HAWKINS, PRESIDING JUSTICE, FOR THE COURT:
George Wilner appeals a jury verdict and judgment for the defendant Mississippi Export Railroad Company in the circuit court of Jackson County. The main thrust of his appeal is an egregious violation of a pre-trial discovery order of the court and ambush during presentation of the defendant's evidence. The defendant railroad cross-appeals contending the circuit judge erred in refusing its request for a directed verdict when the plaintiff rested, and also a refusal of a peremptory instruction for the defendant at the close of trial.
Fortunately for the defendant we find the issue raised on cross-appeal dispositive and do not address the issues on direct appeal.
Highway 613 in Jackson County is a rural, hard-surfaced highway. It intersects with Mississippi Export Railroad Company's railroad track. At the crossing the railroad track runs almost due North and South, while the highway runs in a slightly northeasterly-southwesterly direction. The crossing
makes a quite narrow "X" with the narrow angle measuring twelve degrees.
On Sunday, January 23, 1983, approaching the crossing from the North headed Southerly on the highway there was first a round reflectorized yellow sign, one yard in diameter, with a black "X" across it, and between the angles on each side the letter "RR." This sign was 550 feet from the crossing.
On the pavement, also 550 feet from the crossing, was a white reflectorized painted line two feet wide across the right lane, termed by the railroad a "stop bar."
Just beyond the stop bar, proceeding closer to the crossing, was a white painted cross extending across the entire right lane, called by the railroad a "crossbuck," and also the painted letters "RR." The cross was twenty feet long along the highway. Then, 500 feet from the crossing was another crossbar painted across the right lane of traffic.
One hundred thirty-five feet from the crossing was a 175-watt mercury street light. On the opposite side of the crossing, the same distance from the track, was another identical streetlight.
Also, beginning 135 feet from the crossing, and extending diagonally across the right lane to a distance of 70 feet from the crossing, was another white reflectorized stop bar painted on the pavement. Finally, 135 feet from the crossing was a standard railroad crossbuck sign reading "Railroad Crossing."
Wilner on that morning was an employee of Brown & Root, a construction company which was doing work for the Chevron plant. He had only lived at the location of his home that day for approximately two weeks.
He awoke at ten minutes to four that morning, washed his face, brushed his teeth, fixed his lunch, drank a Pepsi-Cola, and left for work in his 1978 Ford pickup. He said that he left early because it was a foggy morning.
According to Wilner, "I was going slow - I had to get up early and go slow because the fog was so bad I couldn't see." He also ...