Tyus v. Apalachicola Northern Railroad

This cause is before us on petition for writ of certiorari which alleged direct conflict on the same point of law between the decision of the District Court of Appeal, First District, and a prior decision of another District Court of Appeal, as well as a prior decision of this court. We noted probable jurisdiction and issued the writ.

This suit arose out of a railroad crossing collision. A jury trial resulted in a verdict in favor of the widow of the driver of a truck which was hit, as it crossed the railroad tracks, by one of defendant’s trains. Defendant-respondent’s post trial motions were denied and final judgment entered. On appeal, the District Court of Appeal reversed the circuit court judgment and remanded the cause with directions that a judgment be entered for the respondent.

The facts as stated by the District Court of Appeal are:

“The evidence shows that the plaintiff’s decedent was driving an eight-ton cabin type truck and trailer loaded with fourteen tons of brick in an easterly direction on a highway near a small unincorporated community about 8:00 o’clock on a clear winter morning. Decedent was familiar with the crossing, having passed over it frequently as part of his job route. On the morning of the unfortunate accident he approached the crossing at a speed of between 35 to 50 miles an hour. Although there were signs indicating a crossing posted at 400 feet and 200 feet from the crossing, there is no evidence that the plaintiff’s decedent slowed up, accelerated his speed or applied his brakes as he approached the tracks.

“The engineer’s testimony, which was corroborated by the fireman, brakeman, flagman, and conductor [all employees of the respondent and, naturally, interested witnesses], was to the effect that the train was proceeding from the north in a southerly direction on a slight downgrade at between 15 and 20 miles an hour, that the whistle was blown at the customary distance of about 600 feet from the crossing and the bell was rung at the same time. The. engineer testified that he caught a glimpse of the truck which the decedent was driving between some trees and a house located alongside the track when the train was about 100 feet from the crossing and that ‘just a matter of a couple of seconds, it popped up’ in front of him, whereupon he turned the whistle cord loose, shut off the throttle, and braced himself behind the control stand but not before it was too late to avoid the collision.

“ * * * In attempting to forestall proof that defendant’s agents exercised the proper degree of care, plaintiff produced evidence in opening to the effect that the engineer did not blow his whistle, that he was running the train too fast for the environment, and as to the latter, that the plaintiff’s line of vision was obscured by a tree, house, and undergrowth in the defendant’s right of way. As to whether a proper warning was given, all of the defendant’s and most of the plaintiff’s witnesses testified that the whistle was blown at least a few seconds before the accident. The witnesses who attempted to establish that the whistle was not blown testified merely that they ‘didn’t hear it blow.’ ” (Italics supplied.)

This case has apparently become complicated because of a misunderstanding of the real points to be considered and determined. It may be that the author of our original opinion was partially responsible for this enigmatic situation. In the original opinion he used the case of Myers v. Atlantic Coast Line Railroad Company, Fla., 112 So.2d 263, as the primary example of a decision of this court with which the opinion and decision of the District Court herein is in direct conflict. Of the verity of that position he still entertains no doubt. Nevertheless, on the real question before this court, there is an unbroken line of decisions rendered by the Supreme Court of Florida and at least one decision of the District Court of Appeal, Third District, with which the District Court’s opinion and decision in this case is in direct conflict on the same point of law.

The true query before is us whether, if there be conflicting testimony on the question of the defendant’s negligence in a tort action, particularly wherein the comparative negligence rule is applicable, is such question for the jury or may it be determined by the court as a matter of law. Not only is this question in this jurisdiction absolutely within the province of the jury to determine, but such is the universal rule.

The Myers case was used in the original opinion because the facts of that case as disclosed by our opinion are almost on "all fours” with the factual situation depicted by the opinion of the District Court herein. It was not necessary in order to determine the existence of a conflict on the same point of law to discuss and compare the Myers case because such direct conflict with the opinion and decision of the Third District Court of Appeal in the Martin case, and all of our adjudicated cases on the pertinent questions appears on the face of the District Court’s opinion. That court said “As to whether a proper warning was given, all of the defendant’s and most of the plaintiff’s witnesses testified that the whistle was blown at least a few seconds before the accident.” (Italics supplied.)

