Seaboard Coast Line R. Co. v. Buchman

• Decision Date: 21 April 1978
• Docket Number: No. 77-365,77-365
• Citation: 358 So.2d 836
• Parties: SEABOARD COAST LINE RAILROAD COMPANY, Appellant, v. Elliott BUCHMAN, as Administrator of the Estate of Andrea C. Buchman, Deceased, Appellee.
• Court: Florida District Court of Appeals

Page 836

358 So.2d 836

SEABOARD COAST LINE RAILROAD COMPANY, Appellant, v. Elliott BUCHMAN, as Administrator of the Estate of Andrea C. Buchman, Deceased, Appellee.

No. 77-365.

District Court of Appeal of Florida,Second District.

April 21, 1978.

As Modified On Denial of Rehearing May 19, 1978.

George D. Lynn, Jr., and Stephen C. Chumbris of Harrison, Greene, Mann, Rowe, Stanton & Mastry, St. Petersburg, for appellant.

Robert Orseck of Podhurst, Orseck & Parks, P. A., Miami, and William Wagner of Wagner, Cunningham, Vaughan & Genders, P. A., Tampa, for appellee.

GRIMES, Judge.

The railroad appeals a final judgment for the plaintiff in a wrongful death action arising out of a crossing accident.

The accident occurred at the intersection of Twin Lakes Boulevard and the Seaboard Coast Line Railroad tracks in Hillsborough County. Twin Lakes Boulevard was a two-lane roadway running in a north/south direction. The road was 16 to 18 feet wide and was neither curbed nor marked with a center line. The Seaboard line consisted of a single set of railroad tracks running in an east/west direction. Approximately 900 feet east of the Twin Lakes crossing the tracks curved to the southeast. About 26 feet north of the railroad crossing, Twin Lakes Boulevard connected at a T-intersection with Busch Boulevard which ran in an east/west direction parallel to the railroad tracks.

There was a standard black and white crossbuck warning sign for northbound traffic located on the right side of Twin Lakes Boulevard 37 feet south of the northernmost rail of the tracks. A standard red and white stop sign stood on the right side of the road 291/2 feet south of the northernmost rail of the tracks. There were no signal lights or gates at the crossing.

The railroad right of way was 60 feet wide, 30 feet on each side of the center line of the tracks. There were no obstructions on the railroad right of way. However, there was a citrus grove to the southeast of the crossing and off the railroad right of way which obstructed the view of the track to the east for northbound vehicles until they were within 35 to 42 feet of the track.

The accident occurred about 11:50 a.m., April 15, 1975, in clear, sunny weather. The decedent was traveling north on Twin Lakes Boulevard in her Datsun sports car at approximately 15 to 20 miles per hour. She did not diminish her speed at any time from the time she passed the privately owned orange grove in the southeast quadrant of the crossing until the accident occurred. The speed limit on Twin Lakes Boulevard at this point was 30 miles per hour. When the accident occurred, the car radio was playing and the windows were closed. The train, consisting of a diesel locomotive and four passenger cars, was proceeding in a westerly direction from Tampa to St. Petersburg. As it rounded the curve east of the Twin Lakes crossing, it was traveling approximately 45 miles per hour. As it left the curve, the train accelerated and it was traveling at 50 miles per hour at the time of the collision. The speed limit for trains at the crossing was 59 miles per hour.

When the train was 100 to 140 feet from the crossing, the fireman saw the decedent's automobile traveling north on Twin Lakes Boulevard appear from behind the orange grove. Since it appeared that the car was not going to stop, the fireman immediately jumped out of his seat and put the train into an emergency stop. The emergency braking system worked properly, but the engine did not come to rest until it was approximately 1,209 feet west of the crossing. The train struck the right front door of the Datsun, killing the decedent.

The engine's headlamps were on at the time of the accident, and the train bell had been ringing continuously for three miles before the train reached the Twin Lakes crossing. The engineer and the fireman testified that the train began to blow its whistle at the whistle post designated for the crossing, and the whistle continued to blow in the standard sequence two longs, a short, and a long until the accident occurred. Two railroad employees who were driving on Busch Boulevard testified that they heard the whistle blowing as the train approached the crossing. Two train crewmen in the last car of the train and another person driving a truck on Busch Boulevard said that they did not recall hearing the train whistle. An investigating patrolman testified that the wind at the accident scene was blowing toward the east at about 17 miles per hour.

