Opinion
May 2, 1952. As Modified on Rehearing en Banc November 14, 1952.
Appeal from the Court of Record, Escambia County, Ernest E. Mason, J.
D.W. Berry, Pensacola, for appellants.
Yonge, Beggs Lane, Pensacola, for appellee.
This appeal grows out of the death of John Murray Horton, a minor, at a railroad crossing in Escambia County. In an amended declaration the appellee filed a motion to dismiss upon the following grounds:
"(1) The complaint fails to charge any act of negligence against the defendant.
"(2) It affirmatively appears that the defendant was guilty of no negligence in connection with the accident described in the complaint.
"(3) It affirmatively appears that the accident was due solely to the negligence of the plaintiff's son."
The lower court granted the motion to dismiss the amended complaint, and the appellant refusing to amend further, entered a final judgment in favor of the appellee. From that final judgment this appeal is prosecuted.
It was alleged in the amended complaint that the appellee was a common carrier of passengers and freight in the State of Florida and maintained tracks from Pensacola in Escambia County to Flomaton, and such tracks crossed various public highways and roads and one of the roads being Olive Road, which runs in an Easterly and Westerly direction in Escambia County, and the railroad tracks traverse said road in a Northerly and Southerly direction. On the date in question the railroad company was operating a freight train in Escambia County and carelessly and negligently stopped in the nighttime directly across the path of Olive Road a long freight train of cars from 10:30 p.m. until Midnight. The paved highway was dark and was the same color as the train and the freight cars could not be seen at the crossing standing across the highway. The engine of the train was about 200 yards away from the crossing in one direction and the caboose about 200 yards away from the crossing in another direction. The railroad company failed to provide any warning of any kind, such as, flares, lights, or a flagman to notify pedestrians that the train was across the road. The road was in the country and about six miles from Pensacola. The deceased was not familiar with the territory in question as he had only been in the community for a few days and had never been on this road before. The deceased was 19 years of age and on the night in question was riding on Olive Road on a motor bike which he had borrowed. At the time he was traveling about 15 miles per hour and the light on the motor bike, or scooter, was a proper one and was low to the ground and did not reflect high enough to show a box car standing across the highway. The deceased could see lights from the Pensacola-Flomaton and Palafox Highway passing thereon (indicating that he could either see underneath the box car, or through the box car, if the doors were open) while traveling at a speed not in excess of 15 miles per hour. He ran underneath the box car and as he did so the train started up and carried him a distance of about 35 feet from the point of collision and by reason of the accident, he was injured and bled to death.
This is not an ordinary accident where contributory negligence would be a complete bar to recovery. In this case a railroad company is involved and Sections 768.05 and 768.06, F.S.A., govern liability. They are as follows:
"768.05 Liability of railroad company
"A railroad company shall be liable for any damage done to persons, stock or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employ and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company."
"768.06 Comparative negligence
"No person shall recover damages from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence. If the plaintiff and the agents of the company are both at fault, the former may recover, but the amount of recovery shall be such a proportion of the entire damages sustained, as the defendant's negligence bears to the combined negligence of both the plaintiff and the defendant."
The complaint filed in this case requires an answer. An accident happened and a person was killed by reason of the operation of the train. The duty is upon the company to make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption being against the company.
From this record it cannot be said that the accident resulted from the consent of the deceased or that it was caused entirely by his own negligence.
If the deceased and the agents of the company are both at fault, the amount of recovery shall be such proportion of the entire damages sustained, as the defendant's negligence bears to the combined negligence of both parties. Under the allegations of the complaint in this case which included allegations that the road was a black paved road in the country and away from lights, that the railroad company left the box car standing across the road unguarded and without flares or lights or any other device, or any person present to give warning, requires an answer.
The order of the Circuit Judge granting the motion to dismiss and entering final judgment should be set aside and the appellee be required to file his defenses.
Reversed for further proceedings in accordance with this opinion.
SEBRING, C.J., and CHAPMAN and THOMAS, JJ., concur.
On Rehearing
The Court granted the petition for rehearing in this cause with the limitation that "such argument be confined to the question as to whether the `operation of a train' was involved in the application of the Statute."
In the original opinion the following language was used: "He ran underneath the box car and as he did so the train started up and carried him a distance of about 35 feet from the point of collision and by reason of the accident, he was injured and bled to death." In order to clarify this language we quote from the allegations of the amended complaint. After alleging that the vehicle with the boys on it ran underneath the box car, the amended complaint alleges, "and the said defendant's servants, agents and employees proceeded with said train to Pensacola, Escambia County, Florida, six miles away, and did not learn of the accident until they found the scooter tangled up in the freight car after they had arrived at Pensacola * * * that when said freight train moved on, it dragged the plaintiff's son, John Murray Horton, about 35 feet from said collision, or point of impact, and the agents, servants and employees of the railroad company did not render any aid but had they had someone to flag the stationary train or string of freight cars at the said point which was a menace, the plaintiff's son, John Murray Horton, would not have bled to death."
