Perret v. Seaboard Coast Line R. Co.

• Decision Date: 03 July 1974
• Docket Number: Nos. 44463--44466,s. 44463--44466
• Citation: 299 So.2d 590
• Parties: Eugene C. PERRET, as Administrator of the Estate of Randall Wayne Perret, a Deceased minor, Petitioner, v. SEABOARD COAST LINE RAILROAD COMPANY, a corporation, Respondent. Eugene C. PERRET, Petitioner, v. SEABOARD COAST LINE RAILROAD COMPANY, a corporation, Respondent. Anna Belle WILSON, as Administratrix of the Estate of Steven Craig Fain, a Deceased minor, Petitioner, v. SEABOARD COAST LINE RAILROAD COMPANY, a corporation, Respondent. Anna Belle WILSON, Petitioner, v. SEABOARD COAST LINE RAILROAD COMPANY, a corporation, Respondent.
• Court: Florida Supreme Court

Page 590

299 So.2d 590

Eugene C. PERRET, as Administrator of the Estate of Randall Wayne Perret, a Deceased minor, Petitioner, v. SEABOARD COAST LINE RAILROAD COMPANY, a corporation, Respondent.

Eugene C. PERRET, Petitioner, v. SEABOARD COAST LINE RAILROAD COMPANY, a corporation, Respondent.

Anna Belle WILSON, as Administratrix of the Estate of Steven Craig Fain, a Deceased minor, Petitioner, v. SEABOARD COAST LINE RAILROAD COMPANY, a corporation, Respondent.

Anna Belle WILSON, Petitioner, v. SEABOARD COAST LINE RAILROAD COMPANY, a corporation, Respondent.

Nos. 44463--44466.

Supreme Court of Florida.

July 3, 1974.

Rehearing Denied Sept. 25, 1974.

E. Earle Zehmer and William C. Gentry, of Bedell, Bedell, Dittmar, Smith & Zehmer, Jacksonville, for petitioners.

George D. Gable, Jr., of Toole, Taylor, Moseley, Gabel & Milton, Jacksonville, for respondent.

McCAIN, Justice.

Petitioners seek review by certiorari of a decision of the First District Court of Appeal reported at 281 So.2d 388 (1973). We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution, F.S.A.

This action was commenced by the filing of complaints in the Circuit Court of Duval County alleging that the Defendant-Railroad was guilty of negligence in the operation of its train, and negligently maintaining and controlling its railroad crossing in a dangerous and hazardous condition by permitting trees and other growth to obstruct the vision of oncoming trains. The Railroad denied the charges of negligence and claimed that the conduct of the driver of the automobile involved in the train-automobile accident was the sole cause of the accident.

The accident occurred at approximately 7:30 p.m., December 24, 1969, at the Seaboard crossing on Dunn Avenue, Jacksonville, Florida. Dunn Avenue is a paved two-lane road, generally running east-west; the two main line railroad tracks run north-south. At this junction, the Railroad right of way extends approximately 100 feet on either side of the tracks. Trees and other growth extend approximately 30 feet onto the Railroad's right of way. A standard railroad crossbuck was installed on each side of the crossing, but no flashing lights or other automatic warning devices were provided.

The decedent-boys, passengers in an automobile driven by Mark Kuns, were travelling east on Dunn Avenue returning from a store situated one-half mile west of the crossing. As the car crossed the tracks, it was struck by a northbound freight train on the right or passenger's side. The train was travelling at between 53 and 55 miles per hour and there was conflicting testimony as to the speed of the automobile. One witness testified that the automobile was travelling at approximately 15 miles per hour while the Railroad engineer stated that the speed of the vehicle was approximately the same as the speed of the train.

One of the issues raised during the trial was the admissibility of evidence concerning the occurrence of a prior accident at the same crossing. The evidence sought to be admitted concerned a vehicle-train collision which occurred two weeks prior (December 10, 1969) to the accident which was the subject of the instant litigation.

In the December 10, 1969 collision, a van-type truck was travelling east on Dunn Avenue at approximately 8:30 p.m. under similar lighting circumstances when it was struck by a north-bound passenger train travelling at approximately 70 miles per hour. The condition of the vegetation on the right of way was shown to be in the same condition at the time of both accidents.

The trial court excluded all evidence of the prior accident, except for certain references by some witnesses to 'other' accidents in order to show their attentiveness to the approach of trains at the crossing in question.

Further, during the trial, employees of the Railroad who were charged with maintaining the crossing, testified that they had found the crossing and right of way to be reasonably clear and that the trees and undergrowth did not obstruct the view of approaching motorists.

The District Court was presented with the issue of:

'Whether the Circuit Judge erred in excluding evidence of a prior accident which occurred under similar conditions at the railroad crossing involved in this case.'

That court in a Per Curiam opinion affirmed the trial court with one Judge dissenting.

It is the petitioners' position that the defendant Railroad, having a duty to use reasonable care in the maintenance of the crossing premises where the plaintiffs' children were killed, knew that the crossing was dangerous because of obstructions on the right of way, and, further that the Railroad, having such knowledge, failed to exercise reasonable care in correcting or giving adequate warning of such condition.

Petitioners also urge that the exclusion of competent evidence proving this critical element of plaintiffs' case was fundamental error.

The general rule as to the admissibility of evidence of prior accidents to prove the existence of a dangerous condition is best expressed in 29 Am.Jur.2d § 306 wherein it states:

'Subject to the general requirement of similarity of conditions, reasonable proximity in time, and avoidance of confusion of issues, the courts have generally recognized that evidence of prior similar accidents at the same place as that of the accident in suit, or evidence of prior similar injuries resulting from the same appliance as the injury in suit, is admissible for the purpose of showing the existence of dangerous or defective premises or appliances.'

Much care must be exercised in the application of this rule inasmuch as the adoption of a rule of such broad admissibility would be tantamount to permitting the proof of negligence vel non by a showing of similar prior accidents. This court not be acceptable. Thus, safeguards must be maintained.

A body of case law has developed in Florida which has presented guidance for this determination and ultimate conclusion.

In Loftin v. Dagley, 152 Fla. 831, 13 So.2d 311 (1943), the respondent, Dagley, apparently caught his foot in a flangeway between a rail and a plank on the Railroad's crossway. The trial court refused to strike certain testimony of a rebuttal witness which tended to show that the crossing was not in good condition, contrary to that as asserted by the Railroad's employees. The rebuttal witness testified that the crossing, in his opinion, was dangerous to pedestrians using it; that it had been in such condition for several years prior to the incident under review; and that some 3 years and 4 months before the injury to the plaintiff, the witness' child had caught his foot in the same...