Martin v. Rivera, 57-197

• Decision Date: 07 January 1958
• Docket Number: No. 57-197,57-197
• Parties: John W. MARTIN, as Trustee of the property of the Florida East Coast Railway Company, a Florida corporation, Appellant, v. Gregoria RIVERA, Appellee.
• Court: Florida District Court of Appeals

Page 617

99 So.2d 617

John W. MARTIN, as Trustee of the property of the Florida East Coast Railway Company, a Florida corporation, Appellant, v. Gregoria RIVERA, Appellee.

No. 57-197.

District Court of Appeal of Florida, Third District.

Jan. 7, 1958.

Rehearing Denied Jan. 31, 1958.

Scott, McCarthy, Preston, Steel & Gilleland, Miami, for appellant.

Nichols, Gaither, Green, Frates & Beckham, Miami, for appellee.

PEARSON, Judge.

Angel O. Ortiz, Filipe Albino Rodriguez and Gregoria Rivera sued John W. Martin, as Trustee of the property of the Flordia East Coast Railway Company. The three separate causes of action arose out of a railroad crossing collision between defendant's train and an automobile in which plaintiffs Ortiz and Rodriguez were passengers and plaintiff Rivera's son was driver. The passengers claimed damages for personal injuries and the dependent mother of the driver claimed damages under Sec. 768.01 et seq., Fla.Stat., F.S.A., for the wrongful death of her son. The cases were consolidated for trial and were argued as one appeal. This opinion will determine each appeal. The jury returned a verdict for each plaintiff. The appeals raise the question: is there any substantial evidence that would warrant verdicts for plaintiffs. The record examined in light of the briefs and oral arguments is found to contain such evidence.

The appellant urges that these appeals fall within the doctrine expressed by Supreme Court of Florida in Atlantic Coast Line R. Co. v. Timmons, 160 Fla. 754, 36 So.2d 430, 431. In that case the Court held:

'The standard of prudence that one must observe in approaching a grade crossing is not uniform. Some jurisdictions require that one stop, look and listen, regardless of how clear the track is in either direction. Other courts require the traveler to look and listen, the duty to stop, depending on the circumstances revealed by looking and listening. Pokora v. Wabash R. Co., 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149, 91 A.L.R. 1049; Baltimore and Ohio R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 72 L.Ed. 167, 56 A.L.R. 645. We approve the latter rule in this State and when as here, it is conclusively shown that the plaintiff did not look or listen, that there was no obstruction whatever to the vision, that the accident took place in a rural community where looking or listening would have avoided it, he is guilty of negligence which was the sole proximate cause of his injury and cannot recover.'

It is not difficult...