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JULY 31, 1985




This an appeal arises out of a wrongful death action in the Circuit Court of Sunflower County and presents a rather novel theory as to why an unsuccessful plaintiff should get a second bite at the apple. The plaintiff/appellant represents the wrongful death beneficiaries, parents and sister of Holly Hendricks Clark, the nineteen year old decedent, a guest passenger on the occasion in question. See Miss. Code Ann. 11-7-13 (Supp. 1984). Two defendants were named in this case, Teresa Aycock, the nineteen year old driver of the automobile in which the decedent was a passenger, and Columbus & Greenville Railway Company, with whose train the Aycock automobile collided. C&G Railway is the sole appellee here.

On July 9, 1982, the jury returned a verdict for Clark

 against the host driver Aycock for $3,015.00 but found in favor of C&G and against Clark, who thereupon filed a motion for a new trial against C&G and for an additur or in the alternative a new trial on damages only as to Aycock. The motion was overruled as to C&G but sustained as to Aycock, the damages portion of the verdict against Aycock having been found against the overwhelming weight of the evidence and evincing bias, passion and prejudice on the part of the jury in favor of Aycock and against Clark. Aycock had the option of accepting an additur of $50,000.00 or suffering a new trial on the issue of damages only. Clark subsequently settled with Aycock and the appeal here is against C&G only.

 The single assignment of error is that the trial court erred when it refused plaintiff a new trial against C&G. Plaintiff's rationale is that the undisputed evidence shows, and the trial court held, that the jury was irresponsible in its deliberation on damages as to Aycock and these circumstances give rise to a conclusive presumption that the jury also acted irresponsibly and out of bias, passion and prejudice against Clark in returning a verdict for C&G on the liability phase of the case.

 The fatal accident which has given rise to this action occurred on August 10, 1981, around 11:00 p.m. The scene was the C&G intersection with Highway 49 southeast of Indianola, Mississippi. The intersection is roughly perpendicular, with the railroad tracks running east and west and the highway running north and south. Holly Clark, the deceased, and Teresa Aycock were riding in a car driven by Teresa returning from a party they had attended that evening. The train was stopped, blocking the entire intersection of the railroad tracks and Highway 49, as the Aycock car approached from the north.

 There was testimony by several witnesses that the C&G's red warning lights were malfunctioning in the sense that they had been continuously blinking for several days before the accident occurred. One point never disputed was that at and immediately prior to the time of the accident, the red danger lights at the crossing of Highway 49 and C&G Railroad were flashing.

 For example, William McMurtray, Jr., a witness for plaintiff who was stopped on the South side of the tracks waiting or the train to clear the intersection at the time of the accident, testified, "When I approached the intersection of the C&G Railroad and Highway 49, I saw the signal lights at the intersection flashing, and I slowed down. . ." Plaintiff's witness Leslie Anderson, who arrived immediately

 after the accident, testified, "When I arrived at the scene, I observed the Railroad's signal lights were blinking, I saw them blinking as I approached the Railroad track prior to the accident."

 The Aycock automobile struck the north side of the train at the twelfth boxcar and went up under the train. The driver, Teresa, was rendered semiconscious and bleeding. Holly Clark was killed. The Aycock vehicle left skid marks for fifty-five feet and four inches. Plaintiff's theory against C&G at trial was reminiscent of the familiar fable of the boy who cried, "Wolf" Plaintiff charged that, by allowing the red warning lights to flash continuously for several days while no train approached the C&G lulled motorists such as Aycock into a false sense of security. The jury's verdict if taken at face value, suggests that Aycock should in any event have heeded the red flashing wolf cry.

 In this context, Plaintiff Clark tells us that "The precise question presented on this appeal is:

 (a) If it is undisputed that:

 (i) The Court [correctly] instructed the jury that Clark was not chargeable with contributory negligence as a matter of law; and

 (ii) The Trial Court [correctly] instructed the jury to return a verdict for the . . . [Plaintiff] against Aycock; and (iii)The . . . [Plaintiff's] damages range from $3,200.00 (actual funeral ...

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