Box v. South Georgia Railway Company, 28265.

• Citation: 433 F.2d 89
• Decision Date: 12 October 1970
• Docket Number: No. 28265.,28265.
• Parties: Mary Lee BOX as guardian of Vera Mae Ellis, Bobby Lee Ellis and Johnny D. Ellis, minors, and Sara Ellis, Plaintiffs-Appellees, v. SOUTH GEORGIA RAILWAY COMPANY, a Georgia corporation, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

433 F.2d 89 (1970)

Mary Lee BOX as guardian of Vera Mae Ellis, Bobby Lee Ellis and Johnny D. Ellis, minors, and Sara Ellis, Plaintiffs-Appellees, v. SOUTH GEORGIA RAILWAY COMPANY, a Georgia corporation, Defendant-Appellant.

No. 28265.

United States Court of Appeals, Fifth Circuit.

October 12, 1970.

James E. Cobb, Marion R. Shepard, and Mathews, Osborne & Ehrlich, Jacksonville, Fla., for defendant-appellant.

Truett & Watkins, Steve M. Watkins, J. Ben Watkins, Tallahassee, Fla., for plaintiffs-appellees.

Before AINSWORTH, DYER and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

South Georgia Railway Company, a Georgia corporation, (Railway) appeals from a jury verdict and judgment against it in this diversity case brought under the Florida Death by Wrongful Act Statutes, F.S.A. § 768.01 et seq.¹

Mary Lee Box brought the suit on behalf of the minor children of the decedent Josie Ellis. After denying Railway's motion for judgment n. o. v. the trial court entered judgment on the verdict and this appeal was timely taken by Railway. The case has been tried twice. On the first occasion the court directed a verdict for the defendant railroad as to Mrs. Ellis' contributory negligence but submitted the case on the "last clear chance" doctrine. The jury failed to agree and a mistrial was declared. On the second trial, the district judge submitted the case to the jury on the issues of negligence, contributory negligence and on "last clear chance", after denying the defendant railroad's motion for directed verdict. The jury found for the plaintiffs and the court denied post-trial motions by the railroad for judgment n. o. v. and for new trial. This appeal ensued. We reverse and direct entry of judgment n. o. v. for the defendant-appellant.

Because we regard the facts as decisive on this appeal we state them in considerable detail.

Josie Ellis was the widowed mother of eight children, four of them minors living with and partly dependent upon her for support. On the morning of April 4, 1967, she was walking in a westerly direction upon and along railroad tracks of defendant-appellant (Railway) on the outskirts of Perry, Florida. She was apparently taking an often used short cut from her home to "the store", situated farther west and on the opposite side of the tracks. At a time after Mrs. Ellis had crossed Duval Street, she was struck and fatally injured by the Railway's train moving in the same direction as and overtaking her. The train's consist was an engine and four cars. Railway's crew was engaged in switching cars, and for a distance of about 500 feet before reaching the crossing was backing, that is to say that the engine faced to the east and was pushing the four cars behind it westerly toward and over the crossing. The train speed was ten to twelve miles per hour. From the crossing westerly the track curved to the right or toward the north.

The only witnesses as to the accident were the members of Railway's train crew: Engineer Simon, Conductor Irick, and Brakemen Roberts and Hill. From his seat in the cab of the engine on the left side, because of the curve in the track, the engineer never saw the deceased. As the train backed toward the crossing Conductor Irick, seated on the right side of the cab, gave Mr. Simon the all clear for the crossing. The two brakemen were riding on the leading end of the first car, Roberts on the left side and Hill on the right. As the train proceeded without slackening or increasing its speed Mr. Simon saw Roberts run out from the train and give a hand signal to stop, the first notice conveyed to him of any trouble or emergency. He applied the emergency brakes full and the lead car struck Mrs. Ellis about 150 to 158 feet west of the crossing. At the train's speed and with its consist Simon estimated it would require 150 feet to stop it.² The leading end of the lead car actually stopped something over 120 feet from the point of impact.

Conductor Irick was seated on the right side of the cab when he observed that the crossing was clear and so informed Engineer Simon. He then moved to the middle of the cab and never saw Mrs. Ellis.

