SHIREY v. LOUISVILLE & NASHVILLE RAILROAD COMPANY

RIVES, Circuit Judge.

This appeal is from a summary judgment for the defendant. The district court held that there was no genuine issue as to any material fact and that the defendant was entitled to judgment as a matter of law1 for two reasons: 1) There was no substantial evidence of any negligence on the part of the defendant which was a proximate cause of plaintiff's injury; 2) the plaintiff was guilty of contributory negligence as a matter of law.2

Two sets of the defendant's railroad tracks run in a north and south direction down the center of Tarragona Street in the City of Pensacola, Florida. As Mrs. Shirey, a 65-year-old woman, was walking in a westerly direction on the north side of Government Street, she approached its intersection with Tarragona Street. Mrs. Shirey had on previous occasions walked across this intersection, but there is no other evidence that she was familiar with the details of construction of the railroad tracks at that place.

Mrs. Shirey and an old man named Church reached the intersection at about the same time. An automobile also going west on Government Street was attempting to make a right turn to go north on Tarragona, but the motor had stalled. After stopping, Mrs. Shirey and Mr. Church stepped down off the sidewalk and Mrs. Shirey made about three steps, when the car started and "just whipped right around" into their path "at a fast speed." Mr. Church stepped back to get out of the way of the car, and Mrs. Shirey hurried on "to keep from getting hit." The car passed behind her — "it just did miss me."

Mrs. Shirey fell with her left knee striking one of the railroad tracks, she could not tell which.3 Describing her fall, Mrs. Shirey testified:

The shoes which Mrs. Shirey was wearing are forwarded as original exhibits. According to Mrs. Shirey's affidavit,

The defendant introduced photographs of the intersection. Wooden timbers had been placed on each side of each rail. An affidavit of Mr. Coker, one of defendant's employees, states:

It is necessary that the timber on the inside of each rail be spaced at least two inches from the rail so that the flange of the wheels of trains can roll along the side of the rail. No necessity appears for the two inch distance between the rail and the timber on the outside of the rail.

The plaintiffs had demanded a trial by jury. The rule seems now fairly well established by decisions of the Supreme Court4 and of this Court,5 that in a diversity case, state law controls as to the substantive elements of plaintiff's case and of defendant's defense, but the sufficiency of the evidence to raise a question of fact for the jury is controlled by federal law.

As to the substantial elements going to make up defendant's alleged negligence, there is no dispute but that defendant owed a duty to "maintain and keep in good condition highway crossings at all points where said line of railroad is crossed * * * by any public street." Sec. 357.01, Florida Statutes Annotated. The Florida Supreme Court has declared that, "The company was liable for an injury resulting from a negligent breach of this duty, if its breach in this respect was the proximate cause of the injury." Loftin v. Dagley, 1943, 152 Fla. 831, 13 So.2d 311, 313.6

In Reuter v. Eastern Air Lines, 5 Cir. 1955, 226 F.2d 443, 445, 446, we restated the federal test as to the sufficiency of the evidence:

We cannot agree that there was no genuine issue as to whether defendant breached its duty. A jury could reasonably find otherwise from all of the attendant facts and circumstances, including defendant's rail extending 1½ inches above the timbers and the unnecessary 2-inch gap at the outer edge of the rail.7

Proof of causation presents a more serious question. We cannot, however, hold that it would be unreasonable for a jury to find from the place of fall and all of the other circumstances, including the scuffs on Mrs. Shirey's shoes and the photographs of the intersection, that a preponderance of the evidence went to show that Mrs. Shirey's foot was caught in the unnecessary 2-inch gap or that she tripped on the rail.

As to contributory negligence, the substantive rule has been stated in a late Florida case as follows:

Florida recognizes distractions as a valid excuse.

Applying the federal rule as to sufficiency of the evidence, we think it clear that the issue of contributory negligence was for the jury. See cases collected in Annotation 64 A.L.R.2d at 1219-1221.

The judgment is reversed and the cause remanded.

Reversed and remanded.

JONES, Circuit Judge (dissenting).

The Florida courts have had frequent occasion to declare and apply the well-settled rule that negligence is not actionable unless there is a causal connection between the negligence and the injury for which relief is sought. See Mayhew v. Pierce Tire Co., Fla.App., 120 So.2d 451; Pope v. Pinkerton-Hays Lumber Co., Fla.App., 120 So.2d 227; McWhorter v. Curby, Fla.App., 113 So.2d 566; Florida Power Corporation v. Willis, Fla.App., 112 So.2d 15; Williams v. Atlantic Coast Line Railroad Co., 56 Fla. 735, 48 So. 209, 24 L.R.A.,N.S., 134, 131 Am.St.Rep. 169; Florida Cent. & P. R. Co. v. Williams, 37 Fla. 406, 20 So. 558.

The testimony of Mrs. Shirey is enough to go to the jury on the questions of defendant negligence and plaintiff injury. I cannot join in saying that there is enough evidence to make a jury issue on the question of causation. Mrs. Shirey fell and as an incident of her fall she scuffed her shoes. But she could have scuffed her shoes as the result of a fall resulting from her sole negligence. So also could she have suffered the injuries which she sustained from a fall resulting from her sole negligence.

In support of its view that Mrs. Shirey's testimony was enough to go to the jury on the question of causation, the court cites, among other decisions, the opinion of this Court in Pogue v. Great Atlantic & Pacific Tea Company, 5th Cir. 1957, 242 F.2d 575. Of this decision of this Court, the Supreme Court of Florida has said that the Court, in the Pogue decision, interpreted the decisions of the Florida courts more broadly than the decisions justify. Food Fair Stores, Inc. v. Trusell, Fla., 131 So.2d 730. The court has, I am convinced, in this case, continued to interpret the decisions of the Florida courts more broadly than is justified.

It is my view that the evidence here is purely speculative on the issue of causation and inadequate to produce a jury question. Food Fair Stores, Inc. v. Trusell, supra. I would affirm the judgment of the district court.