Seaboard Air Line Ry. Co. v. Ebert

• Decision Date: 30 July 1931
• Citation: 102 Fla. 641,138 So. 4
• Parties: SEABOARD AIR LINE RY. CO. et al. v. EBERT.
• Court: Florida Supreme Court

138 So. 4

102 Fla. 641

SEABOARD AIR LINE RY. CO. et al. v. EBERT.

Florida Supreme Court

July 30, 1931

Rehearing Denied Nov. 18, 1931.

En Banc.

Error to Circuit Court, Orange County; Frank A. Smith, Judge.

Action by Lena B. Ebert, a widow, against the Seaboard Air Line Railway Company and others. Judgment for the plaintiff, and the defendants bring error.

Affirmed.

COUNSEL W. B. Crawford, W. B. Parks, and Dickinson &amp Dickinson, all of Orlando, for plaintiffs in error.

Pleus Williams & Pleus and George P. Garrett, all of Orlando, for defendant in error.

OPINION

ELLIS J.

Orange avenue, a street in the city of Orlando and one of the main thoroughfares of the city, follows a course due north through the center of the city to the north side, where the street curves in a northeasterly direction and becomes a highway to the city of Winter Park. Highland avenue is a street in the city which parallels Orange avenue on the east until it intersects or merges into Orange avenue at a point some several hundred feet from where the latter curves northeastward toward Winter Park.

The Atlantic Coast Line Railroad Company has a main line and two side tracks laid across Highland avenue at a point some 135 feet south of the point where Highland avenue flows into Orange avenue or Winter Park Highway. Those tracks at that point follow a northeasterly and southwesterly course. At a point some seventy-five feet south of those tracks the main line of the Seaboard Air Line Railroad crosses Highland avenue; that track also follows a northeasterly and southwesterly course. These crossings, just at the entrance practically of the city of Orlando, render traveling upon Highland avenue dangerous. Signal lights are established in the center of the highway; one north of the Atlantic Coast Line tracks and one south of the Seaboard Air Line track about eight or ten feet approximately from the tracks and about one hundred eighty feet apart.

These signal lights are the usual three-light signal device. The top or red light warns travelers on the public highway to stop; the center light, usually yellow in color, warns of possible danger and admonishes caution; the bottom light is green and signifies freedom from danger to persons desiring to proceed on their journey across the intersection of the two highways. The lights used at these railroad crossings serve much the same purpose as ordinary traffic lights used by city authorities to regulate traffic. The red light, which is at the top, has the word 'stop' lettered across the disk; the center light the word 'caution'; and the third or bottom light, which is green, the word 'go.' The lights shift from 'red' to the center or caution light and thence to green. From the latter or danger free signal, the lights shift to caution or yellow and then to red. In addition to these signals, a bell is rung when the middle or center light is on.

The lights are operated from a tower by a person who uses a mechanical device to give the appropriate signals to persons traveling on the public highway. That person, so it is alleged, was employed by the two railroad companies jointly and in the discharge of his duties as tender of the lights acted for the two railroad companies and at the time of the accident which gave rise to this action the employee was J D. Murray.

On the 24th day of February, 1929, which was Sunday, Mrs. Lena B. Ebert, her husband Frank M. Ebert, and her sister Mrs. Beck, at about 2 o'clock in the afternoon started for an automobile trip to Winter Park. The style and make of the automobile was an Oldsmobile Landeau, six cylinders. Mrs. Ebert was driving, her husband on the front seat next to her, and Mrs. Beck was on the rear seat. They drove north on Highland avenue and as they approached the track of the Seaboard Air Line Railroad Mrs. Ebert observed another automobile which had stopped south of the track on the east side of the highway. She noticed that the north signal light was red. The north signal light would be the one north of the Atlantic Coast Line tracks and about one hundred eighty feet from the south signal light, which was the one nearer to Mrs. Ebert as she approached the Seaboard Air Line track from the south, that light also showed red as Mrs. Ebert approached the automobile in front of her which had stopped a little to one side of the south light, and did not obscure the light from her.

