DIAZ, JUSTICE, FOR THE COURT:
¶ 1. The Estate of Freddie Lee, Jr. ("the Estate") instituted this wrongful death action against Alabama Great Southern Railroad ("AGS"), Amtrak, and Marvin Pigford ("Pigford") in the Circuit Court of Forrest County. Lee, a passenger in Pigford's vehicle, was killed when Pigford's vehicle collided with a train at a railroad crossing. Pigford, who was also injured in the accident, filed a cross-claim against AGS and Amtrak.
¶ 2. AGS and Amtrak removed the case to the United States District Court for the Southern District of Mississippi, Hattiesburg Division. The Estate and Pigford agreed to dismiss Amtrak from the action with prejudice, and the case was remanded to the circuit court. The Estate and Pigford voluntarily dismissed their claims for excessive speed and inadequate signalization. The case proceeded to trial on the theory that AGS negligently failed to maintain vegetation at the crossing. The jury returned a verdict in favor of the Estate against AGS, awarding the Estate $2.7 million in damages. The jury found for Pigford on the Estate's negligence claim against Pigford. The jury also found for Pigford on his cross-claim against AGS, awarding damages of $50,000. Judgment was entered accordingly. Following the circuit court's denial of its post-trial motions, AGS appealed to this Court.
FACTS
¶ 3. The accident in question occurred at 9:30 a.m. on June 18, 1997, at the Eastabuchie Crossing in Forrest County, Mississippi. Eastabuchie Road runs from east to west, perpendicular to the tracks owned and maintained by AGS, which run north and south. Approximately 150 feet west of the crossing, Eastabuchie Road intersects Highway 11 which runs north and south, parallel to the railroad tracks. AGS owns a 100-foot right-of-way on either side of the tracks.
¶ 4. On the morning in question, Pigford and Lee traveled south on Highway 11 and turned east on Eastabuchie Road. The train was traveling north at a speed of 79 mph. The southwest quadrant of 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.
¶ 5. The parties have stipulated that the speed of the train was not excessive and was within the applicable speed limit. It was also undisputed that the train blew its horn a half mile before the crossing, well before the whistle post, which is located a quarter mile before the crossing. The horn began sounding twenty seconds prior to impact and continued to sound until after the collision. The Estate and Pigford stipulated that the train's crew was not negligent in its operation.
¶ 6. As stated previously, the claims for inadequate signalization were dropped prior to trial. The signals located at the crossing were (1) a yellow advance warning sign containing the railroad symbol, located on Eastabuchie Road 110 feet west of the crossing, (2) a crossbuck sign located on Eastabuchie Road 15 feet from the crossing, and (3) pavement markings containing the railroad symbol, with a stop bar 18 feet from the crossing.
¶ 7. The speed limit on Eastabuchie Road is 55 mph. Pigford's vehicle was traveling at a speed of 20-25 mph. A video camera mounted in the front of the train recorded the accident. The video shows 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 demonstrates that Pigford was able to bring his vehicle to a stop, but that the front of his car was slightly on the tracks. Lee was killed as a result of the collision, and Pigford was injured.
¶ 8. Pigford, who lived near the crossing and was familiar with the crossing, testified that he remembered nothing after turning off of Highway 11 onto Eastabuchie Road. He did state that he and Lee were listening to a gospel tape in the car.
¶ 9. The six-day trial conducted by Circuit Judge Richard W. McKenzie began on January 18, 2000. The Estate and Pigford offered expert testimony that the vegetation in the southwest quadrant of the crossing obstructed Pigford's view of the tracks and that AGS failed to cut the vegetation to a distance adequate to allow safe crossing. It was the opinion of the plaintiffs' experts that the sight distance was insufficient to allow Pigford enough time to perceive the train and to avoid a collision. AGS offered expert testimony that the sight distance at the crossing was adequate had Pigford been approaching at a reasonable speed and had he been prepared to stop.
¶ 10. The circuit court denied AGS's motion for directed verdict at the close of the plaintiffs' case and at the close of AGS's defense. The court also refused AGS's request for a peremptory instruction as to Pigford's negligence in failing to stop at the crossing.
