Florida East Coast Ry. Co. v. Davis

• Citation: 117 So. 842,96 Fla. 171
• Parties: FLORIDA EAST COAST RY. CO. SAME v. DAVIS. SAME v. NANCE.
• Decision Date: 11 July 1928
• Court: United States State Supreme Court of Florida

117 So. 842

96 Fla. 171

FLORIDA EAST COAST RY. CO. SAME v. DAVIS. SAME v. NANCE.

Florida Supreme Court, Division B.

July 11, 1928

Error to Circuit Court, Dade County; A. J. Rose, Judge.

Separate actions by George W. Davis and by Oscar Nance against the Florida East Coast Railway Company. Verdict for defendant and, from an order granting a new trial, defendant brings error.

Reversed and remanded, with directions.

Syllabus by the Court

SYLLABUS

Damages cannot be recovered against railroad, where injury was caused by negligence of injured party in approaching grade crossing without looking for approaching train (Comp. Gen. Laws 1927 § 7052). Where an injury is caused by the negligence of the injured party in approaching a railroad track at a grade crossing without looking for possible approaching trains, and the defendant railroad company was not negligent, damages cannot legally be recovered, since the statute provides that 'no person shall recover damages from a railroad company for injury * * * caused by his own negligence.'

Negligence of occupants of automobile injured in collision with train required directed verdict for railroad (Comp. Gen. Laws 1927 § 4363). In action against railroad for injuries to occupants of automobile, struck by train at highway crossing, evidence as to negligence of plaintiffs held to require directed verdict for defendant, pursuant to Rev. Gen. St. 1920, § 2696 (Comp. Gen. Laws 1927, § 4363).

COUNSEL

Robert H. Anderson, of Jacksonville, and Loftin, Stokes & Calkins, of Miami, for plaintiff in error.

Worley & Worley, of Miami, for defendants in error.

OPINION

WHITFIELD P.J.

The two cases grew out of the same railroad crossing accidents, and were tried together. The declaration in the first case alleges:

'That, on the 5th day of April, the plaintiff was crossing the railroad track owned and operated by the defendant at the crossing on said track commonly known as the Fulford crossing, or the crossing at Fulford in said county, the same being a public crossing for vehicles of all kinds and pedestrians and people of all kinds, and a crossing within a village thickly settled with people, and this plaintiff, in crossing said railroad track, was riding in a Chevrolet coupé going west, and that when he approached the said crossing he exercised all due diligence and care in looking out for trains, and listening for whistles and signals and that he saw nor heard none, and proceeded on his way across the track, and that the said defendant, operating a north-bound passenger train at a great and dangerous rate of speed and without due regard for the safety of others, operated its said train with such speed and recklessness and without blowing any whistle or ringing any bells or giving any other signal of its approach or complying with any of the necessary requirements of the law ran its train over and upon said crossing at a terrific and reckless rate of speed, and struck the car in which this plaintiff was riding,' injuring the plaintiff and his car.

In the second case, the declaration alleges:

That the plaintiff undertook to cross the 'railway riding in a car driven by one George W. Davis, and that all due precautions were taken before going onto said railroad track, and that the said defendant company, then and there operating a north-bound passenger train at such a reckless rate of speed ran the same over and upon said crossing without blowing any whistles or ringing any bells or giving any signal of its approach and struck the car in which this plaintiff was riding, demolishing the car, and injuring and damaging this plaintiff.'

In each case the following pleas were filed: (1) That it is not guilty. (2) That the defendant's rails, at the time and place mentioned in the plaintiff's declaration, were in plain view of plaintiff, and, by the reasonable exercise of his faculties, he could have seen the same, and thereby been admonished of the danger of entering upon and passing over same, and, by the reasonable exercise of his faculties, he could have heard and seen defendant's train of cars, at the time and place mentioned in the declaration, and, by the exercise of due care, he could have avoided coming in contact with defendant's said train of cars, but, because of his negligent failure to reasonably exercise his faculties and to look and listen, he proximately contributed, by his said negligence, to the injuries complained of.

When the testimony was all in, the court upon motion directed a verdict for the defendant, which was rendered in each case.

A motion for new trial was made in each case upon grounds that the verdict is against the evidence and that the court erred in directing a verdict for the defendant and in not allowing the case to go to the jury upon the facts presented. The court made the following order:

'These two cases were, by consent of counsel and of the court, tried at the same time before the same jury. And motion for a new trial by the plaintiff was duly filed, and, upon consideration thereof and after argument of counsel, it is ordered and adjudged that a new trial be and the same is hereby granted to the plaintiffs, to which said order and ruling the defendants except.'

On writ of error taken in each case under the statute (section 2905, Rev. Gen. Stats. 1920; section 4615, Comp. Gen. Laws 1927), the order granting a new trial is the only assignment of error. Jones v. Jacksonville Electric Co., 56 Fla. 452, 47 So. 1.

It appears that the automobile in which the plaintiffs were riding came north on the highway parallel with the double railroad tracks, and turned west on another road to cross the railroad tracks. As the automobile approached the crossing, the occupants heard or saw a train crossing from the north. The automobile was stopped about 12 feet from the east track till the south-bound train passed on the west track. Then as the automobile moved forward and was within 2 feet of the tracks, the front part of the automobile was struck by a north-bound train, causing the injuries. The plaintiffs testified that they looked to the south, and did not see the approaching north-bound train till it was about 50 feet from the automobile, and did not hear a bell or whistle of that train.

There is positive testimony that the bell was rung and the whistle blown before the train reached the crossing. It also appears that, if the automobile stopped 12 feet from the east railroad track, the bodies of the plaintiffs would have been about 16 feet from the track, that a structure measuring 22 1/2 feet east and west stood 18 feet and 3 inches east of the nearest rail of the railroad track, and that a person on the highway 15 or 16 feet from the railroad track could see perhaps 1500 feet down the track to the south.

Even if the structure standing 18 feet east of the railroad tracks in fact obstructed the view of the plaintiffs to the south of the railroad tracks from the point where the automobile was stopped to let the south-bound train pass, it was the duty of plaintiff to look down the track to the south after passing from the obstruction to view afforded by the structure and before going upon the railroad tracks. If the plaintiffs had looked as they testified they did, the track would have been in full view for at least 1,000 feet after passing the structure and before reaching the railroad tracks, so an approaching train would have been seen before it was only about 50 feet from the crossing. If the automobile was stopped within 12 feet of the east track for the south -bound train to pass on the west track as testified by the plaintiff, the north-bound train must have been within the range of vision of the occupants had they looked to the south...