Mrs. Ebert was then approaching slowly the automobile in front when she saw the Atlantic Coast Line passenger train cross the highway going north. She said that 'as soon as the passenger train went north the light signal light flashed green.' At that time she was 'three or four car lengths behind the stopped car,' and she saw the automobile in front of her cross the railroad track and she proceeded to follow. As the front wheels of her automobile reached the Seaboard tracks, she observed the north light flash red. Her first impulse was to 'back off the track' and tried to do so. A Seaboard Air Line freight train was approaching the crossing. The train consisted of fourteen refrigerator cars behind the engine and two loaded cars and the caboose on the front. The train was backing. From the end of the last car to the engine the train was about six hundred feet long. It was approaching the crossing from the south at about six and a half miles per hour. Mrs. Ebert's automobile was struck by that train of the Seaboard Air Line Railway Company, and Mr. Ebert sustained injuries from which he died at about 8 or 9 o'clock p. m. at the sanitarium to which he had been taken.

Mrs. Ebert was well informed of the location, the permanently attached physical object such as the railroad tracks, signal lights, buildings, and towers, and had been operating an automobile about three years. When her automobile came upon the railroad track and she saw the red in the north signal light and realized the peril she was in and tried to back her automobile off the track, realizing her imminent danger from the approaching train she 'lost consciousness or something, probably from fright or otherwise' she did not know.

In April of 1929 Mrs. Ebert brought an action for damages against the two railroad companies and J. D. Murray for the wrongful death of her husband. There was a verdict and judgment in her favor in the sum of $15,000, and the three defendants took a writ of error.

The declaration, consisting of one very long count, rests upon the alleged act of Murray in causing the red or stop light in the signal light towers to cease burning and the green or danger free lights to burn in the signal towers when the freight train of the Seaboard Air Line Railway Company was approaching within a short distance of the crossing. That act of Murray was alleged to have been careless and negligent and done as the agent, servant, and employee of both the railroad companies. The Atlantic Coast Line Company demurred to the declaration, moved for a compulsory amendment, and moved to strike that company from the case as a party defendant. These motions and the demurrer were overruled.

The declaration stated without ambiguity a good cause of action against the Seaboard Air Line Railway Company and Murray. The defendant Murray was alleged to be the joint agent of the two railroad companies and that while in the discharge of the duties devolving upon him as such employee he negligently and carelessly produced or gave a signal of false security or freedom from danger to persons traveling on the public highway, and particularly to the plaintiff, who was about to cross the railroad tracks of the Seaboard Air Line Company.

An agent who commits such an act is as much tort-feasor as his principal. 1 Mechem on Agency, p. 1081.

Jurisprudence does not concern itself with such attenuated verbal distinctions in matters where injury results from a servant's doing what he should not do in failing to do that which he ought to do. See Mayer v. Thompson-Hutchison Bldg. Co., 104 Ala. 611 16 So. 620, 28 L. R. A. 433, 53 Am. St. Rep. 88; Baird v. Shipman, 132 Ill. 16, 23 N.E. 384, 7 L. R. A. 128, 22 Am. St. Rep. 504.

Aside from any consideration of contributory negligence on plaintiff's part, which does not appear in the declaration, there is a very palpable 'causative connection' between the act of the defendants in giving to the plaintiff a false signal of security and freedom from the danger of an approaching train then imminently near the crossing and the injury sustained by Mr. Ebert, an occupant of the automobile driven by the plaintiff who was then in the act of preparing to cross the track with the automobile. Such a negligent or careless act of the defendants under such circumstances would naturally lead to or produce similar results to that described in the declaration. See Fla. E. C. Ry. Co. v. Wade, 53 Fla. 620, 43 So. 775; Williams v. A. C. L. R. Co., 56 Fla. 735, 48 So. 209, 24 L. R. A. (N. S.) 134, 131 Am. St. Rep. 169; Moore v. Lanier, 52 Fla. 353, 42 So. 462.

The declaration alleged that the crossing is in the city of Orlando and the two railroad companies whose railroad tracks crossed Highland avenue together had provided and were maintaining the signal service at that point. The fact remains, however, that it was on the track of the Seaboard Company where the injury occurred and by a Seaboard Company's train of cars. The act causing the injury was the act solely of the Seaboard Air Line Company with which the Atlantic Coast Line Railroad Company had nothing to do unless indeed the negligent act of the Seaboard's agent Murray, which may have made the Seaboard Company liable, became also the negligent act of the Atlantic Coast Line Company because Murray was also the latter's agent.

The railroad companies...