The foregoing statement in the District Court’s opinion is one which must be given the connotation that some of the witnesses testified to the contrary.

The above quoted finding and conclusion of the District Court clearly demonstrates the fact that there was a conflict in the testimony on the question of defendant’s negligence in a two-fold aspect. Each of these prongs of the one salient question was for the jury: (1) Whether any warning signal was given; (2) whether such a signal, if given, was adequate.

The District Court in its opinion acknowledged the connotation which we have ascribed to its statement. In explanation of this admission of a conflict in the testimony upon the question whether a warning signal was given and, if given, whether it was adequate, and in order to avoid the impact of our decisions listed under footnote 3, the District Court stated “the witnesses who attempted to establish that the whistle was not blown testified merely that they ‘didn’t hear it blow.’ Our supreme court has consistently held that negative testimony will not make an issue in the face of positive testimony that the signals were given. Powell v. Gary, 146 Fla. 334, 336, 200 So. 854.”

Our examination of the opinion in the Powell case convinces us we did not unequivocally state, nor did we even by inference suggest, that “negative testimony will not make an issue in the face of positive testimony that the signals were given.” Indeed, we cannot find any case in which we have indubitably, or at all, pronounced such a rule. On the contrary, our conclusion, with reference to the relative weight which should be given to negative and positive testimony, was [146 Fla. 334, 200 So. 855] :

“As stated in Seaboard Air Line R. Co. v. Myrick, 91 Fla. 918, 109 So. 193, 195:

“ ‘It is not alone sufficient for the injured plaintiff to say that he “did not see” the approaching train, nor hear any whistle or bell or noise of its approach, in order to overcome positive evidence that all ordinary warnings were given of the train’s approach. When negative testimony is relied upon to contradict positive evidence, it should appear that the negative statements were made by persons whose attention was directed to the fact that they were looking, watching and listening for the fact. Not only that the opportunity for observing the fact existed, but that their attention zvas directed to the fact * * *’”

The above statement accords not only with reason and logic, but also with the great weight of authority. As stated in American Law Reports, annotated:

“As already indicated, the probative force of testimony that crossing signals were not given, or that they were not seen or heard, on the approach of a train, depends largely upon whether such testimony is regarded as negative or positive in effect, and upon the attendant circumstances — whether or not the witness was in such a position that it would be presumed that he would have observed the signals if given, whether or not he was listening, watching, or otherwise attentive to the situation, the condition of his sense of sight or hearing, attendant noises, the blowing of wind, etc. A distinction is made, too, in some jurisdictions, between testimony positively declaring that signals were not given, and testimony stating merely that the witness did not hear or see them.

“If all testimony to the effect that signals were not given on the approach of a train to a crossing should be regarded as wholly without probative force purely on the ground that it was negative testimony in that it was testimony to the effect that an event did not occur, the plaintiff in a crossing accident case would be without means of proof that the signals were not given, and so could never rely upon the failure of the signals as proof of negligence on the part of the defendant, which in many cases is absolutely necessary in order to prove any negligence whatsoever on the part of the defendant.” (Italics supplied.)

In making the bald statement to the effect that this court has consistently held that negative testimony will not overcome positive testimony, the District Court has, on the face of its opinion, created a definite conflict on the same point of law, not only with our decision in the Powell case, but also with our pronouncement in the case of Seaboard Air Line Railway Co. v. Myrick, 91 Fla. 918, 109 So. 193, 195. See also Loftin et al. v. Kubica, Fla,1953, 68 So.2d 390, 392.

The gist of our rule in relation to negative testimony in the face of positive testimony to the contrary is that if a jury decides that the attention of the witness whose testimony is negative in character, is actually directed to the fact or situation, about which he later testifies, regardless of the reason therefor, said jury may consider such negative testimony and accord to it the weight it may deem proper.

Moreover, in the present case the jury should have been permitted, as it was by the trial judge, to consider the positive testimony of all the witnesses who testified to the effect that “the whistle was blown at least a few seconds before the accident,” (Italics supplied.) and to decide whether the warning signal was adequate under all the facts and circumstances disclosed by the testimony presented to it.

