Florida East Coast Ry. Co. v. Lawrence

• Decision Date: 27 February 1976
• Docket Number: 74--1409,Nos. 74--1408,s. 74--1408
• Citation: 328 So.2d 249
• Parties: FLORIDA EAST COAST RAILWAY COMPANY, a corporation, Appellant, v. Doris A. LAWRENCE, a widow, Appellee.
• Court: Florida District Court of Appeals

Page 249

328 So.2d 249

FLORIDA EAST COAST RAILWAY COMPANY, a corporation, Appellant, v. Doris A. LAWRENCE, a widow, Appellee.

Nos. 74--1408, 74--1409.

District Court of Appeal of Florida, Fourth District.

Feb. 27, 1976.

Rehearing Denied March 30, 1976.

Kenneth L. Ryskamp, of Bolles, Goodwin, Ryskamp & Welcher, P.A., Miami, for appellant.

Arnold R. Ginsberg, of Horton, Perse & Ginsberg and Beckham & McAliley, Miami, for appellee.

MAGER, Judge.

This is an appeal by Florida East Coast Railway Company, defendant below, from a final judgment rendered pursuant to a jury verdict in a consolidated action maintained by Doris A. Lawrence, plaintiff below, as widow and personal representative for the death of her husband resulting from a car-train accident in Brevard County.

Plaintiff sought damages both for wrongful death and under the survival statute asserting that the defendant, among other things, was negligent in the operation and control of its train and in its failure to furnish proper signals and adequate warning of the train's approach to the crossing. The accident occurred at the King Street crossing in Cocoa. The testimony was conflicting with regard to whether the gates at the railroad crossing were in a down position at the time decedent drove his car across the tracks, whether the lights were flashing and whether the train blew its whistle prior to entering into the intersection. The testimony was equally conflicting with respect to whether decedent drove around the gate arm or struck the gate arm as he proceeded to cross the tracks causing the gate to bounce.

The railroad denied any negligence and asserted the defense of contributory negligence. The jury was instructed on the doctrine of comparative negligence. The defendant requested that special verdict interrogatories should be submitted to the jury so that their verdict would reflect the percentages of negligence (thereby reducing the damages in proportion to the amount of the negligence attributable to the decedent). The trial court refused to submit special verdicts to the jury and instead used the general verdict form.

During the course of the presentation of her case the plaintiff called as an adverse witness the superintendent of signals and communications for the defendant railroad. On direction examination of this witness and over the objection of defendant plaintiff introduced into evidence three reported instances of alleged gate malfunctions at crossings Other than the King Street crossing within a 90-day period prior to the accident in question avowedly for the purpose of impeachment. Prior to the colloquy leading up to the introduction of these reports, testimony was elicited to reflect that the gate mechanism system at the King Street crossing (and its triggering devices) was fairly standard at each of the crossings within the FEC system, i.e. the gate mechanism system at the King Street crossing would operate in the same manner as at other crossings such mechanism being activated by a train passing a certain point on the track rails. Plaintiff posed the following question to the adverse witness:

'Q All right. With reference to this system of circuitry, can you tell me whether it is possible for a train to come through there and not have any gates, lights, or bell activity until it his the positive circuit?

'A Crossing signal circuits are designed fail-safe, as far as humanly possible. They are maintained to be fail-safe, as far as humanly possible. Anything could happen.' (Emphasis added.)

The reports subsequently utilized and objected to by the defendant had been prepared by a signal maintainer for the defendant and related to reported gate malfunctioning some miles distant from the King Street crossing.

In this appeal the defendant contends that the trial court erred when it permitted evidence of prior incidents at other railroad crossings to be considered. Defendant also contends that the trial court erred in refusing to submit special verdicts to the jury on the percentage of fault of each party under the comparative negligence doctrine.

The admissibility of evidence of prior similar accidents was recently discussed in Friddle v. Seaboard Coast Line Railroad Company, Fla.1974, 306 So.2d 97, wherein the Supreme Court of Florida adopted the dissent in Seaboard Coast Line Railroad Company v. Friddle, Fla.App.1974, 290 So.2d 85. In the latter Seaboard, supra, at page 89, the opinion pointed out the purpose to be served by such evidence as well as the circumstances surrounding its admissibility:

". . . Evidence of prior similar accidents at the same place, or prior similar injuries resulting from the same appliance, as that of the accident or injury in suit, is generally admissible for the purpose of showing the Existence of dangerous or defective Premises or appliances, and Notice or knowledge thereof, but generally not for the purpose of showing specific acts of negligence or the cause of the accident or injury. The admission of evidence of prior accidents or injuries is an exception to the general rule which ordinarily excludes evidence of independent events and occurrences not directly connected with the matter in dispute.'

