McAllister v. Tucker
| Decision Date | 16 March 1956 |
| Citation | 88 So.2d 526 |
| Parties | Susie Belle McALLISTER, Appellant, v. Robert Linwood TUCKER and Seaboard Airline Railroad Company, a corporation, Appellees. |
| Court | Florida Supreme Court |
Claude Pepper Law Offices, Claude Pepper, Neal Rutledge and Jordan Bittel, Miami, for appellant.
Smathers, Thompson, Maxwell & Dyer, Douglas D. Batchelor, David W. Dyer and L. S. Bonsteel, Miami, for appellees.
This action was brought by appellant against appellees to recover damages for the wrongful death of her husband in a railroad crossing accident near Quincy in Gadsden County, Florida. At the trial defendants moved for a directed verdict at the close of plaintiff's case and at the close of the trial. The court reserved judgment on both motions and let the case go to the jury which returned a verdict against the Seaboard Airline Railroad Company and in favor of defendant Tucker. Defendants then moved to set aside the verdict and renewed their motions for directed verdict. The trial court granted the motion to set aside the verdict and entered final judgment for defendants. The plaintiff has appealed.
The point for determination is whether or not the trial court committed error in setting aside the verdict and entering final judgment for the defendants.
The answer to this question turns on the interpretation of the evidence. In reviewing the evidence the rule is that it be weighed in the light most favorable to the plaintiff. In such review, however, we are not to overlook the presumption that the trial court's ruling was correct. Roberts v. Powell, 137 Fla. 159, 187 So. 766; Kraver v. Edelson, Fla., 55 So.2d 179; Dodson v. Solomon, 134 Fla. 284, 183 So. 825.
The primary reliance of appellant for reversal is, that this is a comparative negligence case and that the cases cited in the preceding paragraph did not arise from cases growing out of the comparative negligence statute. It is quite true that the cited cases did not arise from cases that stem from the comparative negligence statute but the direct question involved concerns judicial review of the evidence on which the jury predicated its verdict and if in law it was not supported by substantial legal evidence, the trial court had the power to set it aside. As we understand judicial review of the verdict in a case like this is no different from what it is in other cases where the power is authorized to determine the legal effect of the evidence. It is not concerned with the jury's power to weigh conflicting evidence.
Section 768.06, Florida Statutes, F.S.A., is the comparative negligence statute and is as follows:
The jury returned a verdict for $32,500 one-half of the amount laid in the ad damnum. Whether the jury considered the railroad company solely liable or whether it considered the deceased and the railroad company both liable and apportioned the damages as provided in the concluding sentence to the quoted statute, we are left to conjecture. Appellant contends that they found both parties guilty of negligence and apportioned the damages. In Loftin v. Deal, 154 Fla. 489, 18 So.2d 163, and in Atlantic Coast Line R. Co. v. Pidd, 5 Cir., 1952, 197 F.2d 153, this procedure was approved apparently on the theory that the verdict was much smaller than the amount claimed and being so, the jury fixed an amount pursuant to the provision of the statute.
In his final judgment the trial court set the verdict aside and entered judgment for defendants on the ground that the evidence shows 'the sole proximate cause of the accident which gave rise to this action was the negligence of the plaintiff's deceased husband.' The accident took place at the intersection of the railroad and what is known locally as Santa Lee Highway just outside the City of Quincy. At this point the railroad runs in a general east and west direction but curves to the north at a point 271 feet west of the crossing. Santa Lee Highway runs north to south crossing the railroad on the curve where the rails are banked; in other words, the outside rail is four inches higher than the inside rail. At the time of the accident, the train was traveling east and decedent was driving his truck south. Santa Lee Highway is of clay construction as was the crossing. The area near the crossing is frequented with tenant farm homes. The crossing is located about three-quarters of a mile from Quincy station. It is the second of five crossings within the last mile before reaching the Quincy station.
Appellant contends that the northwest corner of the intersection was obscured by a house, a tree, corn in full tassel, dog kennels, cane and weeds, making it difficult for the motorist to be seen down the track when approaching the crossing from the north. It is contended that said vegetation grew along the west side of the road to within a few feet of the railroad. The height of this vegetation was estimated by various witnesses as 'real tall,' 'six feet or better tall,' from 'waist high' to 'over my head' and 'just about as high as my head and I'm 5 feet 6.' Back from the road and the track it is said the vegetation increased in height from 10 to 12 feet. One witness testified that even though a train would be taller than the weeds, they would block the view of a motorist because they would be higher than his eyes and would shut off his view from his car windows. On the basis of this showing, appellant contends that there was ample evidence for the jury to conclude that the crossing was a blind and extremely hazardous one for a motorist approaching it from the north.
The accident occurred about 1:30 P.M., June 27, 1953; it had been raining during the forenoon, the clay road was wet, slick and muddy. The witnesses agreed that when wet the road and crossing were as slippery and treacherous as ice. One witness testified that a number of motorists had skidded off the road and into the ditch that morning and that the ambulance and wrecker which came to the scene skidded into the ditch. The witness Brown stated that the road and crossing were 'exceptionally slick' and 'exceptionally rough and washboardy.' Other witnesses testified that this road, the crossing and the approaches were 'wet and slick,' 'muddy and slippery,' 'full of holes,' having 'ruts,' 'beat out in holes,' and as 'being slick,' 'muddy.'
Decedent was delivering groceries and stopped his truck about 100 feet north of the crossing to make a delivery; seated on his right in the cab of the truck were two women whom decedent was giving a lift. In the rear of the truck were groceries for delivery and four children who were laughing and eating candy. After making his delivery, decedent started slowly toward the crossing at a speed estimated from one to three miles per hour. When the truck was about half over the crossing, the train traveling about 50 miles per hour struck it about the middle of the body. All the occupants were killed. The train was 630 feet long, the engine was approximately 14 feet high and ran about 2,400 feet before it came to a stop.
The evidence shows that the railroad's right-of-way extended only eight feet from center on either side at and near the crossing so defendant had no authority to clear farther than its right-of-way extended. It is true that some of the witnesses testified that an approaching train would not be visible as one approached the crossing but the police officers who investigated the accident testified to the contrary. Deputy Sheriff Martin testified that before a driver reached the crossing he could see the rails almost to the next crossing, 1,354 feet to the west. The highway patrolman testified that a motorist could see the train approaching from the west approximately 95 feet north of the crossing. Photographs taken near the time of the accident amply support the testimony of these witnesses. It is also shown that decedent had lived on this road, near the crossing for eight months and passed over it every time he went to town and was well acquainted with it. Then as he approached the railroad, he was confronted with a standard road crossing sign with the legend, 'Railroad crossing, look out for...
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