St. Louis-San Francisco Ry. Co. v. White

• Decision Date: 19 April 1979
• Docket Number: LOUIS-SAN,No. HH-152,HH-152
• Citation: 369 So.2d 1007
• Parties: ST.FRANCISCO RAILWAY COMPANY and Robert Martin, Appellants, v. Betty P. WHITE, as administratrix of the Estate of Roy Kirk White, Deceased, Appellee,
• Court: Florida District Court of Appeals

Page 1007

369 So.2d 1007

ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY and Robert Martin, Appellants, v. Betty P. WHITE, as administratrix of the Estate of Roy Kirk White, Deceased, Appellee,

No. HH-152.

District Court of Appeal of Florida, First District.

April 19, 1979.

Robert P. Gaines, of Beggs & Lane, Pensacola, for appellants.

Louis K. Rosenbloum and Lefferts L. Mabie, Jr., of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, and Norton Bond, Pensacola, for appellee.

MELVIN, Judge.

The appellant, the St. Louis-San Francisco Railway Company (the Railroad), takes this appeal from an adverse final judgment awarding, inter alia, the four minor children of the decedent, White, who perished in a grade crossing accident with one of the Railroad's trains, damages totaling $280,000. As grounds for reversal, the Railroad urges the following six points: 1) That evidence of the accident site speed limit adopted by the Railroad should not have been admitted over objection; 2) that the court's instruction that a violation of Section 351.03 constituted negligence was error; 3) that the court's instruction that violation of an industry standard was evidence of negligence was error; 4) that exclusion of the last sentence of Section 316.171, Florida Statutes, in the court's instructions to the jury on statutory crossing warning requirements was error; 5) that the damages awarded were so grossly excessive as to require a new trial; and 6) that the trial court erred in denying the Railroad's motion for directed verdict. For the reasons stated we find appellant's arguments to be unpersuasive and affirm.

This crossing accident occurred at the intersection of Meadows Road and the Railroad's tracks in northern Escambia County on June 16, 1974. Meadows Road is a rural, two-lane road running in an east/west direction at the crossing site, while the Railroad's single set of tracks run generally in a north/south direction and cross the road at approximately 90 degrees.

On the day of the fatal accident, White's truck, which was moving from west to east on Meadows Road at approximately 45 miles per hour, was struck by the Railroad's train, which was running from north to south. Although it was still daylight and the weather was apparently not a contributing factor in the accident, visibility, or the lack of it, was a significant factor leading to the collision. The photographs and survey evidence introduced show that as White approached the crossing, his field of vision of the northern section of the track and, thus, of the approaching train was almost totally obstructed by the heavy woods and bushes contained within the northwest quadrant of the intersection. The same trees and bushes had the effect of camouflaging the western section of Meadows Road and White's approaching pickup truck from the view of the train's crew. Indeed, the evidence reveals that neither White nor the train's crew could have had an unobstructed view of any significant portion, respectively, of the track or road until each was within 50 to 25 feet of the crossing.

Approaching the crossing from the west, there is a standard Department of Transportation railroad advance warning sign some five feet to the right of the road and 222 feet west of the tracks. This sign is simply a 36-inch yellow disc marked with a black X flanked by a black letter R to the left and right. Five feet beyond and 20 feet to the right of the DOT sign there is a rectangular warning sign of the type described in Section 316.171. The surface of this sign, however, is so obliterated by age and rust that its warning is incomprehensible. Beyond this sign, there is nothing: No lights, gates or even the standard black and white crossbuck warning sign to mark the location of the tracks.

The court denied the Railroad's motion for directed verdict and submitted the case to the jury, which found the Railroad 70% Negligent, White 30% Negligent and damages to White's four minor children at $100,000 each. Accordingly, the court entered a judgment for $280,000 against the Railroad.

At trial, the plaintiff introduced a mechanical speed tape from one of the train's three engines that indicated that the train was running at 40 miles per hour immediately prior to the application of its emergency brakes. This evidence was contradicted by the testimony of the train's engineer that he was only going 32 or 33 miles per hour. Over the objection of the Railroad, plaintiff was also allowed to introduce an operating rule of the Railroad specifying a speed of no more than 35 miles per hour for the crossing area. The Railroad urges that its speed limit was immaterial and, therefore, improperly admitted into evidence.

