Weeks v. Atlantic Coast Line R. Co., C-176

• Decision Date: 11 July 1961
• Docket Number: No. C-176,C-176
• Citation: 132 So.2d 315
• Parties: Marguerite C. WEEKS and Marvin G. Weeks, her husband, Appellants, v. ATLANTIC COAST LINE RAILROAD COMPANY, a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 315

132 So.2d 315

Marguerite C. WEEKS and Marvin G. Weeks, her husband, Appellants, v. ATLANTIC COAST LINE RAILROAD COMPANY, a corporation, Appellee.

No. C-176.

District Court of Appeal of Florida, First District.

July 11, 1961.

Bedell, Bedell & Dittmar, Jacksonville, for appellants.

Regland, Kurz, Toole & Martin, Jacksonville, for appellee.

SMITH, D. R., Associate Judge.

This appeal is by plaintiffs, appellants herein, from a jury verdict and final judgment entered thereon in favor of the plaintiffs and against the defendant, appellee herein.

The appellants contend the lower court committed error in two respects, namely:

1. That the court erred in instructing the jury over appellant's objection, that the appellant, Marguerite C. Weeks, was under an absolute duty to look and listen when approaching the railroad crossing and that the duty to expect equipment on the tracks never relaxes.

2. That the court erred in refusing to instruct the jury at appellants' request that appellee's failure to call a material witness under its control may give rise to a presumption that the witness's testimony would have been unfavorable to appellee.

The record in this case and the facts, as disclosed by the record, fail to show any error of the lower court as claimed by appellants.

As for the first contention of the appellant, the instructions of the lower court fully and completely charged the jury on the law applicable to the facts in this case.

The plaintiff, in support of her first contention, relied primarily upon the case of Seaboard Air Line R. R. Co. v. Ebert, 102 Fla. 641, 138 So. 4. In that case a railroad employee changed a red 'Stop' light to a green 'Go' light; no flagman was at the crossing and no obstruction was within the crossing.

In the instant case the crossing was well known to the plaintiff; a flagman was within the bounds of the crossing and he was waving a red flag; a motor car was approaching, occupying and proceeding through the crossing at a slow rate of speed. The crossing was equipped with gates and signal lights, which were not in operation at the time of the accident.

The mere non-operation or the mere presence of automatic signals, including gates, at a railroad crossing cannot and should not under ordinary circumstances relieve a motorist of the duty and responsibility to use due care and to look and listen. The principles of law applicable under the circumstances as exist in this case are well stated in Atlantic Coast...