Poindexter v. Seaboard Air Line R. Co.

• Decision Date: 09 October 1951
• Citation: 56 So.2d 905
• Parties: POINDEXTER v. SEABOARD AIR LINE R. CO. et al.
• Court: Florida Supreme Court

Page 905

56 So.2d 905

POINDEXTER v. SEABOARD AIR LINE R. CO. et al.

Supreme Court of Florida, en Banc.

Oct. 9, 1951.

Rehearing Denied Dec. 21, 1951.

Caldwell, Parker, Foster & Wigginton, Millard F. Caldwell, Julius F. Parker, Leo L. Foster and John T. Wigginton, Tallahassee, for appellant.

Ausley, Collins & Truett, Tallahassee, for appellees.

PER CURIAM.

This is an appeal from an order granting a new trial as entered by the Circuit Court of Leon County, Florida. The trial resulted in a verdict and judgment for the plaintiff, Reid C. Poindexter, against the Seaboard Air Line Railroad Company and W. C. Rowand, the locomotive engineer. The plaintiff-appellant, about 9:00 o'clock p. m. on October 1, 1948, was driving a Cadillac automobile eastward on Highway No. 52 and crashed into a locomotive engine at the time in a stationary position at the highway crossing commonly known as Fivay Junction in Pasco County, Florida. The Cadillac car was demolished and Poindexter sustained permanent injuries. The plaintiff was hospitalized for a period of approximately sixty days as a result of the injuries sustained.

The amended declaration charged the following basic grounds of negligence: (1) the plaintiff did not see, and, under the circumstances could not have seen, the stationary locomotive then standing on the crossing; (2) the plaintiff at the time of the impact was driving in a prudent manner at a lawful rate of speed, the motor vehicle was in first class mechanical condition and under proper control; it was misting rain, the windshield wiper was in operation, lights of the car were on and the car window where plaintiff was sitting was open; (3) the defendants took no precautionary steps to warn vehicular traffic then lawfully on Highway 52 of the blocked condition of the crossing; and (4) the defendants blocked the crossing by its switching operations for an unreasonable period of time. The cause was submitted to a jury on the issues made by the amended declaration and some eleven pleas of the defendants. The pleas went to the general issue: specifically denied the allegations of negligence; and affirmatively charged that the collision was the proximate cause of plaintiff's own negligence in driving into the side of the locomotive then standing on the crossing at Fivay Junction.

The trial court set aside the verdict of the jury and granted a new trial on grounds 2, 4, 5, 6 and 8 thereof, which are viz: (2) 'That plaintiff wholly failed to prove the allegations of negligence charged against the defendants in his second amended declaration. On the contrary, the proof affirmatively shows that plaintiff's own negligence was the proximate cause of the alleged accident.' (4) 'That the evidence offered on the part of the plaintiff affirmatively shows that but for the negligence of plaintiff the alleged accident would not have occurred.' (5) 'That the evidence offered upon the part of the plaintiff affirmatively shows that the sole and proximate cause of the alleged accident was the negligence of the plaintiff himself.' (6) 'That the verdict is contrary to the evidence.' And (8) 'That the verdict is contrary to the law and the evidence.'

It is settled law that a motion for a new trial is addressed to the sound discretion of the trial court. A stronger showing is required to reverse an order granting a new trial than one denying it. A legal presumption exists that the new trial was by the trial court properly granted. When a trial court grants a new trial upon motion which contains several grounds, then the reviewing court will be restricted to the grounds recited in the order granting the new trial. Seaver v. Stratton, 133 Fla. 183, 183 So. 335; Blue & Gray Cab Co. v. Lowe, 143 Fla. 129, 196 So. 425.

Counsel for appellees point out that as Poindexter approached the blocked crossing, the highway he was traveling was 1,300 feet straightway; the highway was flat and had a rough slag topping; there were no obstructions; no curves; no banks; no hills and no bridges. As he approached the crossing he was forced to observe three standard warning signs placed along the highway by the State Road Department: the first sign was situated 403 feet from the crossing; the second was 335 feet and the third was 29 feet. The locomotive was astride the crossing about fifteen minutes in its switching operations and eight lights were burning in the cab of the engine and the bell was ringing, the whistle had blown, and the atmospheric condition did not prevent the plaintiff-appellant from seeing the locomotive, although a light rain had been falling.

