Eckersen v. Florida East Coast Railroad

BARKDULL, Judge

(dissenting).

I respectfully dissent from the majority opinion and would affirm. First, because the negative testimony failed to indicate that the witnesses had their attention directed to the fact of whether or not warning signals were given. And, second, that the trial court properly held that if counsel for the plaintiff urged negligence in the failure to have automatic gates that he would charge that this condition, standing alone, could not constitute negligence. In connection with the above, see the following: Atlantic Coast Line R. Co. v. Wallace, 61 Fla. 93, 54 So. 893; Seaboard Air Line Ry. Co. v. Myrick, 91 Fla. 918, 109 So. 193; Tyus v. Apalachicola Northern Railroad Company, Fla.1961, 130 So.2d 580; McNulty v. Atlantic Coast Line R. Co., Fla.App.1966, 198 So.2d 876, cert. denied 199 So.2d 706.