Seaboard Coast Line R. Co. v. Friddle

• Citation: 290 So.2d 85
• Decision Date: 15 February 1974
• Docket Number: Nos. 72-969 and 72-970,s. 72-969 and 72-970
• Parties: SEABOARD COAST LINE RAILROAD COMPANY and Harold Jefferson Bridges, Appellants, v. Darlene D. FRIDDLE, as Administratrix of the Estate of Thomas B. Friddle, a/k/a Thomas Bascom Friddle, Appellee.
• Court: Florida District Court of Appeals

Page 85

290 So.2d 85

SEABOARD COAST LINE RAILROAD COMPANY and Harold Jefferson Bridges, Appellants, v. Darlene D. FRIDDLE, as Administratrix of the Estate of Thomas B. Friddle, a/k/a Thomas Bascom Friddle, Appellee.

Nos. 72-969 and 72-970.

District Court of Appeal of Florida, Fourth District.

Feb. 15, 1974.

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

Jack B. Nichols, Skolfield, Nichols & Tatich, Orlando, for appellee.

WALDEN, Judge.

Plaintiff brought wrongful death and survival actions which were consolidated.

Thomas Friddle was killed at a railroad crossing when his automobile collided with defendants' train. These negligence actions ensued. The plaintiff, decedent's widow and administratrix, received verdicts totalling $191,259.00. Defendants appeal. We reverse and remand for a new trial.

Defendants' Points II and V lack merit. Their remaining points do have merit. They concern various preserved evidentiary rulings.

We record at the very outset that our problem would be difficult if we were faced with only one misstep and we would be most likely, in that event, to affirm on the basis of harmless error. However, it is our firm judgment that the weight and impact of the errors, when combined, are of such moment as to cloud the issues and seriously prejudice the defendants' right to fair trial in accordance with law. We feel that the simple justice of the cause mandates a new trial with a new jury not subjected to the influences of the illegal evidence here described.

There were no eyewitnesses other than the train crew and hence, at best, there can only be speculation as to why decedent did not see or hear the train or heed the warnings. We do not definitively know whether in truth or fact the producing cause of the collision was the static condition of the crossing, the conduct-by way of omission or commission-of the train crew, or otherwise.

Point I. A witness was permitted to testify and describe an accident that occurred more than two years earlier. The old accident happened in the daytime (the instant one at night) with a motorist traveling east (the decedent here was traveling west). There were different warning devices at the respective times along with other significant omissions which could only make the testimony concerning the prior accident diversionary. Further, there was no sufficient showing that the conditions, causes and circumstances were the same or substantially so at the time of the respective accidents. In sum, we are persuaded that this prior accident testimony was without probative value as concerns any allowable issue and that its only effect was to seriously prejudice the defendants. Chambers v. Loftin, Fla.1953, 67 So.2d 220; Loftin v. McGregor, 1943, 152 Fla. 813, 14 So.2d 574; Powell v. Horne, 1942, 149 Fla. 240, 5 So.2d 451; FEC v. Young, 1932, 104 Fla. 541, 140 So. 467. See also Jewell v. Penn, DelSupr., 183 A.2d 193, and 70 A.L.R.2d 178.

Point III. A witness was permitted to testify that he had listened for the train warning horn as other trains approached the crossing at various unspecified times and had been unable to hear it until the train was on the crossing. This is clear error. Powell v. Horne, 1942, 149 Fla. 240, 5 So.2d 451.

Point IV. Six lay-witnesses were permitted to testify that decedent and his widow had a son who had died about nine months prior to the collision and fatality in issue and the impact of this death upon decedent's widow. Plaintiff argued that this child's death created a pre-existing condition in the widow and so that the death of her husband in the instant accident aggravated that pre-existing mental and emotional condition so as to entitle plaintiff to more damages. This was not competent nor relevant evidence and its receipt could not help but be prejudicial to defendants' case.

Damages for mental anguish and suffering of the survivor are not recoverable in a wrongful death action according to the applicable Florida Statutes 768.01 and 768.02 F.S.A. ¹ Wadsworth v. Friend, Fla.App.1971, 201 So.2d 641. See Nimnicht v. Ostertag, Fla.App.1969, 225 So.2d 459; St. John's Electric Company v. Lawler, 1925, 90 Fla. 188, 105 So. 818. We agree with appellants' observation; to permit testimony as to the son's death was to try the defendant railroad not only for the death of the husband, but also to try the defendant for the death of the son of the plaintiff and to attempt to recover damages for the mental anguish caused by the death of the son.