It matters not whether the train started up at the time the motor bike ran under the box car or thereafter, the result is the same. It did not start up by itself. The engine had to be put in motion by some person in the employ and service of such company and the dragging of the body of the boy was caused by the running of the locomotives, cars, or other machinery of the company. The difference between the operation of the train after it started up and the running of the train is the difference between "twiddle-de-dee" and "twiddle-de-dum".
The main contention of the appellee is that the statutory presumption against a railroad cannot apply unless the locomotive or cars are actually running; that the words "operation of the train" in this case are not synonymous with the words "running of the locomotives, or cars"; and that there is a material difference between the words "running of the locomotives, or cars" and the words "operation of the locomotives or cars".
The appellee relies strongly upon the case of Tampa Electric Co. v. Soule, 84 Fla. 557, 94 So. 692, 697, decided by this Court on March 3, 1923. In that case there was a trial before a jury and the evidence did not show that Miss Soule was injured by any act of the defendant, or the movement of its cars, or other machinery. It was not claimed that the injury was done by any person in the employ and service of the company or that the company had failed to provide a safe place for her to alight from the car. It appeared that she sustained an injury from a fall which occurred while she was alighting from the car after it had come to a complete stop. There was no movement of any kind of its machinery or cars. There was testimony that her fall was caused by her skirt catching on something on the car. There was testimony that a loose bolt found by her was on a different car from the one from which she fell. She testified, however, that the conductor told her it was the same car. It is apparent that the case of Tampa Electric Co. v. Soule, supra, is not applicable in this case. It established no "standing train doctrine" which is applicable in all cases of a standing train at a crossing. The running, operation, or standing of the train had nothing to do with the injuries sustained by Miss Soule. On rehearing granted in a Per Curiam opinion in Tampa Electric Co. v. Soule, supra, the Court held:
"* * * When that activity on the part of the railroad company results in some injury to a person, the presumption of negligence created by the statute attaches to the railroad company.
"* * * before the presumption of negligence attaches it must first be shown that the railroad company's act produced the injury before the presumption created by the statute can be invoked.
"The act of stopping its cars that passengers may alight at their destination may be included in the language `running of the locomotives, or cars, or other machinery,' so that if in the act of stopping its cars it causes an injury to a passenger, or any other person, the presumption that the act was a negligent one could be invoked under the statute.
* * * * * *
"There is no evidence in the record from which it may fairly be inferred that the fall which Miss Soule sustained was caused by any act of the defendant company, and it may not be inferred from the mere fact of her fall that it was caused by the company."
The appellee also relies upon the case of Kimball v. Atlantic Coast Line Railroad Company, 132 Fla. 235, 181 So. 533, 534. The facts in that case are entirely different from the facts alleged in the case at bar. In the Kimball case it was not alleged that the plaintiff had no knowledge of a crossing or the schedule of the train. In the case at bar it is specifically alleged that Horton had no knowledge of the crossing in question and, therefore, could have no knowledge of the schedule of the train. In the Kimball case the Court said that in order to state a cause of action, there should be "allegations that the plaintiff did not see and could not have seen the stationary train across the street". In the case at bar the amended complaint specifically alleges that the color of the box car was the same color as the road and that he did not see the box car but did see lights on the other side and beyond the crossing.
In the case of Clark v. Atlantic Coast Line Railroad Company, 141 Fla. 155, 192 So. 621, 623, it was shown that plaintiff knew the railroad tracks were there and that trains operated thereon at night. The Court held:
"If the injury could not have occurred but for his own negligence, he cannot recover under the statute."
In the case of Cline v. Powell, 141 Fla. 119, 192 So. 628, 632, there were standing flat cars at a crossing. The Court held that it was incumbent upon the plaintiff to allege facts to show that the injury complained of was not caused by the injured party's own negligence where a motor vehicle was driven into a railroad company's train standing on a grade crossing. It was not shown that the motor vehicle had proper lights. The Court held:
"If the driver of a motor vehicle has no proper lights * * * he is negligent, and an accident or injury to himself may be caused by his own negligence so as to bar recovery of damages under the above quoted statute." (Emphasis supplied.)
In the case at bar it is specifically alleged that the vehicle was not being driven more than 15 miles per hour; that he had proper lights at the time of and before the accident; that he had never been on this road before and did not know of the existence of the crossing. The appellee strongly insists that the statute does not apply unless the engine or train is actually running and the mere operation of a train is not sufficient to bring the statute into play and create any presumptions. It insists that this Court is committed to the doctrine that the train or engine must be actually in motion and that the statute cannot apply to the operation of a train or to a train standing on the tracks at a crossing, because of the holding in this Court beginning with the case of Tampa Electric Co. v. Soule, supra, and other cases relied upon by the appellee. We have shown that the facts in Tampa Electric Co. v. Soule, supra, and other cases relied upon are different from the allegations in the case at bar.
Many cases have been decided by this Court since the decision in the case of Tampa Electric Co. v. Soule, supra. The case of Brown v. Loftin, 154 Fla. 621, 18 So.2d 540, 541, was with reference to a train consisting of 32 cars and as stated by the Court then "operated" by the Florida East Coast Railroad Company. In that case the Court said:
"The contention that the freight train was in motion when the accident occurred rather than at a stop cannot affect our previous holdings, because in either instance the train was being operated within the meaning of the statute. * * *" (Emphasis supplied.)
