Before Thomas, P.j., Diaz, And Southwick, JJ.
The opinion of the court was delivered by: Thomas, P.j.,
DATE OF JUDGMENT: 07/02/97 TRIAL JUDGE: HON. LARRY EUGENE ROBERTS COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION: JURY VERDICT OF $187,500 FOR PLAINTIFF; CIRCUIT COURT ORDERS REMITTITUR OF $112,500
DISPOSITION: AFFIRMED - 02/23/99
¶1. Jimmy J. Rawson appeals the trial court's grant of remittitur to Kansas City Southern Railway Company (KCS), raising the following issues as error:
I. THE TRIAL COURT ERRED IN GRANTING A REMITTITUR TO KCS AS THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT THE VERDICT OF THE JURY IN FAVOR OF PLAINTIFF IN THE AMOUNT OF $187,500.
II. THE TRIAL COURT ERRED IN GRANTING KCS A NEW TRIAL UNLESS PLAINTIFF REMITTED $112,500.
¶2. KCS cross-appeals, raising the following issues as error:
I. THE VERDICT IS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE, THEREBY NECESSITATING A NEW TRIAL.
II. KCS IS ENTITLED TO A JUDGMENT AS A MATTER OF LAW.
III. A NEW TRIAL IS NECESSARY BECAUSE THE JURY WAS ALLOWED TO CONSIDER, THROUGH PLAINTIFF'S JURY INSTRUCTION P-13, AS AMENDED, AN ELEMENT OF DAMAGES NOT SUPPORTED BY CREDIBLE EVIDENCE.
IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY GRANTING INSTRUCTION P-7.
V. THE TRIAL COURT ERRED BY ADMITTING PICTURES OF THE KCS MERIDIAN YARD TAKEN IN 1997, ALMOST SIX YEARS AFTER THE ACCIDENT.
VI. THE TRIAL COURT ERRED BY ADMITTING EVIDENCE OF THE LIGHTING IN THE NORFOLK SOUTHERN YARD THROUGH PHOTOGRAPHS WHICH WERE TAKEN IN APRIL 1997, ALMOST SIX YEARS AFTER THE ACCIDENT.
VII. THE TRIAL COURT ERRED BY ALLOWING EVIDENCE OF PRIOR COMPLAINTS BY RAILROAD EMPLOYEES ABOUT PULPWOOD LITTER IN THE YARD WHEN THESE PRIOR COMPLAINTS WERE NOT TIED TO THE DATE OF THE PLAINTIFF'S ACCIDENT.
¶3. Finding no reversible error, we affirm.
¶4. Jimmy J. Rawson was a twenty-eight-year veteran railroad conductor with Kansas City Southern Railroad Company and its predecessors. Rawson was injured one night when he tripped over a piece of pulpwood which was lying in an area between two trains at KCS's Meridian yard. Rawson was "bleeding air" from railroad freight cars so that the breaking systems on those cars would allow them to be moved. Rawson carried a flashlight (also referred to as a railroad lantern), primarily to keep from bumping into the trains which were parked on either side of him. The yard was lighted, but the cars of the trains on either side of Rawson prevented any light from reaching where Rawson was walking. Rawson injured his back as a result of his fall.
¶5. Rawson sued KCS under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51-56. Rawson alleged that KCS was negligent because of a general problem with pulpwood in the yard, for failing to inspect the yard, inadequate lighting at the yard, and an improper clearance between tracks 9 and 10, the site of the accident. The jury returned a general verdict in favor of Rawson in the amount of $187,500. The circuit court granted a remittitur of $112,500, making the final verdict $75,000. Rawson initially accepted this verdict of $75,000. However, upon motion of KCS the verdict was amended to give KCS a credit of $7,853.11 for wage advancements which Rawson agreed to pay back in the event of a judgment against KCS. From this decision Rawson appeals and KCS cross-appeals.
THE TRIAL COURT ERRED IN GRANTING A REMITTITUR TO KCS AS THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT THE VERDICT OF THE JURY IN FAVOR OF PLAINTIFF IN THE AMOUNT OF $187,500.
THE TRIAL COURT ERRED IN GRANTING KCS A NEW TRIAL UNLESS PLAINTIFF REMITTED $112,500.
¶6. Rawson argues that in order for a trial court to grant a motion for remittitur the movant must prove that either the jury was influenced by bias, prejudice, or passions, or that the jury's verdict was contrary to the overwhelming weight of credible evidence. Miss. Code Ann. §11-1-55 (Rev. 1991). Rawson argues that KCS totally failed to demonstrate either in this case, and therefore, the trial court decision to grant a remittitur was in error.
¶7. A trial court's authority to grant a remittitur is found in Miss. Code Ann. § 11-1-55 (Rev. 1991), which reads as follows:
"The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for new trial or affirm on direct or cross appeal, upon condition of an additur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence. If such additur or remittitur be not accepted then the court may direct a new trial on damages only. If the additur or remittitur is accepted and the other party perfects a direct appeal, then the party accepting the additur or remittitur shall have the right to cross appeal for the purpose of reversing the action of the court in regard to the additur or remittitur."
¶8. Our supreme court has held that when the trial court has granted a remittitur then the plaintiff has three courses of action. The plaintiff may elect (1) to reject the remittitur and have the case retried on the issue of damages only, (2) to appeal on grounds the circuit court should not have granted the remittitur at all, or, alternatively, the remittitur granted was legally excessive, or, (3) to accept the remittitur. Odom v. Roberts, 606 So. 2d 114, 121 (Miss. 1992). In the instant case, Rawson has appealed to us arguing the granting of the remittitur by the trial court was in error.
¶9. Our scope of review, when an appellant declines to accept a remittitur and appeals to us on grounds that the remittitur should not have been granted, is limited to the question of whether the trial court abused or exceeded its discretion. Ross-King-Walker, Inc. v. Henson, 672 So. 2d 1188, 1193 (Miss. 1996) (citations omitted). Our supreme court has also held that "[a]wards fixed by jury determination are not merely advisory and will not under the general rule be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous." Wallace v. Thorton, 672 So. 2d 724, 729 (Miss. 1996) (citations omitted). Put another way, the trial Judge may only usurp the jury's function in setting a damage award, when he finds, as per the statute, either: (1) that the jury's verdict is so shocking to the conscience that it evinces bias, passion, and prejudice on the part of the jury; or (2) that the verdict was contrary to the overwhelming weight of the credible evidence. State Highway Comm. of Mississippi v. W. W. Warren, 530 So. 2d 704, 707 (Miss. 1988). "Absent either of these findings, the trial court abuses its discretion." Id.
¶10. In the case sub judice, the jury returned a verdict for Rawson in the amount of $187,500. The trial court granted KCS's motion for remittitur reducing the amount awarded by $112,500 to $75,000. The trial court also granted KCS's motion to receive a credit of $7,853.11 against the remitted judgment. The trial court's order on the remittitur reads as follows:
1. The verdict rendered by the jury in the amount of $187,500 is against the overwhelming weight of the evidence and is so excessive as to evince bias, passion and prejudice against the Defendants on the part of the jury;
2. A remittitur should be entered so as to reduce the amount of the verdict by the amount of $112,500 to a remitted ...