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MRS. DONNIS SLAY, INDIVIDUALLY, AND AS ADMINISTRATRIX OF THE ESTATE OF MICHAEL STUART BELL, DECEASED v. ILLINOIS CENTRAL GULF RAILROAD CO. AND S. I. PRICE

APRIL 22, 1987

MRS. DONNIS SLAY, INDIVIDUALLY, AND AS ADMINISTRATRIX OF THE ESTATE OF MICHAEL STUART BELL, DECEASED
v.
ILLINOIS CENTRAL GULF RAILROAD CO. AND S. I. PRICE



BEFORE HAWKINS, P.J., PRATHER AND GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

This case, involving a railroad crossing accident, comes to the Court from the Circuit Court of Lincoln County, where a jury returned a verdict for the defendants, Illinois Central Gulf Railroad Co., the train's operator, and S.I. Price, its engineer. Though sympathetic to the plaintiff, Mrs. Donnis Slay, for her son's death, we affirm.

On February 28, 1984, at 9:00 A.M., while sleeting and snowing, eighteen-year-old Micheal Stuart Bell, driving his parents' 1979 Pontiac stationwagon at approximately fifteen miles per hour, was struck by a southbound Illinois Central Gulf freight train, travelling at approximately twenty miles per hour. The train carried the automobile 1628 feet before stopping, instantly killing its sole occupant.

 The Damascus Crossing, where the accident occurred, consists of three tracks: the northbound main line, a storage track, and the southbound main line. A crossbuck and stop bar, marked on the pavement, warned of the crossing.

 Ninety-six feet north of such was a string of railroad cars, the first of which was a flat car of fifty-seven feet, situated on the storage track, parallel to and between the main lines, which obstructed the view of motorists approaching the southbound main line from the east, like Bell. Indeed, the record indicates that although the train began to ring its bell and blow its horn as far as 1100 feet from the crossing, Bell apparently failed to notice it until astride the southbound main line. Likewise, the engineer and brakeman failed to see Bell's automobile until they passed the last boxcar, parked on the center track, 153 feet north of the crossing;

 Bell was then thirty-seven feet east of the southbound main line, or seven feet beyond the stop bar. Though the engineer immediately applied the emergency brakes, it was impossible to slow the train, weighing 16,933 tons, short of the crossing.

 I.

 At trial, Slay called E. L. Martin, the train's brakeman, and requested that he be cross-examined as an adverse witness. The court denied the request. On appeal, Slay contends that Martin was sufficiently identified with the appellees as to constitute an adverse witness: (1) he was an employee of the Illinois Central Gulf, and (2) the amended complaint listed his negligence as a contributing cause of the accident. Slay then alleges error, based on M.R.C.P. 43(b)(3), which reads,

 Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. (emphasis added)

 Though now abrogated, Rule 43(b)(3) is identical to Miss. R. Ev. 611(c).

 In Harris v. Buxton T.V., Inc., 460 So. 2d 828, 833 (Miss. 1984), this Court, construing Rule 43(b)(3), promulgated a" test "to determine the presence of witnesses identified with an adverse party:

 If the witness' acts or omissions are the predicate for a party's claim or defense, that is, if in a case such as this under the plaintiff's theory of the case the defendant is subject to potential liability in substantial part not just because of his own actions but because of the actions or omissions of the witness in question, then that witness is ordinarily sufficiently identified with an adverse party and may be called as an adverse witness and interrogated by leading questions. (emphasis added)

 See also, Mills v. Nichols, 467 So. 2d 924, 927 (Miss. 1985). Under this test, Martin was in fact a witness identified with an adverse party, thereby subject to leading questions from Slay; consequently, the judge erred when he failed to designate Martin as an adverse witness. Yet, this does not require a reversal.

 Apparently, the judge thought better of his ruling because Slay elicited extensive testimony from Martin, by cross-examination. For example, when Martin's testimony concerning the location of Bell's automobile contradicted his previous deposition, the trial judge allowed Slay's counsel to cross-examine, showing prior inconsistent statements. Indeed, the record is replete with instances of cross-examination, and there is nothing to suggest that Slay suffered any prejudice as a result of the judge's initial ruling. Miss. Sup. Ct. Rule 11.

 In Maryland Casualty Co. v. City of Jackson, 493 So. 2d 955 (Miss. 1986), the Court faced a similar set of facts. There, the trial judge improperly refused to allow counsel to lead an adverse witness on direct examination, though later permitted such, when the witness' testimony varied from responses to pre-trial interrogatories. We concluded," Where . . . counsel goes ahead and manages either without objection or with permission of the trial court to conduct modest cross-examination, it is difficult to say that the trial judge's original error was such that it affected a substantial right of the party. "Maryland Casualty Co., 493 So. 2d at 958. Here, Slay examined Martin in detail, and where his testimony differed from the deposition, counsel used leading questions to elicit responses. The trial judge's original error then was cured, protecting Slay's right to examine her witness, fully.

 II.

 In response to interrogatories, Slay stated that she intended to call James T. McNamara as an expert witness, testifying as to the speed and stopping distance of a train similar to that in question. Slay called McNamara to show that the train exceeded the posted speed limit of twenty miles per hour, since it required 1781 feet to stop, indicative of a higher speed.

 McNamara testified extensively concerning the braking systems of trains, at times giving a page or more in narrative form of his opinion relating to the

 trains' brakes. On cross-examination, the appellees quite naturally asked many questions of McNamara, including an inquiry concerning the application of the train's service brakes, preceeding the use of its emergency brakes, and if such reduced the emergency brakes' efficiency when attempting to avoid the accident. McNamara answered that such would not reduce the emergency brakes' ability to stop the train. This factual scenario was in evidence by appellant's witnesses.

 The appellees then called R. L. Copeland, who also testified as to the function of the train's emergency brakes, disputing McNamara's conclusion. Slay alleges error, arguing that the trial judge improperly admitted Copeland's testimony, over objection, when the appellees' answers to interrogatories failed to disclose that Copeland would testify as to the train's braking system, a violation of M.R.C.P. 26(b)(4), which reads, in part:

 Discovery of facts known and opinions held by experts, otherwise discoverable under subsection (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

 (A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (emphasis added).

 See, Mayor and Aldermen of City of Vicksburg v. Vicksburg Printing & Publishing Co., 434 So. ...


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