Ely v. Atlantic Coast Line R. Co.

• Decision Date: 21 February 1962
• Docket Number: No. 2342,2342
• Citation: 138 So.2d 521
• Parties: Raymond ELY, Appellant, v. ATLANTIC COAST LINE RAILROAD CO., a corporation of Virginia, and W. A. Burnham, Appellees.
• Court: Florida District Court of Appeals

Page 521

138 So.2d 521

Raymond ELY, Appellant, v. ATLANTIC COAST LINE RAILROAD CO., a corporation of Virginia, and W. A. Burnham, Appellees.

No. 2342.

District Court of Appeal of Florida, Second District.

Feb. 21, 1962.

Rehearing Denied March 13, 1962.

Jerome Pratt, Palmetto, Warren M. Goodrich of Goodrich & Hampton, Bradenton, for appellant.

Richard W. Reeves of Allen, Dell, Frank & Trinkle, Tampa, for appellees.

PER CURIAM.

Appellant Raymond Ely was plaintiff in an action for damages growing out of a collision between his automobile and a train of the Atlantic Coast Line Railroad Company. He obtained a $9865.00 jury verdict against the corporate defendant and the codefendant engineer W. A. Burnham. The trial court, by reserved ruling on defendants' motion for a directed verdict, set aside the verdict and entered judgment for the defendants. The plaintiff appealed.

On March 3, 1960, at 7:45 P.M. the plaintiff was driving east on Seventh Street, one of the principal arteries of traffic in the City of Palmetto, when his automobile collided with a train belonging to the defendant railroad and operated by locomotive engineer W. A. Burnham. It was a dark and chilly night. Both the plaintiff and the defendant engineer were familiar with the crossing which was marked with standard crossing signs but had no automatic signal device. The speed of plaintiff's automobile was about 30 miles per hour and the train was traveling between 15 and 20 miles per hour. The plaintiff and several of plaintiff's witnesses testified that they did not see or hear any warning signals prior to the collision. Witnesses on behalf of the defendants testified that regular warnings were given by bell, whistle and lights.

Judgment non obstante veredicto, as a common law remedy, was available only to a plaintiff. Tolliver v. Loftin, 1945, 155 Fla 698, 21 So.2d 359. A defendant's remedy was by motion in arrest of judgment. Presently, however, under Rule 2.7(b), Florida Rules of Civil Procedure, 31 F.S.A. ¹ a judgment notwithstanding the verdict may be available to a defendant as well as to a plaintiff.

In entering judgment notwithstanding the verdict the trial court considered the evidence insufficient, as a matter of law, to establish liability on the part of the defendants. This being a comparative negligence case ² the judgment necessarily included a judicial finding that the defendants were without contributing fault and that the sole proximate cause of plaintiff's injuries was his own negligence.

A canning plant was located along the railroad right of way about 45 feet from the street on the side from which the train was approaching and on the side from which the plaintiff was approaching. There also was testimony that a dump truck and a transport truck were parked along the siding between the canning plant and the intersection. Testimony was conflicting as to whether there were also some box cars on the spur or siding near the crossing. Whether these circumstances existed and caused material visual obstruction to the plaintiff were questions before the jury for determination.

A further and more contentious conflict, factually and legally, was whether or not adequate warning signals were given by the defendants. The engineer and fireman testified that the bell and whistle were sounded for four successive crossings including the particular crossing here involved. Several others, who were not eye witnesses, testified for the defendants that they heard warnings. It is notable here that such statements by witnesses who were not firsthand observers could have been interpreted as applying to crossings generally without pinpointing any particular crossing. The plaintiff and three additional witnesses testified that they did not hear any warnings. The defendants' motion questioned whether the jury could properly give any weight to such 'negative' testimony and, ultimately, whether in combination with other evidence such testimony was legally sufficient to support the verdict rendered. The trial court, in charging the jury, defined and distinguished positive and negative testimony consistent with the following commentary.

In Tyus v. Apalachicola Northern Railroad Company, Fla.1961, 130 So.2d 580, the Supreme Court said:

'Our examination of the opinion in the powell case ³ convinces us we did not unequivocally state nor did we even by inference suggest, that 'negative testimony will not make an issue in the face of positive testimony that the signals were given.' Indeed, we cannot find any case in which we have indubitably, or at all, pronounced such a rule. On the contrary, our conclusion with reference to the relative weight which should be given to negative and positive testimony, was [146 Fla. 334, 200 So. 855]:

"As stated in Seaboard Air Line R. Co. v. Myrick, 91 Fla. 918, 109 So. 193, 195:

"'It is not alone sufficient for the injured plaintiff to say that he 'did not see' the approaching train, nor hear any whistle or bell or noise of its approach, in order to overcome positive evidence that all ordinary warnings were given of the train's approach. When negative testimony is relied upon to contradict positive evidence, it should appear that the negative statements were made by persons whose attention was directed to the fact that they were looking, watching and listening for the fact. Not only that the opportunity for observing the fact existed, but that their attention was directed to the fact * * *.'' (Emphasis theirs)

'The above statement accords not only with reason and logic, but also with the great weight of authority. As stated in American Law Reports, annotated:

"As already indicated, the probative force of testimony that crossing signals were not given, or that they were not seen or heard, on the approach of a train, depends largely upon whether such testimony is regarded as negative or positive in effect, and upon the attendant circumstances--whether or not the witness was in such a position that it would be presumed that he would have observed the signals if given, whether or not he was listening, watching, or otherwise attentive to the situation, the condition of his sense of sight or hearing, attendant noises, the blowing of wind, etc. A distinction is made, too, in some jurisdictions, between testimony positively declaring that signals were not given, and testimony stating merely that the witness did not hear or see them. (Emphasis theirs)

"If all testimony to the effect that signals were not given on the approach of a train to a crossing should be regarded as wholly without probative force purely on the ground that it was negative testimony in that it was testimony to the effect that an event did not occur, the plaintiff in a crossing accident case would be without means of proof that the signals were not given, and so could never rely upon the failure of the signals as proof of negligence on the part of the defendant, which in many cases is absolutely necessary in order to prove any negligence whatsoever on the part of the defendant.' (Italics theirs) * * *'

At page 585:

'The gist of our rule in relation to negative testimony in the face of positive testimony to the contrary is that if a jury decides that the attention of the witness whose testimony is negative in character, is actually directed to the fact or situation, about which he later testifies, regardless of the reason therefor, said jury may consider such negative testimony and accord to it the weight it may deem proper.' (Italics theirs)

And at page 586:

'* * * It was for the jury to weigh and evaluate such testimony, even if it should be considered negative 'in effect,' and determine 'whether or not the witness was in such a position...