Atlantic Coast Line R. Co. v. Walker
| Decision Date | 25 June 1959 |
| Docket Number | No. B-66,B-66 |
| Citation | 113 So.2d 420 |
| Parties | ATLANTIC COAST LINE RAILROAD COMPANY, a corporation, Appellant, v. Louise WALKER, Appellee. |
| Court | Florida District Court of Appeals |
S. Dilworth Clarke, Monticello, and Kurz & Toole, Jacksonville, for appellant.
Williams & Owens and Truett & Watkins, Tallahassee, for appellee.
This appeal is by defendant from a final judgment entered upon a jury's verdict awarding damages to plaintiff in the sum of $6,000. The errors assigned are directed to the trial court's refusal to grant a new trial upon the grounds, among others, that the verdict is contrary to the manifest weight of the evidence and justice of the cause; and, that the court erred in its instructions to the jury on the statute creating a presumption of negligence against a railroad company.
The collision out of which plaintiff's damages arose occurred in the daytime at a rural crossing where a graded county road intersects defendant's railroad track at right angles. Plaintiff drove her automobile in a westerly direction upon the single track on which defendant's train was proceeding in a southerly direction. The locomotive struck the automobile on the right side, propelling it clear of the track in a southwesterly direction.
The track runs in a straight line for several miles, both north and south of the crossing. The road on which plaintiff was traveling follows a circuitous route through the country, but straightens to an east-west course a short distance east of its intersection with the track. As the road approaches the track from the east there is a clear view of the track to the north of several hundred feet. A view of the track to the south of the crossing is obstructed by an embankment.
Plaintiff testified that she was thoroughly familiar with the crossing and as she approached it at approximately 20 miles an hour she was listening for warning signals of any approaching train. Hearing no signal she continued toward the crossing and by looking straight ahead, her peripheral vision permitted her to see 'a good long way' up the track to the right from which direction the train was coming. By observing the track in the manner stated, plaintiff did not see the train which was approaching at a speed of approximately 25 miles per hour. She admitted she never turned her head to look toward the right as she approached the track, but concentrated her attention to the left in an effort to see around the embankment in order to determine if a train was approaching from the south. When she was close enough to the track to see that it was clear toward the south, she turned and was immediately struck by the locomotive. Plaintiff offered no corroborating evidence relating to the events surrounding the collision.
Both the fireman and engineer testified that as the locomotive reached a whistle post approximately 1200 feet north of the crossing the engineer commenced giving the standard crossing whistle which consists of two long, one short and one long blast of the train whistle. While the signal was being given, the fireman observed plaintiff driving along the winding road in the direction of the crossing. He stated that he thought plaintiff heard the whistle and would stop her automobile short of the crossing. When it appeared to the fireman that plaintiff was not decreasing her speed and was not going to stop, he shouted to the engineer who immediately threw the train into an emergency stop. The weight and momentum of the train prevented it from being brought to a halt before reaching the crossing, at which point it collided with plaintiff's automobile which was astride the track at the time of impact. The locomotive reached a point some 1,000 feet south of the crossing before it was brought to a complete stop.
Two disinterested local citizens who were in the immediate vicinity of the crossing both testified that the warning whistle on the train commenced to blow about 1,000 feet north of the crossing, and continued to blow until the air brakes were applied shortly before the collision occurred.
Appellant contends that the evidence summarized above is insufficient to sustain the verdict, and that a new trial should have been granted. Appellee contends that the evidence is sufficient to establish that defendant was negligent in failing to give an appropriate warning signal of the train's approach to the crossing, and that it was operating its train at an excessive speed in a negligent manner without proper regard for plaintiff's safety.
The settled law of Florida requires a person approaching a grade crossing to look and listen for oncoming trains, and to stop if what he sees indicates that it would be dangerous to proceed further. 1 Although by looking straight ahead, plaintiff could see up the track to her right for a limited distance as she approached the crossing, she admits that she did not turn her head nor look directly to her right in the direction from which the train was coming. She was so intent on looking to her left around the end of the embankment to see if a train was approaching from the south that she failed to see that which was clearly visible if she had taken only reasonable precautions for her own safety. A similar factual situation was present in the Price case 2 where the evidence clearly indicated that from a point at which plaintiff's car could have been easily stopped before reaching the crossing there was a clear view for a considerable distance up the track in the direction from which the train was approaching. The plaintiff, however, failed to look in that direction, but looked only to his right toward another train which was also approaching the crossing from the opposite direction. The Supreme Court held that there was no excuse for plaintiff's failure to determine before going on the track, whether a train was coming from an opposite direction from that in which he was looking. It was held that plaintiff brought about the injury to himself and his family through his own neglect to beware of an approaching engine when he drove on the track, and that the railroad company was in no wise to blame for what happened.
The only substantial evidence of negligence by defendant presenting a jury question concerns the conflict with respect to giving appropriate warning of the train's approach. The uncorroborated testimony of plaintiff is that defendant failed to sound any warning whistle as the train converged on the crossing. This positive assertion is predicated on the failure of plaintiff to hear any warning signal as she proceeded toward and upon the track. Her testimony is in direct conflict not only with that of the train crew, but also with that of two disinterested local citizens who were in position to see and hear the train's approach and who testified that the whistle started blowing a distance of several hundred feet north of the crossing, and continued to blow until the emergency brakes on the train were applied.
Whether the testimony of plaintiff be categorized as positive or negative in character is immaterial. Verdicts rendered in favor of plaintiffs under facts similar to those here presented have been repeatedly held, as a matter of law, to be contrary to the manifest weight of the evidence and justice of the cause. In such cases the verdicts have not been permitted to stand. 3
Plaintiff further contends that the evidence shows defendant was...
To continue reading
Request your trial
-
Central Truck Lines, Inc. v. Rogers
...a high degree of care. Plaintiff's driver acted in accord with every implication of the rule stated in Atlantic Coast Line Railroad Company v. Walker (Fla.App.), 113 So.2d 420, in which Judge Wigginton, speaking for this court, 'The settled law of Florida requires a person approaching a gra......
-
Box v. South Georgia Railway Company, 28265.
...including Martin v. Rivers, Fla.1954, 72 So.2d 789; McAllister v. Tucker, Fla. 1956, 88 So.2d 526, and Atlantic Coast Line Railroad Company v. Walker, Fla. App.1959, 113 So.2d 420. In Martin v. Rivers, supra, in reversing a judgment for plaintiff whose husband was killed when struck by a tr......
-
Seaboard System R.R., Inc. v. Mells
...and by the time the crew realized that he was not going to move, it was too late to stop the train. See Atlantic Coastline Railroad Company v. Walker, 113 So.2d 420 (Fla. 1st DCA 1959). Although Seaboard then attempts to distinguish the cases relied on by Mells in support of his motion in l......
-
Butler v. MacDougal, 59-266
...statement contained therein that 'the presumption in all cases being against the company,' is reversible error. Atlantic Coast Line R. Co. v. Walker, Fla.App.1959, 113 So.2d 420. Moreover, once the jury has been informed regarding the statute, even a direct instruction by the court to the j......