Stringfellow v. Atlantic Coast Line R.

BRYAN, Circuit Judge.

Appellant, in her own right as widow and as administratrix, brought separate actions, which were consolidated for trial, against the appellee railroad company for negligently running its train upon and fatally injuring her husband and two minor children at a street crossing in the town of Dunedin, F'la. Negligence was alleged (1) in failing to give warning of the approach of the train by sounding the whistle or ringing the bell of the engine, and (2) in running the train upon the street crossing at a dangerous rate of speed. Appellee pleaded not guilty, and at the close of all the evidence the trial court directed a verdict in its favor upon the ground that the injuries complained of Were caused solely by the negligence of appellant’s husband. Appellant contends in support of her assignments that it was error to take the case away from the jury.

The accident, which resulted in the injuries alleged, occurred in the daytime at a grade crossing where Scotland street intersects the railroad right of way at right angles, the street extending east and west and the right of way north and south. On the right of way the main line was flanked oh either side by a side track. To the south of the crossing the main line was straight for half a mile or more, hut the view in that direction of one going east on the street was cut off by trees until the west side track, within 20 feet of the main line, was reached, at which point the view to the south was open and unobstructed. At the time of the accident, aiopellant’s husband was driving his automobile, in which his children, one •seven, and the other nine, years of age, were riding with him, toward the east across the intersection; and the train was coming from the south. The train was a few minutes late, and was not due to stop at Dunedin. A strong wind from the northwest interfered witli the hearing of any one at the crossing who might be listening for the rumble of the train, or for any warning that might have been given by whistle or bell. The evidence was in hopeless conflict as to whether the whistle was sounded or the bell was rung', and also as to the speed of the train. Several witnesses for appellant who were near the place of the accident and in. position to hear testified that they heard no whistle or bell; and they gave various estimates of the rate of speed, ranging from 30 to 50 miles per hour. Two' of these witnesses, cited as evidence of their ability to estimate speed speedometer tests which they said they had made, while traveling by automobile on highways parallel with railroad tracks, of the speed of trains going in the same direction as they were. On the other hand, witnesses for appellee, particularly the engineer, fireman, and members of the train crew, testified that, as the train approached Scotland street, the last of four blasts of the whistle was. sounded, and that the bell was being rung by an automatic ringer from the time the train reached the fourth street south of Scotland street until after the accident. Members of the train crew also testified that the train had slackened speed as it passed through Dunedin, and that it was running at a rate not exceeding 10 or 12 miles per hour as it approached Scotland street. The fireman testified that he saw appellant’s husband drive upon the crossing about 60 feet in front of the engine, and that he called to the engineer, who immediately put on the emergency brakes. The engineer testified that he did not see the automobile because it approached from the west, and he was on the east side of the engine, but that he applied the emergency brakes as soon as the fireman called out to him and stopped the train as quickly as was possible. The engine proceeded about 100 yards north of Scotland street before it was brought to a standstill. Several witnesses for appellee testified that appellant’s husband drove across the intersection at a speed of 10 to 15 miles per hour; but the testimony as a whole leaves it uncertain whether he stopped or slackened speed when he arrived at the crossing, and whether lie actually saw the train.

Compiled General Laws of Florida provide :

“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.” Section 7051.

“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 complainant and the agents of the company are both at fault the former may recover, but the damages shall be diminished or increased by the jury in proportion to the amount of default attributable to him.” Section 7052.