All appellate circumstances considered in light of the excellent advices of counsel for the respective sides, the judgment is reversed and the cause remanded for a new trial, All consistent with the views herein expressed.

Reversed and remanded.

OWEN, C. J., concurs.

MAGER, J., dissents, with opinion.

MAGER, Judge (dissenting):

This is a consolidated appeal by Seaboard Air Line Railroad Company and Harold Jefferson Bridges, defendants below, from final judgments entered pursuant to a jury verdict in favor of Darlene D. Friddle, plaintiff below. Two separate actions were instituted by plaintiff, the widow of Thomas B. Friddle; one action was under the Wrongful Death Act and the other action was brought by plaintiff as administratrix of the Estate of Thomas B. Friddle under the Survival Act.

The causes of action are based upon an accident occurring on February 3, 1968, in Seminole County, Florida, in which a collision occurred between the automobile driven by Thomas B. Friddle and a train operated by defendant Bridges and owned by defendant Seaboard resulting in Friddle's death. The accident occurred at approximately 11:35 P.M., at a time when the weahter conditions were clear, dry and cool. Decedent was traveling in a westerly direction on State Road 434, which is an east-west thoroughfare. The train was traveling in a northerly direction. On the date of the collision there were trees in the southeast quadrant which is the direction in which decedent traveling on Road 434 would have to look to see if a train were approaching from the south. The railroad crossing was indicated by standard crossbuck signs, a circular disk sign and painted letters on the pavement. The record reflects that the decedent had been familiar with the crossing having previously traveled the area many times. The only eyewitnesses were the train crew.

At the trial, the lower court allowed into evidence the testimony of a witness who had been involved in a prior accident at the same crossing. Defendant contends that this constitutes reversible error. Defendant also contends that reversible error occurred when the trial court admitted into evidence testimony relating to a subsequent accident and testimony relating to the sounding of a train horn and whistle at occasions other than the time and place of the subject accident.

With respect to the testimony pertaining to prior accidents a review of the cases cited by the parties indicates that the overwhelming weight of authority Supports the admissibility of such evidence under certain qualifications. The subject has been given exhaustive treatment in an annotation in 70 A.L.R.2d at 167, et seq., wherein the following general proposition appears at pp. 171, 172:

'While a few courts still tend to look with general disfavor upon proffers of evidence of similar accidents occurring at the same place where plaintiff was injured, it now seems to be generally recognized that such evidence has some logical tendency to establish various matters pertinent to the plaintiff's case, particularly that the condition complained of was in fact dangerous to frequenters of the place in question and that defendant was informed of that potential danger.

'The pertinence of such evidence is, of course, drawn from the facts that the various accidents occurred at the same place, and under conditions which were at least Substantially similar, and the courts have frequently emphasized the necessity of showing such similarity of conditions as a predicate for the admission of the evidence. However, it has usually been held that only substantial similarity of conditions is required, and there is perhaps evident a trend-probably part of a general trend toward the more liberal admission of evidence-toward treating the question of sufficiency of similarity of conditions as primarily a matter for the trial court's discretion, and to freely admit the evidence of the prior accident together with evidence of variations in conditions, which is treated as going to weight rather than admissibility.

'The strongest attack on evidence of the type here considered has been based upon grounds of trial convenience rather than upon its lack of relevance. Especially in the earlier cases, the courts have expressed the fear that if the evidence were received the trial would be disrupted by the necessity of investigating all the circumstances of the various incidents in question, and have concluded that the simplest and most desirable solution was to exclude all such evidence. However, in the more recent decisions in most jurisdictions there is apparent a tendency to treat this question ad hoc, leaving it to the trial judge in each case to determine whether the evidence should be excluded on this ground and, if the evidence is admitted, to determine the extent to which the circumstances of the earlier accident can be investigated.'

In 29 Am.Jur.2d Evidence § 305, the text writer similarly observes:

'. . . Evidence of prior similar accidents at the...