                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2004-CA-00876-SCT

FRANCES MARY (ROBBINS) RICHARDSON,
INDIVIDUALLY AND AS ADMINISTRATRIX OF
THE ESTATE OF MICHAEL RAY ROBBINS, II,
DECEASED

v.

NORFOLK SOUTHERN RAILWAY COMPANY


DATE OF JUDGMENT:                          03/26/2004
TRIAL JUDGE:                               HON. THOMAS J. GARDNER, III
COURT FROM WHICH APPEALED:                 ALCORN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   JOHN W. CHANDLER, JR.
                                           PAMELA R. O’DWYER
                                           PHIL R. HINTON
ATTORNEYS FOR APPELLEE:                    STEPHANIE CAMILLE REIFERS
                                           EVERETT B. GIBSON
NATURE OF THE CASE:                        CIVIL - PERSONAL INJURY
DISPOSITION:                               AFFIRMED - 01/19/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE WALLER, P.J., EASLEY AND CARLSON, JJ.

       CARLSON, JUSTICE, FOR THE COURT:

¶1.    This wrongful death case arises from an accident in which a train collided with a car

crossing the railroad tracks at a grade crossing. The driver of the car, Michael Ray Robbins,

died as a result of his injuries from the accident. His mother, Frances Mary (Robbins)

Richardson, sued both Alcorn County, the county in which the incident occurred, and
Norfolk Southern Railway Company for negligence. Alcorn County prevailed on its motion

for summary judgment, leaving Norfolk Southern the remaining defendant.1 At trial, the jury

returned a verdict for Norfolk Southern, and the trial court entered judgment consistent with

the jury verdict. Richardson now appeals to us, asserting error in the trial court’s entry of its

final judgment in favor of Norfolk Southern. Finding no reversible error, we affirm.

                   FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.    On May 10, 1999, sixteen year old Michael Ray (Mikie) Robbins was driving over a

railroad grade crossing on County Road 715 in Alcorn County when a Norfolk Southern

Railway Company train struck his car. Mikie died as a result of the injuries sustained in the

collision. The grade crossing was equipped with passive warning devices, such as advance

warning signs and pavement markings, but not active warning devices, such as flashing

signal lights and automatic gates. Additionally, there was limited visibility to drivers at the

grade crossing because of an embankment, grass, trees, and debris which obstructed the view

on the right of way. Richardson, Mikie’s mother and administratrix of his estate, brought suit

against Norfolk Southern, and later amended the complaint to add Alcorn County as a

defendant. In her amended complaint, Richardson alleged that Alcorn County negligently

maintained the crossing by failing to provide adequate active warning devices; failing to

properly maintain the passive warning devices; and failing to remedy the overgrown

conditions which limited visibility at the grade crossing. The basis of the complaint against



       1
           Richardson does not appeal from the trial court’s grant of summary judgment as to Alcorn County.

                                                     2
Norfolk Southern was also negligent maintenance for the inadequate signal and the

overgrown conditions; Richardson also asserted that Norfolk Southern was negligent in

failing to sound the horn and to properly operate the train due to the train’s excessive speed

at a grade crossing known to be dangerous.

¶3.    Because the passive devices had been installed with federal funds, Alcorn County

prevailed on its motion for summary judgment on the ground that federal regulations

preempted state tort law. The trial court found Richardson’s claim that the signalization was

inadequate was preempted by the Federal Railroad Safety Act, and that Alcorn County had

no duty to maintain the obstructed right-of-way as it was privately owned.

¶4.    After the trial court granted Alcorn County’s motion for summary judgment,

Richardson filed a second amended complaint against Norfolk Southern. Norfolk Southern

filed a motion for partial summary judgment, alleging, inter alia, the same grounds as Alcorn

County – that federal law preempted state tort law. The trial court granted partial summary

judgment on the issue of adequate signalization, finding the issue of the adequacy of crossing

warning devices was deemed to be preempted by federal law; however, the trial court found

its ruling on this issue would not preclude Richardson “from contending at trial that [Norfolk

Southern] negligently failed to properly maintain the passive warning devices at that location

in good condition and failed to properly maintain the right-of-way belonging to the railroad

at the scene.” The trial court additionally found the excessive speed claim was preempted by

federal law. By denying, in part, Norfolk Southern’s motion for partial summary judgment,



                                              3
the trial court permitted Richardson to proceed to trial on her claims that Norfolk Southern

(1) failed to properly maintain the passive warning devices at the scene in good condition;

and, (2) failed to properly maintain the railroad right-of-way at the scene.

