Seaboard Air Line R. Co. v. Bailey

• Decision Date: 09 July 1951
• Docket Number: No. 13343.,13343.
• Parties: SEABOARD AIR LINE R. CO. v. BAILEY.
• Court: U.S. Court of Appeals — Fifth Circuit

190 F.2d 812 (1951)

SEABOARD AIR LINE R. CO. v. BAILEY.

No. 13343.

United States Court of Appeals Fifth Circuit.

July 9, 1951.

Charles R. Scott, William L. Durden, Jacksonville, Fla., for appellant.

Charles Cook Howell, Jr., Jacksonville, Fla., Wilburn A. Cleveland, Jr., Jacksonville, Fla., J. Ollie Edmunds, Jacksonville, Fla., John Marshall Green, Ocala, Fla., for appellee.

Before HUTCHESON, Chief Judge, and BORAH and STRUM, Circuit Judges.

STRUM, Circuit Judge.

This appeal by the defendant railroad company is from a judgment awarding plaintiff damages for the death of her husband resulting from a collision between defendant's train and an automobile¹ driven by the deceased, of which the negligence of the defendant railroad company is alleged to be the proximate cause.

The collision occurred in Wildwood, Florida, at about 1:26 p. m. on December 30, 1948, a clear cool day, where the main line tracks of defendant and Oxford Street intersect at approximate right angles. At that point there are eight tracks running substantially north and south, the two easterly tracks being the northbound and southbound main line tracks. Immediately to the west of these are six switching and storage tracks. The deceased approached from the west on Oxford Street, proceeding east at right angles with, and across, the first seven tracks, colliding with a northbound passenger train on the last or easternmost main line track. From the westerly rail of the westernmost switching track to the westerly rail of the northbound main line track, where the collision occurred, is 109 feet. There was a standard "cross arm" crossing sign 25 feet west of the westerly track. The operators of the train, and the deceased driving the automobile, each had an unobstructed view of the crossing, with which the deceased, and of course the train operators, were thoroughly familiar. The surrounding terrain is level.

As they approached the crossing, the train was traveling at about 18 to 25 miles per hour, the deceased's automobile at about the same speed. An instant before the collision deceased swerved his automobile sharply to the left, apparently in an effort to avoid a collision, but it was too late and the left front corner of the Diesel locomotive struck the automobile on its right door, just behind the right front fender. The train had whistled for the Oxford Street crossing, and the bell was ringing.

Sec. 768.05, Fla.Stat.1949, F.S.A., provides: "A railroad company shall be liable for any damage done to persons, stock or other property, by the running of the locomotives, or cars, or other machinery of such company * * * unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company."

The trial judge gave the jury the following charge, amongst others: "Now in this case, as in all similar cases, the burden is upon the plaintiff to prove its case by a fair preponderance of the evidence. And I might say in this case that, initially, when the plaintiff proves that the jeep was struck by a moving train of the defendant, `that made out a statutory presumption of negligence against the defendant and she could then rest her case,' and that is what she did, as you will recall, in this case. Then it became the duty of the defendant to take over. But whenever the defendant introduced testimony that showed the plaintiff was guilty of negligence in this case, and introduced testimony denying its own negligence, then the duty switches back to the plaintiff to come in with some other testimony, as you will recall the plaintiff did. So, if there has been any confusion in your minds as to why plaintiff did not offer all of this testimony in the beginning, I want to clear that up and let you know that the reason for that is that the law proceeds otherwise. It isn't the plaintiff's duty to go forward in the first instance, beyond merely showing this case arose out of a collision between a moving train and a moving automobile at a highway crossing; then she could rest and then it switched back to the defendant."

At the conclusion of the very comprehensive charge, requiring about thirty minutes to deliver, the following colloquy occurred:

"Mr. Scott, attorney for the defendant: Then there are two exceptions I would like to mention to Your Honor's charge and the first exception is with reference to that part of Your Honor's charge dealing with the statutory presumption of negligence, because the Supreme Court of Florida has held in Atlantic Coast Line against Bowles (Voss) that the giving of that charge to a jury was error and we request that the jury be told to disregard that, if Your Honor, please.

"The Court: That was an unfortunate statement on my part. If I have erred in that respect, I know that plaintiff's counsel will be delighted that I take it back.

"Mr. Howell, attorney for the plaintiff: While I am by no means sure that Your Honor has erred in that respect, still, to be on the safe side in that regard, I would like to join Mr. Scott in his request to Your Honor to suggest to the gentlemen of the jury that they disregard that part of the charge.

"The Court: Gentlemen, you will disregard that part of my charge where I talked about what all plaintiff had to do in the first part of the case. That is something like the ostrich that stuck his head in the sand, but we have to do that. Disregard what I have said."

It was error to charge the jury that when the plaintiff proves that the "jeep" was struck by a moving train of the defendant, "that made out a statutory presumption of negligence against the defendant * * *." The presumption created by the statute above quoted is an administrative presumption which serves only to relieve the plaintiff from introducing proof of negligence in her case in chief, which would otherwise be necessary. As the presumption is not to be weighed as evidence,² the jury is not concerned with it. When the trial has reached the stage of charging the jury, the presumption has fully served its purpose, and has completely disappeared from the case. Van Allen v. Atlantic C. L. R. Co., 5 Cir., 109 F.2d 780.

In at least three cases the Supreme Court of Florida has held that it is prejudicial error to make any reference whatever to the presumption in the court's charge to the jury. Atlantic Coast Line R. Co. v. Voss, 136 Fla. 32, 186 So. 199; Loftin v. Skelton, 152 Fla. 437, 12 So.2d 175; Powell v. American Sumatra Tobacco Co., 154 Fla. 227, 17 So.2d 391. In each of these cases it was held that the error could not be regarded as harmless. The two last named cases were reversed for this cause alone, while the Voss case was affirmed on condition of remittitur, under the comparative negligence rule.

In the Voss case, the Florida Supreme Court said: "In a controverted issue such as is presented here, when the plaintiff puts on his evidence to support his charge of negligence and forthwith the defendant responds with evidence showing that it exercised ordinary and reasonable care and diligence, the presumption is out of the picture and is as if it were never in the statute. If there are conflicts in the evidence, it becomes the duty of the jury to reconcile them and reach a verdict without any reference whatever to the presumption created by the statute. Any suggestion to the jury that it then exists is prejudicial." 136 Fla. 32, 186 So. 200.

In Loftin v. Skelton, the same court said: "* * * it is error to make any reference whatever to the presumption." 152 Fla. 437, 12 So.2d 175.

In the Powell case, the Court said: "We have heretofore said in the above cited opinions that the giving of the charge was calculated to improperly influence the jury."

When it was called to his attention, the trial judge immediately realized that he should have omitted all reference to the presumption of negligence, and in an effort to correct it, he then instructed the jury "to disregard that part of my charge where I talked about what all the plaintiff had to do in the first part of the case." The latter charge, however, was inadequate to overcome the prejudicial effect of the original charge, which informed the jury that there is a presumption of negligence against the railroad company, a matter with which the jury is not concerned and which may easily lead an inexperienced juror to an incorrect appraisal of the burden which remains upon the plaintiff to establish her case by a preponderance of all the evidence. To the judge and attorneys the corrective charge may have been clear enough, but to a jury of laymen, wholly unfamiliar with the doctrine of...