does not demonstrate what E.B. Walker knew of the accident.

While in the Greenwood yards, Pinion kept his train at a speed of 20 miles per hour. Upon leaving the yards, Pinion attempted to accelerate the train to 49 miles per hour. The Rising Sun crossing, where the accident occurred, was 2.5 miles south of the Greenwood yard limit.

Pinion testified that he cleared a tree line into an open area, where he noticed the truck several hundred feet from the crossing. Pinion testified that the engineer properly blew the crossing whistles and sounded the train's bells as the train approached the crossing. The engineer also noted that the headlights, bells, and whistles were operating fine, and were being used under standard procedure. Pinion noted that the truck was going approximately 15 miles per hour. The truck was traveling from east to west, or Pinion's left to right. At that point, Pinion's train was traveling between 30 and 32 miles per hour.

For at least one second, Pinion's view was blocked by fertilizer tanks located between a section of the road Hill and Minga were traveling, and the train. At that point, Pinion looked back at the rear of his train at some railroad cars containing hazardous materials. According to Pinion, this check only took a split-second.

Pinion looked back front, and noted Hill and Minga's truck still traveling at 15 miles per hour. Pinion then stated that the truck accelerated when it reached 150 feet of the crossing. At that point, Pinion testified that his train was 75 feet from the crossing.

Pinion immediately called for the train crew to shoot the emergency brakes. The engineer actually shot the brakes, immediately thereafter. Foster estimated that the train was between 50 to 100 feet from the clearing when Pinion called for the brakes. Shooting the brakes caused the train to activate the air brakes, and cut off the throttle. This procedure is called putting the train "into emergency."

J.K. Foster, the engineer, stated that he never saw the pickup truck from his right-hand vantage point. Foster stated that Pinion had not informed him about the truck until he told Foster to shoot the brakes.

The train hit the truck on the passenger side, directly behind the door. Both Pinion and Foster later stated in an affidavit that application of the brakes that close to the crossing had no effect on the train's speed. Foster noted that the accident occurred about the same time he placed the train in emergency. Pinion could not tell who was driving the truck.

Pinion stopped the train approximately one quarter mile from the crossing. He called for assistance from the Sheriff's Department and rescue services.

David Fondren and Kevin Hayes of the Leflore County Sheriff's Department compiled a description of the accident scene in their report. According to them, the truck was lying approximately 85 feet from the crossing, south and west of that crossing. Hill was lying approximately 32 feet from the truck, north and west from the truck.

Pinion testified that the truck was laying on its passenger side. Pinion noted that Hill had reached the road, and was trying to get up. Pinion also noted the truck was facing north, or north-northwest. Pinion stated that Minga was pinned between the truck's passenger side and the ground. Pinion observed that Minga's head and torso were beneath the truck, out of the passenger's window. The bottom half of Minga's body was still in the passenger's side of the truck.

Steve Baker was a witness to the aftermath of the accident, but not the accident itself. Steve Baker told Pinion that Minga was dead. Pinion reported smelling alcohol around the accident scene. Steve Baker also told Pinion and Kevin Hayes, an investigating officer from the Mississippi Highway Patrol, that Minga had a can of beer in her lap. Kevin Hayes and David Fondren, another investigator, noted that Hill was the driver. Hill later denied that assertion.

On November 30, 1990, Mrs. Shirley Strantz (Strantz) filed a wrongful death action against Pinion and Illinois Central, alleging negligence. Later in this case, Illinois Central and Pinion filed a motion for summary judgment on the issue of the defendants' lack of negligence. This motion is not in the court papers, but is only referred to in the trial court's ruling.

The trial court ruled in favor of Pinion and Illinois Central on September 24, 1991. The court noted that from the evidence available it could not determine whether Minga was the driver, or a passenger. The court asserted such a determination was unnecessary to grant defendants a summary judgment. The court ruled that the evidence clearly established a lack of negligence on Pinion's and Illinois Central's part. The court alluded to Minga's or Hill's "inattention or negligence" as being the cause of the accident. The court did not expressly hold that Minga's or Hill's negligence was the cause of the accident.

From the trial court's ruling, Strantz filed her Notice of Appeal on September 24, 1991.

III. ANALYSIS

THE TRIAL COURT ERRED IN ITS GRANT OF SUMMARY JUDGMENT BECAUSE THERE WAS A GENUINE ISSUE OF MATERIAL FACT AS TO THE IDENTITY OF THE DRIVER OF THE TRUCK IN THIS ACCIDENT, AND AS TO THE NEGLIGENCE OF DEFENDANTS ILLINOIS CENTRAL AND PINION.

This Court employs a de novo review on grants of summary judgment. Owen v. Pringle, 621 So.2d 668,...