Brown v. Seaboard Airline Railroad Company

• Decision Date: 24 November 1970
• Docket Number: No. 29236.,29236.
• Citation: 434 F.2d 1101
• Parties: Joseph BROWN, Plaintiff-Appellant, v. SEABOARD AIRLINE RAILROAD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

434 F.2d 1101 (1970)

Joseph BROWN, Plaintiff-Appellant, v. SEABOARD AIRLINE RAILROAD COMPANY, Defendant-Appellee.

No. 29236.

United States Court of Appeals, Fifth Circuit.

November 24, 1970.

I. W. Williams, St. Petersburg, Fla., for plaintiff-appellant.

George Winn, Ronald D. McCall, James E. Thompson, of Fowler, White, Gillen, Humkey & Kinney, P. A., Tampa, Fla., for defendant-appellee.

Before BELL, THORNBERRY, and CLARK, Circuit Judges.

BELL, Circuit Judge:

The district court directed a verdict in favor of the defendant in a suit for personal injuries brought by plaintiff against the defendant railroad company based on alleged negligence. The principal issue presented is whether the evidence was sufficient to make a jury question. There are two additional issues: one, did the court err in refusing to classify as a hostile witness a railroad employee called as a witness by plaintiff; two, did the court err in excluding evidence that the train in question formerly had a four-man crew as compared with the three-man crew at the time of the accident. Finding no error, we affirm.

After a careful study of the record in light of the issues presented, the following is an adequate distillation of the case. Late in the afternoon of March 18, 1966, defendant's train crew discovered plaintiff lying near its track with both legs virtually amputated. They were later amputated at the hospital. The train crew had been switching freight cars in and out of the Tropicana plant near Bradenton, Florida. The evidence indicated without dispute that certain freight cars of the defendant railroad ran over plaintiff's legs at a point on the left rail facing north of a spur or industrial track near the Tropicana plant. This track, called a runaround track, was parallel to and near the main line track and it was also near a spur track which led into the Tropicana plant. It was also undisputed that defendant's crew moved a cut of eight cars three car lengths in a southern direction on the track in question as part of a switching operation. It was during this movement that the plaintiff was injured. The engine headed north to make connection with these cars. After moving all eight cars the distance of three car lengths as stated, the three southern most cars were removed from the cut of eight and switched into the Tropicana plant. Plaintiff was discovered by the crew after the switching operation had been finished and when the switch engine was heading north on the mainline.

Defendant's brakeman testified that he was riding on the front or head of the engine as distinguished from being in the cab at the time the engine made connection with the cut of eight cars and that he could see to the left and right of the cars. He testified that he did not see anyone in the vicinity at the time although he looked carefully. There was no evidence to the contrary. Plaintiff did not testify.

I.

The motion for directed verdict was premised on the ground that plaintiff was a trespasser and that under Florida law defendant's only duty to a trespasser was to refrain from wanton negligence or willful misconduct toward him. Louisville & Nashville Railroad Company v. Holland, Fla., 1959, 79 So.2d 691; Adams v. Florida East Coast Ry. Co., Fla.App., 1965, 179 So.2d 374. The difficulty with this position is factual. A trespasser upon railroad property becomes an implied licensee if the property is open to use and is used by the general public and the railroad knows, or should know, of that use and makes no effort to limit it. If plaintiff occupied the status of an implied licensee, then the railroad was under a duty to exercise ordinary care to discover his presence if his presence was reasonably foreseeable. Seaboard Air Line Railroad Company v. Branham, Fla.App., 1958, 99 So.2d 621.

The track on which plaintiff was injured is near Bradenton, Florida in a populated area with a good many residences located in the near environs. The Tropicana plant covers a four block area immediately to the north and east of the point of injury. The immediate area to the west is a wooded and somewhat swampy area. The point of injury was some 1,600 feet from the nearest railroad street crossing. There was testimony that people had been seen on occasion walking along the track near the point of injury en route to the wooded area to pick oranges or bananas and perhaps to dig fish bait. This evidence, although thin, was sufficient to make a jury question on the issue whether plaintiff was a trespasser or an implied licensee. On the trespasser status vis a vis that of licensee being a jury question where the facts are in dispute, see Mixon v. Atlantic Coast Line Railroad Company, 5 Cir., 1966, 370 F.2d 852. With the trespasser underpinning removed, one basis for directing the verdict is also removed.

II.

As an additional ground for the motion for directed verdict, it was urged that there was no evidence whatever of negligence on the part of defendant. Plaintiff's counsel attempted to make out a case of negligence by contending that the three crewmen (engineer, conductor, and brakeman) were all on the right hand side of the engine and that this impaired their ability to see to the left side of the cut of cars. This contention is without support in the record. The evidence was that plaintiff was run over by the left side, facing north, of the rear cars in the cut at the time they were pulled south by three cars lengths. The brakeman was on the front or head of the engine and could see to the right and left of the cut of cars although he was on the right hand side of the front of the engine so that the engineer might see his hand signals. As stated, he testified that he looked to the right...