¶5.      In response to Richardson’s efforts to introduce certain evidence at trial, Norfolk

Southern filed a pre-trial motion in limine to exclude evidence of two other accidents

involving Matthew Bradley and Wendy McClure. The trial court granted this motion, thus

excluding evidence of these other accidents.

¶6.      At trial, Richardson submitted proposed jury instructions P-12 and P-22, regarding

the duties of a motorist at a grade crossing; however, the trial court refused them and instead

gave jury instructions C-20 and C-21. Because Norfolk Southern employees never properly

recovered the event recorder data, Richardson also submitted jury instruction P-16, regarding

spoliation of evidence, but the trial court refused to give that instruction. On appeal,

Richardson claims that the trial court erred in (1) granting partial summary judgment on the

federal preemption issue; (2) excluding evidence of prior accidents at the same railroad

crossing; and, (3) refusing three jury instructions which she submitted.

                                        DISCUSSION

         I.     FEDERAL PREEMPTION OF STATE LAW

¶7.      Richardson pursued this action against Norfolk Southern on tort theories of liability.

Norfolk Southern’s defense included an assertion that federal law preempted Richardson’s

claim.



                                               4
¶8.    We review de novo a grant of summary judgment under Miss. R. Civ. P. 56. Leffler

v. Sharp, 891 So.2d 152, 156 (Miss. 2004). A motion for summary judgment should be

granted only when no genuine issue of material fact exists, and the moving party is entitled

to a judgment as a matter of law. Miss. R. Civ. P. 56(c). The movant has the burden of

showing that no genuine issue of material fact exists, giving the non-movant the benefit of

the doubt as to the existence of any genuine issues of material facts. McCullough v. Cook,

679 So.2d 627, 630 (Miss. 1996). However, in Richmond v. Benchmark Constr. Corp., 692

So.2d 60, 62 (Miss. 1997), this Court also said: “[t]he party opposing the motion must be

diligent.” Mere reliance on the allegations or denials in the pleadings is not sufficient; but

instead, the party opposing the motion is required to set forth specific facts showing that

genuine issues for trial do exist. Id.

¶9.    This Court must also view the evidence in the light most favorable to the party against

whom the motion has been made. Leffler, 891 So.2d at 156. A motion for summary

judgment is not a substitute for a trial of disputed fact issues. Owens Corning v. R.J.

Reynolds Tobacco Co., 868 So.2d 331, 335 (Miss. 2004). On a Rule 56 motion, this Court

must only determine if there are issues to be tried; we need not actually try those issues. Id.

The mere presence of fact issues in the record does not entitle a party to avoid summary

judgment per se. Id. “‘The court must be convinced that the factual issue is a material one,

one that matters in an outcome determinative sense . . . the existence of a hundred contested

issues of fact will not thwart summary judgment where there is no genuine dispute regarding



                                              5
the material issues of fact.’” Leffler, 891 So.2d at 156 (quoting Simmons v. Thompson

Mach. of Miss., Inc., 631 So.2d 798, 801 (Miss. 1994) (citing Shaw v. Burchfield, 481

So.2d 247, 252 (Miss. 1985)); see also, Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.

1983). Finally, issues of law are subject to de novo review by this Court. Andrus v. Ellis,

887 So.2d 175, 179 (Miss. 2004).

¶10.   The Code of Federal Regulations requires “adequate warning devices” be installed on

any railroad-highway grade crossing that is part of a federal-aid highway project before the

crossing is opened. 23 C.F.R. § 646.214(b)(2) (2005). Where federal-aid funds were used

for installation of the warning devices, “adequate warning devices” include active signal

devices, or “automatic gates with flashing light signals,” but only when one of six conditions

exists. 23 C.F.R. § 646.214(b)(3). When those six conditions do not exist, the Federal

Highway Administration must approve the warning device. 23 C.F.R. § 646.214(b)(4).

¶11.   Recognizing that federal law preempts a state law when the two are in conflict, the

United States Supreme Court found in CSX Transportation, Inc. v. Easterwood, 507 U.S.

