Brown v. Loftin

• Decision Date: 20 June 1944
• Citation: 18 So.2d 540,154 Fla. 621
• Parties: BROWN v. LOFTIN et al.
• Court: Florida Supreme Court

18 So.2d 540

154 Fla. 621

BROWN v. LOFTIN et al.

Florida Supreme Court

June 20, 1944

Rehearing Denied July 11, 1944.

Appeal from Circuit Court, Broward County; George W Tedder, judge.

McCune Hiaasen & Fleming, of Fort Lauderdale, for appellant.

Russell L Frink, of Jacksonville, and Robert H. Anderson and John H Wahl, Jr., both of Miami, for appellee.

CHAPMAN, Justice.

This is a railway accident case in which Miss Nancy Virginia Brown lost her life. She, with three others, occupied the rear seat of the automobile which ran into a freight train consisting of 32 cars then operated by the Florida East Coast Railway Company over a regular street crossing situated on the outskirts of the City of Fort Lauderdale, Florida. The collision occurred around 1:00 o'clock A.M., September 26, 1943. The freight train was in motion and the automobile struck the 17th car back from the engine. The automobile was driven by a Chief Petty Officer of the United States Navy. The party consisted of three Lieutenants and three young lady guests--having previously attended an officers' party--at the Naval Air Base and were then returning to the City of Fort Lauderdale.

The trial court held that the declaration failed to state a cause of action and bottomed his conclusions on cases, viz.: Kimball v Atlantic Coast Line Ry. Co., 132 Fla. 235, 181 So. 533; Cline v. Powell, 141 Fla. 119, 192 So. 628; Denton v. Atlanta & St. Andrews Bay R. Co., 141 Fla. 153, 192 So. 624; Clark v. Atlantic Coast Line R. Co., 141 Fla. 155, 192 So. 621, and similiar cases. Counsel for plaintiff below perfected an appeal here.

It is contended here that the case at bar is distinguishable from the cited cases for reasons, viz.: (1) The cited cases involved a standing train, while the case here was a moving train; (2) the dangerous aspects of the crossing were made known to the railroad company a year prior to the collision; (3) warning signals had not been constructed at the crossing; (4) a signboard or other warning devices were totally absent where the collision occurred; (5) the collision occurred on a much traveled street within the municipality; (6) absence of automobile flash signals at the crossing; (7) dimout regulation controlling lights on automobiles; (8) automobile was operated at reasonable speed but occupants were unable to see the moving freight train; (9) other substantial reasons are assigned, constituting questions of fact...