¶ 11. The jury returned a verdict for the Estate against AGS in the amount of $2.7 million and returned a verdict for Pigford in the amount of $50,000 on his cross-claim against AGS. The jury returned a verdict for Pigford on the Estate's claim against Pigford. On February 7, 2000, the circuit court entered a final judgment on the verdict. AGS timely filed a Motion for Judgment Notwithstanding the Verdict or, in the alternative, for a New Trial, or for a Remittitur. The post-trial motions were denied on April 4, 2000, and AGS filed its notice of appeal on May 3, 2000. AGS raises the following issues:
I. DID THE TRIAL COURT ERR BY DENYING AGS'S MOTIONS FOR DIRECTED VERDICT, REQUEST FOR A PEREMPTORY INSTRUCTION, AND MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.
II. DID THE TRIAL COURT ABUSE ITS DISCRETION BY DENYING AGS'S MOTION FOR A NEW TRIAL.
STANDARD OF REVIEW
¶ 12. This Court's standard of review for the denial of a judgment notwithstanding the verdict, peremptory instruction, and directed verdict is as follows:
[T]his Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men 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. The above standards of review, however, are predicated on the fact that the trial judge applied the correct law.
Steele v. Inn of Vicksburg, Inc .,
697 So.2d 373, 376 (Miss. 1997). This Court will reverse a trial court's denial of a request for new trial only when the denial amounts to an abuse of discretion.
Id . (citing
Shields v. Easterling ,
676 So.2d 293, 298 (Miss. 1996)).
DISCUSSION I.
¶ 13. AGS argues that the trial court erred by denying its motion for directed verdict, motion for judgment notwithstanding the verdict, and request for a peremptory instruction. First, AGS asserts that this Court has never recognized the duty of a railroad to maintain vegetation on its right-of-way. AGS urges this Court to align itself with other jurisdictions which hold that the failure to cut vegetation is not actionable negligence. See, e.g., Alabama Great S.R.R. v. Johnston , 199 So.2d 840, 844 (Ala. 1967). Contrary to AGS's assertion, this Court has recognized that a railroad has a duty to maintain vegetation on its right-of-way and that the failure to do so is actionable negligence. See Clark v. Illinois Cent. R.R ., 794 So.2d 191 (Miss. 2001); Kansas City S. Ry. v. Johnson , 798 So.2d 374 (Miss. 2001).
¶ 14. Second, AGS argues that Pigford's negligence was the sole proximate cause of the accident and that the failed to show that AGS negligently maintained its right-of-way. The evidence at trial as to the hazardous conditions at the crossing as well as the adequacy of the sight distance were questions for the jury. Viewing the evidence in the light most favorable to the Estate and Pigford, we find that reasonable and fair-minded jurors might have concluded that AGS negligently maintained its right-of-way and that AGS's negligence was the proximate cause of the accident.
¶ 15. AGS also argues that the trial court erred in refusing to instruct the jury that Pigford's violation of Miss. Code Ann. § 77-9-249 was negligence per se. AGS claims that Pigford breached both common law and statutory duties by failing to stop at the sound of the horn and when the train was visible. At common law, it was the duty of a driver to do that which was reasonably necessary to ascertain whether a train was approaching before driving onto the track. Columbus Greenville R. Co. v. Lee , 149 Miss. 543, 115 So. 782, 785 (1928). Today, the duties and obligations at railroad crossings, both on the part of drivers of automobiles and operators of railroads, are predominately a matter of statutory law. The principal statute that describes the duties of drivers is Miss. Code Ann. § 77-9-249, which provides, in pertinent part:
(1) Whenever any person driving a vehicle approaches a railroad grade crossing under any of the circumstances stated in this section, the driver of such vehicle shall stop within fifty (50) feet but not less than fifteen (15) feet from the nearest rail of such railroad, and shall not proceed until he can do so safely. The foregoing requirements shall apply when:
(a) . . . .;
(b) . . . .;
(c) A railroad train approaching within approximately nine hundred (900) feet of the highway crossing emits a signal in accordance with Section
77-9-225, and such railroad train, by reason of its speed or nearness to such crossing, is an immediate hazard;
(d) An approaching railroad train is plainly visible and is in hazardous proximity to such crossing.
(2) . . . .
(3) In the trial of all actions to recover personal injury or property damages, sustained by any driver of such vehicles for collision of said vehicle and train in which action it may appear that the said driver may have violated any of the provisions hereof,
the question of whether or not the said violation was the sole or approximate cause of the accident and injury shall be for the jury to determine.
The violation of this section shall not of itself defeat recovery, and the question of negligence or the violation aforesaid shall be left to the jury; and the comparative negligence statutes and prima facie statute of this state shall apply in these cases as in other cases of negligence.
