Summary
In Atlantic Coast Line R. v. Smith, 53 So.2d 301 (Fla. 1951), the railroad argued that it should have been granted a directed verdict because the evidence reflected that the speed of its train was under control and that the train was ringing its bell and sounding its whistle when the accident occurred in downtown Winter Haven. The court distinguished the cases upon which the railroad relied on the basis that they involved rural crossings rather than a crossing in the congested area of a fast growing municipality.
Summary of this case from Seaboard Coast Line R. Co. v. BuchmanOpinion
June 29, 1951.
Appeal from the Circuit Court, Polk County, Don Register, J.
W.P. Allen, Bartow, and LeRoy Allen, Tampa, for appellant.
M.H. Edwards, Bartow, for appellees.
Fernita Smith, a minor, by Robie Smith her father, recovered a judgment against the Atlantic Coast Line Railroad Company for personal injuries received in a collision between a locomotive of defendant and the automobile which she was driving. A motion for new trial was denied and the defendant appealed.
Concurrently with the suit of Fernita Smith, Robie Smith sued and recovered a judgment against the same defendant for medical attention to Fernita Smith and damage to his automobile which Fernita Smith was driving when she was injured. A motion for new trial was denied and the defendant appealed. No question is raised as to the amount of either judgment. The questions presented in both appeals are identical so both appeals will be adjudicated in this opinion.
Several questions are urged for adjudication but we deem the primary one to be whether or not, in the light of the circumstances revealed, the jury was warranted in finding that negligence on the part of defendant was the proximate cause of the collision.
The collision between Smith's automobile and defendant's locomotive took place late in the afternoon at the intersection of Central Avenue and the railroad track of defendant in the City of Winter Haven. Central Avenue is the main thoroughfare of the city and crosses the railroad tracks near the depot. The crossing is adjacent to the downtown business area of the city, the plaintiffs were crossing from the South, traveling North when the accident occurred. The depot tends to obstruct ones view when approaching the crossing from the South and many cars were parked on either side of Central Avenue at the time but whether or not there were box cars parked along the track to obscure the view was controverted. The evidence was also in hopeless conflict as to whether or not the bell was rung, the whistle was blown or the speeed of the train, the degree of care exercised by plaintiffs and defendant and, in fact, every other element pointing to the exercise of proper care by the parties or the complete lack of it.
Appellant contends that the speed of its train at the time of the accident was under control, that it was ringing the bell and sounding the whistle and that since all evidence to the contrary was negative, it should have been held to be exercising reasonable care. To support this contention it relies on Seaboard Air Line Ry. Co. v. Myrick, 91 Fla. 918, 109 So. 193. It is further contended that the judgment should be reversed because defendant brought itself within the rule announced in Atlantic Coast Line R. Co. v. Timmons, 160 Fla. 754, 36 So.2d 430; St. Louis-San Francisco Ry. Co. v. Earl and Baker, Fla., 49 So.2d 324; Atlantic Coast Line R. Co. v. Price, Fla., 46 So.2d 481 and similar cases.
The last cited cases had to do with rural crossings and do not necessarily govern the crossing involved in this case which was in the congested area of a fast growing municipality, where pedestrians and cars were constantly crossing and danger was potential at all times of the day. The care required under such circumstances is one of degree and must be commensurate with the danger prevalent at the crossing. It may not always be enough to blow the whistle and ring the bell, particularly is this true where the tracks of defendant are in a congested area where the vision is obstructed and various and sundry noises and other distractions are prevalent.
From the evidence the locomotive of defendant was running from five to twenty miles per hour. The evidence as to other material facts determinative of the degree of care being exercised, was in hopeless conflict. It may well be that from the size of the verdict the jury considered that there was a basis for apportioning the damages. At any rate, after thorough consideration, we have reached the conclusion that there is no logical basis on which we should disturb the judgment. Kenan et al. v. Austin, 146 Fla. 389, 1 So.2d 174; Lowry v. Seaboard Airline R. Co., 5 Cir., 171 F.2d 625; Anderson v. Crawford et al., 111 Fla. 381, 149 So. 656.
Several other questions are urged for reversal, all of which have to do with charges given or refused. These assignments have been carefully examined but in the main they turn on the interpretation of the evidence, and what has been previously said forecloses that point. We think however, that the charge given by the trial court covered the case fairly and thoroughly, so if error was committed, it was harmless.
Affirmed.
SEBRING, C.J., ROBERTS, J., and PARKS, Associate Justice, concur.