opinion: ATLANTIC COAST LINE R. CO. v. HADLOCK et al.
  No. 12592.
  United States Court of Appeals Fifth Circuit.
  Jan. 10, 1950.
  Rehearing Denied March 2, 1950.
  John G. Baker, Orlando, Fla., LeRoy B. Giles, Orlando, Fla., Charles Cook Howell, Wilmington, North Carolina, for appellant.
  Clark W. Jennings, Orlando, Fla., for appellees.
  Before HOLMES, WALLER, and SIB-LEY, Circuit Judges.
  SIBLEY, Circuit Judge.
  A train of appellant Atlantic Coast Line R. Co., shortly after midnight running through the railroad yard limits and in the edge of the incorporated town of Newberry in Florida, collided with the automobile of appellee Hadlock which was approaching the tracks on U. S. Highway 41. Had-lock and his driver, appellee Owens, were severely injured and the automobile ruined. Their two suits for damages were consolidated for trial, and by stipulation are also consolidated in this appeal. The jury found verdicts for reduced damages, finding in answer to special questions that the train was operated in a negligent manner, this negligence contributing directly to the injury; that the driver of the automobile was also neligent in its operation, his negligence contributing directly to the injury; and that the proportion of the negligence was 80 percent to< the driver and 20 percent to the defendant. The damages were reduced accordingly. Errors specified on appeal are the refusal of the court to instruct a verdict for the defendant; the refusal of a new trial; and the admission of evidence of other accidents at the crossing.
  1. The refusal of a new trial is not reviewable, the grant thereof being discretionary, and no special circumstances appearing to take this case out of the rule.
  2. Towards the close of the trial a witness was asked by plaintiffs’ counsel if there had been within two years other accidents at this crossing involving locomomotives and automobiles, an objection of irrelevance being overruled. The question was answered yes, but was not followed up. On cross-examination defendant’s counsel asked about details, but the only instance definitely remembered by the witness was when a man named Rush drove across in front of the engine which knocked the rear bumper off his car. There was some joking about Rush rushing, and not rushing fast enough. No further reference appears to have been made to this evidence by court or counsel.
  The complaints alleged this crossing to be a dangerous crossing, and so known to the defendant, especially as to trains approaching it from the east, as this train was, because of obstructions which made it difficult for a motorist to see or hear a train, and because of a dirt road running eastward near the track so that one on the highway at night would easily mistake the light of a train for the light of an automobile on the dirt road; and that the rails at the crossing were difficult to see at night. There is authority that when a place or instrumentality for the safety of which the defendant is responsible has been involved in other accidents within a recent period under similar circumstances the proof may be made for the limited purposes of showing that the place or instrumentality was in fact a source of danger, and that the defendant knew it. It is, however, likely to lead to collateral issues as to who was to blame in the other instances, and to afford more confusion than light, so that the matter rests largely in the discretion of the trial judge. 20 Am.Jur., Evidence, Sect. 304; 38 Am.Jur., Negligence, Sect. 314. In our recent case of Lowry v. Seaboard Air Line R. Co., 5 Cir., 171 F.2d 625, we upheld the rejection of such evidence, especially since there no defect was claimed in the construction of the crossing involved. In the present case there was a claim, that the crossing itself was invisible at night, and that the crossing sign required by statute had no reflector to call attention to it at night. We cannot say the trial judge abused his discretion in permitting an enquiry as to other accidents there, but it developed that there was little or nothing to the enquiry. No night accidents appeared, and for lack of any similarity proven the Court very likely would have excluded the evidence had he been asked to. We find no reversible error here.
  3. The gravamen of the case is on the motion for instructed verdict. Appellant contends that since the automobile struck the side of the engine at a point from eight feet to twenty feet from its front, according to different witnesses, the case is one of running into a train already occupying the crossing, for which the automobile driver has often been held solely to blame. We do not agree. The evidence would authorize the jury to conclude that car and engine were each approaching the crossing at a speed of 25 miles or more per hour, neither being actually aware of the presence and intention to cross of the other because of obstructions by buildings and trees between them till within a few feet of each other and too late to stop'. It was a matter of only a half second whether the car or engine would get on the crossing first, — whether the engine would strike the side of the car or the car the side of the engine. The enquiry for fault is not to be settled so simply. With both approaching it too fast, the law would award no absolute priority to the one arriving first.
