Bowman v. CSX Transp., Inc., et al.
| Docket Number: | 2004-CA-02383-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 05-30-2006 Opinion Author: SOUTHWICK, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Weight of evidence - Section 77-9-249 (4) - Expert witness - M.R.E. 702 - Prior accidents - M.R.E. 401 - Prejudicial remarks - Hearsay - M.R.E. 801(d)(2)(D) - M.R.E. 103 - Testimony about fault - M.R.E. 704 - M.R.E. 701 - Jury instructions - Redirect testimony Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 11-19-2004 Appealed from: Jackson County Circuit Court Judge: Robert P. Krebs Disposition: JURY VERDICT FOR RAILROAD AND TRIAL JUDGE DECISION FOR MUNICIPALITY Case Number: CI-2003-00150(1) |
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| Party Name: | Attorney Name: | |||
| Appellant: | JEWEL L. BOWMAN |
ELMER L. FONDREN, JACKYE C. BERTUCCI |
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| Appellee: | CSX TRANSPORTATION, INC. AND THE CITY OF PASCAGOULA, A MISSISSIPPI MUNICIPALITY | MATTHEW PHILIP LACHAUSSEE RAYMOND L. BROWN, PATRICK R. BUCHANAN, JOHN B. EDWARDS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Weight of evidence - Section 77-9-249 (4) - Expert witness - M.R.E. 702 - Prior accidents - M.R.E. 401 - Prejudicial remarks - Hearsay - M.R.E. 801(d)(2)(D) - M.R.E. 103 - Testimony about fault - M.R.E. 704 - M.R.E. 701 - Jury instructions - Redirect testimony |
| Summary of the Facts: | Jewel Bowman brought suit for injuries resulting from a collision with a train at a railroad crossing near Highway 90 in Pascagoula. A jury reached a verdict in favor of defendant CSX Transportation, Inc. The judge denied her claims against the City of Pascagoula. Bowman appeals. |
| Summary of Opinion Analysis: | Issue 1: Weight of evidence Bowman argues that the jury verdict and the trial court’s findings were in opposition to vast evidence in her favor. The warning devices for oncoming trains at the intersection did not activate until after Bowman had stopped in the middle of the tracks. There is no allegation that the railroad failed to give proper notice of the crossing or of the approaching train. The defendants are correct that substantial evidence existed that Bowman was negligent at least in allowing herself to get blocked on the tracks and perhaps also negligent in how she drove once she stopped atop the tracks. Section 77-9-249 (4) provides that a vehicle must be stopped no closer than fifteen feet from the first rail if required for safety, and shall not proceed until he can do so safely. There is ample evidence that by proceeding onto the tracks before she assured herself that she would not be blocked on them, Bowman violated this statutory standard and was therefore negligent per se. With regard to the City’s liability, statutes require the Department of Transportation to oversee that railroads properly maintain the streets that cross their tracks. The city would not have a duty to maintain the crossing. Though the state had the responsibility for significant repairs, a city employee testified that small repairs would be performed by city crews. The city at most assumed responsibility for correcting potholes that formed hazardous conditions. Thus, there was no error in the judge’s conclusion that the city had no liability. As to the railroad, the portion of the railroad that the Bowman expert said violated the railroad’s standards was, according to the railroad’s evidence, not on the property that they maintained. Therefore, there was a conflict in the evidence for jurors to resolve. Issue 2: Expert witness Bowman argues that the court erred in disqualifying her expert witness, who was offered as an expert in event recorders. He would have read and interpreted documents produced by a data recorder that indicated the distance before impact when the train began to apply its brakes. Under M.R.E. 702, a witness may testify as an expert if qualified by virtue of his or her knowledge, skill, experience or education, but only if the witness’s scientific, technical or other specialized knowledge will assist the trier of fact in understanding or deciding a fact in issue. This witness did not possess any knowledge, skill, experience, or education in the interpretation of the data tables produced by the machinery in question. Accordingly, his testimony would not have assisted the trier of fact. In addition, he himself admitted that the interpretation of data, for which he was offered as an expert, was “self evident.” Issue 3: Prior accidents The trial court excluded testimony about three wrecks at this same railroad crossing since 1990 but allowed one similar accident to be explored. Other events must be substantially similar to the incident in question before evidence of them becomes relevant. Bowman argues that evidence of all other accident should have been admitted as impeachment because a CSX witness had denied knowledge of other accidents at that location. Under M.R.E. 401, unless proof to the contrary is given as a predicate, events ten years earlier surely are irrelevant in a dispute such as this. Issue 4: Prejudicial remarks Bowman argues that counsel for CSX made prejudicial statements by suggesting that a witness had been “coached to be untruthful.” There was no objection made to either set