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PHYLLIS A. PARMES v. ILLINOIS CENTRAL GULF RAILROAD

AUGUST 31, 1983

PHYLLIS A. PARMES
v.
ILLINOIS CENTRAL GULF RAILROAD



BEFORE BROOM, ROY NOBLE LEE AND BOWLING

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, *fn1 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, ...


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