Jan 5, 2017 - the business of operating a railroad in interstate commerce. ... causing the trailer to be stopped squarel
IN THE CIRCUIT COURT OF HARRISON COUNTY, MISSISSIPPI FRANK IRBY,
Plaintiff,
CIVIL ACTION NO. CV-17-
v.
1Jt1
CSX TRANSPORTATION, INC., ALLEN BEVERAGES, INCORPORATED, AND NICHOLAS CONTRERAS,
Defendants.
COMPLAINT
NOW RESPECTFULLY COMES FRANK IRBY, "Plaintiff', by and through his attorneys and files this Complaint against CSX TRANSPORATION, INC. (CSXT), ALLEN BEVERAGES, INCORPORATED (ALLEN BEVERAGES), and NICHOLAS CONTRERAS, (CONTRERAS) "Defendants", and for cause of action would show the Court the following:
I.
PARTIES
1.
Plaintiff, FRANK IRBY is and at all material times was a resident of Mobile
County, Mobile, Alabama. 2.
Defendant, CSX TRANSPORTATION, INC. is a foreign corporation doing
business in the State of Mississippi. CSXT is a common carrier by railroad engaged in the business of operating a railroad in interstate commerce. CSXT may be served with process by serving its registered agent, CT Corporation System, 645 Lakeland East Drive, Suite 101, Flowood, Mississippi 39232. 3.
Defendant, ALLEN BEVERAGES, INCORPORATED is a Mississippi
corporation and may be served with process by serving its registered agent, Eustace A. 1
Allen, II, 13300 Dedeaux Road, Gulfport, Mississippi 39503. 4.
Defendant, NICHOLAS CONTRERAS, is an individual and resident of
D'Iberville, Harrison County, Mississippi and may be served with process at his residence: 506 Vicki Drive, D'Iberville, Mississippi 39540.
II. JURISDICTION AND VENUE
5.
This is an action arising under the provisions of the Federal Employers'
Liability Act (FELA), 45 U.S.C. § 51, et seq. and the laws of the State of Mississippi to recover damages for personal injuries sustained by Plaintiff while employed by CSXT and while engaged in interstate commerce. 6.
Venue is proper in this matter pursuant to § 11-11-3(1)(a)(i), Mississippi
Code of 1972 Annotated, as amended, inasmuch as the collision that caused Plaintiffs
injuries occurred in Harrison County, Mississippi, ALLEN BEVERAGES is a corporation with its principal place of business in Harrison County, Mississippi and Defendant CONTRERAS resides in Harrison County, Mississippi. 7.
Jurisdiction is proper because this is a civil case in which the matter in
controversy is within the Court's jurisdictional limits.
III. FELA NEGLIGENCE
CAUSE OF ACTION NO.1
8.
This lawsuit is brought to recover damages Plaintiff has sustained and will
sustain as a result of a collision between a tractor-trailer truck and a train on or about January 5,2017. 9.
At all times mentioned in this Complaint, CSXT was a common carrier by
railroad engaged in interstate commerce through and between the several states, and Plaintiff was employed by CSXT to further those activities. The injuries complained of 2
were sustained within the course and scope of that employment. 10.
On or about January 5,2017, Plaintiff was injured when the CSXT train on
which he was working struck a tractor-trailer truck which was stuck on a railroad crossing in Biloxi, Mississippi. The tractor-trailer was owned by ALLEN BEVERAGES and was being operated by CONTRERAS when the collision occurred. 11.
Plaintiff's injuries were due in whole or in part to the negligence of CSXT
and CSXT's agents, servants or employees acting in the course and scope of their employment.
IV. NEGLIGENCE PER SE
CAUSE OF ACTION NO.2
12.
CXST's tracks and crossing were not in compliance with CXST's own
safety rules, industry standards, and violated 49 C.F.R. § 213, and related federal regulations. The violation of said regulations, in whole or in part, caused the occurrence made the basis of this action and the injuries and damages which Plaintiff suffered. 13.
The tractor-trailer truck involved in this collision was owned and operated
by ALLEN BEVERAGES. The tractor trailer truck became hung up, high centered and/or stalled, causing the trailer to be stopped squarely on CXST's railroad crossing, where it was struck by a train owned and operated by CSXT causing injuries to Plaintiff. 14.
