Rouse v. Florida East Coast Ry. Co.

• Decision Date: 25 March 1969
• Docket Number: No. 68--231,68--231
• Citation: 220 So.2d 632
• Parties: Ruby ROUSE, Appellant, v. FLORIDA EAST COAST RAILWAY COMPANY, a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 632

220 So.2d 632

Ruby ROUSE, Appellant, v. FLORIDA EAST COAST RAILWAY COMPANY, a Florida corporation, Appellee.

No. 68--231.

District Court of Appeal of Florida, Third District.

March 25, 1969.

Rehearing Denied April 18, 1969.

Beckham & McAliley, Horton & Schwartz, Miami, for appellant.

Bolles, Goodwin, Ryskamp & Ware, Miami, for appellee.

Before PEARSON, BARKDULL and HENDRY, JJ.

HENDRY, Judge.

This case comes to us with a long trial and appellate history. See: Fla. East Coast Railway Company v. Rouse, Fla.App.1965, 178 So.2d 882; Fla. East Coast Railway Company v. Rouse, Fla.1967, 194 So.2d 260. The primary issue which was reviewed in prior decisions concerned the correctness of the original trial court having submitted the case to the jury with comparative negligence instructions which were drafted in accordance with § 768.06 Fla.Stat., F.S.A. A subsequent determination of that statute's unconstitutionality ultimately resulted in a new trial of the entire case. 194 So.2d 262.

That new trial was had in the Dade County Circuit Court, and the jury rendered its final verdict in favor of the defendant. The plaintiff, who is now the appellant, contends that error was committed in that the court declined to instruct the jury concerning the doctrine of last clear chance. It is well settled that failure to charge on last clear chance is reversible error when the facts indicate that the doctrine applies. Radtke v. Loud, Fla.App.1957, 98 So.2d 891. Nowhere in this case's past history have the facts been fully set forth, and this now becomes necessary, for in applying the doctrine of last clear chance, ¹ a court must make reference to the specific factual situations of each case. Falnes v. Kaplan, Fla.1958, 101 So.2d 377.

On the night of September 9, 1961, Ruby Rouse was struck by a slowly moving train owned by the appellee in the immediate vicinity of the Dania Station. According to Rouse's own version, he was walking with his back to the train, and was struck without warning. The testimony of the train's fireman and engineer, however, presents a completely different view.

To properly understand their account of the accident, we must first describe the setting of the accident scene. There are two parallel sets of railroad tracks concerned here, a northbound set and a southbound set. The northbound tracks lie to the east of the southbound tracks, with a distance of about five feet separating the two tracks. To the immediate west of the southbound tracks, also running parallel to both sets of tracks, is an asphalt pathway about four feet wide. The train which struck Rouse was heading north, thus traveling on the northbound tracks described above. There are, in our opinion, five instances of time relevant here, and each is set forth below in accordance with the testimony of the train's engineer.

The first such instance occurred when the train's engineer saw Rouse for the first time. The train was moving at about 30 m.p.h., and was located about five hundred feet from Rouse. The engineer and the fireman both observed Rouse walking naturally along the asphalt path. He was proceeding in a southerly direction, thus facing the engineer. ²

The second important instance of time occurred as the engineer noted Rouse changing his direction from southerly to southeasterly. Thus, Rouse began moving diagonally, crossing onto the southbound tracks, still facing the oncoming train. ³

The third instance with which we are concerned occurred when the engineer felt the necessity to give Rouse extraordinary warning (i.e., over and above that which was given by the 'Mars' light, a moving beam, and the fixed light, both located in the front of the engine, plus the normal noise of the train.) He did so by giving three toots on his train whistle. At that point in time, Rouse had crossed the southbound tracks and was walking within the four to five feet of space that separated the southbound tracks from the northbound tracks. ⁴

The fourth important instance of time occurred after Rouse had crossed upon the northbound tracks. He was then standing in the middle of those tracks, squarely facing the train. ⁵

Finally, the fifth instance relevant here occurred as the engineer, according to his testimony, saw Rouse lie down in the middle of the tracks of the oncoming train. As he observed this, the engineer then threw on the train's emergency brakes. At this point in time, Rouse was fifteen to twenty feet in front of the train. ⁶ Since the stopping distance of this particular freight train, with its seventy car consist (load of railroad cars) traveling at its three to four mile per hour speed was greater than twenty feet, the train ran over Rouse, severing both his legs below the knees.

At the second trial, the appellant requested the following jury instruction as to the doctrine of last clear chance:

'Even if you find from the evidence that (claimant) was in a position of danger as a result of his own negligence, you may return a verdict for (claimant) notwithstanding his negligence if (defendant) had the last clear chance to avoid injury to (claimant), that is, if the greater weight of evidence shows the existence of one of the situations which I shall now describe:

'Third: You may find that (defendant) had the last clear chance to avoid injuring (claimant) If (defendant) knew that (claimant) was in a position of danger; If (defendant) realized or had reason to realize that (claimant) apparently would not take action to avoid the danger; And if (defendant), by the use of reasonable care, could thereafter have avoided injuring (claimant).' (Emphasis added). Instruction Number 5.2, Florida Standard Jury Instructions.

The court refused to give the requested instruction, and the case went to the jury under the doctrine of contributory negligence.

Only one expert witness testified during the trial proceedings. This witness was Mr. McCray, called by the defendant-appellee. This particular witness had worked as a locomotive engineer, and, at the time of the trial, was presently the engine foreman for the Florida East Coast Railway Company. After testifying as to the dimensions of the train, tracks, location of lights, etc., the following testimony ensued on direct examination:

'Q Mr. McCray, as an engineer have you yourself operated the 500 series diesel locomotives similar to engine 571?

'A Yes, sir. I have operated that same locomotive.

'Q This very one?

'A Yes, sir.

'Q Have you operated this engine when there has been a consist of that engine plus two other engines plus approximately seventy to seventy-two cars, seventy of which are loaded, and a caboose at a speed of approximately four to ten miles an hour--giving all of the speeds that have been mentioned--to twelve miles an hour and placed it in emergency application of the brakes so you can tell us what the stopping distance is as best you can approximate it? What would it be for that particular consist at those particular speeds?

'A Well, between eight and ten miles an hour placing that train in emergency position would take approximately three hundred feet to stop that train.

'Between four to six miles an hour, which would be a lesser speed, naturally the distance would reduce to approximately around 180 to 200 feet.

'Q Do all trains brake differently?

'A Yes, sir. There are none that brake--no two trains brake alike.

'Q In other words the range you gave us from two hundred up to three hundred feet would be more than that?

'A That's right.'

At the conclusion of the trial, counsel for the parties and the trial judge entered into a hearing regarding the instructions which were to be given to the jury. The judge therein rejected the appellant's requested instructions, supra, pertaining to the doctrine of last clear chance. We hold that this was correct.

It was within the province of the trial judge to resolve, as a matter of law, that the evidence presented could not possibly justify application of the last clear chance rationale. Saucer v. Welch, Fla.App.1966, 186 So.2d 833; Gilman v. Rupert, Fla.App.1962, 145 So.2d 746. After hearing the expert testimony from the witness, McCray, the court properly concluded that there was no possible way in which the appellant could have been extricated from the situation. Even at the first point of awareness, i.e., when the train was 500 feet from the appellant, had the engineer acted by using the emergency brake, according to his testimony regarding the speed of the train at that moment, the train would nevertheless have required in excess of 500 feet to stop. If the emergency brake had been applied at the first point in time wherein the...