Germak v. Florida East Coast Ry. Co.

• Decision Date: 30 May 1928
• Citation: 95 Fla. 991,117 So. 391
• Parties: GERMAK v. FLORIDA EAST COAST RY. CO.
• Court: Florida Supreme Court

117 So. 391

95 Fla. 991

GERMAK v. FLORIDA EAST COAST RY. CO.

Florida Supreme Court, Division B.

May 30, 1928

Error to Circuit Court, Putnam County; A. V. Long, Judge.

Action by Charles J. Germak against the Florida East Coast Railway Company Judgment for defendant, and plaintiff brings error.

Affirmed.

(Syllabus by the Court.)

COUNSEL

Hillburn & Merryday of Palatka, for plaintiff in error.

J. P Lamb, of Palatka, and Robert H. Anderson, of Jacksonville for defendant in error.

OPINION

PER CURIAM.

The declaration states an injury at a grade crossing in a municipality alleged to have been caused by the defendant in carelessly and negligently running and operating its train whereby it struck a motor driven vehicle in which plaintiff was riding, as the motor vehicle was crossing defendant's tracks. Trial was had on a plea of not guilty. Verdict and judgment were rendered for the defendant, and the plaintiff took writ of error.

The court allowed counsel for each side one hour for argument to the jury. One of the counsel for the plaintiff made an opening argument for 20 minutes. Counsel for the defendant waived his right of argument. Thereupon the other counsel for the plaintiff requested 'permission to argue to case to the jury, either as an opening or closing argument, and insisted that he had an absolute right to argue the case to the jury for the space of 40 minutes, the unused time allowed by the court.' This was denied. Exception was taken. The court stated:

'The rule is that there is an opening and a closing argument for the plaintiff in the case. Plaintiff in this case has made its opening argument, the defendant does not care to argue the case; therefore the case is submitted on the argument of the plaintiff.'

The defendant's counsel having made no argument, there was nothing to be met or replied to by counsel for the plaintiff, and the presentation rested upon the opening argument for the plaintiff. This would not necessarily be harmful to the plaintiff, and there is nothing in the record to indicate that the plaintiff could reasonably have been injured by the ruling in the case.

In B. & O. R. R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct 24, 72 L.Ed. 167, it is said:

'When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows he must stop for the train not the train stop for him. In such circumstances * * * if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than * * * stop and look. * * * It is true as said in Flannelly v. Delaware & Hudson Co., 225 U.S. 597, 603, 32 S.Ct. 783, 56 L.Ed. 1221 [1222], 44 L. R. A. (N. S.) 154, that the question of due care very generally is left to the jury. But we are dealing with a standard of conduct, and when the standard is clear it should be laid down once for all by the courts. See Southern Pacific Co. v. Berkshire, 254 U.S. 415, 417, 419, 41 S.Ct. 162, 65 L.Ed. 335 [337, 338].'

This rule has reference to the standard of conduct required by the law of persons in crossing railroad tracks. It does not relate to the standard of duty imposed upon railroad companies or define the liability of such companies under a statute like the one in Florida which provides that:

'A railroad company shall be liable for any damage done to persons * * * by the running of the locomotives, or cars * * * 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.' 'No person shall recover damages from a railroad company for injury to himself or his property * * * caused by his own negligence. If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished or increased * * * in proportion to the amount of default attributable to him.' Sections 4964, 4965, Rev. Gen. Stats. 1920.

Under the above statutory provisions, the rule announced by the Supreme Court of the United States in the Goodman Case supra, may be an appropriate standard of care required of a person in crossing a railroad track, to be applied in actions to recover damages for personal injuries received by collision with a train at a railroad crossing, and negligence of the injured person may appear from his failure to observe the required standard, which would bar recovery under the law in some states, see Penn. R. Co. v. Rusynik (Ohio) 159 N.E. 826; yet, under the Florida statute, if an injury...