WM. R. KENAN, JR., AND SCOTT M. LOFTIN, AS RECEIVERS OF FLORIDA EAST COAST RAILWAY, PLAINTIFF IN ERROR,
v.
SHERMAN AUSTIN, DEFENDANT IN ERROR
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Sherman Austin was injured in a crossing accident at a busy Miami railroad intersection and recovered a $15,000 verdict. The Florida Supreme Court reversed and remanded for a new trial, finding the evidence of damages speculative and determining that both parties' negligence should be apportioned.
The court held that the trial court properly refused to direct a verdict because both parties were negligent and damages should be apportioned, but the verdict must be reversed because the evidence of damages was speculative and not sufficiently proven.
“At such a crossing, the degree of care imposed on the public and the railroad company to avoid accidents is much greater than at a country crossing where danger is not so liable.”
Establishes the heightened duty of care owed by both parties at busy urban railroad crossings
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Join FLexlaw to unlock all legal intelligenceSherman Austin was injured at the intersection of 36th Street and the Florida East Coast Railway in Miami. The accident occurred when Austin's car bec…
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Sherman Austin was injured in a crossing accident at the intersection of the Florida East Coast Railway and 36th Street in the City of Miami. He brought this action to recover damages for personal injuries and the loss of his automobile which was completely wrecked. A trial resulted in a verdict and judgment in his favor for $15,000, to which this writ of error was prosecuted.
Plaintiff in error contends that the accident was due solely to contributory negligence on the part of Austin and that the trial court erred in refusing to direct a verdict for defendant.
The answer to this question turns on the interpretation of the evidence. The record discloses that the intersection of 36th Street and the Florida East Coast Railway where the accident took place is crossed and frequented by more people and vehicles than most of the thoroughfares in the city. At such a crossing, the degree of care imposed on the public and the railroad company to avoid accidents is much greater than at a country crossing where danger is not so liable.
The accident appears to have been caused by the plaintiff getting caught in a traffic jam induced by congestion incident to a switching train blocking the crossing for a brief period. Dozens of cars were traversing the crossing and the. car of the plaintiff had not quite cleared the track, it having stopped before the rear wheels cleared because there was another car immediately in front of it that it could not *391pass. The hurry to cross was such and the number involved so great, that pandemonium prevailed making the exercise of due care more complex though the evidence shows conclusively that the plaintiff did not exercise the degree of care imposed on him under the circumstances. He was, however, not altogether responsible for the peril he found himself in. We are conscious of the demand of the public on the railroad companies for speed and efficiency and that such demand should be met at the same time a crossing of the character of the one in question is a constant danger and must be approached by everyone concerned with great caution.
The evidence on all material points is as usual in such cases in conflict but it is a case in which damages should be apportioned if both parties are shown to have been negligent. Plaintiff contends that he suffers from loss of memory, loss of taste, severe headaches, and loss of the power to codrdinate his faculties but the evidence fails to, show that any of these were a result of his injuries or that if so, any of them were permanent. A verdict the size of that under review must be predicated on something more than guess and speculation.
On the whole showing made, we have concluded that justice requires that the cause be reversed and a new trial awarded. Reversed.
Brown, C. J., Whitfield, Terrell, and Chapman, J. J., concur.
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Seaboard AIR Line R.R. Co. v. Hawes, 208 So. 2d 634 (Fla. 2d DCA 1968)…erdict 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.” (Emphasis added). In Florida East Coast Railway Company v. Soper, Fla.App.1962, 146 So. 2d 605, the Third District Cour…
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Fla. E. Coast Ry. Co. v. Elva I. Schweida, 151 So. 2d 665 (Fla. 3d DCA 1963)…erred to the Civil Court of Record, we find nothing in the record to indicate that the amounts claimed and put in controversy were not so done in good faith.7 Therefore, the trial judge’s ruling will not be disturbed. Affirmed. . Kenan, v. Austin, 146 Fla. 389, 1 So. 2d 174; Florida Central & P. R. R. v. Foxworth, 41 Fla. 1, 25 So. 338, 345. . Maximum speed provided for in the controlling ordinance of North Miami Beach is 50 miles per hour. . See Atlantic Coast Line R. R. v. Britton, 109 Fla. 212, 146 S…