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NADINE LONE MAXWELL, DEBORAH LONG PRIEST AND RICHARD LONG v. ILLINOIS CENTRAL GULF RAILROAD

SEPTEMBER 16, 1987

NADINE LONE MAXWELL, DEBORAH LONG PRIEST AND RICHARD LONG
v.
ILLINOIS CENTRAL GULF RAILROAD, T. R. BRUMFIELD AND NATIONAL RAILROAD PASSENGER CORPORATION, D/B/A AMTRAK



BEFORE ROY NOBLE LEE, P.J.; PRATHER AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

On the afternoon of November 24, 1981, fifteen-year-old Ledford Keith Long was riding his three wheeler slowly up the northbound railroad tracks just south of Brookhaven. The City of New Orleans approached from the rear also northbound and ran over Keith and killed him.

 Members of Keith's family thought the train at fault and sued for wrongful death. The jury agreed but the Circuit Court did not, entering judgment for the Railroad notwithstanding the jury's verdict and, conditionally, granting the Railroad a new trial. For the reasons discussed below, we reverse the judgment notwithstanding the verdict but affirm the order granting a new trial.

 II.

 On July 24, 1984, Nadine Long Maxwell, Deborah Long Priest and Lonnie Richard Long, Keith's mother, sister and brother, respectively, commenced this civil action by filing their complaint in the Circuit Court of Franklin County, Mississippi. Their complaint was one for wrongful death. See Miss. Code Ann. 11-7-13 (1972). Named as Defendants were Illinois Central Gulf Railroad Company, National Railroad

 Passenger Corporation, d/b/a Amtrak, and T. R. Brumfield, the locomotive engineer at the time of the accident. All Defendants (sometimes hereinafter collectively" the Railroad ") answered and denied all allegations of fault.

 The case was called for trial in Circuit Court in Meadville, Mississippi, on September 5, 1985. The following day the jury returned a verdict in favor of Plaintiffs and against all Defendants in the amount of $200,000.00 and final judgment was entered thereon on September 13, 1985.

 Thereafter, Defendants timely filed motion for judgment notwithstanding the verdict or, alternatively, for a new trial, or, alternatively, for a remittitur. On October 22, 1985, the Circuit Court granted the motion in substantial part, setting aside the verdict of the jury and entering judgment in favor of Illinois Central and the other Defendants, notwithstanding the verdict of the jury. In addition, the Circuit Court alternatively and conditionally ordered a new trial; that is, the Court directed that, in the event that the judgment notwithstanding the verdict should thereafter be vacated or reversed, the condition of the order for a new trial would thereupon be fulfilled and the case would be restored to the active docket of the Circuit Court for a new trial.

 Plaintiffs, Nadine Long Maxwell, Deborah Long Priest and Lonnie Richard Long, as the survivors and personal representatives of Ledford Keith Long, deceased, have now appealed to this Court.

 III.

 A.

 Plaintiffs first argue that the motion for judgment notwithstanding the verdict should never have been considered by the Circuit Court for the Railroad's failure to supply a procedural requisite thereto. Plaintiffs point specifically to Rule 50(b), Miss.R.Civ.P., *fn1 and argue that a party must move for a directed verdict at the close of all the evidence before it may move for j.n.o.v. in the event of an adverse verdict. The record reflects, however, that at the conclusion of all of the evidence the Railroad requested a peremptory instruction which was refused. See Instruction No. D-25.

 Rule 50(b) does indeed provide that a motion for directed verdict, at the end of all the evidence but before the case is submitted to the jury, is a procedural prerequisite to a subsequent post-verdict motion for judgment notwithstanding

 the verdict. No doubt out of habit lingering from our former practice, the Railroad merely requested a peremptory instruction. A request for a peremptory instruction serves the same function and purpose as a motion for directed verdict at the end of all the evidence. See Jones v. Hatchett, 504 So. 2d 198, 205 (Miss.1987). The question, accordingly, is whether we should fault the Railroad for its failure to adopt the new terminology of Rule 50(b) when the point it brought to the court's attention was for all practical purposes the same.

 One leading authority on the analogous federal practice has stated that" the courts take a liberal view of what constitutes a motion for directed verdict in deciding whether there was a sufficient prerequisite for the motion for judgment. "9 Wright & Miller, Federal Practice and Procedure 2537, pp. 596-97. While there are jurisdictions that take a hard line, see, e.g., Martinez Moll v. Levitt & Sons of Puerto Rico, Inc., 583 F.2d 565 (1st Cir.1978) and DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193 (3rd Cir.1978), others, including the Fifth Circuit, have been more lenient.

 Bohrer v. Hanes Corp., 715 F.2d 213, 216 (5th Cir. 1983) states that:

 Rule 50(b) serves two essential purposes: to enable the trial court to reexamine the question of evidentiary insufficiency as a matter of law if the jury returns a verdict contrary to the movant, and to alert the opposing party to the insufficiency before the case is submitted to the jury, thereby affording it an opportunity to cure any defects in proof should the motion have any merit.

 In Bohrer, the defendant moved for a directed verdict at the close of plaintiff's case. The judge, although concerned that the evidence did not present a jury issue, decided to permit the jury to have the case but invited the defendants to renew their attack via a motion for" j.n.o.v. or motion at the close of evidence. "The defendant did the former and his failure to do both was excused by the Bohrer court

 because we are convinced that the purposes of the rule have been served. To demand a slavish adherence to the procedural sequence and to require these defendants, in this case, to articulate the words of renewal once the motion had been taken under advisement, would be to succumb to a

 nominalism and a rigid trial scenario as equally at variance as ambush with the spirit of the rules.

 Bohrer, 715 F.2d at 217.

 The Court also notes the" liberal spirit in viewing the Federal Rules of Civil Procedure, Fed.R.Civ.Pro.1. "715 F.2d at 217. See also Farley Trans. Co., Inc. v. Santa Fe Trail Trans. Co., 786 F.2d 1342 (9th Cir.1985), Halsell v. Kimberly Clark Corp., 683 F.2d 285 (8th Cir.1982); Jack Cole v. Hudson, 409 F.2d 188 (5th Cir.1969); Beaumont v. Morgan, 427 F.2d 667 (1st Cir.1970).

 Jack Cole concerns a request for a jury instruction to find in the defendant's favor, as in the case at bar. In finding that" this constitutes a sufficient predicate for the subsequent motion for judgment notwithstanding the verdict, "the court stated that" There can be no doubt that the trial judge was well aware of the reasons for the requested jury instruction. "Jack Cole, 409 F.2d at 191.

 In the instant case, the Railroad did request a peremptory instruction which was refused. Later, in ruling on the motion for j.n.o.v., the Circuit Court stated:

 At the conclusion of all the testimony in a case, it is customary for the defense to ask for what is called a peremptory instruction, whereby they again ask the court to look at all the testimony adduced at the trial and make a determination whether or not to order the jury to make a finding for the defendant.

 Again, in this case-in-chief, even though the Defendants' position was very strong in their request for a P.I. . . .

 It is clear that here, the purpose of the Rule 50(b)-required motion for directed verdict at the conclusion of the evidence was served by the Railroad's request for a peremptory instruction. By this request the Circuit Court was asked to and was given the opportunity to view all of the evidence to determine whether plaintiffs had made out a jury question on the liability phase of their case. This is what - and all - Rule 50(b) required of the Railroad.

 This assignment of error is denied.

 B.

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