*2 BROWN, Before JOHN R. Chief Judge, CLARK, and COLEMAN and Judges. Circuit COLEMAN, Judge. Circuit diversity damages, This is a action for removed from the state court to the fed- Georgia eral district court South- ern and Company. Larry separate D. Horne filed two the death of his one for wife: damages Wrongful under the Florida Statute, 768.01-02, Death F.S.A., F.S. other, and the as administrator of the estate, under Survival Stat- ute, 46.021, formerly 45.11, F.S. F.S.A. complaints predicated upon Both alleged negligence in striking which she died within about two hours. charged Both suits wanton and wilful negligence. Georgia inter- Southern posed denials asserted the contributory affirmative defense ligence. The cases were consolidated jury. and tried to the same It awarded $108,500 in the amount of wrongful $45,000 death case and the survival action. Of the latter award, $30,000 punitive dam- ages. recovery, $153,500. Total judgment We affirm the of the Dis- trict Court. August 29, 1967, years On as for some thereto, prior Mrs. Eula em-
ployed premises Pulp of Hudson Paper Company mill) (paper in Pal- atka, Florida. She was there not as employee of Hudson but of a food serv- operated ice firm which main cafeteria plant. piece good paper. satellite cafeteria I took a look Then shift, being. customarily She worked divided I saw it was human broke morning finally three hours two out and ran down track and * * got afternoon. When struck ran *. I south. ran trying distance of 196 feet around the side of the *3 engines Georgia’s just get engineer had train, switch she stop the the to and (after A.M.) got left stopped, up, the main cafeteria he went before he way, foot, train, and her was on satel- and across the other side of the cafeteria, point back, lite at another by came and time he went that departure plant property. feet, imagine, stopped, her After about and four from main cafeteria no includ- and I told him a woman was that crew, ing engineer thought the train saw and train train”. Johnson entangled hour, had running eight her until after she become miles was about had been locomotive and which as a as fast would be about twice Although stated. she rapid walk. more mained conscious an hour or stated, The further witness “[H]er and least three accident said at caught by left call foot was what I a going knew she was to times she * * * right foot cowcatcher and her no statement die record contains wheel, was side the and she was down tragedy oc- from her as to how the stated, dragging”. This further witness curred. anything hardly in that “You can hear analysis An in the evidence area”. light verdict indi- most favorable to the engine engineer tes- switch The fatality in the cates that occurred backing south, the tified that he was following manner. Mrs. Horne same direction in which going In one anoth- from cafeteria walking, with thirteen would along paved er, Mrs. Horne walked and none be- ahead of him cars attached occupied passageway Track Switch train hind He estimated that the him. Railway. likewise No. It was moving oth- an hour. The was six miles getting by pedestrians in constant use sta- er members of the crew were three point plant one in the to another. anywhere hundred from one tioned extremely noisy. A area wit- The was of him. He feet north seven hundred ness testified that if one wished north, looking facing to the crew- was get speak up to another he had although signals, he he oc- men said closely route Mrs. Horne’s shout. glanced casionally him. There behind along building ad- led jacent the west wall of one main- fireman and no was was no passage- The to the switch track. engi- taining The to the rear. a lookout way track is the wall and the between he Mrs. until neer never saw point partially ob- one it is narrow. At stopped all the locomotive. What making ramp, protruding structed that, lookout to with no means get very necessary close to backing rear, engineer his train "avoiding After it. the tracks looked north. There was south testimony he while book, glasses, cident, pocket Horne’s engine bells were east supplies side were found on warning ringing bells and that other obstruction, track, near this functioning. lights in the were area the switch feet north of where however, signals, had been The latter flagged by Sylvester stopped when down came on when the train first turned Johnson. earlier, and hour onto the track about an continuously tragedy operated the train first discovered vicinity come or not. about to out in the immediate he was Johnson as building vicinity passage- did in the into Some witnesses a door from immediately ringing he way. first hear train bells He testified that thought prior “I it was a the accident. saw them, surgery Montague, could not practiced of some of Dr. who injuries attempt- determine were orthopedics, examined and emergency did find that such was thus caused. Mrs. Horne to treat ed hospital. He testified cause of death. room of ques- and answered she was conscious , the fol- reversal on seeks thigh fractured tions. The left lowing (1) the asserted errors thigh region leg so that the the mid flailing. that the defendant could be sides ribs on Numerous new, independent fractured, the chest was so negligence; charge on (2) flailing had the chest likewise weighted “apportionment” where accident patient to enable the event; its aftermath was one continuous triangular flat, bone breathe. (3) charge allowing jury to find was broken. of the shoulders the back *4 misconduct from the wilful and wanton scalp of the on side and flesh fireman on the switch failure to have a pres- peeled blood face down. The was charge engine; (4) the refusal to opinion of Dr. In the sure was 80/60. punitive necessary that the elements for Montague, Mrs. Horne was the farther damages proved the same must be her more extensive would be necessary prove proof crim- burden of to opin- injuries offer not an but he would charges. inal ion as the initial blow to whether may and 4 be Contentions numbered 3 dragging proximately her death. caused together. rejected There was evidence to effect long prior the atten- to the accident not opinion do not burden We Railway called of the had been tion many Florida citations from the with safety required fireman a the fact that damages. dealing punitive cases with congested despite noisy, area but in this sug simply none them note of ever We warnings supplied. none had been gested justi that in civil actions conduct damages proven fying punitive must judge mo- be denied trial beyond a reasonable at evidence for directed verdicts both Sauer, rely plaintiff’s at on v. thé doubt. We Sauer case close of the Appeals, 128 District Court of close of all the evidence. 