Kimball v. Atlantic Coast Line R. Co.

• Decision Date: 02 March 1938
• Citation: 132 Fla. 235,181 So. 533
• Parties: KIMBALL v. Atlantic Coast Line R. Co. [*]
• Court: Florida Supreme Court

181 So. 533

132 Fla. 235

KIMBALL v. Atlantic Coast Line R. Co. ^[*]

Florida Supreme Court, Division B.

March 2, 1938

Rehearing Denied May 19, 1938.

Error to Circuit Court, Orange County; Frank A. Smith, Judge.

Suit by A. T. Kimball against the Atlantic Coast Line Railroad Company for injuries sustained in crossing collision between truck and train. To review a judgment for defendant plaintiff brings writ of error.

Affirmed.

COUNSEL

George Palmer Garrett, of Orlando, for plaintiff in error.

W. E. Kay, of Jacksonville, and Leroy B. Giles and Warren B. Parks, both of Orlando, for defendant in error.

OPINION

CHAPMAN Justice.

This suit is here on writ of error sued out by plaintiff below to a final judgment in behalf of the defendant. The amended declaration alleges that the plaintiff sustained personal injuries when a truck driven by him came into a collision with a train standing on a railroad crossing on defendant's railroad track across the main street of the town of Apopka, Orange county, Florida. The negligence upon which a recovery is sought is, viz.:

'1. At the said time and place said defendant railroad company had obstructed traffic on said thoroughfare of said city for more than five minutes contrary to the ordinances of the said town of Apopka then effective forbidding such obstructions.

'2. At said time and place, the said railroad company had stopped and parked its train entirely across and entirely obstructing the entire width of said main thoroughfare, thereby preventing any persons or vehicles from passing along said thoroughfare across said track at said time and place.

'3. Said railroad company then and there had or maintained no watchman or signal-man or signal on the side of the said halted train facing the center of town, namely, facing the direction from which the plaintiff came.

'4. Said railroad company then and there had no light or flare on the side of the said halted train facing the center of town, namely, facing the direction from which the plaintiff came, or ring any bell, to warn persons approaching in vehicles from the direction of the center of town.

'5. At the time of the accident the night was dark and foggy. The visibility was poor. The street light of the city of Apopka, at the crossing was unlit. The train in question was obstructing said street at the time when, according to its reqular schedule, it should not have been in Apopka, and hence, travelers familiar with its schedule could not anticipate that it would be occupying the streets of Apopka.

'6. The said freight train, at the moment of the collision, had already obstructed the said crossing for an unreasonable length of time.

'7. The bottoms of the bodies of the freight cars which obstructed said crossing were about three feet above the surface of the street; and the approach of the intersecting town thoroughfare from the direction of the center of town toward the railroad track at that point is on an incline downwards. Under these circumstances, the plaintiff's lights, though they were properly focused, would not, and did not, illuminate the freight train because the plaintiff's lights did not, and should not, throw any rays as high as the bottom line of the bodies of the freight cars, and therefore, although the plaintiff's lights were working and in good order and properly focused as plaintiff approached the said crossing, said lights did not, and, if properly focused, should not, have lit up the bodies of the freight cars. Hence, the plaintiff, and any other automobile passerby with properly focused lights, would be, and plaintiff was, unable to see in the fog and dark that the freight cars were obstructing the crossing.'

A demurrer was directed to the amended declaration, the grounds of which are: (a) The amended declaration fails to state a cause of action; (b) the alleged injuries were due solely to plaintiff's negligence; (c) a standing train on a railroad track is not per se actionable negligence; (d) facts are not alleged showing a breach of duty in failing to maintain a watchman, light, flares, or a flag at the place of railroad crossing where the alleged injury occurred. It is unnecessary to recite other grounds of the demurrer.

On July 29, 1937, the court sustained a demurrer to the amended declaration, when, plaintiff declined to plead further, a final judgment was entered on behalf of defendant; writ of error was taken thereto, and the action is here and a reversal sought on two assignments of error.

It is contended by counsel for plaintiff in error that the proximate cause of plaintiff's injury...