Since we have concluded that, on the face of the subject opinion of the District Court, it appears there can be no doubt about the question of direct conflict with many of our prior decisions, as well as the decision of the District Court of Appeal, Third District, in Martin v. Rivera, 99 So.2d 617, it becomes our duty and responsibility to consider the case on its merits and decide the points passed upon by the District Court which were raised by appropriate assignments of error as completely as though such case had come originally to this court on appeal. We will now assume that responsibility and perform the duty which devolves upon us. We shall also again discuss the similarity between this suit and the Myers case.

In the Myers case, Mrs. Gandee testified in answer to the question “Mrs. Gandee, you are quite sure the train did not blow?” “Yes, that is a positive fact.” She further testified that she was looking and for a brief interval saw the train move along the track before it again left her line of vision. She stated that while she was looking the diesel did not blow its horn.

Mrs. Scott in the instant case testified positively that she was listening to the train although she was not looking at it. In answer to the question “Did it blow that morning?” she stated “No, sir, I didn’t hear it.”

If the above testimony of'these two ladies in each case be taken out of context it would appear that Mrs. Gandee testified positively upon the issue whether the diesel blew its horn and that Mrs. Scott’s testimony was equivocal and possibly negative in character. However, the quoted questions and answers should not be taken and considered out of context. They should be studied in the light of all of the relevant testimony given by each of these ladies.

Each of these witnesses gave the same reason for having her attention directed to the point in issue about ■ which she was called upon to testify. Each of these mothers testified positively that she had her attention focused upon the approaching train because she had been in the habit of showing the passing train to her interested baby. It was for a jury, rather than any appellate court, to decide the verity of such testimony.

The only difference between the testimony of Mrs. Gandee and that of Mrs. Scott was that for a short interval the former was looking at the train. The only significance which can be attached to this fact is that it could be considered by the jury as one of the indicia of the witness’s attentiveness to the incident concerning which she was called to testify. The fact that Mrs. Gandee was looking and at one point saw the train adds nothing to her testimony to the effect that the diesel engine did not blow its horn. This is so because it is a matter of common knowledge that, unlike the steam whistle of the locomotive of the yesteryears, the horn of a diesel engine does not emit vapor which is visible to an onlooker. The train in each of these cases was being propelled by a diesel engine or engines. In order to determine whether the horn of the diesel engine blew a warning signal both Mrs. Gandee and Mrs. Scott were wholly dependent upon their auditory senses.

As aforestated, each of these ladies testified positively that her attention was directed to the fact concerning which she was called upon to testify and gave the same logical reason therefor. One said the horn did not blow (Myers case); the other stated (the instant case) “No, sir, I didn’t hear it.” Some ultra, ultra logician might claim that he can discern a distinction between the testimony of Mrs. Gandee on the one hand and Mrs. Scott on the other, but in reality there is no difference when the testimony of each is considered in context.

Upon a reconsideration and a more careful analysis we have reached the conclusion that the testimony of each of the subject witnesses was not negative “in effect” but was as positive upon the point at issue as either could possibly have made it. It is only by the use of the sense of hearing that anyone can say that a diesel engine blew or did not blow its horn. Looking and watching — terms which we used in the case of Powell v. Gary, supra — are passé in this period of modernity, except as indicia of attentiveness to the situation concerning which one might later be called to testify.

At this juncture we will discuss briefly the testimony of Mr. L. D. Plaire, who was a witness in the instant case. He testified that he was outside of his house cleaning an evaporator; it was real calm and cold; sound was carrying well; he could hear very well; he did not hear the whistle blow, although he was standing out there and could have heard it had it blown. He heard it blow only once about two seconds before the collision, his exact words being “The whistle Mowed but it just did blow.”

Assuming, arguendo, that Mrs. Scott’s testimony, as well as that of Mr. Haire, was negative in character, there was under our pronouncement in Powell v. Gary, supra, and in other cases hereinabove cited, a conflict in the testimony upon the vital issue whether an adequate warning signal was given and the query in this case was properly submitted to the jury and decided by it. It was for the jury to weigh and evaluate such testimony, even if it should be considered negative “in effect,” and determine “whether or not the witness was in such a position that it would be presumed that he would have observed the signals if given, whether or not he was listening, watching, or otherwise attentive to the situation, * * * ”.

