Covington v. Seaboard Air Line Ry. Co.

Decision Date15 May 1930
Citation128 So. 426,99 Fla. 1102
PartiesCOVINGTON v. SEABOARD AIR LINE RY. CO.
CourtFlorida Supreme Court

Error to Circuit Court, Marion County; W. S. Bullock, Judge.

Action by Victor T. Covington, a minor, by his next friend, James L Jackson, against the Seaboard Air Line Railway Company. There was a verdict for plaintiff and an order granting defendant's motion for a new trial, and plaintiff brings error.

Affirmed.

COUNSEL

Hampton & Greene, of Ocala, for plaintiff in error.

L. W Duval, of Ocala, for defendant in error.

OPINION

ELLIS J.

During the afternoon of May 9, 1926, Victor T. Covington, his wife Margaret P. Covington, and their two children, one a girl child about --- years old and a boy child aged about nine years named Victor Covington, were traveling in an automobile of the type known as a 'ford touring car.'

The father, Victor T. Covington, was driving. His wife was sitting upon the seat beside him. The little girl with her brother Victor, who was asleep, were riding in the rear seat. At a point in the town of Belleview near Freeman's garage where the railroad of the Seaboard Air Line Railway crosses the State Highway No. 2, Mr. Covington undertook to drive his automobile across the track of the railroad company in front of a rapidly approaching train of the company on its schedule trip from Jacksonville to Tampa. The train was approaching the crossing from the north at a rate of speed equal to about 35 miles per hour. State Road No. 2 from Belleview to Ocala crosses the railroad track at the point where Mr. Covington sought to pass almost at right angles. A street runs parallel to the railroad track about 100 feet east of the track. There is a row of oak trees near the west line of the street about 75 feet from the railroad track. Freeman's garage and gas station is about 200 feet from the crossing to the eastward and about 60 feet south of State Road No. 2. Between the line of trees and the railroad track there are no natural obstructions to prevent a traveler approaching the track from seeing an approaching south bound train.

Mr Covington drove his automobile upon the railroad track in front of an approaching south-bound train. His automobile was struck by the train resulting in the death of himself, his wife, and little girl. The boy, who was asleep on the rear seat of the automobile according to his own testimony, was seriously injured.

In July of 1926 the boy, Victor Covington, by his next friend, J. L. Jackson, brought an action against the railroad company for damages for personal injuries. There was a verdict for the plaintiff in the sum of $8,000. A motion for a new trial was made by the defendant, and the trial court granted it, to which order the plaintiff took a writ of error.

In granting the motion the learned judge said: 'The approaching train was seen by several witnesses from 500 feet to one-quarter of a mile north of the crossing,' that to his mind it was conclusively shown that the 'deceased father' 'drove his automobile in front of the approaching train to his right, without looking to the right until too late, and the train struck him. There can be no doubt of these facts, and how could it be possible that any negligent act of the defendant contributed to the injury, I cannot see.'

These quotations from the trial judge's opinion are inserted here merely to show the impression which the evidence taken before him made on his mind. Our examination of the evidence as the same is presented here in the bill of exceptions leads us to the same conclusion as to the negligent act of Mr. Covington which proximately resulted in the injury to himself and family.

There is no question of pleading involved in the case. The declaration contains three counts. One alleges carelessness in general terms of defendant's servants in operating the train coupled with the allegation that a 'hill' a short distance north of the crossing and a 'number of trees' east of the track 'obscure the view from that side,' 'and a train going south cannot be seen by persons operating and driving automobiles approaching the railroad track from the east untill the train is within a short distance of the crossing, to-wit: so close that a train operated at a high rate of speed as was defendant's train on the day aforesaid, will reach the said crossing before a car traveling at the usual and ordinary rate of travel on the highway in said town, can cross the said track after the train comes in view; but if traveling at the rate of speed provided by law, to-wit: not to exceed 12 miles an hour, there is sufficient time for an automobile traveling at the usual and ordinary rate of speed allowed and provided for in the town of Belleview, to cross over the said tracks after the train comes into view as aforesaid before the said train reaches the crossing, all of which was on the day aforesaid well known to the defendant, its agents and servants. That the automobile in which plaintiff was riding as aforesaid was then and there traveling west and approached the said crossing from the east, and when the said car approached the said crossing, and before going upon the same, the said train could not be seen and observed by the exercise of usual and ordinary care and caution before the said automobile reached the crossing, or reached a point so...

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  • Powell v. Jackson Grain Co.
    • United States
    • United States State Supreme Court of Florida
    • October 24, 1938
    ...... by Jackson Grain Company against L. R. Powell, Jr., and. another, as receivers of the Seaboard Air Line Railway. Company, for damages for the demolishing of a motortruck and. trailer and the ... 435, 70 So. 437; Atlantic Coast Line R. Co. v. Miller, 53 Fla. 246, 44 So. 247; Covington v. Seaboard Air Line Ry. Co., 99 Fla. 1102, 128 So. 426. See, also, notes in 56 A.L.R. 647. . . ......
  • Stringfellow v. Atlantic Coast Line R. Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
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    ...Atlantic C. L. R. Co. v. Gornto, 89 Fla. 97, 103 So. 117; Florida E. C. R. Co. v. Davis, 96 Fla. 171; 117 So. 842; Covington v. S. A. L. R. Co., 99 Fla. 1102, 128 So. 426; Southern R. Co. v. Mann, 91 Fla. 948, 108 So. 889. In our opinion, the right of recovery for the deaths of the children......
  • Florida East Coast Ry. Co. v. Townsend
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    ...... Myrick, 91 Fla. 918, 109 So. 193; Egley v. S. A. L. Ry. Co., 84 Fla. 147, 93 So. 170; Covington v. S. A. L. Ry. Co., 99 Fla. 1102, 128 So. 426, unless some. appreciable negligence of the ......
  • McAllister v. Tucker
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    • March 16, 1956
    ...presumption, it is not evidence but will give way in the face of evidence showing an exercise of due care. Covington v. Seaboard Airline R. Co., 99 Fla. 1102, 128 So. 426; Atlantic Coast Line R. Co. v. Price, Fla., 46 So.2d 481; Van Allen v. Atlantic Coast Line R. Co., supra; Atlantic Coast......
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