It was the duty of Brakeman Roberts riding the left side of the lead car to check the crossing for vehicular and pedestrian traffic. He first saw the decedent when he was three to four car lengths from the crossing and she was 10 to 20 feet to the west of it.³ She was walking at a normal pace between the rails and Roberts observed her to turn and look back when the engineer blew the whistle signal for the crossing. Roberts expected her to step off the track. As the lead car crossed the crossing the two brakemen began to scream and whistle at her and she turned her head sideways as if glancing back toward the train, but continued to walk the track. When the lead car was 2½ to 3 car lengths (about 80 to 100 feet) from her Roberts jumped off the train, ran a few steps to the side and gave Engineer Simon the emergency stop signal.

Brakeman Hill from his position on the right of the lead car first saw Mrs. Ellis as the car came up to the crossing. He testified she was then 75 to 100 feet on the other side, and that when the whistle blew she glanced around and kept on walking. Hill shouted at her but she made no attempt to get off the track so he made an effort, albeit a futile one because of the time required, to reach the angle cock when she was about 75 feet away. Both brakemen noted some slight decrease in train speed indicating the application of the brakes immediately before the train struck Mrs. Ellis. Her death was instantaneous.

She never attempted to get off the track. Despite the testimony of Roberts and Hill as to her glancing back, it is obvious that she did not see the approaching train and did not hear the whistle or the warning shouts of the crew. She was, and had been for many years, completely deaf.

Since Section 768.05, F.S.A. was declared unconstitutional by the Florida Supreme Court in F.E.C. Ry. Co. v. Edwards, supra, footnote 1, the plaintiffs went to trial without the benefit of the former presumption of railroad negligence created by the statute and under the same burden of proving defendant's negligence as exists in the ordinary negligence action. Further, since Section 768.06, F.S.A. was declared unconstitutional by Georgia Southern & F. Railway Company v. Seven-Up Bottling Company and Turman v. F.E.C. Ry. Co., supra, footnote 1, the plaintiffs no longer had the benefit of the comparative negligence provisions of 768.06, but rather faced a situation where the decedent's contributory negligence was a complete bar to recovery. It is our view that the plaintiffs failed to carry the burden of proving Railway's negligence and that the decedent's contributory negligence as a matter of law was proved. We are further of the view that the evidence did not disclose a situation which permitted the application of the last clear chance doctrine as it is set forth in the Florida cases. Each of these conclusions by us dictates reversal of the judgment of the district court. Our views are explicated below in the order above indicated.

I. THE RAILROAD'S NEGLIGENCE

In the rural setting and under the circumstances described above, the speed of the train was reasonable. The proof indicates that proper warnings by whistle and bell were given of the approach of the train and that the train crew was maintaining a proper lookout. The plaintiffs' counsel urged on cross-examination and on argument that since the rear-end brakemen had the use of a walkie-talkie radio but did not, in view of the short length of the train (4 cars) have it with them as they rode the lead car approaching the crossing, this was somehow negligence. In actuality, however, the brakemen took up their positions in order to warn nearby motorists or pedestrians of the approach of the train, not to warn the engineer of persons or vehicles on or near the track. The walkie-talkie was a device of convenience for crews when working a train consist of a large number of cars.

When Mrs. Ellis was first observed by the brakemen she was at a sufficient distance so that she could have easily stepped out of the train's way. The crew was entitled to presume that she could hear and see, and would get off the track, and was under no duty to slow or stop the train until made aware that she would not do so.⁴

We have searched this record in vain for evidence supporting a charge of negligence on the part of the Railway. On its own track, where it had a right to be, and from which it could not turn aside, it was operating its train in a rural area at a reasonable speed. Proper warnings of the train's approach were given. Indeed, the train itself, bearing down the track, presented an impelling warning of danger. Without knowledge of the decedent's disability the train crew had a right to presume that she would take the necessary two or three steps to place her in a position of safety. When she glanced back they were entitled to presume that she saw the train. When they realized that she was not going to step aside they acted promptly and did everything in their power to avoid the injury. It was then of course too late for the railroad to avoid the injury, but Mrs. Ellis could still have saved herself by stepping off the track. Indeed, her ability to avoid the tragedy continued after the train crew was helpless to take further action. The railroad's negligence was not established.

II. MRS. ELLIS' CONTRIBUTORY NEGLIGENCE

There can be no doubt that the actions of Mrs. Ellis constitute contributory negligence as a matter of law. It is not necessary for us to determine whether walking on a railroad track is per se negligent. However, it does not take a very astute legal mind to reason that it is negligent for a deaf person to walk on a railroad track without utilizing carefully the remaining sense of sight. In Atlantic Coast Line Railroad v. Timmons, 1948, 160 Fla. 754, 36 So.2d 430, the...