The court denied the railroad's motion for directed verdict and submitted the case to the jury. On the basis of comparative negligence, the jury found that the plaintiff's decedent was 60% at fault and the railroad was 40% at fault. Accordingly, the court entered a final judgment for the plaintiff in the sum of $136,000.

The railroad first argues that it should have been granted a directed verdict. In response the plaintiff contends that a jury question was presented with respect to (1) the inadequate or untimely blowing of the train's whistle, (2) the excessive speed at the crossing under the circumstances, and (3) the absence of more adequate crossing protection in light of the train speed in question.

A leading case on the subject of train whistles is Tyus v. Apalachicola Northern Railroad, 130 So.2d 580 (Fla.1961), in which the supreme court held that the testimony of a witness that he didn't hear the whistle blow presents a jury question on the negligence of the railroad for failing to blow the whistle if the witness' attention was directed to the point in issue. The language of Tyus is also susceptible to an interpretation that whenever negative testimony about the whistle is presented, a jury question always arises regarding whether the witness' attention was actually directed to the existence of the train and the possibility that the train would be blowing its whistle. However, we think the true application of the rule depends on whether there are facts from which the jury could reasonably infer that the witness in question had his attention directed to the matter of audible signals as the train approached the crossing. If so, the jury is entitled to decide if the witness was paying attention and to accord to his testimony the weight it may deem proper; if not, the testimony of the witness simply lacks probative value. See Seaboard Coast Line Railroad v. Helman, 330 So.2d 761 (Fla. 4th DCA 1976), reversed on other grounds, 349 So.2d 1187 (Fla.1977).

In the case before us, there was no evidence from which the jury could infer that the attention of those witnesses who gave negative testimony about the whistle was directed to the matter of audible signals as the train approached. In fact, each of them specifically stated that they did not know whether the train blew its whistle because they were not paying attention.

Likewise, there was no basis upon which the jury could conclude that the train did not blow its whistle in a timely manner. The engineer and the fireman both testified that they began blowing the whistle at the whistle post located 1,261 feet east of the crossing. While two Seaboard men testified that whistle posts are usually placed about 1,500 feet from the crossing, there was no indication that this was required. Even at a speed of 50 miles per hour, if the train began to blow its whistle 1,261 feet from the crossing, the whistle would have been blowing for about 18 seconds before the accident. The fact that the whistle might have been blowing about three seconds longer had it commenced blowing at 1,500 feet could not be a basis for negligence.

The subject of train speed requires less discussion. Ordinarily, a jury question on negligence is presented when there is evidence that the train involved in a crossing accident was operating at a speed in excess of its speed limit. Helman v. Seaboard Coast Line Railroad, 349 So.2d 1187 (Fla.1977); Martin v. Favorato, 79 So.2d 780 (Fla.1955); Leslie v. Atlantic Coast Line Railroad, 103 So.2d 645 (Fla. 1st DCA 1958). However, no case has been cited for the proposition that a jury issue on train speed alone is presented when the evidence reflects, as in the instant case, that the train was operating within its speed limit. Of course, this does not mean that the speed of the train may not be a significant factor in those cases where there are no applicable train speed limits or where there are circumstances present which make the crossing particularly dangerous.

On the question of adequate crossing protection, our supreme court, in Atlantic Coast Line R. v. Wallace, 61 Fla. 93, 54 So. 893 (1911), long ago held that the legislature rather than the jury must determine whether particular methods of crossing protection should be used in order to prevent an injury, but that it was the province of the jury in a crossing accident to determine whether the railroad exercised all of the care and diligence required by the circumstances of the particular case. This principle was more recently reaffirmed in McNulty v. Atlantic Coast Line Railroad, 198 So.2d 876 (Fla. 2d DCA 1966). Obviously, the railroad's failure to provide crossing protection according to a statutory mandate would be evidence of negligence. But are there circumstances under which the railroad may have to go further?

In Atlantic Coast Line R. v. Smith, 53 So.2d 301 (Fla.1951), the railroad argued that it should have been granted a directed verdict because the evidence reflected that the speed of its train was under control and that the train was ringing its bell and sounding its whistle when the accident occurred in downtown Winter Haven. The court distinguished the cases upon which the railroad relied on the basis that they involved rural crossings rather than a crossing in the congested area of a fast growing municipality. In affirming a judgment for the plaintiff, the court observed:

It may not always be enough to blow the whistle and ring the bell, particularly is this true...