Seaboard Coast Line R. Co. v. Hill

• Decision Date: 21 June 1971
• Docket Number: No. 70-570,70-570
• Citation: 250 So.2d 311
• Court: Florida District Court of Appeals
• Parties: SEABOARD COAST LINE RAILROAD COMPANY, Appellant, v. Carolyn HILL, as widow of Lester George Hill, Jr., Appellee.

Page 311

250 So.2d 311

SEABOARD COAST LINE RAILROAD COMPANY, Appellant, v. Carolyn HILL, as widow of Lester George Hill, Jr., Appellee.

No. 70-570.

District Court of Appeal of Florida, Fourth District.

June 21, 1971.

Rehearing Denied July 28, 1971.

Manley P. Caldwell and Arthur E. Barrow of Caldwell, Pacetti, Barrow & Salisbury, Palm Beach, for appellant.

William S. Frates, II, of Beverly & Frates, West Palm Beach, for appellee.

REED, Judge.

On 8 April 1968 the plaintiff, as widow of the late Lester George Hill, Jr., filed a wrongful death action against the defendant Seaboard Coast Line Railroad Company alleging that the defendant had so negligently operated a train through a highway crossing in the City of Clewiston, Florida, as to cause the vehicle operated by the plaintiff's deceased husband to run into and collide with the train. The defendant's answer denied that it was negligent and alleged contributory negligence of the plaintiff's decedent.

The evidence indicated that the plaintiff's decedent was traveling north on Francisco Street in Clewiston at about 1:55 a.m. on 18 May 1966 when he drove his vehicle into the side of defendant's train that was headed west and occupying a crossing that intersected Francisco Street. The defendant's vehicle impacted with the train at the coupling between a box car and a gondola. His death resulted from the accident.

On 30 April 1970 the jury returned a verdict finding the defendant guilty of negligence and assessed plaintiff's damages at $220,000.00. On 1 May 1970 the court rendered a final judgment pursuant to the jury verdict and the defendant appeals.

The defendant has raised seven points on appeal. We have reviewed each and believe them to be without merit. Points 1, 2, 4, and 7, however, warrant discussion.

Defendant's first point as stated in its brief is:

'Whether or not the trial judge erred in sustaining objections to testimony by Chief W. A. Whaley as to the speed of the vehicle at the time of the accident.'

Chief W. A. Whaley of the Clewiston Police Department investigated the accident. He was called as a witness for the plaintiff. On cross-examination the defendant's attorney asked the chief's opinion as to the speed of the decedent's vehicle at the time of the accident. Objection was sustained. The defendant then proffered testimony from the chief which was actually given out of order in which the chief testified that in his opinion, based upon his inspection of the vehicle and the scene of the accident and his past experience in investigating impact accidents, that the speed of the decedent's vehicle was 45 to 50 miles per hour at the time of the accident.

Chief Whaley testified that he had been affiliated with the police department in Clewiston for a little over ten years and had been chief of the police for eight and one-half years. His background and training as a police officer included several sessions in training schools put on by the F.B.I. and a training program sponsored by the Traffic Court Conference at Avon Park. The chief also testified that he had investigated many accidents during his years as a police officer. However, he also testified that he was not a 'traffic expert', although he had seen automobiles involved in accidents and inspected the amount of damage to such automobiles and compared it with the speed with which the automobiles had been going.

Because of the limited evidence of the chief's qualifications in the field of accident reconstruction and his own disclaimer of expertise, it is our opinion that the trial judge was perfectly within the realm of his discretion when he determined that the chief was not so skilled in determining the speed of a vehicle from its appearance and the physical evidence after impact that he qualified to give an opinion as to the decedent's speed at impact based on the appearance of the vehicle after the collision. See the case of Seaboard Air Line R. Co. v. Lake Region Packing Ass'n, Fla.App.1968, 211 So.2d 25, 31, wherein we stated:

'* * * The determination of a witness' qualification to express an opinion--which would include an inquiry into and an evaluation of the basis of the witness' knowledge--is peculiarly a matter within the realm of the trial judge who should not be reversed in the absence of a clear showing of error.'