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. In Helman v. Seaboard Coast Line R. Co., 349 So.2d 1187 (Fla.1977), the defendant railroad was found to have been exceeding its own 20 mile per hour speed regulation by 5 miles per hour at the time of the crossing accident. At trial, the issue of the train's speed was presented to the jury, which found for the plaintiff Helman. On appeal to the District Court of Appeal, the trial court was reversed, the District Court finding it ". . . abundantly clear that the excessive speed was not the proximate cause of the collision." (Seaboard Coast Line Railroad Co. v. Helman, 330 So.2d 761 at 765). Finding that the District Court had improperly reweighed and reevaluated the evidence, our Supreme Court reversed stating:

". . . Because there was some competent evidence to support the jury verdict that respondents were negligent in traveling at an excessive speed and in failing to sound their whistle when required, the jury was concomitantly imbued with the function of deciding whether such negligence was a proximate cause of the injury. . . ." (349 So.2d at 1190)

In the instant case, there was competent evidence presented to the jury from which it could have found that the railroad was exceeding its own speed limit by at least five miles per hour. Therefore, the Railroad speed limit was properly presented to the jury. See also Martin v. Favorato, 79 So.2d 780 (Fla.1955); Leslie v. Atlantic Coast Line Railroad, 103 So.2d 645 (Fla. 1st DCA 1958); and Seaboard Coast Line R. Co v. Buchman, 358 So.2d 836 (Fla. 2d DCA 1978).

In charging the jury in this case, the trial court stated that if the jury found that the Railroad had violated Section 351.03, Florida Statutes (requirement to place crossbucks) such violation was negligence per se. The court went on to instruct that if the jury found such negligence to exist, they must then determine whether such negligence was the legal cause of the injury. The Railroad urges the giving of this instruction over its objection as reversible error. We disagree.

In DeJesus v. Seaboard Coast Line Railroad Company, 281 So.2d 198 (Fla.1973), the Court considered the trial court's instruction that violation of a railroad safety statute was negligence per se. Specifically, the trial court had instructed that a violation of Section 357.08, Florida Statutes, which required, during the hours of darkness, the marking of trains blocking public roads by the use of a lighted fuse or other visual warning device, was negligence. In finding for DeJesus, the Supreme Court upheld the trial court's instruction finding that a violation of any statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury is negligence per se, although not necessarily actionable negligence.

In Duncan v. Monark Boat Company, Inc., 330 So.2d 843 (Fla. 1st DCA 1976), this Court held that violation of Section 371.60, Florida Statutes (boat safety statute) was negligence per se. See also Concord Florida, Inc. v. Lewin, 341 So.2d 242 (Fla. 3d DCA 1977), Cert. den. 348 So.2d 946 (Fla.1977) (affirming the giving of a negligence per se instruction with respect to a violation of the Dade County Fire Prevention and Safety Code) and Florida Freight Terminals, Inc. v. Cabanas, 354 So.2d 1222 (Fla. 3d DCA 1978) (finding error in refusing to give instruction that violation of applicable Federal Aviation Administration regulation was negligence per se).

Death may not be left, without any required warning, to stalk unfettered a railroad-highway intersection.

We hold that Section 351.03, Florida Statutes, was enacted to protect the motoring public from collisions with trains by requiring the placement of crossbucks to warn of the existence of, and to locate the railroad's tracks and that violation of such statute is negligence per se. DeJesus, supra.

Also while instructing the jury, the court stated:

". . . violation of a standard prescribed by an industry is evidence of negligence. It is not, however, conclusive evidence of negligence. If you find that the railroad violated such standards, you may consider that fact together with the other facts and circumstances in determining whether such person was negligent."

As stated earlier, there was no railroad-supplied, crossing protection equipment at the site of this fatal accident, the sole warning to the public of this crossing being the yellow D.O.T. advance warning signs. The industry standard referred to in the court's instruction recommended as mandatory the placement of railroad-highway crossing signs (crossbuck) at all crossings. ¹ In our earlier opinion in St. Louis-San Francisco Railway Company v. Burlison, 262 So.2d 280 (Fla.App.1972), Cert. den. 266 So.2d 350 (Fla.1972), this Court considered and rejected the railroad's argument regarding the admissibility of industry standards, stating:

"The evidence adduced concerning recommended signalization and defendant's failure to provide the recommended signalization is, standing alone, sufficient evidence upon which the jury's finding of negligence can rest. We do not...