Davis v. Loftin

• Decision Date: 29 October 1954
• Citation: 75 So.2d 813
• Parties: Florence DAVIS, as Administratrix of the Estate of Solomon Davis, deceased, Appellant, v. Scott M. LOFTIN and John W. MARTIN, as Trustees of the Property of the FloridaEast Coast Railroad Company, Appellees.
• Court: Florida Supreme Court

Page 813

75 So.2d 813

Florence DAVIS, as Administratrix of the Estate of Solomon Davis, deceased, Appellant, v. Scott M. LOFTIN and John W. MARTIN, as Trustees of the Property of the FloridaEast Coast Railroad Company, Appellees.

Supreme Court of Florida, Special Division B.

Oct. 29, 1954.

Rehearing Denied Dec. 7, 1954.

Rosenhouse & Rosenhouse, Miami, and Sanchez, Watkins & Watkins, Tallahassee, for appellant.

Anderson, Scott, McCarthy & Preston, Miami, and Russell L. Frink, Jacksonville, for appellees.

SEBRING, Justice.

This is an appeal from a final judgment entered upon a verdict directed in favor of the defendant company at the close of the plaintiff's case in chief, in a negligence action by a personal representative on behalf of her decedent, consolidated for trial with an action for wrongful death.

According to the record, Northeast 6th Avenue runs north and south through Miami Shores, Florida. Northeast 92nd Street, which adjoins the avenue on the west, runs in a westerly direction. The 100-foot right of way of the Florida East Coast Railway Company crosses Northeast 6th Avenue in a northeasterly and southwesterly direction, within a few feet of the southerly junction with Northeast 92nd Street. Down the center portion of the right of way are the northbound and southbound main line tracks of the company.

On April 18, 1951, the Florida East Coast Railway Company gave written permission to the Department of Water and Sewers of the City of Miami to dig a trench and lay a water pipe line from south to north across this right of way where the same crosses over the pavement of Northeast 6th Avenue; the trench to be located parallel with and 8 feet west of the center line of the avenue.

When the work crew of the city began the project pursuant to the agreement, it was joined by a bridge crew of the railway company, whose primary duty it was to shore up the tracks at the point where the trench was to be dug under the railway tracks of the company. During the period of time the city crew was actually engaged in digging the trench under the tracks, the foreman of the bridge crew would warn the workmen each time a train was due and thereupon both crews would leave the trench until the train had passed.

After some four and one-half days engaged in digging the trench, the city crew had progressed with the project to the point that pipe had been laid under and beyond the main line tracks and to within a few feet of the northwesterly boundary line of the right of way.

On the morning the accident which forms the basis for this litigation occurred, the crew began removing from the bottom of the trench loose sand and dirt that had caved in from the sides as the result of a rain that had fallen in the area the night before. After they had finished this job and were engaged in laying the pipe a switch crew of the defendant company began switching box cars in the immediate vicinity. During the course of switching, the switch engine, engaged in cutting out freight cars to a connecting side track, passed up and down the southbound main line track several times. While engaged in this operation the switch engine let a freight car roll free along the southbound main line track to couple with a standing car approximately 100 to 150 feet from the spot where the city crew was working. According to one of plaintiff's witnesses, the moving car hit the standing car with a heavy impact, made a loud noise when it 'jarred the other car,' and 'caused a vibration' of the earth around the excavation. Simultaneously with this noise and impact a slab of asphalt pavement, under which the city crew had tunneled the trench for some inches, caved in upon the members of the crew working at the bottom of the excavation and Solomon Davis, the plaintiff's intestate, received injuries from which he died.

Upon this evidence, which, of course, comes wholly from the plaintiff's witnesses, the trial court, at the close of the plaintiff's case in chief, directed a verdict in favor of the defendant, and this appeal followed.

The primary issue raised on appeal is with reference to the applicability of section 768.05, Florida Statutes 1951, F.S.A., to the facts of the case at bar. This section provides that 'a railroad company shall be liable for any damage done to persons * * * by the running of the locomotives, or cars * * * of such company * * * unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.' The appellant contends that under the allegations of the complaint and the proof offered to support them, it was error for the court to direct a verdict against the plaintiff without requiring of the defendant that it submit proof that its agents 'exercised all ordinary and reasonable care and diligence' in the circumstances.

In dealing with this question it should be noted that the complaint filed by the plaintiff alleged, in respect to the negligence of the defendant company, that the company 'switched freight cars by a locomotive when they knew, or should have known, that by reason of the weight and size of said locomotive the said switching thereof being in such close...