Pitton v. Atlantic Coast Line R. Co.
| Decision Date | 15 March 1940 |
| Citation | 198 So. 503,144 Fla. 462 |
| Parties | PITTON v. ATLANTIC COAST LINE R. CO. |
| Court | Florida Supreme Court |
On Rehearing July 12, 1940.
On Re-examination of Record July 26, 1940.
On Petition to Amend Oct. 29, 1940.
Error to Circuit Court, Hillsborough County; Harry N. Sandler Judge.
Action by H. C. Pitton against the Atlantic Coast Line Railroad Company for personal injuries and property damages resulting from a collision between defendant's train and plaintiff's truck. Judgement for defendant, and plaintiff brings error.
Reversed.
COUNSEL Larkin & Larkin, of Dade City, and Zewadski & Pierce and William C. McLean, all of Tampa, for plaintiff in error.
G. L Reeves and T. Paine Kelly, both of Tampa, for defendant in error.
On October 20, 1938, plaintiff filed in the Circuit Court of Hillsborough County, Florida, a declaration in three counts for the recovery of damages for personal injuries and damages to property resulting from a collision between a train of the Atlantic Coast Line Railroad Company and an automobile truck owned and driven by the plaintiff at the time of the injury. The first count sought a recovery for negligence of the defendant, without specifying any particular act. The second count alleged specific acts of negligence in that the defendant failed to sound an alarm or warning of the approach of the train at the crossing and that the train was operated at a high and dangerous rate of speed. The third count alleged specific acts of negligence in that the train was operated at a dangerous rate of speed which rendered giving signals useless by reason of the fact that the approach or view near the crossing was obstructed by buildings located on the defendant's right of way. The defendant filed a plea of not guilty to each count of the declaration.
The parties offered evidence on the issues made by the three counts of the declaration and the plea of not guilty, and at the conclusion of the taking of all the testimony, the trial court sustained a motion of the defendant for a directed verdict and directed that the jury find a verdict for the defendant. Counsel for plaintiff below filed a motion for a new trial and the same was overruled and denied, a final judgment was entered for the defendant below, and an appeal has been perfected therefrom and the case is here for review, and the order of the lower court sustaining the motion made by counsel for the defendant that the jury be directed to return a verdict in favor of the defendant after all the testimony was introduced is relied upon by plaintiff in error for a reversal of this cause.
The plaintiff testified that on the 21st day of April, 1938, while driving a truck loaded with Irish potatoes and traveling south on 21st Street in the City of Tampa, where the same intersects the railroad track of the defendant, the truck in which he was riding was struck by a passenger train consisting of some five or six coaches when backing into the Union Station; that the defendant did not maintain bells, signals, gates or a watchman at the crossing and the plaintiff had no knowledge of the approach of the train as the whistle was not blown or the bell rung, and the buildings situated near the crossing obstructed plaintiff's vision and he was unable to see the train at the time of the collision. He further testified that the train was running around twently miles an hour and after he was struck it required about 140 feet to bring the train to a stop. He also testified he was around 58 years of age, eye sight good, and the mechanics of his car in reasonably good condition and was being driven by him at a reasonable rate of speed.
The defendant offered in evidence photographs of crossing and the buildings near same, and the conductor in charge of the train gave testimony, with other witnesses who were near the crossing when the accident occurred. These witnesses testified that the train was traveling at a reasonable rate of speed, the air whistle was being sounded, the bell was ringing and the train was brought to a stop within a reasonable distance after the collision. Some of the witnesses stated that the truck was traveling at a low rate of speed when the collision occurred.
We have given careful consideration to the evidence offered by the respective parties and the sole question to be decided is whether or not there was sufficient evidence to show that the court erred, at the conclusion of the taking of all the testimony, in directing the jury to find a verdict for the defendant below. Our conclusion is that there is a conflict in the testimony offered by the plaintiff and the testimony adduced by the defendant as to specific acts of negligence and negligence generally at the time and place of the collision and from the disputed testimony reasonable inferences can be drawn; (a) That the defendant's negligence was the proximate cause of the alleged injuries; or (b) that the negligence of the plaintiff was not the sole proximate cause of the alleged injuries.