658, 670, 113 S.Ct. 1732, 1740-41, 123 L.Ed.2d 387 (1993), that when 23 C.F.R. §§

646.214(b)(3) and (4) are applicable, these federal regulations preempt state tort law. In that

wrongful death case, which also arose out of a train-automobile collision, the Court found

the regulations did not apply because the party raising the defense failed to establish their

applicability. The Easterwood Court held the federal regulation must “cover” the same

subject matter and not merely touch upon it or relate to it. Id at 664.



                                              6
¶12.   The United States Supreme Court later, in a case with facts similar to Easterwood and

this case, held the Federal Railway Safety Act (FRSA), in conjunction with §§ 646.214(b)(3)

and (4), preempts state tort law actions against a railway company for failing to maintain

adequate warning devices at crossings where federal funds were used for installation of the

warning devices. Norfolk Southern Railway Co. v. Shanklin, 529 U.S. 344, 347, 120 S.Ct.

1467, 1471, 146 L.Ed.2d 374 (2000). The Court also held that, “Sections 646.214(b)(3) and

(4) ‘cover the subject matter’ of the adequacy of warning devices installed with the

participation of federal funds.” Id. at 358. The Court likewise found the FRSA preempted

the state tort claim that the advance warning signs and reflectorized crossbucks installed at

the grade crossing in that case were inadequate. Id.

       Because the [Tennessee Department of Transportation] used federal funds for
       the signs’ installation, §§ 646.214(b)(3) and (4) governed the selection and
       installation of the devices. And because the TDOT determined that warning
       devices other than automatic gates and flashing lights were appropriate, its
       decision was subject to the approval of the [Federal Highway Administration].
        See § 646.214(b)(4). Once the FHWA approved the project and the signs were
       installed using federal funds, the federal standard for adequacy displaced
       Tennessee statutory and common law addressing the same subject, thereby pre-
       empting respondent’s claim.

Id. at 358-359.

¶13.   Richardson argues that a prior decision of this Court dispels Norfolk Southern’s

defense. In Kansas City Southern Ry. Co., Inc. v. Johnson, 798 So.2d 374, 379 (Miss.

2001), we stated: “[b]efore federal law will preempt a state law there must be proof that

federal-aid funds were used in the installation of devices including automatic gates with



                                             7
flashing light signals when one or more of several conditions exist.” That much is true -

proof is required. However, Richardson asserts the rule in Johnson is that two factual

elements are needed for federal preemption – federal approval and federal funding. A close

reading of Johnson reveals it does not stand for this proposition. In Johnson, this Court

found no federal preemption because of the lack of proof after a “careful examination of the

record.” Id. at 379. In Johnson, we reiterated that “there must be more than the existence

of a plan in that the plan must also have been implemented.” Id. (citing Pearson v.

Columbus & Greenville Railway Co., 737 So.2d 390, 396 (Miss. Ct. App. 1998)). In today’s

case, Norfolk Southern relied on documents with a federal aid approval number and

affidavits of former Mississippi Department of Transportation Employee Stephen Edwards,

to prove federal funds were used for installation of the warning devices. Richardson called

into question the authenticity of the document with the federal-aid funding number on it,

alleging Norfolk Southern had altered it, changing a 5 to a 6, but she never explained why

that would mean the document was no longer proof of federal-aid funding.

¶14.   Finally, Richardson claims that where there is no remedy, there is a presumption

against federal preemption, relying on Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251,

104 S.Ct. 615, 623, 78 L.Ed.2d 443 (1984). Silkwood dealt with the preemption of punitive

damages and, more specifically, addressed congressional intent when there is a lack of a

federal remedy, not merely the lack of any remedy. The U.S. Supreme Court in Easterwood

found federal preemption would not lie unless it was the clear and manifest purpose of



                                             8
Congress to do so, but also noted in its statutory construction analysis that the plain wording

of the regulation is the starting point to find the congressional intent behind the rule.