In the case of Brown v. Loftin, supra, the train was moving at the time of the accident and it is a matter of common knowledge that it is easier to see or observe a moving train in the outskirts of a city than it would be to see or observe one standing six miles from a city on a country road, the color of the road being the same color as the box car standing on the crossing. In the case of Brown v. Loftin, supra, the train consisted of 32 cars and the accident happened when the 17th car was passing the crossing. It was a regular street crossing situated on the outskirts of the City of Fort Lauderdale.
In the case of Powell v. Etter, 151 Fla. 866, 10 So.2d 441, 443, this Court had occasion to construe the Statute in question and use the word "operation" several times. In the course of the opinion the Court said:
"* * * If it is shown by competent evidence that an injury or damages were caused to persons or property by the operation of a train by a railroad company, then under the statute a presumption of fact is raised that the railroad company was negligent in the operation of the train. * * *
"If it is made to appear by the evidence that the damage or injury to the plaintiff was caused by the fault of both the plaintiff and the operation of the train by the railroad company, the amount of plaintiff's recovery, if any, is limited to such a proportion of the entire damage sustained by the plaintiff as the defendant's negligence bears to the combined negligence of both the plaintiff and the defendant, or its agents, in the premises. * * *" (Emphasis supplied.)
In the case of Poindexter v. Seaboard Air Line Railroad Co., Fla., 56 So.2d 905, 907, the locomotive had been standing still for 15 minutes and this Court said that it was standing still "in its switching operations".
Probably the best reasoned case to the effect that the "standing train doctrine" does not apply to every case where a vehicle runs into the side of a train is that of Goff v. Atlantic Coast Line Railroad Co., Fla., 53 So.2d 777, 778. The appellee did not cite that case in its briefs or in the oral arguments. It is apparent that the case was overlooked. In that case the Court in an opinion by Mr. Justice Roberts said:
"While the decision in the Brown v. Loftin case was entirely correct under the peculiar circumstances there present, we do not think the `standing train doctrine' should be indiscriminately applied in every case where a vehicle runs into the side of a train, regardless of how long or under what circumstances the train has been fully occupying the crossing, since this doctrine impinges at once on the provisions of Section 768.05, Florida Statutes 1949, F.S.A., creating a presumption of negligence of the railroad company on proof of injury, and Section 768.06, ibid., authorizing the jury to apportion the damages in accordance with the comparative negligence of the parties when both are at fault. "In the instant case, the facts are clearly distinguishable from those in Brown v. Loftin, supra. In the latter case, the train was fully occupying the crossing at the time such crossing came within the range of vision of the driver of the automobile; in the instant case, the train and the automobile were simultaneously approaching the crossing, which could not have been fully occupied by the train more than a few seconds prior to the impact and, it appears, not until some time after the crossing itself (as distinguished from the approach thereto) was within the range of vision of the driver. Under such circumstances, we do not think the `standing train doctrine' is applicable.
"* * * The allegation that the defendant railroad company negligently maintained its right-of-way so as to obstruct the view from the highway of approaching trains is not rebutted in the affidavits submitted by defendants. Since the railroad company must be held liable for its proportionate part of the damages sustained if its alleged negligence contributed in any degree to plaintiff's injuries, and since we do not think it can be said, as a matter of law, that the negligence of the driver was the sole proximate cause of the accident, it follows that the question of the negligence of the defendant and the alleged contributory negligence of the plaintiff should have been submitted to the jury, as also the question of whether the negligence of the driver was, as a matter of fact, the sole proximate cause of the injury."
In the case at bar the train was a live train with the engine 200 yards in one direction and the caboose 200 yards in another direction. It is evident that in its switching operations it stopped the train at a grade crossing on a country road six miles from Pensacola. This crossing was not in a town or city or even at a station. It is apparent from all of the allegations of the amended complaint that the train was stopped where it was by some person or persons in the employ and service of the company and for the purposes and convenience of the company in its "switching operations." The train started up by reason of the act of some person or persons in the employ and service of the company. The train crew did not know there had been an accident until they got to Pensacola and saw the wreckage of the motor bike. It is alleged that when the train started up it dragged the body of Horton 35 feet, where he remained without help or assistance, and by reason thereof, he bled to death.
In the case at bar the stopping of the train on the tracks of the company at a grade crossing, the starting up of the engine and the running of the engine or train, leaving the train standing on the grade crossing until it suited the purpose and convenience of the company to move the train, was done by some person or persons in the employ and service of the company and all of these acts were acts done in the running or operation of the engine or train of the company. The amended complaint alleges that the damage was done by the acts of omission and commission above set forth. The Statutes 768.05 and 768.06 apply and require an answer from the appellee.
The former opinion as modified herein is adhered to.
TERRELL, HOBSON and ROBERTS, JJ., and GORDON, Associate Justice, concur.
SEBRING, C.J., and THOMAS, J., dissent.