Shines v. Alabama Great Southern Railway Co.

614 So. 2d 432, 1993 Ala. LEXIS 132
CourtSupreme Court of Alabama
DecidedFebruary 26, 1993
Docket1911682, 1911705
StatusPublished

This text of 614 So. 2d 432 (Shines v. Alabama Great Southern Railway Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shines v. Alabama Great Southern Railway Co., 614 So. 2d 432, 1993 Ala. LEXIS 132 (Ala. 1993).

Opinion

HORNSBY, Chief Justice.

The plaintiff, Doris Ann Shines, appeals from a summary judgment for the defendant, Alabama Great Southern Railway Company, Inc. (“AGS”). We affirm.

At approximately 11:50 a.m. on April 15, 1989, Tarron R. Osburn, age three, was walking along a railroad track near milepost 183.7, north of Coaling, Alabama, when he was struck and killed by a northbound train operated by AGS employees: engineer Robert J. Cochran, conductor G.R. Williams, brakeman W.W. Sewell, and flagman A.C. Ash. The train’s crew first observed Tarron and two older brothers of Tarron’s on the tracks as the train completed a curve in the track approximately 700 feet from Tarron’s location. To avoid striking the boys, engineer Cochran sounded the train’s warning whistle and applied the train’s brakes, both the engine brake and [434]*434the emergency brake. Apparently, Tar-ron’s brothers heard the whistle and ran off the tracks, but Tarron stayed behind. The crew could not stop the train in time to avoid striking Tarron.

Tarron’s mother, Doris Ann Shines, sued AGS, alleging that the crew had negligently failed to stop the train.1 On April 20, 1992, AGS moved for a summary judgment. Shines argued that a summary judgment for AGS would be improper because AGS had not responded to Shines’s interrogatories filed March 24, 1992, and AGS had postponed Shines’s depositions of the crew until May 8, 1992. On April 28, 1992, AGS answered Shines’s interrogatories but objected to interrogatories 5 through 10. On May 4,1992, Shines moved to compel AGS to answer those interrogatories. On June 2, 1992, the trial court denied Shines’s motion to compel and entered a conditional summary judgment for AGS. The trial court allowed Shines seven days to demonstrate why the summary judgment should not be made final. On June 5, 1992, Shines presented excerpts from the crewmembers’ depositions that, she said, conflicted with the crewmembers’ affidavits and evidenced the existence of genuine issues of material fact and thereby precluded a summary judgment; nevertheless, the trial court made the summary judgment final on June 29, 1992. Shines appeals.

I.

Shines first argues that the summary judgment for AGS was improper under this Court’s holding in Reeves v. Porter, 521 So.2d 963, 965 (Ala.1988). In Reeves this Court stated that it is error for a trial court to enter a summary judgment if the moving party has not answered interrogatories and the answers to the interrogatories would be crucial to the nonmoving party’s case. Shines contends that the trial court erred by not ordering AGS to answer interrogatories 5 through 10, and that, because the trial court should have ordered AGS to answer those interrogatories, when she says the answers would be crucial to her case, the trial court violated the principle set forth in Reeves.

In order to respond to Shines’s argument, we must first determine whether the trial court erred by not ordering AGS to answer interrogatories 5 through 10. “On review of orders entered in matters involving discovery, the Supreme Court will not reverse the trial court’s decision unless there is a clear showing that the trial judge abused his discretion in making his decision.” Ex parte McTier, 414 So.2d 460 (Ala.1982).

The interrogatories at issue read as follows:

“5. State the average train speed through milepost 183.7 where this incident occurred, from January 1989 through April 1989.
“6. State the daily average motor vehicle traffic volume across the northernmost Coaling crossing for the months of January 1989 through April 1989.
“7. State the daily average number of school buses traveling across the northernmost Coaling crossing for the months of January 1989 through April 1989.
“8. State the daily number of hazardous material carriers traveling across the northernmost Coaling crossing for the months of January 1989 through April 1989.
“9. State the average number of trains per day in the months of January 1989 through April 1989, traveling in either direction through milepost 183.7.
[435]*435“10. State the average number of daylight trains per day in the months of January 1989 through April 1989, traveling in either direction through milepost 183.7.”

AGS objected, contending that each of these interrogatories was irrelevant and immaterial and sought “information not reasonably calculated to lead to the discovery of admissible evidence.” Additionally, it contended that interrogatories 5, 9, and 10 were overly broad and unduly burdensome and contended that it did not understand the term “daylight train” in interrogatory 10.

Shines contends that the trial court’s denial of her motion to compel was an abuse of discretion because, she says, AGS waived its right to object to these interrogatories by not filing answers and objections within the time prescribed by Rule 33(a), A.R.Civ.P., and by not objecting with sufficient particularity. Ex parte Dorsey Trailers, Inc., 397 So.2d 98, 104 (Ala.1981) (general objections may result in waiver of right to object). We disagree. Contrary to Shines’s contention, AGS answered and objected to the interrogatories within the time limitations prescribed in Rules 6 and 33(a), A.R.Civ.P. Moreover, AGS's objections were sufficiently particular to preclude a waiver of its right to object. Because the trial court gave no reasons for its refusal to compel AGS to answer the interrogatories, we infer that it found AGS’s objections persuasive. After reviewing the record, we agree that AGS’s objections are persuasive, and we conclude that the trial court did not abuse its discretion by denying Shines’s motion to compel.

We conclude that, because the trial court did not err in refusing to compel AGS to answer interrogatories 5 through 10, no discovery was pending in this case. Thus, we need not address Shines’s contention that the rule of Reeves forecloses a summary judgment for AGS.

II.

Accordingly, we turn to Shines’s other argument, that the summary judgment for AGS was improper because AGS failed to carry its burden of showing a genuine issue of material fact. Shines says the crew-members’ deposition testimony conflicted with their affidavit testimony in such a way as to reveal genuine issues as to the speed at which the train was moving when the crew first observed Tarron; the order in which the engineer blew the whistle and applied the brakes; the train’s distance from Tarron when the crew first saw him; the train’s distance from Tarron when the engineer applied the emergency brake; and the point along the track at which impact occurred.

“In reviewing the disposition of a motion for summary judgment, we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact” and whether the movant was “entitled to a judgment as a matter of law.” Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988) (citing Chiniche v. Smith, 374 So.2d 872 (Ala.1979)); Rule 56(c) A.R.Civ.P.

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Bluebook (online)
614 So. 2d 432, 1993 Ala. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shines-v-alabama-great-southern-railway-co-ala-1993.