Seaboard Air Line Railway Co. v. Ebert

138 So. 4, 102 Fla. 641
CourtSupreme Court of Florida
DecidedJuly 30, 1931
StatusPublished
Cited by5 cases

This text of 138 So. 4 (Seaboard Air Line Railway Co. v. Ebert) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Seaboard Air Line Railway Co. v. Ebert, 138 So. 4, 102 Fla. 641 (Fla. 1931).

Opinions

Ellis, J.

— Orange Avenue, a street in the City of Orlando and one of the main thoroughfares of the city, fol *642 lows a course due north through the center of the city to the north side where the street curves in a northeasterly direction and becomes a highway to the city of Winter Park. Highland Avenue is a street in the City which parallels Orange Avenue on the east until it in-' tersects or merges into Orange Avenue at a point some several hundred feet from where the latter curves northeast toward Winter Park.

The Atlantic Coast Line Railroad Company has a main line and two side tracks laid across Highland Avenue at a j>oint some 135 feet south of the point where Highland Avenue flows into Orange Avenue or Winter Park Highway. Those tracks at that point follow a northeasterly and southwesterly course. At a point some seventy-five feet south of those tracks the main line of the Seaboard Air Line Railroad crosses Highland Avenue; that track also follows a northeasterly and southwesterly course. These crossings, just at the entrance practically of the City of Orlando, render traveling upon Highland Avenue dangerous. Signal lights are established in the center of the highway; one north of the Atlantic Coast Line tracks and one south of the Seaboard Air Line track about eight or ten feet approximately from the tracks and about 180 feet apart.

These signal lights are the usual three light signal device. The top or red light warns travelers on the public highway to stop; the center light, usually yellow in color, warns of possible danger and admonishes caution; the bottom light is green and signifies freedom from danger to persons desiring to proceed on their journey across the intersection of the two highways. The lights used at these railroad crossings serve much the same purpose as ordinary traffic lights used by city authorities to regulate traffic. The red light, which is at the top, has the word “stop” lettered across the disk; the center light the word “caution”, and the third or bottom light, which *643 is green the word “go”.- The lights shift from “red” to the center or caution light and thence to green. From the latter, or danger free signal the lights shift to caution or yellow and then to red. In addition to these signals a bell is rung when the middle or center light is on.

The lights are operated from a tower by a person who uses a mechanical device to give the appropriate signals to persons traveling on the public highway. That person, so it is alleged, was employed by the two railroad companies jointly and in the discharge of his duties as tender of the lights acted for the two railroad companies and at the time of the accident which gave rise to this action the employee was J. D. Murray.

On the 24th day of February, 1929, which was Sunday, Mrs. Lena B. Ebert, her husband Frank M. Ebert and her sister Mrs. Beck, at about two o’clock in the afternoon started for an automobile trip to Winter Park. The style and make of the automobile was an Oldsmobile Landau, six cylinders. Mrs. Ebert was driving, her husband on the front seat next to her and Mrs. Beck was on the rear seat. They drove north on Highland Avenue and as they approached the track of the Seaboard Air Line Railroad Mrs. Ebert observed another automobile which had stopped south of the track on the east side of the highway. She noticed that the north signal light was red. The north signal light would be the one north of the Atlantic Coast Line tracks and about 180 feet from the south signal light which was the one nearer to Mrs. Ebert as she approached the Seaboard Air Line track from the south that light also showed red as Mrs. Ebert approached the automobile in front of her which had stopped a little to one side of the south light and did not obscure the light from her.

Mrs. Ebert was then approaching slowly the automobile in front when she saw the Atlantic Coast Line passenger train cross the highway going north. She *644 said that “as soon as the passenger train went north the light signal light flashed green”. At that time she was “three or four car lengths behind the stopped car” and she saw the automobile in front of her cross the railroad track and she proceeded to follow. As the front wheels of her automobile reached the Seaboard tracks she observed the north light flash red. Her first impulse was to “back off the track” and tried to do so. A Seaboard Air Line freight train was approaching the crossing. The train consisted of fourteen refrigerator cars behind the engine and two loaded ears and the caboose on the front. The train was backing. From the end of the last car to the engine the train was about six hundred feet long. It was approaching the crossing from the south at about six and a half miles per hour. Mrs. Ebert’s automobile was struck by that train of the Seaboard Air Line Railway Company and Mr. Ebert sustained injuries from which he died at about 8 or 9 o’clock P. M. at the sanitarium to which he had been taken.

Mrs. Ebert was well informed of the location, the permanently attached physical objects such as the railroad tracks, signal lights, buildings and towers and had been operating an automobile about three years. When her automobile came upon the railroad track and she saw the red in the north signal light and realized the peril she was in and tried to back her automobile off the track, realizing her imminent danger from the approaching train she “lost consciousness or something, probably from fright or otherwise” she did not know.

In April of 1929 Mrs. Ebert brought an action for damages against the two railroad companies and J. D. Murray for the wrongful death of her husband. There was a verdict and judgment in her favor in the sum of fifteen thousand dollars and the three defendants took a writ of error.

The declaration, consisting of one very long count, *645 rests upon the alleged act of Murray in causing the red or stop light in the signal light towers to cease burning and the green or danger free lights to burn in the signal towers when the freight train of the Seaboard Air Line Railway Company was approaching within a short distance of the crossing. That act of Murray was alleged to have been careless and negligent and done as the agent, servant and employee of both the Railroad Companies. The Atlantic Coast Line Company demurred to the declaration, moved for a compulsory amendment and moved to strike that Company from the case as a party defendant. These motions and the demurrer were overruled.

The declaration stated without ambiguity a good cause of action against the Seaboard Air Line Railway Company and Murray. The defendant Murray was alleged to be the joint agent of the two Railroad Companies and that while in the discharge of the duties devolving upon him as such employee he negligently and carelessly produced on gave a signal of false security of freedom from danger to . persons traveling on the i public high-, way and particularly to the plaintiff who was about to cross the railroad tracks of the Seaboard Air Line Company.

An agent who' commits such an act is as much tort feasor as his principal. 1 Mechem on Agency, p. 1081,

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Bluebook (online)
138 So. 4, 102 Fla. 641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seaboard-air-line-railway-co-v-ebert-fla-1931.