Tyus v. Apalachicola Northern R. Co., 30274

• Decision Date: 17 May 1961
• Docket Number: No. 30274,30274
• Parties: Doris TYUS, Petitioner, v. APALACHICOLA NORTHERN RAILROAD COMPANY, a corporation organized and existing under and by virtue of the laws of the State of Florida, Respondent.
• Court: Florida Supreme Court

Page 580

130 So.2d 580

Doris TYUS, Petitioner, v. APALACHICOLA NORTHERN RAILROAD COMPANY, a corporation organized and existing under and by virtue of the laws of the State of Florida, Respondent.

No. 30274.

Supreme Court of Florida.

May 17, 1961.

Clyde W. Atkinson, Tallahassee, for petitioner.

J. Lewis Hall and Donald O. Hartwell of Ahll, Hartwell & Douglass, Tallahassee, for respondent.

HOBSON, Justice.

This cause is before us on petition for writ of certiorari which alleged direct conflict on the same point of law between the decision of the District Court of Appeal, First District, ¹ and a prior decision of another District Court of Appeal, as well as a prior decision of this court. We noted probable jurisdiction and issued the writ.

This suit arose cut of a railroad crossing collision. A jury trial resulted in a verdict in favor of the widow of the driver of a truck which was hit, as it crossed the railroad tracks, by one of defendant's trains. Defendant-respondent's post trial motions were denied and final judgment entered. On appeal, the District Court of Appeal reversed the circuit court judgment and remanded the cause with directions that a judgment be entered for the respondent.

The facts as stated by the District Court of Appeal are:

'The evidence shows that the plaintiff's decedent was driving an eight-ton cabin type truck and trailer loaded with fourteen tons of brick in an easterly direction on a highway near a small unincorporated community about 8:00 o'clock on a clear winter morning. Decedent was familiar with the crossing, having passed over it frequently as part of his job route. On the morning of the unfortunate accident he approached the crossing at a speed of between 35 to 50 miles an hour. Although there were signs indicating a crossing posted at 400 feet and 200 feet from the crossing, there is no evidence that the plaintiff's decedent slowed up, accelerated his speed or applied his brakes as he approached the tracks.

'The engineer's testimony, which was corroborated by the fireman, brakeman, flagman, and conductor [all employees of the respondent and, naturally, interested witnesses], was to the effect that the train was proceeding from the north in a southerly direction on a slight downgrade at between 15 and 20 miles an hour, that the whistle was blown at the customary distance of about 600 feet from the crossing and the bell was rung at the same time. The engineer testified that he caught a glimpse of the truck which the decedent was driving between some trees and a house located alongside the track when the train was about 100 feet from the crossing and that 'just a matter of a couple of seconds, it popped up' in front of him, whereupon he turned the whistle cord loose, shut off the throttle, and braced himself behind the control stand but not before it was too late to avoid the collision.

'* * * In attempting to forestall proof that defendant's agents exercised the proper degree of care, plaintiff produced evidence in opening to the effect that the engineer did not blow his whistle, that he was running the train too fast for the environment, and as to the latter, that the plaintiff's line of vision was obscured by a tree, house, and undergrowth in the defendant's right of way. As to whether a proper warning was given, all of the defendant's and most of the plaintiff's witnesses testified that the whistle was blown at least a few seconds before the accident. The witnesses who attempted to establish that the whistle was not blown testified merely that they 'didn't hear it blow." (Italics supplied.)

This case has apparently become complicated because of a misunderstanding of the real points to be considered and determined. It may be that the author of our original opinion was partially responsible for this enigmatic situation. In the original opinion he used the case of Myers v. Atlantic Coast Line Railroad Company, Fla., 112 So.2d 263, as the primary example of a decision of this court with which the opinion and decision of the District Court herein is in direct conflict. Of the verity of that position he still entertains no doubt. Nevertheless, on the real question before this court, there is an unbroken line of decisions rendered by the Supreme Court of Florida and at least one decision of the District Court of Appeal, Third District, ² with which the District Court's opinion and decision in this case is in direct conflict on the same point of law.

