Clark v. Atlantic Coast Line R. Co.

• Decision Date: 19 December 1939
• Citation: 192 So. 621,141 Fla. 155
• Parties: CLARK GREEN v. ATLANTIC COAST LINE R. CO. (two cases). GREEN v. ATLANTIC COAST LINE R. CO.
• Court: Florida Supreme Court

192 So. 621

141 Fla. 155

CLARK GREEN v. ATLANTIC COAST LINE R. CO. (two cases). GREEN v. ATLANTIC COAST LINE R. CO.

Florida Supreme Court, Division B.

December 19, 1939

Error to Circuit Court, Alachua County; H. L. Sebring, Judge.

Actions by G. S. Clark, by G. S. Clark as administrator of the estate of Alva A. Clark, deceased, and by George F. Green as administrator of the estate of Raymond F. Green, deceased respectively, against the Atlantic Coast Line Railroad Company, a corporation, for death of intestates in railroad crossing accident. To review judgments for the defendant plaintiffs bring error.

Affirmed.

BROWN J., dissenting.

COUNSEL

Fielding & Duncan, of Gainesville, for plaintiffs in error.

Charles Cook Howell, of Jacksonville, and John B. Sutton, of Tampa, for defendant in error.

OPINION

PER CURIAM.

Writ of error from the Circuit Court of the Eighth Judicial Circuit in and for Alachua County, all three cases arising out of the same injury at a railroad grade crossing in which Alva A. Clark and Raymond F. Green, both minors, were killed.

Amended declarations were filed by G. S. Clark, George F. Green, fathers of the deceased minors, and by G. S. Clark, Administrator of the estate of his son. Each declaration alleged generally that on the night of the fatal collision at Newberry, Florida, the defendant railroad company had parked freight cars on its tracks on both sides of the main street of Newberry, and stopped its engine on the track crossing said street. The night was dark and foggy, it having just rained, and no street lights were burning and defendant's employees had no lights, flags or flares to warn the travelers. The two minors were driving East along the said street and ran into the parked engine, both being killed. Negligence of defendant railroad company was generally alleged, and damages in the amount of $2,850 were asked in each declaration.

Defendant company interposed demurrers to the declarations, as follows:

'The Defendant demurs to the Amended Declaration herein filed, because it is bad in substance and insufficient in law, and assigns the following several grounds:

'1. Said declaration states no cause of action.

'2. Material allegations of said Declaration are vague, indefinite and uncertain.

'3. Material allegations of said Declaration consist of conclusions which are not sufficiently supported by allegations of fact.

'4. Said Declaration seeks to charge the Defendant with a duty not imposed upon it by law.

'5. No facts are alleged to show the existence of any legal duty on the Defendant to maintain at said crossing any flagman, signal or light or other warning of the alleged dangerous condition of the crossing.

'6. No facts are alleged to show that the alleged collision reasonably should have been anticipated by the Defendant as probable to occur.

'7. It does not appear that the Defendant's alleged negligence was a proximate cause of the Plaintiff's alleged injury.

'8. No causative connection is alleged, or otherwise appears, between the alleged negligence of the Defendant and the alleged injury.

'9. The obstruction of the crossing by the Defendant's engine was a condition only, and not a cause of the collision.

'10. It affirmatively appears that the sole proximate cause of the alleged collision was the negligent operation of the automobile mentioned in the Declaration.'

The demurrers were sustained and plaintiffs given time to file amended declarations. This time having elapsed, final judgments on the demurrers were, on motion, entered for defendant. From these final judgments, writs of error were brought, questioning the legal correctness of the orders sustaining the demurrers.

A passenger who is not chargeable with the negligence of the driver of an automobile, must, nevertheless, allege actionable negligence on the part of defendant railroad company as a proximate cause of the injury stated in an action for damages. Southern Ry. Co. v. Lambert, 230 Ala. 162, 160 So. 262, and the cases there cited.

A railroad company is entitled to assume that reasonable care will be exercised by automobile travelers on the highway, and that a motorist will adopt such a rate of speed and be as vigilant to avoid collisions at crossings as the conditions warrant.

Section 1, Chapter 12222, Acts of 1927, provides that in any civil action for damages against any railroad company for injuries sustained at a railroad crossing by reason of collision with any engine or train of cars, sections 7051 (4964) and 7052 (4965), C.G.L., relating to the railroad's liability for negligence, shall govern.

A careful perusal of the declaration fails to reveal any allegation of negligent conduct on the part of the defendant its agents or servants which was the proximate cause of the injury alleged to have been suffered by the plaintiff; and as the allegations of the declaration are not such as to bring the alleged injury within the purview...