It is well established that a verdict for one party, even if negligence of the plaintiff contributed to his injury and requires the damages to be properly apportioned under the statute, should never be directed unless the evidence is such that no view which the jury may lawfully take of it favorable to the other party can be sustained. See Branford State Bank v. Howell Co., 88 Fla. 493, 102 So. 649.
If the evidence is conflicting and will admit of different reasonable inferences, or if there is evidence tending to prove the issue, it should be submitted to the jury as a question of fact to be determined by them, and not taken from the jury and passed upon as a question of law. See Cameron & Barkley Co. v. Law-Engle Co., 98 Fla. 920, 124 So. 814; Williams v. Sherry, 94 Fla. 998, 114 So. 849; Gulf Refining Co. v. Ankeny, 102 Fla. 151, 135 So. 521.
We hold that it was within the province of the jury to settle the conflicts or disputes in the testimony offered by the respective parties hereto and it was error on the part of the lower court to refuse to permit or allow the jury to pass upon or settle the disputes or conflicts in the evidence.
In the case of Roberts v. Powell, 137 Fla. 159, 187 So. 766, the court had before it a railroad crossing case, similar in many aspects to the case at bar. This Court discussed the negative testimony and held that the facts established by the respective parties presented a close question on a motion for a directed verdict. The evidence in the case at bar, in our opinion, is stronger than plaintiff's case in Roberts v. Powell, supra.
We think the lower court erred in sustaining the motion of the defendant for a directed verdict and the testimony of the plaintiff, as we weigh and construe the same, presents a question for the jury to determine under appropriate instructions. The judgment appealed from is reversed.
I do not think that the evidence in this case would have sustained a verdict based upon the theory that the negligence of the defendant was the sole proximate cause of the plaintiff's injury. My view is that both plaintiff and defendant were, under this evidence, guilty of some negligence which operated concurrently to the causation of the collision; at least, that the jury could reasonably have reached this conclusion. Plaintiff knew the ice plant was so located as to obstruct his view down the tracks until he was within about twelve or fifteen feet of the main line track. The collision occurred about noon on a clear day. If plaintiff had exercised ordinary care, commensurate with the circumstances, he could have avoided the collision. On the other hand, defendant must have known that this was a very dangerous crossing, and it was a question for the jury as to whether or not the defendant's train was being backed across this street crossing at a negligent rate of speed, in view of the serious obstruction of the vision of persons traveling in the direction which plaintiff was travelling, caused by the location of the ice-plant so close to the tracks, as well as to the street which crossed the tracks. It is true that the positive evidence of several witnesses showed that the air whistle on the rear of the backing train was being blown. The negative testimony of the plaintiff to the effect that he never heard it could not impair the probative weight of the positive evidence on this point. But when the dangerous character of the crossing is considered, I think there was a jury question presented as to whether the speed of the train was such as to constitute negligence under the circumstances, and also whether it was a concurring proximate cause of the collision.
TERRELL and THOMAS, JJ., not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
On Petition for Rehearing.
On Petition for Rehearing previously granted the record has been re-examined and the original and supplementary briefs of counsel for the respective parties have been studied and thoroughly considered and Mr. Justice TERRELL, Mr. Justice BUFORD and Mr. Justice THOMAS are of the opinion that the judgment appealed from should be affirmed, while Mr. Justice WHITFIELD, Mr. Justice BROWN and Mr. Justice CHAPMAN are of the opinion that the original opinion and judgment of reversal should be adhered to on rehearing. When the members of the Supreme Court, sitting six members in a body and after full consultation, it appears that the members of the Court are permanently and equally divided in opinion as to whether the judgment...
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