Powell v. Gary
| Decision Date | 07 March 1941 |
| Citation | 200 So. 854,146 Fla. 334 |
| Parties | POWELL et al. v. GARY. |
| Court | Florida Supreme Court |
Error to Circuit Court, Marion County; F. R. Hocker, Judge.
Action by W. H. Gary, doing business as the Gary Manufacturing Company, against L. R. Powell, Jr., and another, as receivers for the Seaboard Air Line Railway Company, for damage to plaintiff's truck which was struck by a train. To review an adverse judgment, the defendants bring error.
Reversed.
COUNSEL L. W. Duval, of Ocala, for plaintiffs in error.
W. E Smith, of Ocala, for defendant in error.
The defendant in error brought suit in the circuit court of Marion County against the plaintiff in error for damages sustained to a motortruck and trailer belonging to the plaintiff below, operated by and in charge of his employee. The damage is alleged to have resulted from a collision caused by the negligence of the defendant's servants in the operation of defendant's passenger train at the time of the collision between the railroad company's train and the plaintiff's truck on a railroad crossing at the village of Oak, Florida. The declaration charged negligence of the railroad company's employees in operating the train. The defendant receivers plead the general issue of not guilty, and contributory negligence, in 'that the carelessness and negligence of plaintiff's employee, Kara King, in charge of and driving the plaintiff's automobile truck and trailer at the time of the accident caused and/or contributed to the injuries and damages the plaintiff complained of.' There was a verdict and judgment for the plaintiff, and the defendant railroad company took writ of error.
The contentions of the railroad company are that the evidence adduced at the trial clearly absolved them and their employees in charge of the train from any negligence in the operation of the train; that their employees did everything that was legally required of them and everything possible to prevent the accident, including the blowing of the whistle when approaching the crossing and the ringing of the bell and that damages and loss suffered by the plaintiff as a result of the accident were due solely to the negligence of the plaintiff's employee in the operation of the damaged truck and trailer. The defendant's testimony as to the speed of the train was that it was running 60 miles per hour. One witness for plaintiff estimated it at 80 miles per hour. The whistling post was about 1,612 ft. south of the crossing. There was testimony for defendant to the effect that the whistle was blown when the train was a half mile from the crossing, and also again at the whistling post.
When in appropriate proceedings, plaintiff shows by competent evidence that damage has been done to property by the operation of the railroad company's train, under section 7051 (4964) of the Compiled General Laws, the burden then shifts to the railroad company to 'make it appear that their agents have exercised all ordinary and reasonable care and diligence' in operating the train which is duly alleged to have been negligently operated when the injury occurred. And when the railroad company introduces substantial evidence to this effect, the statutory presumption of fact disappears. See Warfield v. Hepburn, 62 Fla. 409, 57 So. 618; Atlantic Coast Line R. Co. v. Watkins, 97 Fla. 350, 121 So. 95; Tampa Electric Co. v. McCulloch, 115 Fla. 680, 156 So. 259; Powell v. Jackson Grain Co., 134 Fla. 596, 184 So. 492. The probative effect of the evidence is to be determined by the jury, subject to authorized appellate review.
Several witnesses for the defendant railroad company testified affirmatively and positively that warning blasts of the engine whistle were given, commencing at a whistle post approximately 1,600 feet from the crossing where the accident occurred, and also that the engine bell was ringing. The testimony of the plaintiff's witnesses was entirely negative, their testimony being that they did not hear the whistle blowing or the bell ringing. As stated in Seaboard Air Line R. Co. v. Myrick, 91 Fla. 918, 109 So. 193, 195:
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Tyus v. Apalachicola Northern R. Co., 30274
...held that negative testimony will not make an issue in the face of positive testimony that the signals were given. Powell v. Gary, 146 Fla. 334, 336, 200 So. 854.' Our examination of the opinion in the Powell case convinces us we did not unequivocally state, nor did we even by inference sug......
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May v. Baklini
...of the object she saw, and, ordinarily, when questioned as to the fact, she will say she did not see the object. Powell v. Gary, 146 Fla. 334, 200 So. 854, 855 (1941). The trial court erred in giving the U.J.I. instruction on statutory violation. Was this prejudicial error? Jewell v. Seiden......
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McAllister v. Tucker
...the doctrine that negative testimony will not make an issue in the face of positive testimony that the signals were given. Powell v. Gary, 146 Fla. 334, 200 So. 854, and cases discussed The next question challenges the condition of the crossing. It is true that several witnesses testified a......
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Powell v. Etter
... ... adduced at the trial sustain, as a matter of law, the ... verdicts for plaintiffs below and the judgments thereon? It ... is asserted that the facts involved in the two cases are ... controlled by the decisions of this court, viz.: Powell ... v. Gary, 146 Fla. 334, 200 So. 854; Roberts v ... Powell, 137 Fla. 159, 187 So. 766; Van Allen v ... Atlantic Coast Line R. Co., 5 Cir., 109 F.2d 780; ... Seaboard Air Line Ry. Co. v. Myrick, 91 Fla. 918, ... 109 So. 193; Southern R. Co. v. Mann, 91 Fla. 948, ... 108 So. 889; Covington v. Seaboard ... ...