
    Harry James O’KEEFE, Appellant, v. Turner BUTLER and William A. Hallowes, III, as Trustees of the property of the Florida East Coast Railroad Company, a corporation, Appellees.
    No. C-109.
    District Court of Appeal of Florida. First District.
    Jan. 17, 1961.
    Rehearing Denied Feb. 14, 1961.
    
      Robinson & Randle, Jacksonville, for appellant.
    Harold B. Wahl, Samuel Kassewitz and Luke G. Galant, Jacksonville, for appellees.
   PER CURIAM.

Affirmed.

STURGIS and CARROLL, DONALD K., JJ., concur.

WIGGINTON, C. J., dissents.

WIGGINTON, Chief Judge

(dissenting).

This is an action for personal injuries arising out of a grade crossing collision which resulted in the automobile driven by plaintiff being struck by the locomotive of a railroad train operated by defendant. The cause of action is grounded upon the alleged negligence of the defendant in the operation of its locomotive. At the conclusion of all the evidence the trial court directed a verdict in favor of defendant upon which final judgment was entered and from which judgment this appeal is taken. By his principal point on appeal appellant contends that the evidence, considered in a light most favorable to plaintiff, creates a genuine issue as to the defendant’s negligence and that the court erred in deciding this issue by withdrawing the case from the jury and directing a verdict for defendant.

The testimony reveals that at the heavily traveled crossing where the collision occurred defendant’s railroad track runs perpendicular to the road in a straight line for several miles in a northerly direction. A view of the track to the north on which defendant’s train was traveling southward was unobstructed. As plaintiff approached the crossing in his automobile during daylight hours he came to a stop at the cross-arm warning sign some fifty feet from the railroad track. He looked both to his right and left to determine whether any train was approaching, but saw none. He likewise testified that he heard no signals-warning of the train’s approach. A witness for the plaintiff who was in the close vicinity of the crossing likewise testified' that no whistle was blown or bell rung warning of the train’s approach. Another witness testified that as he was walking away from the crossing, he heard the train whistle blow only one time, and thereafter he walked a distance of some two hundred yards before hearing the impact of the collision between the train and the plaintiff’s automobile.

Plaintiff testified that after bringing his vehicle to a stop, he shifted into first gear and proceeded slowly toward the crossing, and had shifted into second gear just prior to reaching the track on which the train was traveling. As the rear end of plaintiff’s vehicle was about to clear the last rail of the track, it was struck by the locomotive demolishing the vehicle and inflicting serious injuries on plaintiff. Another witness for plaintiff testified that the train was traveling approximately ninety miles an hour as it approached the crossing on which the collision occurred.

Defendant's fireman testified that he saw plaintiff’s automobile slow down as if to stop, but when the vehicle started moving faster toward the crossing he shouted a warning to the engineer but for some reason his shouts were not heard. The fireman took no action to apply the emergency brake on the locomotive which was available to him had he seen fit to use it. The engineer testified that although he was keeping a lookout ahead, he never saw plaintiff’s vehicle until after the collision. He never released the throttle or applied the brakes until after the impact. The testimony of the railroad company employees and witnesses was to the effect that all normal warning signals were being given of the train’s approach toward the crossing, in-eluding the blowing of the whistle and the ringing of the bell.

The foregoing evidence is clearly susceptible of the inference that plaintiff was free from negligence in attempting to negotiate the railroad crossing, having looked in both directions, seen no train approaching at that time, and heard no signal warning of the train’s approach. On the other hand the jury could have concluded that plaintiff was negligent in looking but failing to observe the approach of the train before he attempted to negotiate the crossing. Despite such conclusion, the evidence is clearly susceptible of the inference that had the engineer been keeping a lookout ahead as was his duty under the law, he would have seen plaintiff stop his vehicle and then proceed slowly toward the tracks with the obvious intent of crossing at a time when the locomotive was a substantial distance north of the point where the collision occurred. If so, it then became a question for the jury to determine as to whether under these circumstances the engineer exercised the reasonable care required of him to either stop or decrease the speed of his locomotive so as to permit plaintiff to cross over the track ahead of the train, thereby avoiding the collision. Under either view which may have been taken by the jury from the evidence adduced before it, it could have found that plaintiff was free from negligence, or that both plaintiff and defendant were guilty of some degree of negligence. Either conclusion would have justified a verdict in plaintiff’s favor.