The defendant's second point is:

'Did the trial judge err in determining that the condition of the crossing was not a fact question for the jury to decide and allowing plaintiff's witness, Donald E. Wilcox, to testify that it was unsafe though he was not qualified and had never even seen the crossing?'

Under Point 2 the defendant contends that the trial judge committed error in allowing witness Donald E. Wilcox to testify that The crossing was unsafe. Mr. Wilcox is a professor of industrial engineering at the University of Florida.

A hypothetical question put to Professor Wilcox by the plaintiff sought an opinion, '* * * about the train involved in this case, as you know it to have been or as you know safety devises to have been either absent or present from the train.' The witness answered that The train was unsafe--not the crossing as such.

After the foregoing question the witness was asked why he thought the train was unsafe. Over objection the witness answered that The crossing was dangerous because there were insufficient warnings to alert a driver approaching the crossing from the south and the lights in the background and the spaces between the railroad cars might have deluded the motorist. As we understand it, the sense of the witness' testimony is that the crossing was dangerous because it lacked adequate warning devices to have alerted a driver in the decedent's position. It seems to us that this was a conclusion as to matter that was within the realm of a jury's ordinary experience and understanding. Therefore, the admission of this testimony was error, but in our opinion it was harmless because of the substantial non-opinion testimony in the records which would support a jury conclusion that the train on the crossing presented a dangerous condition. Such testimony will be discussed infra under our treatment of Point 4.

Defendant's Point 4 reads:

'Did the trial judge err in determining that an opinion as to what an average driver would have seen at the time and place of the accident was admissible and allowing Dr. Isadore Scherer, who had never seen the crossing or the decedent, to testify thereto?'

Dr. Isadore Scherer, also a plaintiff's witness, was asked on direct if he had an opinion as to whether an average driver would have seen the train standing on the crossing on the night of the collision. This question was preceded by a long series of assumptions which simply set out the facts surrounding the occurrence of the accident in a manner justified by the evidence. The question was later restated to solicit the doctor's opinion as to whether or not an average driver would have seen the train In time to have avoided the collision. The witness answered that an average driver would not have seen the train in time to have avoided a collision.

The appellant objected to the admission of this opinion on the ground that Dr. Scherer was not qualified as an expert on the subject, the testimony was an invasion of the province of the jury, and was irrelevant.

Considering the question of the qualifications of the witness, it appears from Dr. Sherer's testimony that he is a psychologist with considerable academic and practical experience. He testified that he had done research relating to motivation, attention and other variables in personal history which relate to a person's inability to work. He also stated that he had done research into the subject of the requisite knowledge and ability for the operation of machinery. On the basis of this testimony, we believe that the trial judge was within the realm of his discretion in determining Dr. Scherer was sufficiently qualified as an expert or skilled witness to give a conclusion based on the facts set forth in the hypothetical. Seaboard Air Line R. Co. v. Lake Region Packing Association, supra.

The more difficult question is whether or not the subject matter of the opinion was appropriate for opinion testimony. It is generally held that the subject matter of an opinion by an expert witness must be so related to some science, profession, business, or occupation as to be beyond the understanding of the average layman. See Mills v. Redwing Carriers, Inc., Fla.App.1961, 127 So.2d 453.

The apparent subject matter of the witness' opinion was the visibility to an average driver of the defendant's train standing on the crossing on the night of the accident. At first glance it would appear that this would be a matter to be determined by the jury through the exercise of its common sense based upon the evidentiary facts. However, to fairly evaluate the subject matter of the opinion, we must examine the explanation given by the witness in support of the opinion. After having answered the question put to him in the manner indicated above, the witness explained that the reason he answered as he did was his understanding of the human reactions that would normally be engendered by the environment at the time of the accident as described in the hypothetical question. The witness testified that the darkness, the fog, the absence of flares, and the absence of sound would produce perceptional problems for a driver. The witness also testified that lights that were visible north of the crossing against a field of vision partially blocked by the box car would cause problems in depth perception. On the basis of these factors, the witness concluded that the information that could have been gathered as to the obstruction on the tracks was so poor that an average driver would not have been able to react to it properly. Hence, it appears to us...