Georgia Southern & Florida Railway Company v. Perry

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: TUTTLE, , JONES, Circuit , and MORGAN
• Citation: Georgia Southern & Florida Railway Company v. Perry, 326 F.2d 921 (5th Cir. 1964)
• Decision Date: 20 February 1964
• Docket Number: No. 19837.,19837.
• Parties: GEORGIA SOUTHERN & FLORIDA RAILWAY COMPANY, Appellant, v. A. H. PERRY and Evelyn Perry, husband and wife, Appellees.

326 F.2d 921 (1964)

GEORGIA SOUTHERN & FLORIDA RAILWAY COMPANY, Appellant, v. A. H. PERRY and Evelyn Perry, husband and wife, Appellees.

No. 19837.

United States Court of Appeals Fifth Circuit.

January 15, 1964.

Rehearing Denied February 20, 1964.

H. P. Osborne, Jr., John M. McNatt, Jr., Mathews, Osborne & Ehrlich, Jacksonville, Fla., for appellant.

W. C. O'Neal, Gray, Chandler, O'Neal, Carlisle & Avera, Gainsville, Fla., for appellees.

Before TUTTLE, Chief Judge, JONES, Circuit Judge, and MORGAN, District Judge.

JONES, Circuit Judge.

The appellees, A. H. Perry and his wife Evelyn Perry, recovered judgment against the appellant in the district court for personal injuries to Mrs. Perry and the death of their daughter resulting from what we generally refer to as a crossing accident, where a locomotive of the railroad struck an automobile driven by Mrs. Perry in which the daughter was riding. The judgment was for the amounts found by a jury: $65,000 for the death of the child and $10,000 for Mrs. Perry's injuries. Three questions are presented on the appeal, and recitals of fact will be made only to the extent required to show how the questions arose.

The railroad concedes, for the purpose of the appeal, that there was negligence on its part which would entitle the Perrys to recover; but, it contends, Mrs. Perry was guilty of contributory negligence which, under the Florida Comparative Negligence Statute,¹ would reduce the amount of recovery.

The railroad right-of-way ran through a timbered area. On February 9, 1961, between 3:30 and 4:00 P.M., Mrs. Evelyn Perry, wife of A. H. Perry, left their home in her husband's automobile, drove along a dirt road a short distance from her home, crossed the tracks of the railroad, reached a paved road, and there picked up her seventeen-year-old daughter, a high school student, who had been brought to the meeting point by a school bus. In returning toward her home the left front of the car was struck by a freight train of the railroad. Mrs. Perry received slight injuries. The daughter received injuries from which she died immediately.

At the trial the Perrys, as plaintiffs, introduced the testimony of fourteen witnesses. The railroad, as defendant, called the conductor of the train to the stand. He testified that he and the train flagman were in the caboose of the nine- or ten-car train and knew nothing of the accident until after it had happened. The railroad produced the brakeman as a witness. He testified that he was seated in the middle seat of three seats in the engine looking forward down the track. The engineer, Houston, was on his right and the fireman, Dumas, on his left. As the train approached the crossing, it was traveling between 30 to 35 miles per hour on a very slight downgrade. When the engine was approximately 400 feet from the crossing, he saw an automobile on his right about 8 or 10 feet from the crossing. The automobile was moving slowly toward the crossing and he hollered to the engineer to shoot the brakes. At about the time he hollered, the engineer applied the engine brakes in full emergency and blew the engine whistle. There was no whistle post for the crossing and it was not customary to blow for it. At the time the brakes were applied and the whistle first blown, the automobile was 3 to 4 feet from the crossing and the engine was somewhere within 400 feet of the crossing. He saw the automobile come to a stop with its wheels between the two tracks, roll backwards slightly, and just before the engine reached the crossing he ducked down to avoid any flying glass. After the train came to a stop beyond and clear of the crossing, he returned to the crossing and testified as to what he saw and heard there. He stated that it was his duty to look around the curves while the train was moving to watch for sparks, for anything that might be dragging, and for hotboxes. He had no duties about keeping a lookout ahead or about applying the brakes or blowing the whistle. The engineer and the fireman were present at the trial but were not called as witnesses and were excused by railroad counsel without having testified.

Over the objection of the railroad the court permitted the Perrys to introduce two photographs taken at the scene of the accident. These were taken from the eye level of the driver of a car of the make and model driven by Mrs. Perry at the time of the accident, and at distances from the track of 6½ and 13 feet. The first of these showed an unobstructed view down the track, and the view shown by the second was obstructed. The railroad then sought to introduce two photographs from like driver positions taken from 6½ and 10-foot distances from the track. Both of these photographs showed a locomotive 1162 feet down the track from the crossing. The district court excluded these photographs, the judge saying:

"The shadows shown in these photographs will show a shadow cast from the right on to the — cast on to the right-of-way. They show several large patches of shadow between the locomotive pictured and the camera. Mr. Johnson the railroad\'s claim agent tells me that he has, that his locomotive is green with white on it. The vegetation is not all green; certainly anybody who has been in the woods knows that everything is not green but there still is a good deal of green about when you have growing pine trees, all of those from this section of Florida know that, especially young sapling trees, that you see a lot of green down near eye-level; and what you could see in this patch of shadow of a green locomotive may be and probably is entirely different from what you could see of the green and white locomotive farther away, out as this clearly is, out in the bright sunlight. It\'s — you can see by the way the sun is bearing on it.

"I think that these photographs showing the locomotive at that distance is calculated to mislead the jury as to what would have been visible to the motorist, Mrs. Perry, and I think that the possible or probable prejudice to her case outweighs the reasons for the defendant wanting to place the pictures in evidence."

The Perrys offered and the court admitted in evidence mortality tables as to the life expectancy of each of the Perrys, over the objection of the railroad.

The court instructed the jury, over the railroad's objection, that,

"In circumstances where it would be natural and reasonable for a party to produce a witness to testify at a trial and where it is apparent that the witness is employed by or in the power or control of that party to produce as a witness and where it is reasonable to assume that the witness has knowledge of facts which are relevant and material to the issues of the trial, the failure to produce such witness creates an inference against the party failing to produce him that the witness, if produced, would have given testimony unfavorable to the party failing to produce him."

The three questions before us on the railroad's appeal from the judgment against it are (1) whether it was error to exclude from evidence the photographs tendered by the railroad; (2) whether it was error to give the jury instruction as to the inference that might be drawn from the failure to produce witnesses; and (3) whether it was error to admit in evidence the mortality tables showing the life expectancy of the parents.

A posed photograph is admissible when it is shown that it represents a correct likeness of the scene, object or person that it purports to represent, and the sufficiency of the preliminary showing rests largely in the discretion of the trial judge. Moore v. Louisville & Nashville Railroad Company, 5th...