Eastwood, 507 U.S. at 664. In Easterwood, the Supreme Court stated:

       In the interest of avoiding unintended encroachment on the authority of the
       States, however, a court interpreting a federal statute pertaining to a subject
       traditionally governed by state law will be reluctant to find pre-emption. Thus,
       pre-emption will not lie unless it is "the clear and manifest purpose of
       Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146,
       1152, 91 L.Ed. 1447 (1947). Evidence of pre- emptive purpose is sought in the
       text and structure of the statute at issue. Shaw v. Delta Air Lines, Inc., 463
       U.S. 85, 95, 103 S.Ct. 2890, 2898, 77 L.Ed.2d 490 (1983). If the statute
       contains an express pre-emption clause, the task of statutory construction must
       in the first instance focus on the plain wording of the clause, which necessarily
       contains the best evidence of Congress' pre-emptive intent.

Id. at 663-64. Looking to the text of 23 C.F.R. §§ 646.214(b)(3) & (4), the Easterwood

Court found those provisions preempted state tort law when they were applicable. Id. at 669.

¶15.   For these reasons, we are firmly convinced the trial court correctly applied federal

preemption law to Richardson’s claims of inadequate signalization. We thus find this issue

to be without merit.

       II.    ADMISSIBILITY OF PRIOR ACCIDENTS

¶16.   Richardson asserts the trial court erred in excluding evidence at trial of two other

accidents at this same grade crossing.      The standard of review for the admission or

suppression of evidence in Mississippi is abuse of discretion. Miss. Transp. Comm’n v.

McLemore, 863 So.2d 31, 34 (Miss. 2003). Using an abuse of discretion standard, the trial

judge’s decision will stand unless we find the judge’s exercise of such discretion was



                                              9
arbitrary and clearly erroneous. Id. A trial judge’s findings of fact must be manifestly wrong

and against the overwhelming weight of the evidence for an appellate court to disturb them.

Miss. Dept. of Transp. v. Cargile, 847 So.2d 258, 263 (Miss. 2003). The rule has been long

established in Mississippi that evidence of prior accidents may be introduced at trial to show

two things: (1) the existence of a dangerous condition; and, (2) the defendant’s notice or

knowledge of such dangerous condition. Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936

(Miss. 2002); see also Miss. R. Evid. 404(b). However, evidence of prior accidents will only

be admitted upon a showing of substantial similarity of conditions. Yoste, 822 So.2d at 936.

This Court has made it clear that when evidence of other accidents is introduced, it may not

be too remote in time from the accident in issue. Illinois Cent. R.R. v. Williams, 135 So.2d

831, 839 (Miss. 1961). We found in Williams that “other accident” evidence occurring

within nine months of the subject of the dispute was not too remote in time for the evidence

to be inadmissible. Id. This Court has also found “other accident” evidence occurring over

time periods less than one year close enough in time to be admissible. Barrett v. Parker, 757

So.2d 182, 188-89 (Miss. 2000) (one year); S.H. Kress & Co. v. Markline, 77 So.2d 858, 864

(Miss. 1918) (two years).

¶17.   Turning to this case, Richardson attempted to introduce evidence of a prior accident

which occurred at this same grade crossing on December 12, 1985. This prior accident

involving Matthew Bradley occurred over thirteen years prior to Mikie’s accident on May

10, 1999. The other accident, involving Wendy McClure, occurred in January, 2003, over



                                             10
three and one-half years after Mikie’s accident. Richardson argues that because both

McClure and Bradley were traveling west across the same grade crossing when a Norfolk

Southern train traveling north collided with their cars, the accidents are substantially similar

and thus admissible. We do not agree. This Court has never found a period of time such as

over thirteen-years close enough in time to be admissible. One accident occurring at the

same location over thirteen years before Mikie’s accident does not necessarily show an

existence of a dangerous condition or that the defendant had notice or knowledge of a

dangerous condition. Also, conditions at the scene obviously change over such a long period

of time. Likewise, an accident occurring at the same location more than three and one-half

years after Mikie’s accident could not possibly be relevant to prove that a yet-to-happen 2003

accident put Norfolk Southern on notice in 1999 that a dangerous condition existed at the

grade crossing at the time of Mikie’s accident.

¶18.   For these reasons, we find the trial court did not abuse its discretion in excluding this

“other accident” evidence. In excluding this evidence, the trial court’s action was neither

arbitrary, nor clearly erroneous, nor was it manifestly wrong and against the overwhelming

weight of the evidence. This issue is thus without merit.

