Wilner v. Mississippi Export R. Co., 58254

• Decision Date: 07 June 1989
• Docket Number: No. 58254,58254
• Citation: 546 So.2d 678
• Parties: George WILNER v. MISSISSIPPI EXPORT RAILROAD COMPANY.
• Court: Mississippi Supreme Court

Page 678

546 So.2d 678

George WILNER v. MISSISSIPPI EXPORT RAILROAD COMPANY.

No. 58254.

Supreme Court of Mississippi.

June 7, 1989.

Rehearing Denied July 26, 1989.

W. Joseph Kerley, Jackson, John G. Clark, Pascagoula, for appellant.

Raymond L. Brown, Brown and Associates, Pascagoula, for appellee.

En Banc.

HAWKINS, Presiding Justice, for the Court:

George Wilner appeals a jury verdict and judgment for the defendant Mississippi Export Railroad Company in the circuit court of Jackson County. The main thrust of his appeal is an egregious violation of a pre-trial discovery order of the court and ambush during presentation of the defendant's evidence. The defendant railroad cross-appeals contending the circuit judge erred in refusing its request for a directed verdict when the plaintiff rested, and also a refusal of a peremptory instruction for the defendant at the close of trial.

Fortunately for the defendant we find the issue raised on cross-appeal dispositive and do not address the issues on direct appeal.

FACTS

Highway 613 in Jackson County is a rural, hard-surfaced highway. It intersects with Mississippi Export Railroad Company's railroad track. At the crossing the railroad track runs almost due North and South, while the highway runs in a slightly northeasterly-southwesterly direction. The crossing makes a quite narrow "X" with the narrow angle measuring twelve degrees.

On Sunday, January 23, 1983, approaching the crossing from the North headed Southerly on the highway there was first a round reflectorized yellow sign, one yard in diameter, with a black "X" across it, and between the angles on each side the letter "RR." This sign was 550 feet from the crossing.

On the pavement, also 550 feet from the crossing, was a white reflectorized painted line two feet wide across the right lane, termed by the railroad a "stop bar."

Just beyond the stop bar, proceeding closer to the crossing, was a white painted cross extending across the entire right lane, called by the railroad a "crossbuck," and also the painted letters "RR." The cross was twenty feet long along the highway. Then, 500 feet from the crossing was another crossbar painted across the right lane of traffic.

One hundred thirty-five feet from the crossing was a 175-watt mercury street light. On the opposite side of the crossing, the same distance from the track, was another identical streetlight.

Also, beginning 135 feet from the crossing, and extending diagonally across the right lane to a distance of 70 feet from the crossing, was another white reflectorized stop bar painted on the pavement. Finally, 135 feet from the crossing was a standard railroad crossbuck sign reading "Railroad Crossing."

Wilner on that morning was an employee of Brown & Root, a construction company which was doing work for the Chevron plant. He had only lived at the location of his home that day for approximately two weeks.

He awoke at ten minutes to four that morning, washed his face, brushed his teeth, fixed his lunch, drank a Pepsi-Cola, and left for work in his 1978 Ford pickup. He said that he left early because it was a foggy morning.

According to Wilner, "I was going slow--I had to get up early and go slow because the fog was so bad I couldn't see." He also testified the fog was "very dense."

The crossing was approximately three miles from Wilner's home on the route he traveled to and from work, and prior to that morning he had crossed it approximately 18 times. Wilner had his lights on low beam because of the fog. He said that he was alert.

Also according to Wilner, approximately three-tenths of a mile from the crossing he saw a boy at a mailbox who he swerved to miss, which frightened him. He glanced in his rear-view mirror and kept driving. The speed limit was 55 miles per hour; he was driving 40 miles per hour. He testified he did not see any of the warning signs as he approached the crossing. He said that he was trying to look into the darkness to see if anything was ahead of him, or on the side of the road.

When he was approximately 50 feet from the track, he saw coal cars of the train crossing the highway. He did not have time to hit his brakes, only time to swerve slightly to the left, before the pickup struck the train.

The train was headed North and the pickup struck the 83rd, 84th and 85th cars of 101 cars. The pickup was totally demolished. Except for the loss of two front teeth, Wilner sustained moderate injuries, no fractures.

Two witnesses qualifying as experts testified for Wilner.

William W. Adams was a consulting engineer, who in 1952 received a bachelor's degree in engineering from Mississippi State University. He made extensive measurements of the lighting from the street lights. (They are called "streetlights" although out in the country.) He concluded that there was no significant amount of light from the light at the crossing itself. He also stated that on a foggy night a light of this type tended to "illuminate the fog particles themselves" creating a "curtain" more or less so that it would be more difficult to see beyond the light than if the light were not there at all. In his opinion the brighter the light, the worse it would have been, insofar as a driver's ability to see a train at the crossing on a foggy night. According to him, the same principle would apply to a heavy rain. He also testified that in the absence of fog, it would make no difference whether the streetlight was there or not.

He had no opinion as to whether the streetlight obstructed the view of the warning signs.

Hibbett Neal, a consulting engineer from Jackson, received a bachelor of engineering degree from Vanderbilt and a masters from Georgia Tech.

He testified that warning devices were either passive or active. The lowest level of a passive warning was a standard crossbuck sign. The next level would be flashing lights, activated by a train crossing the highway. The final level of active warning would be flashing lights and gates at the crossing, or flashing lights and also a flagman at the crossing with flashing lights. He testified this crossing was "extra hazardous." He said the passive warnings given were "definitely inadequate." In his opinion the crossing was made hazardous because of the fog. Without the fog he was of the opinion the warning may have been adequate. The geometry of the crossing did not affect his opinion as to whether there should have been an additional warning.

There was no testimony offered that flashing signals would have, or probably would have been seen.

In the ten years previous to the date of this accident, there had been one other accident at this crossing, July 17, 1979, during daylight hours when it had been raining.

On July 18, 1985, the defendant installed flashing lights and bells at this crossing as part of its overall program of crossings.

The above summarizes the evidence offered on behalf of Wilner. When he rested the railroad put on testimony of the absence of fog that morning, and a highway patrolman testified that Wilner had told him shortly after the...