Lowry v. Seaboard Airline R. Co., 12361.

• Decision Date: 19 November 1948
• Docket Number: No. 12361.,12361.
• Parties: LOWRY v. SEABOARD AIRLINE R. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

171 F.2d 625 (1948)

LOWRY v. SEABOARD AIRLINE R. CO.

No. 12361.

United States Court of Appeals Fifth Circuit.

November 19, 1948.

Chester Bedell, and Nathan Bedell, both of Jacksonville, Fla., for appellant.

Charles R. Scott and William L. Durden, both of Jacksonville, Fla., for appellee.

Before HUTCHESON, SIBLEY, and WALLER, Circuit Judges.

SIBLEY, Circuit Judge.

Appellant sued appellee for the homicide of his eighteen year old daughter at a grade crossing on 63rd Street in the City of Jacksonville, suing under Florida Statutes of 1941, Sect. 768.03, F.S.A. touching "death by wrongful act, negligence, carelessness or default". The case was removed to the District Court because of diversity of citizenship. The declaration alleged that the crossing was in a thickly populated section and was much used and was specially dangerous because the view was obstructed and there were no safety devices, and that the train which killed Miss Lowry was operated carelessly and negligently so as to strike the automobile which she was driving and inflict injuries on her of which she died. The answer denied the obstructions or that the crossing was unusually hazardous and that the railroad company was under duty to install safety devices, and averred that it used due care, but that Miss Lowry drove at high speed in front of the train of whose presence she knew or should have known had she been looking or listening in the exercise of ordinary care and caution, and that her negligence was the sole proximate cause of her injuries. Evidence was heard before a jury, who on the court's instruction rendered a verdict of not guilty. This action of the court is the main error urged on this appeal, but two other rulings are also specified as error which we will first mention.

1. Plaintiff offered to prove that at the same crossing there had been a similar collision between a train and an automobile fifteen months previously, and another three years before that, to show the dangerous character of the crossing. The evidence was properly rejected as irrelevant. It is not claimed that there was a defect in the construction of the crossing which was causing accidents, or that any obstruction to view was on the railroad's right of way; so that in each case there would have to be an enquiry as to whether the fault was that of those running the train or the driver of the car. If evidence be admitted of a prior collision the company would have the right to show, if it could, that its servants were not to blame and three cases would have to be tried instead of one. Fixing the blame in another case would not fix it in this one. We can conceive of a situation where a succession of accidents might tend to show special danger and the need of special precaution, but this is not such.

2. The court refused to have the jury taken to view the crossing, which was several miles distant. There is no right to have such a view in this character of suit. The matter lies in the discretion of the court. Houston Coca-Cola Bottling Co. v. Kelly, 5 Cir., 131 F.2d 627. Maps and photographs were in evidence from both sides which fully show the situation as it was at the time of the occurrence. There was no abuse of discretion.

3. The common law of negligence is in general in force in Florida, but is modified by statute as to the operation of railroads. The statute, as found in Florida Statutes of 1941, Sect. 768.05, F.S.A., provides that a railroad company shall be liable for damage done to persons or property by the running of its locomotives, cars or other machinery 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." It is settled that if the company did exercise such care there is no liability. Section 768.06, headed "Comparative Negligence", provides: "No person shall recover damages from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence." The emphasized words, in view of what follows, apply not only where there was no negligence of the company, but also where the injured party's negligence was so great and the circumstances such as to make it the sole proximate cause of the injury. The statute continues: "If the plaintiff and the agents of the company are both at fault, the former may recover, but the amount of the recovery" shall be apportioned as provided. On the motion for instructed verdict the company's contention was that it was without fault, and the sole proximate cause of the injury was the recklessness of Miss Lowry in crossing as she did. Her father's contention was that if she was to blame, it was not recklessness but mere negligence in ignorance of the train's approach, and that the company's agents were also at fault, so that there was a jury issue as to whether there should not be apportioned damages.

Another question of law discussed was whether the jury could determine that the absence of automatic gates and warning lights which flashed continuously on the approach of a train, such as the company had voluntarily installed where its track crossed Main Street three blocks away from 63rd Street, was negligence. Although the testimony is ample that 63rd Street crossing is much used, and one witness said as much used as Main Street crossing, we do not think a jury could impose the installation of such devices as a specific duty. Neither the Legislature nor the city government has required it, though either has the power, and custom and general use has not made them the ordinary equipment of a railroad crossing. The question was faced on similar facts in Atlantic Coast Line R. Co. v. Wallace, 61 Fla. 93, 54 So. 893, and the court's conclusion as stated in headnote 4 was: "In an action against a common carrier for negligence, while a determination of whether there was negligence does not depend solely upon a compliance with the requirements of statutes, ordinances, or other lawful governmental regulations, for circumstances may require additional precautions and care, yet the prescribing of particular facilities that may be regarded as essential or useful in preventing injuries from trains at railroad crossings in municipal corporations or elsewhere is a function that is legislative and administrative in its nature." In the earlier case of Florida Central & P. R. Co. v. Foxworth, 41 Fla. 1, 25 So. 338, 341, 79 Am.St. Rep. 149, it was said that an instruction that "a railroad company operating its trains on the thoroughfare of a village must use greater care than in less frequented localities, and any neglect of any precautions proper in the peculiar circumstances of the locality constitutes negligence" was properly given the jury. It was added that the duties of a railroad company in respect of care in operating its trains are dictated and measured by the exigencies of the occasion and in the light of the conditions of things at the place where and the time when an accident happens. These principles have not been departed from in Florida. They are sustained elsewhere by Grand Trunk R. Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485, and Cummings v. Pennsylvania R. Co., 310 Pa. 39, 151 A. 590, annotated in 71 A.L.R. 1156. The true question here for a jury is not whether safety devices ought to have been installed as a specific ground of negligence, but the question is whether, both parties to the occurrence knowing the crossing was unprotected by such devices and that it was much used, exercised the reasonable care and caution that all the circumstances and conditions then and there present required of each, the jury usually being the judge.

4. The evidence is clear that Miss Lowry, being a high school senior, was an experienced and capable driver, lived in the neighborhood and was familiar with the crossing of 63rd Street over the railroad. Some 7,500 people lived in the two voting precincts which were separated by the railroad along there. The street was paved and was the only street which afforded a...