  Nor can it be said as a matter of law that there was no fault in defendant in the construction of its crossing and the operation of its engine, or that the faulty driving of the automobile was the sole cause of the collision. As to the crossing, the defendant was not responsible for the houses and trees not on its right of way which obstructed the view of each other of a train coming from the east and an automobile coming from the south, nor for the dirt road paralleling the railroad on its south side eastward. But the crossing itself was so level and smooth that at night, with the automobile headlight not showing the track to right and left, and with the rails across the highway even with the paving so that they did not show, a stranger on the highway could not well see there was a crossing. This rendered more important other notice. The statutes of Florida, F.S.A. Sects. 320.45, 320.46, and 351.03 provide for railway crossing signs. •The first two' sections relate to crossings designated as dangerous by the State road department. Sect. 320.45 requires the motor operator to stop not less than ten feet from the nearest rail, and to look in both directions and listen for the approach of a locomotive or train. The next section re-quires the railroad company at such a grade crossing to place on each side of its track, to the right of the highway and 250 feet from the crossing, a large sign with black letters on a white background, “Stop — Railroad Crossing — Florida Law”, equipped with a mirror reflector for night use of .such size, color and description as may i be approved by the State road department, to reflect the motor vehicle’s headlight. Such a sign was erected 250 feet from this crossing on the right'of the highway but 15 feet away from the edge of it, and without any mirror reflector. The driver of this automobile did not see the sign or know he was approaching a railway crossing. The third cited section, 351.03, .requires the railroad company at .other highway crossings to erect a sign, “Look out for. the cars”. There was no such sign at this crossing, which evidently was treated as a dangerous one. The.defendant argues that the; proviso at the end of Sect. 320.45, “Provided, however, that the requirements of this section shall not extend to railroad tracks within the .limits of incorporated cities or towns * * * ” excuses it, from having either sign or reflector at this crossing, since it is within the limits of an incorporated town, and since Sect. 320.46 applies only to crossings falling under Sect. 320.45. We do not so understand the . proviso. The “requirements of this Section” do not indeed apply to city and town crossings, but they relate only to the operator of the motor vehicle. No requirement is therein made of the railroad company; but its requirements follow in the .next section without any such proviso. The jury might well conclude that the failure to have the re; flector on the sign to draw attention to it at night was negligence contributing to the accident.
  But section 320.46 has a proviso at its end, “Provided further, that where railroad warning signs have already been placed, or shall hereafter be placed, at any railroad crossing by the state road department, said railroad companies shall not be required to erect or maintain additional signs or reflectors at such crossings.” We held in Ouzts v. Powell, 5 Cir., 125 F.2d 768, where it was stipulated that the sign at a crossing had been erected by the State Road Department, that no sign was required to be erected by the railroad company and that the company was not responsible for any insufficiency in the sign. The record in the present case contains no suggestion that the sign at this crossing was erected by the State Road Department, and the appellant has made no such contention either in its brief or oral argument. Indeed the brief, which quotes the section, omits this proviso, evidently because it was not considered pertinent to the case. It quotes and relies on only the proviso to section 320.45 just above discussed. . The body of section 340.46 requires . that the railroad company shall place and maintain the sign with mirror reflectors to reflect the motor vehicles head- . light at night. The proviso operates as an exception, and the burden is upon the railroad company to prove the exception. It has not. even raised the contention, though the proof was made by several witnesses that there were no reflectors. We cannot suppose .the State Road Department had erected the signs at this crossing.
  Again the speed of the train is in question. One of the train crew estimates it as low as 12 miles per hour. Others place it as high as 25 miles. Two experienced ex-engineers of this very railroad company, on the basis as proved of a level track with a stated kind of locomotive and a stated number of cars, with air brakes applied in emergency at the crossing and the train running 400 feet before stopping, testified that the speed must have been in excess of 30 miles per hour. The jury might consider this an imprudent speed at which to approach an obstructed, unguarded crossing in the limits of a town and across a much travelled highway such as Highway 41 is shown to be. The defendant itself had prescribed a speed limit here of 15 miles, according to the fireman.
  Similarly there is some excuse for the conduct of this driver. He had travelled the highway twice before and knew there was a railroad to be crossed near this town, but he did not know he was approaching it. He testifies he was looking ahead, did not see the crossing sign, did not see the rails across the pavement, (several witnesses testify they are hardly visible at night), did see the side road to his right and a dim light down it, which he took to be a light on a pole, but now thinks it must have been the engine headlight. He heard no whistle, though several witnesses testify one was blown. All this occurred in a short space of 140 feet after passing the buildings along the highway. The enginemen say the headlight was burning brightly; but they also say they were in yard limits, and their rules require dimmed headlights there lest they blind others, and that a dimmed headlight is really dim. The jury might think the car driver was negligent but not reckless or the sole author of the accident. They did charge him with four-fifths of the fault. We discussed carefully the application of the other Florida statutes to a similar accident in Lowry v. Seaboard Air Line R. Co., 5 Cir., 171 F.2d 625, and need not repeat that discussion. We held that case to be one for the jury, and we hold the same here.
  Judgment affirmed.
  We have examined carefully the Florida cases cited in the dissenting opinion and think them all readily distinguishable from this case in their circumstances. Indeed, in Seaboard Airlines R. Co. v. Boles, 160 Fla. 910, 37 So.2d 578, whore the driver of the vehicle knew-he was approaching the crossing and failed to take proper precautions, the court ordered that the damages be shared half and half. The jury hero awarded only one-fifth damages.