Loftin v. Dagley

• Decision Date: 27 April 1943
• Citation: 152 Fla. 831,13 So.2d 311
• Parties: LOFTIN et al. v. DAGLEY.
• Court: Florida Supreme Court

13 So.2d 311

152 Fla. 831

LOFTIN et al. v. DAGLEY.

Florida Supreme Court

April 27, 1943

Rehearing Denied May 24, 1943.

Appeal from Circuit Court, Duval County; F. R. Hocker Judge.

Russell L Frink, John H. Summerlin and J. Henry Taylor, all of Jacksonville, for appellants.

P. W Harvey and Curtis Basch, both of Daytona Beach, for appellee.

SEBRING, Justice.

Defendants' railroad tracks extend north and south through the City of Port Orange. Within the city limits they pass over Dunlawton Street, which runs east and west. At the point of intersection, the Railway Company maintains a public crossing.

Although Dunlawton Street is 50 feet wide, and its entire width is used for pedestrian travel, a strip of the street only 20 feet wide is hard-surfaced for vehicular traffic. Where the defendants' tracks pass over this strip, the Railway Company maintains a wooden crossing for the purpose of general traffic on the highway. This crossing is constructed of heavy planks laid parallel to the rails and spiked to the crossties. From this crossing there is an uninterrupted view southward along the tracks for a distance of 3,471.2 feet. At that point, the tracks describe a curve.

Early on the morning of October 1, 1941, the plaintiff, Dagley, left home driving his automobile eastward upon and along Dunlawton Street. It was not yet daylight. A light rain was falling. The morning was foggy. Just as Dagley drove over the crossing he observed that his dog was following him. When he discovered this, he stopped the car and walked back on the crossing to drive the dog home. In furtherance of this purpose, he picked up a small stone from the crossing to shy at the animal. While doing so his foot became lodged horizontally in the flangeway between the west rail of the north-bound tracks and the plank directly inside it. While feverishly working to extricate himself from this position, he heard and saw a north-bound passenger train approaching at high speed. This train had not been within sight or hearing when Dagley had first become entrapped at the crossing. As the train was almost upon him, he finally succeeded in wrenching his foot loose from his shoe and pulling it free. The sudden dislodgement of the foot caused him to stumble and fall away from the west rail, eastward. This placed his body beyond the east rail. In some unexplained fashion the locomotive struck his left arm severing it above the wrist.

Plaintiff sued the defendants for negligently failing to keep and maintain the crossing in good condition, and for negligently running the train upon him before he could wholly remove himself from its path of travel. Judgment was recovered in the sum of $10,000. Defendants appealed.

The defendants claim that they were entitled to a directed verdict at the close of all the testimony, because the evidence shows that plaintiff was a trespasser and the only duty owed him was to refrain from wilfully or wantonly injuring him after they could have discovered his position of peril. This contention is based upon the premise that as it is admitted that plaintiff came back on the tracks for the sole purpose of driving his dog home, he was not then rightfully using the crossing for the purpose for which it was constructed and maintained; i.e., for the purpose of passage over the tracks.

We cannot agree with this conclusion. In our view, it is not a trespass for an individual to be on a public crossing in a town or city, whether there for business, pleasure, or mere caprice. Florida Cent. & P. R. Co. v. Williams, 37 Fla. 406, 20 So. 558. Whatever his purpose there, he must be considered, in law, as being rightfully there; and the railway company owes him the duty of exercising ordinary and reasonable care for his safety. 44 Am.Jur. 733, § 494.

The defendants also complain of the trial court's refusal to strike certain testimony of a rebuttal witness, who, in speaking of the physical condition of the crossing on the morning of the accident, testified that in his opinion it was dangerous to pedestrians using it; that it had been in such condition for several years prior to that time; and that some 3 years and 4 months before the injury to the plaintiff his own child had caught its foot in the same crevice and had been extricated from its position just in time to prevent injury from an approaching train.

Prior to the time that the witness had given this particular testimony certain defense witnesses who, as employees of defendants were charged with the manual duty of maintaining the crossing in question, had testified that from their personal observation of the crossing it was in 'good' condition. The plaintiff did nothing more than meet this testimony by producing a rebuttal witness who stated that from his personal observation of the crossing its condition was dangerous. Before this statement was made, the witness had testified that he was a carpenter of 20 years' experience; that he had had experience in building tramroads that he had passed over this particular crossing at least 3 times a week for more than 17 years; that during that period of time very little work had been done in the maintenance of the crossing, and that, generally, its maintenance had been neglected; that the planks of which the crossing was constructed had not been changed during that entire period of time and as a result had become split, weathered, and warped; that because of train travel over the rails,...