Seaboard Coast Line R. Co. v. Welfare, CC-437

• Decision Date: 12 September 1977
• Docket Number: No. CC-437,CC-437
• Parties: SEABOARD COAST LINE RAILROAD COMPANY, a Railroad Corporation, Appellant, v. Betty Raye WELFARE and her mother, Juanita Welfare, Appellees.
• Court: Florida District Court of Appeals

Page 476

350 So.2d 476

SEABOARD COAST LINE RAILROAD COMPANY, a Railroad Corporation, Appellant, v. Betty Raye WELFARE and her mother, Juanita Welfare, Appellees.

No. CC-437.

District Court of Appeal of Florida, First District.

Sept. 12, 1977.

Rehearing Denied Oct. 24, 1977.

William R. Swain of Webb, Swain & Watson, Jacksonville, for appellant.

W. C. O'Neal of Chandler, O'Neal, Gray, Lang & Haswell, Gainesville, for appellee.

McCORD, Chief Judge.

This is an appeal from final judgment entered upon a jury verdict in favor of appellee Betty Raye Welfare and a verdict in favor of appellee Juanita Welfare, Betty's mother, for damages sustained by her The following facts are undisputed. The collision occurred at approximately 12:00 noon on May 25, 1972, during clear, dry weather at the crossing of Walker Street and appellant's main line tracks within the city limits of Live Oak, Florida. Betty and two of her teen-age girl friends, Cathy Parker and Gwynth Frier, left school in an automobile driven by Betty to go to lunch. They drove north on South Walker Street to its intersection with U.S. Highway 90 where they stopped at a stop sign. From that intersection which was approximately 150 feet due south of the railroad crossing where the accident occurred Betty drove the car northward on Walker Street toward the crossing at 25 m.p.h. All windows of the car were up and the air conditioning and radio were both on inside the car. The radio was on normal volume. As the car approached the crossing, the line of sight was partially obstructed by a U.S. Mail Truck which was parked about 50 feet south of the crossing in the northbound lane on the east side of Walker Street. Betty drove the automobile up to and around the mail truck and moving at a steady pace without looking to the right or the left, she drove onto Seaboard's main line tracks in front of appellant's oncoming freight train. She was not driving in a reckless manner otherwise. She and Gwynth Frier were seriously injured and Cathy Parker was killed in the resulting collision. Betty knew the crossing was there and had been over it hundreds of times before. The driver of another car, Katherine Fielding, had already stopped for appellant's train in the southbound lane of Walker Street on the opposite side of the crossing, and she blew her horn frantically in an attempt to get the attention of Betty but she did not respond.

as a result of Betty's injuries resulting from a grade crossing collision with a train of appellant Seaboard Coast Line Railroad Company.

Appellant's train consisting of five diesel engines and 138 cars was making a scheduled freight run from Bainbridge, Georgia, to Jacksonville, Florida, when the collision occurred. When the lead engine reached the whistle post for the Walker Street crossing, approximately 1500 feet west of the crossing, the engineer blew the whistle and blew it again at the crossing where the accident occurred. The crossing was equipped with a standard crossbuck warning sign for automobiles. The speed limit for a train at this crossing was 25 m.p.h. The train had a broken speedometer and was traveling at a speed of approximately 50 m.p.h.

The evidence is in conflict as to whether other warnings of the train's approach were given by the train crew. The engineer testified that as the train entered the city limits of Live Oak, he turned on the bell and began blowing the horn for the crossings ahead. For each crossing, he blew the standard blow which was two long blows, one short blow, then one long blow. When the lead engine reached the whistle post for the Walker Street crossing (approximately 1500 feet west of the crossing as aforesaid) he again began the standard blow. This continued until the lead engine was 80 to 90 feet from the crossing at which point both the engineer and fireman (who was operating the engine at the time) first saw the automobile being driven by Betty Welfare which was only 40-50 feet from the crossing and was just coming around the stopped U.S. Mail Truck. The fireman corroborated the engineer's testimony and further testified that the engineer then began sounding a continuous blow which was changed to a staccato blow when it became apparent that Betty was not going to attempt to stop for the crossing; that he put the train into emergency stop 20-30 feet from the crossing but it collided with the automobile at a point just to the rear of the front seat on the driver's side.

Every witness called by appellees and appellant positively testified that he or she at some time did hear the train horn blow before it got to the crossing. (Betty and Gwynth had no remembrance of the accident.) Witness Wilbur Rye, manager of a service station located about 100 feet from the crossing testified that he heard the train horn being sounded before the impact Witness Katherine Fielding testified that she first heard the train horn when she was at her husband's grandmother's house located about one block north of the Walker Street crossing; that after hearing the horn she got out into her car, backed out of the driveway and headed toward the crossing; that during this entire period of time she heard the train's horn blowing, and it was still being sounded when she stopped her car at the crossing to wait for the train to pass; that after she had stopped she observed the car Betty was driving come around the stopped mail truck and head straight for the crossing; that when she first observed Betty's car the train was sounding its horn and when it became obvious to her that Betty was not going to try to stop, she blew her own car horn to try to get Betty's attention; that all the while the train's horn kept sounding. She further testified that the headlight on the lead engine was working at all times and that had Betty looked to her left down the tracks, she could have seen the oncoming train prior to running onto the crossing. Witness Fielding was the only eyewitness to the accident other than the train crew.

occurred, but he had no recollection of hearing it prior to the train reaching the crossing. Witness Willie Rudd, an auto mechanic, testified that he worked approximately one-quarter mile from the Walker Street crossing and 300 feet from the tracks; that just prior to the collision he was standing in front of his house talking to a customer when appellant's train came by; that just as the train got to his house, it blew its horn at the whistle post for the Walker Street crossing; that he did not hear it blow again until after the train hit the car. Witness Ben Houston was at the same location as witness Rudd when the train went by. He testified that he heard the train sound its horn when it reached witness Rudd's house and that he did not again hear it after it passed the house until the lead engine hit the car. He admitted that his attention was not directed to the train after it passed him and until it hit the car at the Walker Street crossing. Witness Osmond Palmer testified that he was heading south on Walker Street toward the crossing (in the opposite direction that Betty was driving); that he did not hear the train's horn until just before it got to the crossing and after he had stopped for the crossing behind another car; that as he approached the crossing, he was aware that a train was coming and was slowing down for it; that his windows were up and his air conditioning and radio were on while he was driving just before the collision.

Appellant contends that the trial court committed reversible error in not granting its motion for directed verdict made by it at the close of all of the evidence. We agree and reverse.

While at first glance it appears that there is conflict in the evidence as to whether or not the train gave an adequate warning of its approach, when we apply the rule established by the Supreme Court in Seaboard Air Line Railway Company v. Myrick, 91 Fla. 918, 109 So. 193 (1926), the negative testimony of the witnesses who testified that they did not hear the train's horn blow at particular times prior to the accident must be discarded as it cannot stand against the positive testimony of the train crew and eye witness Fielding that the engine's horn was blowing constantly for a considerable period prior to the accident. This is so because the negative testimony of the other witnesses does not affirmatively show that their attention was directed to the fact of whether or not the horn was blowing. In Myrick the Supreme Court said:

"It is not alone sufficient for the injured Plaintiff to say that he 'did not see' the approaching train, nor hear any whistle or bell or...