Seaboard Coast Line R. Co. v. Kubalski, 74--1705

• Decision Date: 12 December 1975
• Docket Number: No. 74--1705,74--1705
• Citation: 323 So.2d 32
• Parties: SEABOARD COAST LINE RAILROAD COMPANY, Appellant, v. Mary S. KUBALSKI, Administratrix of the Estate of Leonard Kubalski, Deceased, Appellee.
• Court: Florida District Court of Appeals

Page 32

323 So.2d 32

SEABOARD COAST LINE RAILROAD COMPANY, Appellant, v. Mary S. KUBALSKI, Administratrix of the Estate of Leonard Kubalski, Deceased, Appellee.

No. 74--1705.

District Court of Appeal of Florida, Fourth District.

Dec. 12, 1975.

William H. Davis and Frederick J. Ward, of Giles, Hedrick & Robinson, Orlando, for appellant.

Charles A. Tabscott of Troutman & Parrish, Winter Park, for appellee.

WALDEN, Chief Judge.

Plaintiff's decedent was killed when an Eastern Seaboard Railway train collided with his pickup truck. Decedent was stopped on a railroad track because of traffic backed up from a red light. The jury found decedent 60% Negligent and the railway 40% Negligent. Decedent's estate was awarded $130,000 in gross. Defendant railway has appealed. We reverse and remand for a new trial on the grounds that certain evidence was improperly and prejudicially entered. The grounds were raised in Point IV on appeal:

Whether the trial court committed error in permitting the witness (the president of a consulting engineer and safety consultant firm in Orlando), . . . to give . . . opinion testimony as to how an average man in the United States of America who drives a motor vehicle will react who finds himself in a line of traffic as (plaintiff's decedent) did as he approached railroad tracks as assumed in the hypothetical propounded to the witness.

Defendant has correctly argued that, unless the subject of expert testimony is one beyond the ordinary understanding of the jury, such expert testimony is not admissible. In Smaglick v. Jersey Ins. Co. of New York, 209 So.2d 475 (4th DCA Fla.1968), it was clearly stated:

'Expert opinions are admissible only when the facts to be determined are obscure and can be made clear only by the opinions of persons skilled in relation to the subject matter of the inquiry; and when facts are within the ordinary experience of the jury, conclusions therefrom will be left to them, and even experts are not permitted to give conclusions in such cases.' Id. at 476--477.

We are not unaware of the train and car collision case of Seaboard Coast Line Railroad Co. v. Hill, 250 So.2d 311 (4th DCA Fla.1971), in which this court approved the opinion evidence of psychologist to the effect that an average driver would not have seen a train standing in the crossing at night, when the accident occurred. The court stated:

'. . . 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 that the subject matter of the opinion was not just the visibility of the train on the crossing, but also the deceptive quality of...