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ANN MITCHAM, INDIVIDUALLY AND AS LEGAL REPRESENTATIVE AND AS NEXT FRIEND OF THE BENEFICIARIES OF ROBERT D. MITCHAM v. ILLINOIS CENTRAL GULF RAILROAD COMPANY

SEPTEMBER 02, 1987

ANN MITCHAM, INDIVIDUALLY AND AS LEGAL REPRESENTATIVE AND AS NEXT FRIEND OF THE BENEFICIARIES OF ROBERT D. MITCHAM
v.
ILLINOIS CENTRAL GULF RAILROAD COMPANY, ET AL.



BEFORE WALKER, C. J., ANDERSON AND GRIFFIN, JJ.

WALKER, C. J., FOR THE COURT:

This appeal arises from a unanimous jury verdict in the Circuit Court of Forrest County, Mississippi in favor of Illinois Central Gulf Railroad (hereinafter ICGRR) and Thomas Street (hereinafter Street) the train's engineer. On the morning of April 20, 1981 a collision occurred between ICGRR's Engine No. 172 and a City of Richland, Mississippi police car driven by Officer Robert Mitcham, deceased, at the Scarborough Street crossing in Richland, Mississippi. In the lower court, the proof showed that as the train approached the crossing, its bell, which is operated by a switch much like a light switch on an automobile, was on. Additionally, although it was a sunny day, the headlights of the locomotive were in operation.

The Scarborough Street crossing, as it existed on April 20, 1981, was marked and posted with a standardized regulatory sign known as a" railroad crossbuck "as is required by Miss. Code Ann. 77-9-247 (1972). This" crossbuck "sign was placed approximately fifteen (15) feet from the nearest rail on the west side (Officer Mitcham approached the tracks which run in a north-south direction from the west side) of the Scarborough Street crossing. At such a distance of fifteen (15) feet from the crossing, on April 20, 1981, photographic evidence and testimony showed that a driver should have seen the north-bound train at a distance of approximately nineteen hundred fifty-five (1,955) feet. This was so even though there was some vegetation on ICGRR's right-of-way. Testimony in the lower court established that Officer Mitcham did not stop at the crossing, and that his speed as he reached the tracks was approximately twenty-five (25) miles per hour. As a result of the collision which took place on the above date, Officer Mitcham died either on impact or shortly thereafter. On August 16, 1983, appellant Ann Mitcham filed her complaint against ICGRR and Street, the engineer of the train, seeking damages for the wrongful death of Robert Mitcham. From an adverse jury verdict she has appealed assigning eighteen (18) errors:

 GENERAL STATEMENT OF THE LAW

 The matter of duties and obligations at railroad crossings, both on the part of operators of railroads and upon drivers of automobiles, is predominately a matter of statutory law. The principal statute that describes these duties and obligations is found in 77-9-249 of the Mississippi Code, which provides in pertinent part

 the following:

 (1) Whenever any person driving a vehicle approaches a railroad grade crossing under any of the circumstances stated in this section, the driver of such vehicle shall stop within fifty feet but not less than fifteen feet from the nearest rail of such railroad, and shall not proceed until he can do so safely. The foregoing requirements shall apply when:

 (a) A clearly visible electric or mechanical signal device gives warning of the immediate approach of a railroad train;

 (b) A crossing gate is lowered or when a human flagman gives or continues to give a signal of the approach or passage of a railroad train;

 (c) A railroad train approaching within approximately nine hundred feet of the highway crossing emits a signal in accordance with section 77-9-225, and such railroad train, by reason of its speed or nearness to such crossing, is an immediate hazard;

 (d) An approaching railroad train is plainly visible and is in hazardous proximity of such crossing.

 This provision amended the original version of 77-9-249 which had provided that a motorist was under a duty to stop at every crossing. A plain reading of this statute imposes a duty upon the driver to stop when one of the enumerated conditions is met. The Fifth Circuit, in its analysis of the new Mississippi statute has observed that:

 The Mississippi legislature in 1974 changed a law requiring a stop at all railroad crossings to one requiring a stop only when a train is in hazardous proximity to the crossing and is plainly visible.