(4) At any railroad grade crossing provided with visible railroad crossbuck signs without automatic electric or mechanical signal devices, crossing gates or a human flagman giving a signal of the approach or passage of a train, the driver of a vehicle shall, in obedience to such railroad crossbuck sign, yield the right-of-way and slow to a speed reasonable for the existing conditions, and shall stop if required for safety at a clearly marked stop line, or if no stop line, within fifty (50) feet, but not less than fifteen (15) feet, from the nearest rail of the railroad, and shall not proceed until he can do so safely. . . .
Miss. Code Ann. § 77-9-249 (2001) (emphasis added).
¶ 16. This Court has stated that § 77-9-249 imposes a duty upon the driver to stop when one of the enumerated conditions is met. Mitcham v. Illinois Cent. Gulf R.R ., 515 So.2d 852, 854 (Miss. 1987). Instruction P-19 informed the jury of the contents of the § 77-9-249, but the trial court refused instruction D-2, a peremptory instruction as to Pigford's negligence. AGS argues that Pigford's failure to stop at the sound of the horn violated § 77-9-249 and constituted negligence per se. We find that the trial court did not err by refusing to instruct the jury that Pigford's violation of § 77-9-249 was negligence per se.
¶ 17. Subsection (3) of § 77-9-249 takes a violation of this statute outside the realm of negligence per se and makes it a jury question. The section clearly states that "the question of negligence or the violation of aforesaid shall be left for the jury." In spite of this statutory provision, the dissent argues that because the train sounded its whistle in accordance with the statute, the jury should have received an instruction on negligence per se due to Pigford's failure to stop. The dissent completely ignores the provision on negligence. Based on the clear language of the statute, any instructions involving negligence per se would have been a direct rejection of statutory law.
¶ 18. The dissent would have this Court adopt a rule that states that as long as the train fulfilled its duty in blowing its whistle, then regardless of the train's visibility, the driver's failure to stop is negligence per se. This is dangerous for drivers who approach railroad crossings in which there is no duty to stop. Not only should the driver be able to hear the train, he should also be able to see the train. Miss. Code Ann. § 77-9-249(d). Under subsection (d), the Legislature provided that the approaching train must also be plainly visible before the driver has a duty to come to a complete stop. Under the dissent's reasoning, so long as the train blows its horn, it would not matter whether a fast traveling train was visible at a railroad crossing that is without the benefit of a stop sign, stop lights, warning lights, or stop beam. According to the dissent, even if Pigford could not hear the train and failed to stop before the crossing, then he was negligent as a matter of law, regardless of whether he could see the train. This logic creates a duty for the driver to be able to hear the train, despite whatever forces might cause the train's horn to be unheard.
¶ 19. The train approached at approximately 79 miles per hour through an intersecting road with nothing other than its horn and a clear line-of-sight to warn drivers of its approach. As evidenced by the record and audio/video recording, Pigford's speed was not excessive. He approached the crossing traveling at about 20 mph. According to experts, Pigford had only 3.3 seconds from the time the train was visible until he was able to stop just a few feet over the railroad tracks. 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.
¶ 20. A railroad has a duty to maintain vegetation on its right-of-way and that failure to do so is actionable negligence. Clark , 794 So.2d at 195. 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. This Court has stated that "[t]he nature of the obstruction and whether one must come dangerously close to the crossing before being able to see the train are factual questions to be resolved by the finder of fact." Id . The jury was aware of the requirements of Miss. Code Ann. § 77-9-249, and the jury was left with the sole responsibility of weighing the evidence and determining whether negligence existed. The trial court's refusal to grant AGS an instruction on negligence per se did not affect the jury's consideration of the sole or approximate negligence attributable to parties in this case.
¶ 21. Furthermore, the trial judge gave the jury an instruction on apportionment of damages. The amounts of damages awarded in this case, $2.7 million to the estate and $50,000 to Pigford, appears to illustrate the juries consideration of the negligence attributable to the parties. The jury effectively reduced Pigford's damages to $50,000, presumably, in consideration of any negligence attributable to Pigford.
¶ 22. In its motion for judgment notwithstanding the verdict, AGS argued that Pigford's negligence was the sole proximate cause of the accident. As stated in § 77-9-249, the violation of the statute does not itself defeat recovery, and the question of whether a violation is the sole or proximate cause of the accident and injury is for a jury to determine.