It is my view of the law as applied to the facts in this case that the issue of defendant’s negligence, and the comparative negligence of plaintiff, if any, were issues which could properly be decided only by the jury. For the foregoing reasons I would reverse the judgment appealed and remand the cause for a new trial.

On Petition for Rehearing Denied.

PER CURIAM.

Appellant’s petition for rehearing, typical of the great majority of such pleadings, does nothing more than to suggest that the majority “overlooked” certain points of law and fact which actually were fully developed by the oral argument and the briefs. While the majority rendered a per curiam decision of affirmance, without an opinion, the minority wrote a dissent in which the very points presented by the petition for rehearing are emphasized. The majority considered that dissent.

We deem it appropriate to observe that the mere fact that it is possible by mental gymnastics to draw some inference of negligence does not warrant submitting an issue of negligence to a jury. Such would too often pay homage to pure speculation. The constant key to the problem is whether a reasonable inference is available. Judges are not called on to dethrone reason in order to find an excuse for submitting a case to the jury.

The dissenter points out: “Plaintiff testified that after bringing his vehicle to a stop, he shifted into first gear and proceeded slowly toward the crossing, and had shifted into second gear just prior to reaching the track on which the train was traveling.” Assuming the engineer observed all of this action, and considering the uncontested evidence that there were no obstructions to vision for several miles in the direction from which the train approached the crossing, the only available reasonable inferences are that the plaintiff saw or should have seen the approaching train and, from the standpoint of those operating the train during the time any action on their part might have been taken to avoid the accident or mitigate its results, that plaintiff was simply moving up to a closer position with the intention to negotiate the crossing after the train passed rather than ahead of it. The uncontradicted evidence also reflects that when the engineer’s helper became apprehensive of the impending accident and called out to the engineer,'the latter did not hear him because at that time he was sounding the whistle on the engine. Add to this the further uncon-tradicted testimony to the effect that application of brakes on the train after the likelihood of an accident became apparent to the engineer’s helper would not have prevented or alleviated the accident, and we are compelled to eliminate any question of the existence of any reasonable inference from which a jury could have found that the defendant was guilty of any negligence whatever in the operation of its train. Any other conclusion would impose a “stop, look and listen” burden on the train at all crossings.

The Florida Supreme Court has repeatedly considered appeals involving facts similar to those with which this court was confronted on this appeal and has decisively laid down the rules to be applied in determining liability for railroad crossing accidents. Applying those rules to this appeal, plaintiff is barred from recovery. See Lowry v. Seaboard Air Line R. Co., 5 Cir., 171 F.2d 625; Martin v. Rivers, Fla., 72 So. 2d 789; Powell v. Gary, 146 Fla. 334, 200 So. 854; Cline v. Powell, 141 Fla. 119, 192 So. 628; Anderson v. Crawford, 111 Fla. 381, 149 So. 656; Covington v. Seaboard Air Line R. Co., 99 Fla. 1102, 128 So. 426, followed in Florida East Coast Ry. Co. v. Flynn, 106 Fla. 465, 143 So. 405; Germak v. Florida East Coast Ry. Co., 95 Fla. 991, 117 So. 391; Southern Railroad Co. v. Mann, 91 Fla. 948, 108 So. 889; Atlantic Coast-Line R. Co. v. Weir, 63 Fla. 69, 74, 58 So. 641, 41 L.R.A.,N.S., 307, Ann.Cas. 1914A, 126; Louisville & N. R. Co. v. Yniestra, 21 Fla. 700.

The petition for rehearing is denied.

STURGIS and CARROLL, DONALD K., JJ., concur.

WIGGINTON, C. J., dissents. 
      
      . Martin v. Makris, Fla.App.1958, 101 So.2d 172; Loftin v. Nolin, Fla.1950, 86 So.2d 161.
     
      
      . F.S. Sec. 768.06, F.S.A.; Hutton v. Atlantic Coast Line R. Co., Fla.1957, 92 So.2d 528.
     
      
      . Tyus v. Apalachicola Northern Railroad Company, Fla., - So.2d -; Myers v. Atlantic Coast Line Railroad Company, Fla.1959, 112 So.2d 263; Powell v. Gary, 146 Fla. 334, 200 So. 854.
     