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CHARLES SCHMIZ v. ILLINOIS CENTRAL GULF RAILROAD COMPANY AND G. W. POWELL

JUNE 21, 1989

CHARLES SCHMIZ
v.
ILLINOIS CENTRAL GULF RAILROAD COMPANY AND G. W. POWELL



BEFORE DAN LEE, SULLIVAN AND PITTMAN.

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

Charles Schmiz (hereinafter Schmiz), on behalf of his deceased son, Robert Schmiz, brought a wrongful death action against the defendants, Illinois Central Gulf Railroad Company (hereinafter "ICG") and G. W. Powell pursuant to the Mississippi Wrongful Death Act (M.C.A. 11-7-13). In this suit Schmiz sought

damages for the death of his son which occurred on March 31, 1981, when the pickup which he was driving was struck by a freight train at the Ragsdale Road-Illinois Central Gulf Railroad crossing in Madison County, Mississippi. Schmiz charged that the death of his son was a result of the negligence of the defendants, ICG and its train engineer, G. W. Powell.

 On November 8, 1984, this action was filed in the Circuit Court of Madison County, Mississippi. The case proceeded to trial by jury on March 18, 1987. After a four-day trial, the jury returned a verdict in favor of ICG and G. W. Powell. Following the entry of the judgment on the verdict, Schmiz timely filed his motion for j.n.o.v. and motion for new trial which were in due course denied by the trial court. Thereafter, Schmiz perfected this appeal and assigned two errors.

 Finding merit in assignment I, we reverse and remand this case for a new trial. We do not find it necessary to address assignment of error II.

 STATEMENT OF THE FACTS

 Robert Schmiz (hereinafter Robert), 20-year-old native of Illinois, had only recently moved to Mississippi and was employed by Harvey-McGee Ford in Jackson, Mississippi. On the afternoon of March 31, 1981, Robert was sent to pick up auto parts from the Ford dealership in Canton, Mississippi. After finishing his appointed rounds in Canton, Robert asked directions from the Ford dealership, which was located on Highway 51 in Canton, to Interstate 55 South.

 Apparently in an attempt to follow the directions which he had received, Robert drove south on Highway 51 out of Canton and turned west onto Ragsdale Road. As he travelled westerly along Ragsdale Road, there were no advance uniform traffic signs or pavement markings to warn him of the impending danger presented by the upcoming Ragsdale Road/ICG railroad grade crossing. Additionally, trees, shrubbery, bushes and other vegetation along the northern boundary of the roadway and the eastern boundary of the railroad right-of-way obstructed Robert's vision of the "railroad crossbuck" and the railroad grade crossing.

 At the same moment that Robert's pickup was travelling in a westerly direction on Ragsdale Road toward the railroad crossing, an ICG train with a crew, consisting of Wayne Powell (engineer), Charles Holly (head brakeman), and Ronnie Crawford (fireman), was travelling south. As the train approached the Ragsdale Road crossing, Powell, the head engineer, testified that he began to blow the train's whistle in the traditional two longs, one short and one long sequence to give additional warnings to vehicles on

 Ragsdale Road. He also turned on the switch to operate the engine's bell.

 Both Holly and Crawford noticed the pickup truck travelling west on Ragsdale Road approaching the crossing at a speed of approximately 40-45 miles per hour. Holly and Crawford testified that they never saw the truck slow down prior to collision. Powell, on the other hand, saw the truck out of the corner of his eye when the train was only approximately 50 to 75 feet from the crossing. At that time, he activated the train's emergency braking system. Unfortunately, it was too late and the ICG train, which was travelling at approximately 45 miles per hour as it approached the crossing, hit the truck broadside, completely separating the bed from the cab of the truck. Robert died as a result of the injuries sustained in the accident.

 Charles Schmiz, Robert's father, filed suit in the Circuit Court of Madison County, Mississippi. Trial was held on March 18, 1987, resulting in a jury verdict for ICG and G. W. Powell. Following the jury verdict, Schmiz filed a motion for a new trial. At a hearing on this motion, three jurors were called to testify concerning several jurors' unauthorized, as well as unsupervised, inspection of the railroad crossing. They were: Dennis Manshack, Kenneth Patterson, and Labonne Norman.

 Dennis Manshack (hereinafter Manshack), who was elected foreman of the jury, testified that he detoured on his route home in order to view the crossing. In so doing, he stated that he, accompanied by Kenneth Patterson, a fellow juror, went over the crossing and back again and looked for the train, but they did not stop at or near the crossing. Manshack further testified that he advised the other jurors of his inspection and the impression he gained from that inspection, i.e., the crossing was in worse shape at the time of his inspection than it was at the time of the collision.

 Unlike Manshack's testimony, Kenneth Patterson (hereinafter Patterson) testified that their inspection of the crossing occurred during a trial recess one afternoon, rather than on their way home. He further stated that they went to the crossing to "look around." In relating the facts surrounding their inspection of the crossing, Patterson testified that he and Manshack stopped about 50 feet from the crossing and looked to see how far they could see down the track. It was also Mr. Patterson's opinion, based on his inspection of the crossing, that there was more growth around the crossing at the time of his inspection than was shown in the photographs taken on the day of the collision.

 To confirm Manshack's and Patterson's testimony, another

 juror Mrs. Labonne Norman (hereinafter Norman) was called to the witness stand. It was Norman's testimony that jurors Manshack and Patterson advised the other members of the jury that the crossing was grown up only on the county part and not on the railroad part of the right-of-way.

 After having heard the testimony of Manshack, Patterson and Norman, the trial court denied Schmiz's motion for j.n.o.v. and motion for new trial. Schmiz perfected his appeal to this Court, assigning as error No. I the following:

 I.

 The Trial Court Erred in Denying Mr. Schmiz's Motion for New Trial in Light of the Prejudicial Misconduct of Several Members of the Jury in Conducting an Unauthorized Inspection of the Railroad Crossing.

 Schmiz argues that it is an undisputed fact of this case that the jury was exposed to outside influences and incompetent evidence. In Crawley v. Illinois Central Railroad Co., 248 So.2d 774 (Miss. 1971), this Court faced a situation similar to the one in this case. In Crawley, as in the present facts, the plaintiff filed suit against the railroad alleging that the railroad was negligent in allowing its crossing to become dangerous due to the growth of weeds and underbrush. During a trial recess, two of the jurors, independently of each other and accompanied by their wives, travelled to the scene of the crossing for the purpose of determining the visibility at the crossing. Thereafter, the jury returned a verdict for the railroad and the ...


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