The true query before is us whether, if there be conflicting testimony on the question of the defendant's negligence in a tort action, particularly wherein the comparative negligence rule is applicable, is such question for the jury or may it be determined by the court as a matter of law. Not only is this question in this jurisdiction absolutely within the province of the jury to determine, but such is the universal rule. ³

The Myers case was used in the original opinion because the facts of that case as disclosed by our opinion are almost on 'all fours' with the factual situation depicted by the opinion of the District Court herein.

It was not necessary in order to determine the existence of a conflict on the same point of law to discuss and compare the Myers case because such direct conflict with the opinion and decision of the Third District Court of Appeal in the Martin case, and all of our adjudicated cases on the pertinent questions appears on the face of the District Court's opinion. That court said 'As to whether a proper warning was given, all of the defendant's and most of the plaintiff's witnesses testified that the whistle was blown at least a few seconds before the accident.' (Italics supplied.)

The foregoing statement in the District Court's opinion is one which must be given the connotation that some of the witnesses testified to the contrary.

The above quoted finding and conclusion of the District Court clearly demonstrates the fact that there was a conflict in the testimony on the question of defendant's negligence in a two-fold aspect. Each of these prongs of the one salient question was for the jury: (1) Whether any warning signal was given; (2) whether such a signal, if given, was adequate.

The District Court in its opinion acknowledged the connotation which we have ascribed to its statement. In explanation of this admission of a conflict in the testimony upon the question whether a warning signal was given and, if given, whether it was adequate, and in order to avoid the impact of our decisions listed under foot-note 3, the District Court stated 'the witnesses who attempted to establish that the whistle was not blown testified merely that they 'didn't hear it blow.' Our supreme court has consistently held that negative testimony will not make an issue in the face of positive testimony that the signals were given. Powell v. Gary, 146 Fla. 334, 336, 200 So. 854.'

Our examination of the opinion in the Powell case convinces us we did not unequivocally state, nor did we even by inference suggest, that 'negative testimony will not make an issue in the face of positive testimony that the signals were given.' Indeed, we cannot find any case in which we have indubitably, or at all, pronounced such a rule. On the contrary, our conclusion, with reference to the relative weight which should be given to negative and positive testimony, was [146 Fla. 334, 200 So. 855]:

'As stated in Seaboard Air Line R. Co., v. Murick, 91 Fla. 918, 109 So. 193, 195:

"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 noise of its approach, in order to overcome positive evidence that all ordinary warnings were given of the train's approach. When negative testimony is relied upon to contradict positive evidence, it should appear that the negative statements were nade by persons whose attention was directed to the fact that they were looking, watching and listening for the fact. Not only that the opportunity for observing the fact existed, but that their attention was directed to the fact * * * " ⁴

The above statement accords not only with reason and logic, but also with the great weight of authority. ⁵ As stated in American Law Reports, annotated:

'As already indicated, the probative force of testimony that crossing signals were not given, or that they were not seen or heard, on the approach of a train, depends largely upon whether such testimony is regarded as negative or positive in effect, and upon the attenant circumstances--whether or not the witness was in such a position that it would be presumed that he would have observed the signals if given, whether or not he was listening, watching, or otherwise attentive to the situation, the condition of his sense of sight or hearing, attendant noises, the blowing of wind, etc. A distinction is made, too, in some jurisdictions, between testimony positively declaring that signals were not given, and testimony stating merely that the witness did not hear or see them.

'If all testimony to the effect that signals were not given on the approach of a train to a crossing should be regarded as wholly without probative force purely on the ground that it was negative testimony in that it was testimony to the effect that an event did not occur, the plaintiff in a crossing accident case would be without means of proof that the signals were not given, and so could never rely upon the failure of the signals as proof of negligence on the part of the defendant, which in many cases is absolutely necessary in order to prove any negligence what-soever on the part of the defendant.' ⁶ (Italics supplied.)

In making the bald statement to the effect that this court has consistently held that negative testimony will not overcome positive testimony, the District Court has, on the face of its opinion, created a definite conflict on the same point of law, not only with our decision in the Powell case, but also...