Illinois Central Gulf Railroad Co. v. Travis, 2012 WL 5951413 (Supreme Court of Mississippi, November 29, 2012). Free copy available here.
Who is affected? Railroads and automobile drivers in collisions (& decedents).
This study of a case reported from the Mississippi Supreme Court last week illustrates the tactical uses of pre-trial and post-trail motions as a tool for either avoiding or by-passing triers of fact in a trial court – whether they be juries or a judge sitting as trier of fact.
Here the majority opinions and dissent disagree as to whether the operative fact issues should have been decided by the trier of fact (here a jury) or, alternatively, that as a matter of law no reasonable jury could have found the defendant railroad liable based on the evidence admitted at trial.
The pre-trial motions consist of (1) the motion to dismiss and (2) the motion for summary judgment. In each the judge is asked to decide the case’s outcome without having either a jury or the judge decide any fact issues on which the parties disagree with each other.
The post-trial motion at issue in the featured case – motion for judgment notwithstanding the verdict (JNOV) – comes after the trier of fact (usually a jury) has decided factual issues on which the parties do in fact disagree with each other. As the Mississippi Supreme Court stated this standard:
“[T]his Court will consider the evidence in the light most favorable to the appellee [wrongful death plaintiff], giving that party the benefit of all favorable inference[s] that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable [jurors] could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required.”
After reviewing 8 principal issues of fact relating to the railroad’s alleged negligence, the court concluded:
“In Illinois Central Railroad Co. v. Smith, 243 Miss. 766, 140 So. 2d 856 (1962), this Court found that the decedent was not looking or listening, which is why he did not see or hear the oncoming train, and that the decedent’s failure to look and listen for the train was the proximate cause of the collision. We are confident that the same is true here. The evidence is clear that [plaintiff’s decedent] could have and would have seen the train if he had looked. The evidence presented, considered in the light most favorable to [wrongful death action plaintiff], does not support the jury’s verdict that negligence on the part of [defendant railroad] caused or contributed to the accident. We recognize that all railroad crossings are inherently dangerous. However, a railroad will not be held liable where it committed no negligence, and where the evidence indicates that the driver simply failed to look and listen for the train.”
The majority opinion took up these points arising from plaintiff’s specific factual allegations that it argued related to the railroad’s negligence:
1. Plaintiff’s allegation that locomotive horn was sounded in accordance with Mississippi statute’s prescription on how to sound horn – court opined that evidence was “uncontroverted” that horn was sounded. Held: It made no material difference whether or not it was sounded in the pattern prescribed by statute.
Put another way, the court opined that the high volume and sustained duration of the horn guaranteed that plaintiff’s decedent did hear or should have heard the horn. Failure to conform horn usage to the pattern and sequence specified in Mississippi statute and the railroad’s own internal rules was immaterial to the question of the railroad’s alleged negligence.
No discussion offered to the obvious point that violation of statutory or other prescribed safety procedures can make out a case of negligence per se.
2. Plaintiff’s allegation that locomotive bell was not sounded is irrelevant in light of Mississippi statutory provision that either horn must be sounded or bell sounded – but not requiring both.
Straight statutory argument.
3. Plaintiff’s allegation that train crew had “duty to keep a proper lookout when approaching a crossing” is supported by Mississippi case law – but:
“Train crews have a duty to keep a proper lookout when approaching a crossing. Hines v. Moore, 124 Miss. 500, 87 So. 1, 3 (1921). However, this Court consistently has held that train crews have a right to assume that drivers will obey traffic signals and will look and listen for the train.
“Illinois Central argues that uncontradicted testimony established that the train crew kept a proper lookout. We agree. Any speculative testimony to the contrary should have been excluded, and the jury should have been instructed not to consider any allegations that the crew was not keeping a proper lookout. Travis’s allegation that the train crew was not keeping a proper lookout is without merit.”
Opinion arguably states that proper lookout ostensibly required by Mississippi law is not required or can be assumed in the event that evidence proves that decedent driver did in fact hear and see or should heard and seen the approaching train.
4. Plaintiff’s allegation that locomotive engineer failed to apply the brake adequately. Once more, the majority opinion recited Mississippi precedent that, “train crews have a right to assume that a vehicle will heed warning signals and the visual approach of a train and that the driver will stop.”
To plaintiff’s argument that the train’s speed was excessive in light of the distance needed upon applying the brake at the crossing in question, the court observed that the train was travelling below the speed limit established by federal law (as promulgated by the Federal Railroad Administration), and that federal law on this point preempted any state law tort claim based on excessive speed.
5. To plaintiff’s allegation that railroad had improperly positioned “crossbuck” sign under Mississippi law, court parsed the language of Mississippi statutory provision on “crossbuck” signs and grade crossings, and parsed the language of the “Manual on Uniform Traffic Control Devices” on that subject.
Opinion then made factual arguments relating to those provisions akin to what seems to this blogger like those of a trial lawyer for the defendant railroad in the making of a closing argument.
Because the court here rules that a JNOV would have been the appropriate response by the trial court to the jury verdict, this blogger recommends that the reader review for himself or herself the factual discussion. It is difficult for me to square with the role of trier of fact as I have experienced it in front of juries and in bench trials.
6. As to plaintiff’s allegations that the crossing was both (1) inherently “extra-hazardous” and (2) kept in poor condition – the court recited Mississippi statute on point and then argued against plaintiff’s viewpoint in a context of what by the court’s own opinion appears to be conflicting testimony on the point:
“At trial, Travis called three witnesses who were at or near the crossing when the train struck [plaintiff’s decedent’s] car – Anne Marie Sago, Alvin Haymer, and Thelma Washington. All three testified that vegetation on the field side of the crossing made it difficult to see an approaching train. Their testimony was that the vegetation and the steep approach to the crossing required a motorist to pull almost onto the track to see if a train was approaching. However, Sago admitted that the vegetation did not cause a problem if the driver was paying attention and looked both ways before crossing. Haymer testified that drivers should stop before reaching the crossing to look for a train due to the speed with which the train reaches the crossing after coming out of the curve, the first time it is visible.”
Again, to this blogger these words seem more appropriate to a closing argument or for use by a cross-examining counsel for the railroad than for analysis in favor of a JNOV.
The dissent reviews the above-recited issues and rules that there is sufficient testimony to support the jury’s verdict in the trial court, and that the majority opinion’s analysis to support JNOV where there is conflicting testimony invades the province of the trier of fact in the trial court.
There is considerably more to winning or defending one’s case on tort liability than convincing a trier fact at the trial court level in the form of a jury or of a judge sitting as a trier of fact as to who may have been at fault.
Whether or not one agrees with how the Mississippi Supreme Court ruled in this appeal (this blogger does not agree), this opinion reflects the aphorism: “Some times you win on the facts, some times you win on the law.”