       III.   REFUSED JURY INSTRUCTIONS

¶19.   When we review a claim of trial court error in granting or denying jury instructions,

we are required to read and consider all of the jury instructions together as a whole. Burr

v. Mississippi Baptist Medical Center, 909 So.2d 721, 726 (Miss. 2005). No instruction



                                              11
should be taken out of context or read alone in isolation. Id. “[T]he trial judge may also

properly refuse the instructions if he finds them to incorrectly state the law or to repeat a

theory fairly covered in another instruction or to be without proper foundation in the evidence

of the case.” Id. When reading the instructions as a whole, this Court must determine

whether the jury was properly instructed. Burton ex rel. Bradford v. Barnett, 615 So.2d

580, 583 (Miss. 1993). This proposition stands even if one specific instruction may be

arguably faulty.   “Defects in specific instructions do not require reversal ‘where all

instructions taken as a whole fairly-although not perfectly - announce the applicable primary

rules of law.’” Id. (citations omitted). On the other hand, we are required to find reversible

error if the instructions in any given case, when considered together as a whole, do not fairly

and adequately instruct the jury.

       A. INSTRUCTIONS P-12 AND P-22

¶20.   Richardson submitted two proposed jury instructions, numbers P-12 and P-22, to be

considered by the trial court.

¶21.   Instruction P-12 stated:

       This Court instructs you that whenever any person driving a vehicle
       approaches a railroad grade crossing when an approaching railroad train is
       plainly visible and in hazardous proximity to such crossing the driver of such
       vehicle has a duty to stop not less than 15 feet from the nearest rail of such
       railroad, and not to proceed until he can do so safely.

       If you find that Mikie Robbins was also negligent and that his negligence was
       a contributing proximate cause of the May 10, 1999 collision at the County
       Road 715 railroad crossing then you shall reduce the amount of the verdict for
       the Plaintiff according to the Mississippi law of comparative negligence.

                                              12
¶22.   Instruction P-22 stated:

       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 proximate cause of the accident and injury shall be for the jury to
       decide. 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.

¶23.   Although the trial court refused these two instructions, the trial court did give

instructions C-20 and C-21. Instruction C-20 stated:

       The law requires that when any person driving a vehicle approaches a railroad
       grade crossing, he 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, under the following circumstances:

       (1) When there is railroad train (sic) approaching within approximately nine
       hundred (900) feet of the highway crossing emits a signal in accordance with
       the law, and such railroad train, by reason of its speed or nearness to such
       crossing, is an immediate hazard;

       (2) An approaching railroad train is plainly visible and is in hazardous
       proximity to such crossing.

¶24.   Instruction C-21 stated:

       The law requires that at any railroad grade crossing provided with visible
       railroad crossbuck signs, 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.




                                               13
¶25.    While Richardson’s proposed instruction P-12 mirrored Miss. Code Ann. § 77-9-

249(1)(d), it was an incomplete statement of the law, confusing, and misleading. In applying

this instruction, the jury would have been required to find that Mikie had a statutory duty to

stop at the crossing only if the train was plainly visible and in hazardous proximity to the

crossing. Conversely, according to instruction P-12, if the jury found the train was not

plainly visible, Mikie was not under a statutory duty to stop at the crossing. This is an

incorrect and incomplete statement of the law. Miss. Code Ann. Section 77-9-249(1) (Rev.

2001) states:

        (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) A clearly visible electric or mechanical signal device gives
                warning of the immediate approach of a railroad train;

                (b) A crossing gate is lowered or when a human flagman gives
                or continues to give a signal of the approach or passage of a
                railroad train;

                (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

        2
         This statute has since been amended, inter alia, by adding “or” after the semicolon at the end of
subsections (a), (b), and (c).

                                                   14
¶26.   In Alabama Great Southern R. Co. v. Lee, 826 So.2d 1232 (Miss. 2002), we

addressed the statute as it existed at the time of Mikie’s accident and stated that Section 77-9-

249 imposed upon a driver approaching a grade crossing the duty to stop “when one of the

enumerated conditions is met.” Id. at 1237 (citing Mitcham v. Illinois Cent. Gulf R. R., 515

So.2d 852, 854 (Miss. 1987)). Therefore, the trial court correctly refused instruction P-12

and correctly gave the court’s instruction C-20, which informed the jury that a driver, such

as Mikie, had a statutory duty to stop, not only if a train was plainly visible and was in

hazardous proximity to the crossing, but also, if a train was approaching within

approximately nine-hundred feet of the crossing while emitting a signal pursuant to statute

and that the train, due to its speed or close proximity to the crossing, was an immediate

hazard.

