Hutton v. Atlantic Coast Line R. Co.

• Decision Date: 06 February 1957
• Citation: 92 So.2d 528
• Parties: W. T. HUTTON and Nettie Hutton, his wife, Appellants, v. ATLANTIC COAST LINE RAILROAD COMPANY, a Virginia corporation, B. G. Methvin, C. R. Jones and R. O. Weeks, Appellees.
• Court: Florida Supreme Court

Page 528

92 So.2d 528

W. T. HUTTON and Nettie Hutton, his wife, Appellants, v. ATLANTIC COAST LINE RAILROAD COMPANY, a Virginia corporation, B. G. Methvin, C. R. Jones and R. O. Weeks, Appellees.

Supreme Court of Florida, Special Division A.

Feb. 6, 1957.

Rehearing Denied March 1, 1957.

Wm. McHardy Berson (of Sanders, McEwan & Berson) and Truman E. Grason (of Grason & Blankner), Orlando, for appellants.

LeRoy B. Giles, Edward K. Goethe and David W. Hedrick, Orlando, for appellees.

PEARSON, Associate Justice.

The appellants here were plaintiffs below, who recovered jury verdicts against the appellees, who were defendants below. In this opinion, the parties shall be referred to as they stood in the trial court. After rendition of verdicts, the trial court granted defendants' motion for judgment notwithstanding the verdicts, set aside the verdicts and entered final judgment for the defendants. From that final judgment, this appeal is prosecuted.

In entering judgment for the defendants, notwithstanding the jury's verdicts for the plaintiffs, the learned trial judge declared that 'there was no evidence submitted * * * upon which the jury could lawfully find a verdict * * *' for the plaintiffs. Since this is a case involving the application of our comparative negligence statute, Sec. 768.06, F.S.A., our inquiry narrows to whether or not there was competent evidence presented on the trial of the cause, which the jury could believe and accept, sufficient to established causal negligence on the part of the defendant railroad.

The undisputed testimony offered at the trial discloses that plaintiff W. T. Hutton and his wife, plaintiff Nettie Hutton, following the retirement in 1946 of W. T. Hutton as a railroad engineer, moved from their residence in the State of Indiana to Orlando, Florida; that at the time of the accident in question, the plaintiffs were returning from a visit to their former home State; that at that time, plaintiff W. T. Hutton was about 70 years of age, and his wife about 65 years old; that neither was familiar with the railroad crossing where the accident occurred or recalled that the crossing was there, having traversed it only once before the accident, and that time about one year prior to the accident.

The plaintiffs were traveling in their 1949 automobile, which was equipped with the original lights installed in the car by the car's manufacturer, which lights had been checked and approved for use by the Florida Highway Patrol before they left Orlando for their trip north, and again inspected, with the same result, in Indiana, before they commenced their return trip to Florida.

The accident in controversy occurred at the crossing of U. S. Highway No. 441 and the defendant railroad's tracks within (but near the edge, or outer limits of) the corporate boundaries of Tavares, Florida. The plaintiffs were traveling east on the highway at night, with their car's dim lights burning, at a speed not in excess of 18 miles per hour, and their car collided with the west side of one of the defendant railroad's gondola cars standing motionless on the 'house track' over and completely obstruction the crossing. Approximately two blocks back, the plaintiffs had stopped their car for a traffic control signal light at a side street intersection with the highway, and, after passing through the intersection, another automobile drove out from the side street intersecting the highway and turned into the highway and followed their car. Neither of the plaintiffs (W. T. Hutton was driving), who were keeping a careful lookout ahead, saw any of the railroad warning signs to the right and elevated above the highway as their car approached the tracks, or saw the tracks themselves, nor did they see the gondola car occupying the crossing. The occupants of the car driving approximately 50 feet behind the plaintiffs' car, although they were familiar with the crossing (unlike the plaintiffs), likewise did not see the train until the moment of the collision between the plaintiffs' car and the train.

Just prior to the collision, the railroad had been engaged in a switching operation. The last move before the accident had been from the depot side of the highway, or from the plaintiffs' right, in which two diesel locomotives pointed south backed northward into the 'house track', and at a point south of the highway coupled to a 'cut of three gondola cars. The plan was to back the three gondola cars northward on the 'house track' to a point approximately 65 feet north of the crossing, and the movement was commenced. The 'cut' of three cars was backed to and stopped with its north end four feet south of the crossing; defendant C. R. Jones, the railroad brakeman, carrying a white lantern, then dismounted from the north end of the 'cut', walked to the center of the highway, looked for vehiclar traffic in both directions, and seeing none, signalled the train to back up and couple to the other 'cut' of cars standing 65 feet north of the crossing. This was done and, as the 'cut' of cars moved north over the crossing traveling toward the 'cut' to which they were to couple, defendant Jones caught up on the leading end of the 'cut' and rode 65 feet to the point where the coupling was made. The movement stopped and he went in between the two 'cuts' and was in the act of connecting the air hose when he heard the noise of the collision of the plaintiffs' car with the west side of a gondola car, the second car...