JACKSON, Miss. — The Alabama Great Southern Railroad Co. has lost an appeal of a $2.7 million judgment in a wrongful death case involving its alleged failure to clean vegetation at a Forrest County crossing, a wire service reported.
The Mississippi Supreme Court, in a 5-3 decision Thursday, upheld the verdict handed down in Forrest County Circuit Court in 2000.
The family of Freddie Lee Jr. sued the railroad. Lee, a passenger in a vehicle driven by Marvin Pigford, was killed when Pigford’s vehicle and a train collided at the crossing on June 18, 1997. Pigford was injured.
The jury awarded $2.7 million to Lee’s family and $50,000 to Pigford.
The accident occurred at what is called the Eastabuchie Crossing. Eastabuchie Road runs from east to west, perpendicular to the tracks owned and maintained by AGS, which run north and south. AGS owns a 100-foot right-of-way on either side of the tracks.
Testimony at the trial was that the crossing contained vegetation which obscured Pigford’s view of the northbound train as he turned onto Eastabuchie Road. A portion of the vegetation was located on AGS’s right-of-way.
The parties agreed the speed of the train and the actions by the crew were not an issue. The case continued on the theory that AGS negligently failed to maintain vegetation at the crossing.
A video camera mounted in the front of the train recorded the accident. According to the court record, the video showed that Pigford’s vehicle emerged from the vegetation and became visible when his vehicle was 3.3 seconds and 90 feet from the crossing. At this point, the train was 398 feet from the crossing.
The video showed Pigford was able to bring his vehicle to a stop, but that the front of his car was slightly on the tracks, according to the court record.
In its appeal, the railroad argued the Supreme Court had never recognized the duty of a railroad to maintain vegetation on its right-of-way. AGS said other courts have ruled that the failure to cut vegetation is not actionable negligence.
Justice Oliver Diaz, writing the majority opinion for the Supreme Court, said a reasonable and fair-minded jury could conclude that AGS negligently maintained its right-of-way and that was the cause of the accident.
“Not only should the driver be able to hear the train, he should also be able to see the train,” Diaz wrote.
Diaz said state law requires both drivers and train operators to exercise some caution at crossings.
“Expert testimony indicated that the vegetation which blocked Pigford’s line of sight as the train approached was excessive. The Legislature did not intend for courts to find drivers negligent as a matter of law as long as the train sounded its horn and the driver failed to stop,” Diaz wrote.
Diaz said it is clear a railroad has a duty to maintain vegetation on its right-of-way.
“The record contains substantial evidence, including a video/audio recording of the accident, which shows the vegetation that allegedly blocked Pigford’s line-of-sight,” he wrote. Presiding Justice Jim Smith, in a dissent joined by two other judges, said state law does not support a finding that Pigford must be able to both hear and see the train before he is required to stop at the crossing.
Smith said the record was clear that the train fulfilled its duty in blowing its whistle long before it reached the crossing. He said the trial judge should have advised the jury that a motorist has a duty to stop at a crossing and in failing to do so, the motorist bore some negligence.
“Under the majority’s reasoning a driver is required to stop if an electric or mechanical signal emits a warning, a gate is lowered or a flagman gives warning, a train whistles its warning and the train is visible. Why hold a driver responsible for stopping at all?” Smith said.
Smith said it should be obvious to motorists that a crossing with only a crossbuck sign on a post and a stop bar painted on the pavement is very likely the most dangerous of all crossings.
“Consequently, motorists must slow down and be prepared to stop, look, and listen prior to proceeding across the railroad tracks. Here, Pigford did none of the above until he was on the railroad tracks,” Smith wrote.