¶27.   The trial court was equally correct in giving instruction C-21 which merely informed

the jury that a driver, such as Mikie, was required to slow to a reasonable speed in

approaching a grade crossing with railroad crossbuck signs, and to stop, if necessary for

safety purposes, and to then proceed only upon being able to do so safely. The record

supported the giving of this instruction, which was a correct statement of the law. See Miss.

Code Ann. § 77-9-249(4).

¶28.   Richardson also submitted instruction P-22, which was basically a verbatim recitation

of Miss. Code Ann. Section 77-9-249(3). This statute states:

       (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

                                               15
       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.

Miss. Code Ann. § 77-9-249(3) (Rev. 2001).

In refusing this instruction, the trial court quite appropriately found, inter alia, that this

instruction included “a section out of the Mississippi Code which I consider to be a directive

to the court in the trial of the case and not the subject of an instruction to the jury.” This

statute provides, inter alia, that even if a driver of a vehicle which collides with a train

violates any of the statutory duties enumerated in Section 77-9-249, such statutory violations

will not, in and of themselves, bar recovery, but instead the jury may still determine the

negligence issues by utilizing our familiar comparative negligence statutes. The trial judge

ensured the jury would have this opportunity when he gave and read to the jury instruction

number C-23, which stated:

       This Court instructs the jury that, if you find from a preponderance of the
       evidence, that Mikie Robbins and Norfolk Southern Railway Company were
       both negligent, and that the negligence of both parties was a proximate
       contributing cause of the May 10, 1999 collision, you must return a verdict for
       the plaintiff. However, you must reduce any award that you would otherwise
       make for the Plaintiff by the percentage of negligence that you attribute to
       Mikie Robbins.

¶29.   In sum, when we consider all of these instructions as a whole, the jury was properly

and adequately instructed on all relevant points of law. Thus, this issue is without merit.



                                              16
        B. INSTRUCTION P-16

¶30.    The event recorder on the lead locomotive unit of the train involved in this accident

was never recovered. Federal law requires any train operating faster than 30 miles per hour

to have an in-service event recorder. 49 CFR § 229.135 (2005). The regulation requires the

railroad to preserve the data on the event recorder and provide it to the Federal Railroad

Administration or the National Transportation Safety Board if an accident occurs. The

regulation also provides rules for how the train should respond to a defective recorder and

how the recorder may be removed from service. Id. Civil penalties exist for anyone who

willfully removes or tampers with an event recorder. Id.3 Richardson believed this event

recorder would contain valuable evidence concerning whether the engineer properly sounded

the horn for the required statutory distance.            Thus, Richardson submitted a proposed

spoliation of evidence jury instruction. The trial court refused Richardson’s proposed jury

instruction number P-16, which stated:

        The Court instructs the jury that, if you find from a preponderance of the
        evidence that:

                1. Employees of Norfolk Souther Railway Company
                intentionally removed the event recorder or “black box” from
                the lead locomotive after the May 10, 1999 collision; or
                2. Norfolk Southern Railway Company negligently failed to
                secure the data on that black box causing it to be destroyed,
                misplaced, last (sic), or otherwise unavailable for use at this
                trial; you should presume that said black box contained evidence
                that was unfavorable to Norfolk Souther Railway Company.

        3
         There is no evidence in the record that the non-party, Union Pacific, much less, Norfolk Southern,
willfully removed or tampered with the event recorder.

                                                   17
As authority for this instruction, Richardson relied on Thomas v. Isle of Capri Casino, 781

So.2d 125 (Miss. 2001), and DeLaughter v. Lawrence Co. Hospital, 601 So.2d 818 (Miss.

1992). These cases indeed state that when evidence is lost or destroyed by a party, thus

hindering another party’s ability to prove his or her case, a presumption is raised that this

missing information would have been unfavorable to the party responsible for the loss or

destruction of such evidence. Thomas, 781 So.2d at 133-34; DeLaughter, 601 So.2d at

821-23.