ALLEN BEVERAGES violated industry standards relating to the operation
of a tractor-trailer and the operation of a motor vehicle in and around railroad crossings. ALLEN BEVERAGES violated 49 C.F.R. §§ 384, 391, 392 and 397 of the Federal Motor Carrier Safety Regulations, related state regulations, and other industry standards, amounting to negligence per se. ALLEN BEVERAGES's violation of said standards and regulations was a proXimate cause of Plaintiffs' injuries. These violations singularly, or 3
in combination with others, caused the occurrence made the basis of this action and damages to Plaintiff.
V. NEGLIGENCE
CAUSE OF ACTION NO.3
15.
The accident made the basis of this lawsuit and the injuries sustained by
Plaintiff were proximately caused by the negligent acts and/or omissions of CONTRERAS and ALLEN BEVERAGES, and its agents, servants, and/or employees, acting in the course and scope of their employment. VI.
DAMAGES
16.
Because of the nature and consequence of this accident, Plaintiff suffered
injuries to his neck, back and right shoulder and other parts of his body. Plaintiff has suffered physical pain and suffering and mental anguish and in all reasonable probability, will continue to suffer in this manner for the balance of his life. 17.
At the time of the accident complained of, Plaintiff was gainfully employed
as a railroad worker.
Plaintiff has lost wages and benefits in the past and, within
reasonable probability, will suffer a loss of wages, benefits, and earning capacity in the future. 18.
As a further result thereof, Plaintiff has incurred expenses for medical care
and attention, such as physicians' fees, medical supplies, appliances, medicine, hospitalization and nursing services. These expenses were incurred for the care and treatment of the injuries resulting from the accident complained of. The charges for those services were reasonable and they were the customary charges made for such services in the area in which they were rendered.
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19.
As a further result of the injuries sustained by Plaintiff, he will, within
reasonable medical probability, incur future expenses for his medical care and attention. Plaintiff has suffered in the past and, within reasonable medical probability, will continue to suffer in the future from physical impairment. VII.
PUNITIVE DAMAGES
ALLEN BEVERAGES, INCORPORATED
20.
ALLEN BEVERAGES through the acts and omissions of its driver was
grossly negligent and/or malicious in that its conduct was the product of a conscious disregard for the health and safety of the Plaintiff and others similarly situated. Plaintiff therefore seeks punitive damages from ALLEN BEVERAGES. VIII. JURY DEMAND
21.
Plaintiff demands a trial by jury.
WHEREFORE, PREMISES CONSIDERED, Plaintiff FRANK IRBY, requests that CSX
TRANSPORATION,
INC.,
ALLEN
BEVERAGES,
INCORPORATED
and
NICHOLAS CONTRERAS be cited to appear and answer and that on final trial Plaintiff have judgment jointly and severally against Defendants in a total sum within the jurisdictional limits of this Court. Plaintiff requests post-judgment interest and costs of suit against all Defendants and pre-judgment interest and punitive damages against ALLEN BEVERAGES and NICHOLAS CONTRERAS, and for such other and further relief, both legal and equitable, to which he may show himself justly entitled. Due to the severity of Plaintiff's injuries and losses, Plaintiff expects such sum to be in excess of One Million Dollars ($1,000,000.00). As punitive damages, Plaintiff seeks an amount as assessed by a fair and enlightened jury.
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Respectfully submitted, TAYLOR MARTINO, P.C.
\fo?s
RICHARD H. TAYLOR MSB No. 7980 51 Saint Joseph Street Mobile, Alabama 36602 251-433-3131/Phone 251-433-4207/F ax
[email protected] THE YOUNGDAHL LAW FIRM, P.C. Sara Youngdahl* Texas State Bar No. 24010504 4203 Montrose Blvd., Suite 280 Houston, Texas 77006 281-996-0750 281-996-0725/Fax
[email protected] *PENDING PRO HAC VICE
Attorneys for the Plaintiff, Frank Irby DEFENDANTS TO BE SERVED AS FOLLOWS:
CSX Transportation, Inc. clo C T Corporation System, Registered Agent 645 Lakeland East Drive, Suite 101 Flowood, MS 39232
Via Certified Mail
Allen Beverages, Incorporated c/o Eustace A. Allen, II, Registered Agent 13300 Dedeaux Road Gulfport, MS 39503
Via Certified Mail
Nicholas Contreras 506 Vicki Drive D'Iberville, MS 39540
Via Certified Mail
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