of statements at trial. If no objection was made at trial, the court could not rule. Issue 5: Expert testimony CSX offered a witness as an expert in physics, accident reconstruction, photometrics, light and sound and optics, dynamics of automobile and train braking and stopping, event recorders on trains, and railroad crossing standards and construction. Bowman argues that the court erred in allowing Burdick’s testimony because he had never taught a class in crossing design, and had never taken a course in crossing design, yet changed his testimony to state that he had taught such courses. There was no suspicious change in the expert’s characterization of his own credentials, and there was no error in the acceptance of his expertise. Issue 6: Hearsay The court refused to allow testimony from an officer about a conversation that he had on the day after the accident with an individual in the city’s traffic division. The officer testified that he was told that there had been another incident involving that same hole. Bowman argues that the statement by a city employee was a declaration against the city’s interest and was admissible under M.R.E. 801(d)(2)(D). M.R.E. 103 provides that only if a substantial right is affected do errors in evidentiary rulings require reversal. Further, only if a proffer is made of evidence that otherwise does not appear in the record will reversal be possible. Evidence of one other problem at this location was presented to the jury. The officer’s testimony might have allowed the exploration of a second similar incident. That makes the evidence merely cumulative. Particularly absent a proffer, there is no reversible error. Issue 7: Testimony about fault A witness testified about a 2002 accident that he had at this same location. He was asked whether he blamed the city or the railroad for the accident. Bowman argues that the witness’s opinion about fault was irrelevant and highly prejudicial. Under M.R.E. 704, an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Still, an absolute requirement for the admissibility of an opinion is that it be helpful to the fact-finder. The witness was, at best, a lay witness under M.R.E. 701 whose opinions are rationally based on the perceptions of the witness and helpful to the clear understanding of the testimony or the determination of a fact in issue. The witness gave his opinion as to fault in his own accident. He did not give an opinion as to fault in Bowman’s accident. The witness was not competent to address the legal components of fault necessary for an opinion. In addition, his opinion was not helpful to the factfinder. On both counts, the opinion should have been excluded from evidence. However, this inappropriate lay opinion did not affect a substantial right and was not reversible error. Issue 8: Jury instructions Bowman argues that certain of the defendant’s jury instructions were inaccurate statements of the law. One instruction’s incompleteness does not lead to reversal, where the whole of the instructions presents an adequate statement of the law with proper evidentiary foundation. Bowman argues that two of the instructions override comparative negligence in that even if she had not been exercising reasonable care, the railroad is not absolved from all liability if it negligently contributed to the accident in some manner. That Bowman’s negligence would not exonerate the railroad if it negligently contributed to her injuries was explained in another instruction, which provided for assigning percentages of fault. Reading the instructions as a whole, the jury would have understood that Bowman’s negligence would not free the railroad from responsibility if it also was negligent. Bowman also argues that one of the instructions did not apply the specific facts of the case to the legal standard. That argument was not made to the trial court and therefore is not preserved for review here. Bowman argues that one of the instructions fails to take into account that the railroad should have known that other vehicles had been unable to get out of the way of trains because they too had become immobilized due to the notch/pothole. However, a different instruction that was given to jurors raised this same issue in a manner that would have allowed a verdict for the plaintiff. Bowman takes issue with an instruction which required a verdict for the railroad if jurors found that Bowman’s actions were the sole proximate cause of the accident. By statute, it is proper to submit to the jury the issue of the sole proximate cause of a railroad crossing accident. Bowman also argues that a number of instructions should have been granted. However, the instructions were duplicative or unnecessary. Issue 9: Redirect testimony A witness testified to being behind Bowman when she had her collision. On redirect, Bowman’s counsel wanted to ask him whether he had seen other motorists as a routine practice getting onto the part of the pavement in which the notch was located. Bowman argues that the court erred in refusing to allow this questioning. Though the trial judge has discretion, redirect examination should generally be limited to matters brought out during cross-examination. The trial judge did not abuse his discretion here. |
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