¶31.   However, a careful review of Thomas and DeLaughter reveals that these cases are

clearly factually distinguishable from our case today. In Thomas, a casino patron claimed

to have hit the “Cool Millions” jackpot on slot machine number 2947, not once, but twice,

during the course of gambling which continued from late evening into the early morning

hours of the next day. According to the patron, on each occasion, bells were ringing,

whistles were blowing, and lights were flashing; and, likewise, on each occasion, casino

employees approached the slot machine and cleared the machine, claiming that the patron

had not hit the jackpot. During the time that the casino patron was appealing to circuit court

the Gaming Commission’s denial of his claim, the casino removed slot machine number 2947

from the floor, replaced the Central Processing Unit (CPU) from machine number 2947, and

placed the CPU into another machine as a “backup board,” thus destroying any information

which could have been dispositive as to the issue of whether the patron had indeed hit the

jackpot. In addressing this issue, we stated, inter alia:



                                              18
       The Isle and CDS [Casino Data Systems] argue that the negative presumption
       raised by spoliation “may only be drawn when the destruction is unexplained
       or deliberate.” However, the information contained in machine 2947 was not
       lost by act of God or in a fire, but was destroyed by the actions of Isle and
       CDS when at least one of them was aware of the pending dispute.

       If not intentional, their actions were at least grossly negligent. The casino was
       under a statutory duty to contact the Commission when it became clear that the
       dispute had not been resolved to Thomas's satisfaction. Had the Isle done so,
       a more thorough investigation may have ensued, and the slot machine would
       have been preserved. Therefore, it cannot be said that the information
       contained in the CPU of machine 2947 was lost through no fault of the Isle or
       CDS.

       Requiring an innocent litigant to prove fraudulent intent on the part of the
       spoliator would result in placing too onerous a burden on the aggrieved party.
       To hold otherwise would encourage parties with weak cases to “inadvertently”
       lose particularly damning evidence and then manufacture “innocent”
       explanations for the loss. In this way, the spoliator could essentially destroy
       evidence and then require the innocent party to prove fraudulent intent before
       the destruction of the evidence could be used against it.

Thomas, 781 So.2d at 133.

¶32.   In DeLaughter, a daughter commenced a wrongful death suit against certain doctors

and a hospital for her mother’s death. Critical hospital records were lost and at trial, the

plaintiff submitted three spoliation of evidence instructions, all of which were refused by the

trial court. This Court addressed this issue by stating, inter alia:

       The evidence in this case shows that the Hospital refused to release Ms.
       Lambert's medical records to her family without proper authorization. On
       March 5, 1985, after the death of Ms. Lambert, the Director of Nurses at
       Lawrence County Hospital instructed the records custodian to lock up Ms.
       Lambert's record so that the family could not get them. When the records
       custodian attempted to comply with the instructions, she discovered that Ms.
       Lambert's hospital records were missing.



                                              19
The records had last been seen in the Hospital two or three days prior to March
5, 1985, sitting in Dr. Pace's box awaiting dictation of Ms. Lambert's discharge
summary. Upon discovery that the chart was missing, the Hospital set about
reconstructing the file by gathering copies of items from the various medical
departments within the Hospital. When reconstructed, the chart was
incomplete, lacking the medical history or physical assessment taken by Dr.
Collins on Ms. Lambert's admission to the Hospital on February 2, and the
“nurses' progress notes” compiled during Ms. Lambert's hospitalization from
February 2 through the morning of February 4 when Ms. Lambert was
transferred to St. Dominic Hospital. One of the “nurses' progress notes”
contained the ICU nurse's observations of Ms. Lambert from 10:00 p.m. on
February 3 until 1:30 a.m. on February 4.

This issue concerns what the jury was entitled to hear and what instruction
should have been given regarding the reconstructed medical records. The jury
was entitled to be told the original hospital record would not be produced in
court, as that was a relevant fact. The hospital had the duty to give an adequate
explanation for the absence of the original hospital record. Therefore, the jury
was entitled to be told why the original hospital record was missing, also a
relevant fact.

