Louisville & NR Co. v. Anderson

• Decision Date: 07 April 1930
• Docket Number: No. 5814.,5814.
• Citation: 39 F.2d 403
• Parties: LOUISVILLE & N. R. CO. v. ANDERSON.
• Court: U.S. Court of Appeals — Fifth Circuit

39 F.2d 403 (1930)

LOUISVILLE & N. R. CO. v. ANDERSON.

No. 5814.

Circuit Court of Appeals, Fifth Circuit.

April 7, 1930.

Francis B. Carter, of Pensacola, Fla. (Carter & Yonge, of Pensacola, Fla., on the brief), for appellant.

Philip D. Beall and John M. Coe, both of Pensacola, Fla., for appellee.

Before BRYAN and FOSTER, Circuit Judges, and GRUBB, District Judge.

GRUBB, District Judge.

This is an appeal from a judgment of the District Court of the United States for the Northern District of Florida in favor of plaintiff (appellee) and against the defendant (appellant) for damages for a personal injury, claimed to have been received by him through the negligence of the defendant and without fault on his part. The defendant asked a directed verdict in its favor, asserting a want of negligence on its part and contributory negligence as a matter of law upon the plaintiff's part. The refusal of the District Court to direct a verdict is the only matter complained of here.

The plaintiff was driving an automobile in the city of Pensacola in the early morning, when it was dark and foggy, and, while driving so, accidentally strayed from a public street onto premises occupied by the defendant, and drove into a track that was depressed below the adjoining surface of the ground about two feet, and he and his automobile were injured. The plaintiff was driving east along Belmont street, and, after reaching the intersection of Belmont and Tarragona streets, continued eastward a distance of fifty-seven feet beyond the east line of Tarragona street, which was a north and south street, where the sunken track was. Belmont street did not extend beyond the east line of Tarragona street, so far as being an improved and traveled street. The defendant had for many years occupied the property, which Belmont street would have crossed if extended east of its terminus, first with a structure used as an express office, and, after it was removed, with tracks. The depressed track was built in 1925, and was used for unloading automobiles from railroad cars. There was a cement platform adjoining the sunken track on the west twelve feet wide, and then a black cinder platform extended west to the street line of Tarragona street, a distance of forty-four feet. East of the space occupied by defendant's tracks Belmont street was used for travel. There was a gap between Tarragona street and this point, where it could not be traveled owing to the presence of the tracks of the defendant. There was a street light at the intersection of Belmont street with the north and south street that crossed it east of all the tracks. The intersection of Belmont street and Tarragona street was paved with black dirt. Belmont street west of Tarragona street was a paved street. The plaintiff testified that he was unfamiliar with the location, did not know that Belmont street did not extend east beyond Tarragona street, did not know that there was a depressed track where Belmont street, if extended east, would have been, and that, as he approached the depressed track, he did not see anything to indicate that Belmont street did not extend east of Tarragona, or that there were any railroad tracks where the extended street would have been. The right of the defendant to put its depressed track where it was is of no importance, since it is not disputed there had never been a traveled street where Belmont street, if extended, would have crossed the depressed track.

The defendant was not shown to have been a trespasser, and is to be treated as the owner of the land on which the sunken track was. Its negligence as owner depends upon the existence of a duty on its part to place warning lights or barriers at the end of Belmont street to prevent...