It is plain that under section 7051 a prima facie ease was made out. It is appellee’s contention that the presumption of its negligence, which arose under that section, upon proof of the injuries as alleged, was overcome by further proof which disclosed that those injuries were caused solely by the negligence of the injured persons, and that the case presented is not one which calls for the application of the rule prescribed in section 7052 for apportionment of damages, because no fault Tvas attributable to it. Of course, appellant could not recover for the death of any party who could not, if living, have recovered damages because of his injury. In so far as the ease depends upon appellant’s right to recover for the death of her husband, we are of opinion that it was not error to direct a verdiet for appellee. Her husband as driver of the automobile, was under the duty of exercising the care and caution which a reasonably prudent man would have displayed under the same or similar circumstances. It therefore was his duty to use his senses of sight and hearing before undertaking to cross the railroad tracks. If when he had passed the trees and had an open view down the track he had looked, he would have seen the train and could have avoided the collision. A careful and prudeni driver of an automobile would not under the circumstances have undertaken to drive over the crossing in front of the approaching train. Notwithstanding section 7052, he could not have recovered for an injury, and so recovery cannot be had on account of his death. Seaboard A. L. Ry. v. Tomberlin, 70 Fla. 435, 70 So. 437; Egley v. S. A. L. R. Co., 84 Fla. 147, 93 So. 170; Atlantic C. L. R. Co. v. Gornto, 89 Fla. 97, 103 So. 117; Florida E. C. R. Co. v. Davis, 96 Fla. 171, 117 So. 842; Covington v. S. A. L. R. Co., 99 Fla. 1102 128 So. 426; Southern R. Co. v. Mann, 91 Fla. 948, 108 So. 889. In our opinion, the right of recovery for the deaths of the children should have been submitted to the jury. The children were guilty of no negligence; and their father’s negligence could not be imputed to them. The judgment is defended as to them only on the theory that the father’s negligence was the sole proximate cause of their deaths. But the jury might reasonably have concluded that their deaths were caused by the combined or concurrent negligence of their father and the railroad company. There was substantial evidence, tending to prove that no warning by whistle or bell was given and that the train was being operated at a negligent and dangerous rate of speed, to supjiort the conclusion that the collision would not have occurred if the warning had been given or if the train had been operated at a more moderate and reasonable rate of speed. It was for the jury, not the court, to say whether it was negligence to run the train through a populous community without warning, or at a speed so great that it could not be stopped within less than 100 yards; especially if because of a strong headwind it was made difficult for those using the street intersection to hear a train approaching from the south.

It is true that in Covington v. S. A. L. R. Co., supra, a case somewhat similar to this, the Supremo Court of Florida held that the failure of the driver of the automobile to stop at the crossing for an approaching train was such negligence as precluded recovery of damages by his nine year old son who was also riding in the automobile. But the drives' in that ease could have seen the train at a distance of 75 feet from the crossing, whereas in this case the view was much more limited. Besides, there it was fairly inferable from the pleadings and the evidence that tlie driver actually saw the train, while here it was open for the jury to find that appellant’s husband did not know or realize that a train was approaching. It does not appear in this case that the driver was racing with the train in an attempt to pass ahead of it over the crossing. The Cov-ington Case does not purport in any wise to limit or overrule the earlier ease of Seaboard A. L. R. Co. v. Watson, 94 Fla. 571, 113 So. 716, 720, where it was said: “There may be concurrent causes of a single injury— concurrent negligence of two separate and distinct agencies — which, operating' contemporaneously, together constitute the efficient proximate cause of the injury inflicted; and without either one of which the harm would not have been done.” The just quoted language was used in a ease in which the plaintiff was suing to recover damages for an injury which she sustained, in rejecting a contention that the negligence of plaintiff’s husband, who was driving an automobile in which she was nding, was the solo proximate cause of a collision between the automobile and a train at a highway crossing. That ap-pellee, upon evidence adduced by appellant, could have been held by the jury to be liable, is conclusively established, as it seems to us, by the Supreme Court of the United States. In Little v. Hackett, 116 U. S. 366, 6 S. Ct. 391, 392, 29 L. Ed. 652, a passenger in a hired carriage was injured when the driver negligently turned his horses upon a railroad crossing without taking the precaution to ascertain that a train was coming. The railroad company was held liable to the passenger because of Its concurrent negligence in failing to give signals of its approach, or to have a flagman on duty. In disposing of that branch of the case the court said: “The evidence tended to show that the accident was the result of the concurring negligence of the managers of the train and of the driver of the carriage, — of the managers of the train in not giving the usual signals of its approach by ringing a bell and blowing a whistle, and in not having a flag-man on duty; and of the driver of the carriage in turning the horses upon the track without proper precautions to ascertain whether the train was coming.” In Kreigh v. Westinghouse, Church, Kerr & Co., 214 U. S. 249, 29 S. Ct. 619, 53 L. Ed. 984, it was held that it was a question for the jury to determine whether the operation of a defective derrick was not attributable to faults of construction and equipment, for which the master would be liable, as well as to negligent handling by plaintiff’s fellow servants. Our conclusion is that the jury would have been ■warranted by the evidence in finding that appellee was liable in damages to appellant for the deaths of her children.

The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.