If the District Court had been correct in classifying the testimony of the plaintiff’s witnesses on the subject issue as negative rather than positive, it is clear from the District Court’s opinion in the present case that had it applied the true Florida rule on the comparative weight of negative and positive testimony, as required by Powell v. Gary, supra, and other cases herein-above cited, it would not have disturbed the jury’s verdict on this issue.

There can be little, if any, doubt that a presiding judge in a railroad accident case with facts similar to those of the Myers case and those in the instant litigation would find himself in a quandary in attempting to decide which of said decisions he should follow in making his rulings. Moreover, such judge would find it difficult indeed to unravel the confusion which now exists because of the District Court’s statement “that negative testimony will not make an issue in the face of positive testimony that the signals were given.” [114 So.2d 36] This is true because the pronouncement made by the District Court is in direct conflict, rather than in harmony, with our decisions in Powell v. Gary, supra, and Seaboard Air Line Railway Co. v. Myrick, 91 Fla. 918, 109 So. 193, 195, wherein we laid down the yardstick to be used by a jury in evaluating negative testimony and determining the probative force which should be accorded to it.

The foregoing is a fair criterion by which the question of conflict may be determined. The instant decision of the District Court of Appeal would, absent a review by this court, unquestionably leave the law of this state upon the question under discussion in a state of confusion. We have held that the primary purpose of the provision in amended Article V of the Florida Constitution in cases wherein there is a direct conflict on the same point of law with a prior decision of this court or another District Court of Appeal is to avoid confusion and to maintain uniformity in the case law of Florida. N. & L. Auto Parts Company v. Doman, Fla., 117 So.2d 410; Board of Commissioners of State Institutions v. Tallahassee Bank & Trust Co., Fla., 116 So.2d 762.

We now turn to the second ground of reversal discussed by the District Court of Appeal, to-wit: The alleged “prejudicial remarks of [petitioner’s] counsel made during closing argument.”

While we agree that the remarks of petitioner’s counsel quoted in the District Court’s opinion might have been subject to timely objections (which were not made), we cannot agree to said court’s conclusion that “standing alone, the stated remarks constitute grounds for reversal, notwithstanding the effort of the trial court to remove their effect by instructing the jury to disregard them." The trial judge not only sustained every objection which was made to alleged prejudicial remarks, but also charged the jury to disregard them and to base its verdict exclusively upon the evidence as presented from the witness stand.

As is disclosed by our opinion in Seaboard Air Line Railroad Co. v. Strickland, we are committed to the rule that in the ordinary case, unless timely objection to counsel’s prejudicial remarks is made, the appellate court will not reverse on review. This rule is subject to the exception that if the prejudicial conduct in its collective import is so extensive that its influence pefvades the trial, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury, a new trial should be awarded regardless of the want of objection.

Mr. Justice O’CONNELL has shown me the courtesy of presenting to me for my consideration his dissent, on rehearing granted, to that part of my opinion in the Tyus case wherein we held that the alleged prejudicial remarks, to which no objections were made during the trial, did not “pervade” or according to the definition of said word did not run throughout or permeate the trial. In the case of Seaboard Air Line Railroad Co. v. Strickland, 88 So.2d 519, it might have been better had the author of that opinion not used the word “pervade”. Upon reconsideration of my revised opinion I must agree with O’CONNELL, J., that in order to employ the exception to the general rule where no objections are made to alleged prejudicial remarks or conduct, such remarks or conduct need not begin at the outset of a trial and continue intermittently to its conclusion. However in the instant suit we hold that the so-called harmful conduct “in its collective impact” cannot be said to have gravely impaired the calm and dispassionate consideration of the evidence and the merits by the jury.

We believe that the charge given in this case by the able circuit judge was sufficient to alleviate any harm to the defendant which might otherwise have existed by virtue of the alleged prejudicial remarks made by counsel for the petitioner only in his closing argument.