 Young v. Illinois Central Gulf Railroad Company, 618 F.2d 332, 340 (5th Cir.1980). As has previously been stated, in the case at hand, an approaching train going in a northern direction could be seen for several hundred feet by a vehicle approaching from the east. Further photographic evidence showed that at a distance of twenty two (22) feet from the nearest rail, a person in an automobile so situated could see an oncoming train at approximately nine hundred fifty (950) feet. Additionally, as required by Miss. Code Ann. 77-9-225, the train was blowing its horn and ringing its bell, which under 77-9-249(1)(c) is an enumerated condition under which a duty to stop within fifty (50) feet but not less than fifteen (15) feet arises on the part of the automobile driver. As has been previously noted Officer Mitcham did not stop. Mitcham argues that 77-9-249 has abrogated the duty to stop, and that a driver should have sufficient unobstructed vision to execute a safe and lawful stop after seeing an oncoming train. Hales v. Illinois Central Gulf Railroad Co., 718 F.2d 138, 142 n.9 (5th Cir.1983). Mitcham goes further and urges that since there is no longer an absolute duty to stop at a railroad crossing, that a motorist should be permitted to drive at the maximum speed limit without regard to the fact that he is approaching a railroad crossing, and that the distance of unobstructed vision should be based upon this speed. This contention is wholly without merit and borders on the ridiculous. In Illinois Central Railroad Co. v. Smith, 243 Miss. 766, 774, 140 So.2d 856, 859 (1962), this Court was faced with a situation where the driver of an automobile proceeded toward a railroad crossing at approximately fifty (50) miles per hour without undertaking any measures to slacken the speed of his automobile. In finding such to be the sole proximate cause of the resulting collision with a train, the Court noted that a motorist also had a duty to look and listen as he approaches a crossing. Id. Additionally, appellant's argument totally ignores the duties that arise when the signals which are required by 77-9-249 are given. Under that section a motorist must take such measures as will allow him to come to a stop not less than fifteen (15) feet from the nearest rail, and not proceed until he can do so safely. In construing a statute very similar to 77-9-249, the Supreme

 Court of Texas stated that the duty to stop imposed by the blowing of the whistle and the ringing of the bell applies regardless of the train's visibility at the time. Southern Pacific Co. v. Castro, 493 S.W.2d 491, 495 (Tex.1973). The evidence in the case at hand was that the signals of the train could be heard plainly for nine hundred (900) feet as required by 77-9-225. Upon this basis, the substantive arguments of the appellant must fail.

 I. DID THE TRIAL COURT ERR IN EXCLUDING TESTIMONY AND EVIDENCE OF THREE PRIOR ACCIDENTS AT THE SCARBOROUGH STREET CROSSING?

 Prior to trial, the lower court sustained the ICGRR's motion in limine and prohibited the appellants from offering evidence of three (3) prior accidents at the Scarborough Street crossing that had occurred within eighteen (18) months prior to April 20, 1981, the date of the collision. The purpose for which Mitcham sought to enter this evidence was to show that the crossing was ultra-hazardous, and that ICGRR knew of the three (3) accidents but took no action to remedy the situation. Where evidence of other accidents or injuries is used to show the risk that a defendant's conduct has created the requirement of substantial similarity is applied strictly. McCormick on Evidence, 200 (3rd ed. 1984). This Court has stated that evidence of prior accidents is admissible to show the existence of a dangerous condition and knowledge of such condition only upon a showing of substantial similarity of conditions. Parmes v. Illinois Central Gulf Railroad, 440 So.2d 261, 265 (Miss.1983). Additionally, this Court has stated that:

 In general, the admissibility, of prior accidents] is limited to conditions of permanency and the evidence must show that former accidents happened under substantially the same circumstances as those existing at the time of the accident.

 Hartford Insurance Group v. Massey, 216 So.2d 415, 417 (Miss.1968). In the case sub judice, it must be noted that there is no record of the hearing on the motion in limine, but it can be gathered from the trial record that the lower court found that this situation lacked the requisite permanence of conditions, ...


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