'The foregoing authorities, and particularly the cases cited in the annotation and the supplement thereto, reflect that evidence of prior And subsequent accidents is admissible: (1) where the accidents occurred at the same place and under conditions which were at least substantially similar to the accident in dispute; (2) where the similar accident evidence has some tendency to establish a dangerous or defective condition at the place in question; (3) where the offer of evidence is to prove not negligence but Notice of the dangerous character of the condition; (4) where the evidence of the similar accidents offered to establish the existence of a dangerous condition is not too remote in time to the accident or condition to which such other accidents are claimed to be similar.'

A prevalent and vital aspect of the admissibility of prior similar accidents has been the occurrence of such accidents 'at the same place' particularly with respect to an accident at a railroad crossing. 46 A.L.R.2d 935, annotation: Evidence--Railroad Crossing Accident; 70 A.L.R.2d 167, annotation: Evidence--Negligence--Prior Accidents. See also Davis v. Illinois Terminal Railroad Company, Mo.1956, 291 S.W.2d 891; Atchison, T. & S.F. Ry. Co. v. Aynes, Okl.1954, 271 P.2d 312; Seaboard Coast Line Railroad Company v. Friddle, supra; Southern Railway Company v. Lanham, 5 Cir. 1968, 403 F.2d 119. In the instant case, the prior similar accident evidence had reference to places Other than the crossing where the subject accident occurred.

We fail to perceive the distinction drawn by the plaintiff between prior similar Accidents and prior similar Incidents insofar as the question of admissibility is concerned. In our view the criteria set forth in Seaboard, supra, would be equally applicable to prior similar Incidents involving malfunctioning safety devices as it is to prior similar Accidents. If the purpose of utilizing prior similar Accident or Incident evidence is to show the existence of a dangerous condition and notice or knowledge thereof the general guidelines set forth in Seaboard must be met.

The reports in question are not only deficient in this respect, i.e. a failure to show a malfunctioning at the Place of the accident in question, but, additionally, these reports fail to reflect occurrences 'under conditions which were at least substantially similar' to the accident in question. Seaboard v. Friddle, supra.

The annotation dealing with the admissibility of evidence involving railroad crossing accidents contains perhaps the best recitation of the rule and its application:

'The relatively few cases involving the present subject indicate that in a railroad crossing accident case, evidence of other functional failures of the warning signal located at the crossing in question when the accident occurred, occurring either before or after the accident in suit, may be admitted in a proper case for the purpose of showing the failure of the signal to operate at the time of the accident; or to show the defendant railroad's knowledge of the disrepair of the signals; or to throw light on the contributory negligence of the plaintiff; or to rebut specific evidence of the defendant railroad, such as an inference to the effect that since the warning signal at the crossing where the accident occurred was inspected a short time before and after the accident in suit, and was found to be in perfect working order, the signal must have been working properly at the time of the accident.

'But the admissibility of such evidence is strongly affected by the similarity or dissimilarity between the conditions prevailing at the time of the accident in suit and the conditions prevailing with respect to the particular signal (whether that at the crossing involved or at some other crossing) to which the evidence as to other functional failures is directed. Thus, it has been held or recognized in a few cases that such evidence was not admissible because its was too remote in point of time, or because the conditions were dissimilar at the railroad crossing at the time of the accident in suit and that the time or with respect to the signal device referred to in the testimony. Admissibility may also be affected by the form in which the testimony is offered.' (46 A.L.R.2d 936)

While there is arguable merit to the plaintiff's proposition that evidence of prior similar incidents (or accidents) involving safety appliances at Other railroad crossings is admissible for Impeachment purposes to diminish or discredit the 'aura of infallibility' of the system, we are of the opinion that the particular factual circumstances surrounding the presentation of the objectionable reports do not support the application of the position suggested by the plaintiff. ¹ In...