¶ 23. The plaintiffs' experts, Al Gonzales and Brett Alexander, testified that the sight triangle at the crossing was inadequate based on the speed of the train and the speed of Pigford's vehicle. Both testified that Pigford did not have enough time, distance, or opportunity to see the train, decide what to do, and carry out that decision. As demonstrated by a video recording of the accident, Pigford had between 3.3 and 3.4 seconds to see and react to the oncoming train. Gonzales testified that Pigford saw the train as soon as he could have been expected to see it.
¶ 24. George Dase, a bush-hog operator employed by AGS, testified that AGS did not inform him as to how far back to cut the vegetation at its crossings. He stated that he just followed the pattern established in years before. David Bankston, track supervisor for AGS, testified that he is responsible for care of the track, road bed, and right-of-way. He stated that he received no formal training from AGS regarding proper sight distances at the crossings.
¶ 25. Evidence as to the hazardous conditions of the crossing as well as the adequacy of the sight distance were clearly questions for the jury. As we stated recently in Clark :
Ordinary care requires the railroad company to meet the unusual conditions of a railroad crossing with unusual precautions, particularly where the dangerous condition results from obstructions of view which prevent a traveler from seeing an approaching train until he is dangerously close to the track. The nature of the obstruction and whether one must come dangerously close to the crossing before being able to see the train are factual questions to be resolved by the finder of fact.
794 So.2d at 192 (citations omitted).
¶ 26. AGS's also argues that the plaintiffs' vegetation claim is preempted by federal law. This argument is without merit. AGS first contends that because signalization issues are federally preempted, the vegetation claims are also barred. AGS asserts that the determination of which signals to install at a crossing takes into consideration limited sight distance. This argument was rejected by this Court in Clark . Id . at 193-94
¶ 27. Next, AGS argues that 49 C.F.R. § 213.37 (1994) covers the subject matter of vegetation. 49 C.F.R. § 213.37 provides:
Vegetation on railroad property which is on or immediately adjacent to roadbed must be controlled so that it does not — (a) Become a fire hazard to track-carrying structures; (b) Obstruct visibility of railroad signs and signals; (c) Interfere with railroad employees performing normal trackside duties; (d) Prevent proper functioning of signal and communication lines; or (e) Prevent railroad employees from visually inspecting moving equipment from their normal duty stations.
The record demonstrates that the vegetation near the Eastabuchie crossing was not on or immediately adjacent to the roadbed. Caselaw from other jurisdictions supports the interpretation that this section preempts state law claims only where vegetation is on or immediately adjacent to the roadbed. Easterwood v. CSX Transp. Inc ., 933 F.2d 1548 (11th Cir. 1991), affirmed on other grounds, 507 U.S. U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993); Missouri Pac. Ry. v. Railroad Comm'n of Texas , 833 F.2d 570 (5th Cir. 1987). Also, the regulation does not speak to the duty, which has been recognized by this Court, of the railroad to control vegetation so that it does not obstruct a motorist's visibility of oncoming trains. It speaks only to obstructing the visibility of signs and signals. And, again, this Court has already held that the fact that signalization issues are preempted does not preempt vegetation claims. Clark, 794 So.2d at 194.
¶ 28. Finally, AGS argues that because excessive speed claims are preempted, vegetation claims are preempted as well. AGS contends that obstructions by vegetation are considered when speed limits for trains are promulgated. This is essentially the same argument as that regarding signalization issues, which this Court expressly rejected in Clark . It is likewise without merit.
II.
¶ 29. AGS argues that the trial court abused its discretion in denying its motion for a new trial. AGS argues that the trial court erred in refusing instruction D-2. As discussed above, the trial court did not err in refusing to instruct the jury that Pigford's violation of § 77-9-249 was negligence per se. Accordingly, the judgment against AGS should be affirmed. All remaining allegations of error are without merit or are procedurally barred for failure to make a contemporaneous objection.
CONCLUSION
¶ 30. The trial court did not err in denying the motion for directed verdict, motion for judgment notwithstanding the verdict, and request for a peremptory instruction. The jury was properly instructed as to the requirements and duties of AGS and Pigford under Miss. Code Ann. § 77-9-249. The judgment against AGS is affirmed.
¶ 31. AFFIRMED.
McRAE, P.J., EASLEY AND GRAVES, JJ., CONCUR. CARLSON, J., CONCURS IN RESULT ONLY. SMITH, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER AND COBB, JJ. PITTMAN, C.J., NOT PARTICIPATING.