Counsel for appellees contend that the ruling of the lower court is sustained by the following authorities: Key West Electric Co. v. Albury, 91 Fla. 695, 109 So. 223; Stowers v. Atlantic Coast Line R. Co., 106 Fla. 102, 142 So. 882; Rayam v. Atlantic Coast Line R. Co., 119 Fla. 386, 161 So. 415; Kimball v. Atlantic Coast Line R. Co., 132 Fla. 235, 181 So. 533; Woods v. Atlantic Coast Line R. Co., 100 Fla. 909, 130 So. 601; Cline v. Powell, 141 Fla. 119, 192 So. 628; Denton v. Atlantic & St. Andrews Bay Ry. Co., 141 Fla. 153, 192 So. 624; Powell v. Gary, 146 Fla. 334, 200 So. 854; Brown v. Loftin, 154 Fla. 621, 18 So.2d 540, and similar cases. It is suggested that this Court could rest its ruling of affirmance exclusively on the Kimball case, supra.

Counsel for plaintiff-appellant point out that our holding in the Kimball case, and similar adjudications, is inapplicable to the facts reflected by the record in that it completely ignores and totally disregards the doctrine of the last clear chance rule as approved by the decisions of this Court, as well as the many conflicts in the evidence as reflected by the record on the exact point in controversy. The trial court, during the progress of the trial, it is argued, admitted evidence of the parties on the point at issue for the consideration of the jury and later the following instruction was given on the point or doctrine of the last clear chance rule:

'So much for the requested charges.

'I further charge you, gentlemen of the jury, the doctrine of last clear chance. When one negligently places himself in a position of peril and such perilous condition becomes known to another, that it then becomes the duty of such other to use reasonable care and caution to avoid injury to the one found in such perilous condition; it being recognized by law, however, that one being suddenly confronted with a dangerous or perilous situation is not required to exercise a greater degree of care or caution than the exigencies of the situation permit. One required to act quickly is not supposed to act with the judgment of one who can deliberate.'

Testimony of Engineer Rowand:

'Mr. Wigginton:

'Q. Was your locomotive across the highway, Mr. Rowand? A. Yes, sir.

'Q. How much of the engine part of your locomotive was across the highway? A. I would say this is very close with relation to the regular road and the locomotive that night, that accident.

'Q. You would say what? A. As you have it sitting it is very much in relation to the way it was sitting that night.

'Q. Well, the toy is sitting now with your locomotive headed north on the sidetract? A. Yes, sir.

'Q. With a portion of your locomotive north of the highway and your cab sitting about in the middle of the highway and your tender immediately behind the cab, is that correct, and attached to your locomotive? A. Well, yes.

'Q. Is that approximately correct? A. Approximately.

'Q. Now, tell the jury, if you will, Mr. Rowand, if you had driven up there and stopped before you saw an automobile approaching from the west going eastward? A. Yes, sir.

'Q. Had you come to a complete stop before you saw the automobile? A. Yes, sir.

'Q. How long after you stopped did you see an automobile approaching that intersection from the west going east? A. I couldn't say exactly due to the fact that I was looking back at the brakeman give his signal and when he stopped giving a signal, then I faced westward at the time that I saw that car coming around that curve.

'Q. Then the first time you saw the car, it was coming around the curve from the west, was it? A. Yes, sir.

'Q. Do you know how far that curve is from the track? A. No, sir, only what you had to say just now.

'Q. What did you do, Mr. Rowand, when you saw the car coming? A. When I saw that car coming around that curve at that excessive rate of speed, I didn't take my eyes off that car.

'Q. How fast approximately was the car coming? A. I cannot answer that question exactly due to the fact that those headlights were coming right directly to me.

'Q. Approximately what was the speed of the car? Do you know. A. No, sir.

'Q. Well, you said it was coming at an excessive rate, did you not? A. Yes, sir.

'Q. What do you mean by 'excessive rate'? A. I would say about 50 or 60 miles an hour.

'Q. As a matter of fact, the headlights were shining right at you, were they, as they came down? A. Yes, sir.

'Q. And it's difficult to judge the speed of a car as it comes toward you, is it not? A. What is the question?

'Q. It's more difficult to judge the speed of a car as it's coming directly toward you than if it's going by you? A. Yes, sir.

'Q. You say you didn't take your eyes off the car? A. No, sir.

'Q. What did the car do? A. That car kept continuously coming towards us at that excessive rate of speed.

'Q. And what happened? A. When I judged that that car was 400 or 450 feet from that engine and apparently not slowing up, there was but one thing left for me to do. I reached up, got the whistle cord, pulled that whistle wide open, and held it open until that car collided with that engine.

'Q. Now, you reached the conclusion the car was 400 or 450 feet away; that it was not slacking its speed and was not going to stop. Is that correct? A. Apparently.

'Q. Now, how long after you reached that conclusion was it that you reached up and pulled the whistle? A. I...