As with any other evidence, the explanation for the original record's absence
may be fully satisfying either that it was lost through no fault of the hospital,
that the hospital deliberately destroyed it, or as in most cases, somewhere in
between, thereby making it a jury issue. For example, where the evidence is
positive that the hospital had been destroyed by fire, such circumstance would
adequately account for the loss of the original medical record without fault
attributable to the hospital, and there would be no reason for the jury to be
instructed on a presumption or inference arising from the loss.

On the other hand, where the evidence is positive that the hospital deliberately
destroyed the original medical record or where a record required by law to be
kept is unavailable due to negligence, an inference arises that the record
contained information unfavorable to the hospital, and the jury should be so
instructed. This is precisely the situation when a patient claims the medical
privilege and prevents his physician from testifying in court. Pittman v.
Mendenhall-Mims Mitchell Funeral Home, Inc., 242 Miss. 877, 137 So.2d
518 (1962). Likewise, where the evidence is somewhere in between such that
the jury could find that the hospital either had or had not deliberately or



                                       20
       negligently destroyed the original medical record, the jury should be instructed
       to take this into account.

       Thus, where the evidence regarding the missing original medical records is
       such that the jury is entitled to an instruction, the instruction should require the
       jury to first determine whether reasonable explanation for the loss of the
       missing original medical record has been presented by the hospital. Should the
       jury determine from the explanation provided that the loss of the original
       medical record was not in any way attributable to the deliberate or negligent
       actions of the hospital, the jury could not infer that the missing original
       medical record contained information unfavorable to the hospital. However,
       should the jury determine from the explanation provided that the loss of the
       original medical record was deliberately or negligently brought about by the
       actions of the hospital, the jury could infer that the missing original medical
       record contained information unfavorable to the hospital.

DeLaughter, 601 So.2d at 821-22. Thus, this Court found that the actions of the hospital

employees caused the relevant medical records to be lost or destroyed, and that the hospital

records were not fully reconstructed; therefore, the trial court erred in failing to place the

burden on the hospital to demonstrate that the hospital had not lost or destroyed the records,

and the trial court further erred in failing to give a spoliation of evidence instruction. Id. at

823.

¶33.   Turning to today’s case, Richardson submitted jury instruction P-16, a spoliation of

evidence instruction, for consideration by the trial court because Norfolk Southern never

recovered the train’s event recorder. However, the facts of this case do not create the legal

presumption that the information on the lost or destroyed event recorder would have been

unfavorable to Norfolk Southern. Indeed, the facts in this case pale in comparison to the

negligent or intentional actions of the casino in Thomas and the hospital in DeLaughter.



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Succinctly stated, there was considerable testimony concerning Norfolk Southern’s efforts

to recover this event recorder. Likewise, the record reveals that the locomotives pulling the

train involved in the collision with Mikie’s vehicle were Union Pacific locomotives. While

the Norfolk Southern officials were finally able to recover from the Union Pacific officials

the event recorder printouts from the event recorder in the second locomotive, efforts to

secure or download any information from the lead locomotive were unsuccessful. The

evidence at trial revealed that the lead locomotive evidently was not even equipped with an

event recorder. Norfolk Southern clearly met its burden of showing that it (Norfolk

Southern) did not lose or destroy the event recorder. The record is absolutely devoid of any

evidence that Norfolk Southern in any way intentionally, or even negligently, destroyed

evidence in its possession.

¶34.   For these reasons, we find that the trial court did not commit error in refusing

Richardson’s spoliation of evidence jury instruction; therefore, this issue is without merit.

                                      CONCLUSION

¶35.   We are certainly not unmindful of the tragedy of this case – the death of a sixteen-year

old child, which unquestionably has brought unimaginable grief to Mikie’s family and

friends. This Court, however, must apply basic tort law principles such as duty, breach of

duty, proximate causation and damages. Even when damages are unquestionably proven, we

still must first decide the issue of liability. We are thus constrained as a matter of well-

established law to find that the trial court committed no error in its rulings (1) that certain



                                              22
state tort claims asserted by Richardson were preempted by federal law; (2) that evidence

of other accidents at the railroad crossing was inadmissible; and, (3) that certain jury

instructions submitted by Richardson must be refused. For these reasons, we affirm the final

judgment in favor of Norfolk Southern as entered by the Circuit Court of Alcorn County.

¶36.   AFFIRMED.

    SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.




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