We are of the opinion that when the charge delivered by the trial judge is considered together with the fact that respondent failed to object to the alleged prejudicial remarks relied on by the District Court of Appeal as the basis for its holding on this issue, coupled with the fact that the alleged “prejudicial conduct” took place only during petitioner’s closing argument and was not so extensive that its influence pervaded the trial, it is crystal clear this case should not have been reversed even for a new trial.

Moreover, it is most significant that in the instant litigation the veteran and learned trial judge, who was in the milieu of the court room throughout the trial and who was therefore in a much better position than this court or the District Court to determine whether the alleged prejudicial remarks were actually “in effect” of such character, denied a motion for a new trial.

No useful purpose would be served by submitting the factual issues in this case to a second jury for a retrial thereof because we find that such issues were fairly considered and determined by the jury in the trial which has been completed under appropriate charges by the circuit judge who presided in the nisi prius court.

For the reasons above stated the decision of the District Court of Appeals herein should be, and it is hereby, quashed, with directions that the judgment of the trial court consequent upon the verdict of the jury be reinstated.

THOMAS, C. J., TERRELD, J., and FITZPATRICK, Circuit Judge, concur.

ROBERTS, DREW and O’CONNELL, JJ., concur in part and dissent in part.

. Fla.App.1939, 114 So.2d 33, 35.

. Martin v. Rivera, 99 So.2d 617, 618. In this case the District Court of Appeal, Third District, stated, and we quote with approval:

“The many photographic exhibits show the curve of the tracks approaching the crossing and numerous pine trees and brush, which the jury may have found obstructed the driver’s vision. In addition, there is serious conflict in the evidence as to whether the railroad train gave warning signals, and, if they were given, when they were given.” (Italics supplied.)

. Myers v. Atlantic Coast Line Railroad Co., Fla.1959, 112 So.2d 263; Cadore v. Karp, Fla.1957, 91 So.2d 806; Loftin v. Joyner, Fla.1932, 60 So.2d 154; Atlantic Coast Line Railroad Co. v. 6 try, Fla.1951, 57 So.2d 10; Bassett v. Edwards, 158 Fla. 848, 30 So.2d 374; Jones v. Stoddard, 138 Fla. 458, 189 So. 400; Cobb v. Twitchell, 91 Fla. 539, 108 So. 186, 45 A.L.R. 865; Louisville & N. R. Co. v. English, 78 Fla. 211, 82 So. 819; Wood Lumber Co. v. Gipson, 63 Fla. 316, 58 So. 364; German-American Lumber Co. v. Brock, 55 Fla. 577, 46 So. 740, 53 Am.Jur., Trial, § 178 (cases cited therein).

. See also Loftin et al. v. Kubica, Fla. 1953, 68 So.2d 390, 392.

. 20 Am.Jur., Evidence, Sections 1186-1188 and 98 A.L.R. 161.

. Evidence of No Crossing Signals — , Force, 162 A.L.R. 9, 13.

. See Pinkerton-Hays Lumber Company v. Pope, Fla., 127 So.2d 441-443: first paragraph under [2] page 443.

. Compare Ford v. Carpenter, 1949, 147 Tex. 447, 216 S.W.2d 558, and Holland v. Nimitz, 1922, 111 Tex. 419, 239 S.W. 185.

. It is doomed appropriate to observe that the 'opinion in the Myers case was filed subsequent to the trial of the instant suit in the circuit court in and for Liberty County.

. Fla.1956, 88 So.2d 519.

. See also Baggett v. Davis, 1936, 124 Fla. 701, 169 So. 372, 379.

. Examine Seaboard Air Line Railroad Co. v. Braddock, Fla.1957, 96 So.2d 127.

. See McAllister v. Tucker, Fla.1957, 93 So.2d 83, 84. This was our final opinion and decision on rehearing. It was not mentioned in the District Court’s opinion herein, although our original opinion in the McAllister case (88 So.2d 526), from which we receded, was cited. See also McAllister Hotel, Inc. v. Porte, Fla., 123 So.2d 339.