761(1961), citing Carraway Re So.2d record, jury In of the this state vell, Fla., follows: 116 So.2d plain- a verdict for the returned negli- degree response Additionally, “The character or of in tiff. gence interrogatories, necessary an found that the to sustain award damages negligence punitive of a guilty of must of of be flagrant evincing gross character, disre- displaying and wilful a wanton life, disregard gard safety Horne reckless of human which for the injuries safety exposed persons proximately the dangerous effects, to its her caused that en- Horne or there is that Mrs. death. also negligent raise of care which would contributorily at time tire want presumption indif- en- of a with the conscious into contact she first came consequences, her or which gine, proximately caused ference to recklessness, or injuries, proximately cause shows wantonness did not disregard being grossly of the (this action careless a her death action). rights safety, welfare, of others wrongful a survivor’s death and equivalent intentional to an which is found that next (citation). of them with the violation into contact came first noted new, inde- case also court Revell defendant was negli- negligence neces- act of that the character of pendent, and train, sary for man- failing a conviction gence to sustain sooner slaughter required to proximate same as cause a was not that .this recovery punitive dam- injuries, the cause sustain a it was all her judge prompted ages battle over this trial course the distinction length degree proof”, So.2d the various as- pects plaintiff’s of that at 762. charged: case. In the midst of it he disposes This, opinion, our argument “However, here should if the finds that merely that before it instructed have been second punitive sequence a verdict for of events return continuation of a essential first to believe the first would which set motion beyond oper- person’s doubt. As reasonable facts and did cases, preponder original neg- independently belief from all civil ate of the negli- sufficient. ligence, the evidence ance of then the second act of gence independ- intervening, is not an manner, we are of In the same negligence, ent and efficient act of for a further railroad view but in such cases ligence act first already situation a train into the back is the engineer looked the described while the Record, injury”. was, way and in ef other while whatsoever, appears fect, This correct statement raised no lookout and, by terms, its own jury question under law law case, damages, ap- particularly punitive the facts of this would further issue negated pear warnings submission had been view *5 Kenegson disregarded. jury this the see issue to Gerard, Fla., 1964, 164 Mrs. So.2d 204.1 1 Points and 2. This leaves us with injured her life be- lost they appear present At first blush se- continuously cause the train moved legal problems. Upon rious extended The without lookout to rear. the flection, we find in the context of this engineer loco- her before his never saw they justify a case that do not reversal. her, it or the time motive struck easy points is her, afterwards, see how until someone struck or prominence getting achieved such in the trial be- him ran out stop succeeded in struck, dragged, engine. dragging The low. had the The the expected, uninterrupted and killed Mrs. Horne. ever, how- se- continuation of an escape liability kept events, quence the defense set in motion and contributory negligence. original Well aware and the same motion danger defense, engineer negligence. of the of that Counsel not The did again, plaintiff theory pressed up all the for his train then start negligence helpless contributory dragging if Horne. even liability barred time impact original as his concluded, however, that we haveWe client could recover because nevertheless point; does it need this not decide negligent the victim justify not a reversal. time could when the after stopped jury its This Railroad have locomotive. disregard given independent, flagrant label, “new, for guilty gross, intervening negligence”. safety and we act negligence general proposition, of tlie de- 1. As a the use of an the result after position Prosser, Torts, (3rd intervening defensive Law of cause is a fendant”. Ed.), 51, p. than In most 39. rather offensive. instances § interjects concept the defendant Torts, § 441: Restatement of liability grounds in avoid intervening tervening proximately cause caused the in “An force is one which complained thereby tively operates producing juries of, eliminating harm to original negligent negligent act act as the another the actor’s defendant’s has been committed.” cause. omission intervening “An one which operation producing into active comes justify and retri- and does not a reversal issue for already an held that al this case. to decide. Affirmed. Supreme 1892 the As far back of Florida held: Court BROWN, Judge (con- R. JOHN Chief in- party has inflicted “Where curring) . has intentionally, it where I concur in the result all of negligence, through done been opinion. by way only I would add this unintentionally, and his conduct hence emphasis. reck- doing wanton it has been tedious, long, Here a retrial consequences, injurious of its less hard-fought case is avoided from negligence person contributory confidence that the error in the new and to an action injured is not defense intervening cause issue was harmless. injury.” brought such him harmless- But we can demonstrate its Railway Company v. Florida Southern inter- ness because of the 506, L.R.A. Hirst, Fla. 11 So. rogatories, categorically approval, Quoted Deane v. with 631. the railroad had been found that Johnston, Fla., 104 So.2d negligence proximately of willful wanton A.L.R.2d causing injuries and death. contributory law, This finding expressly Had that of its is shorn of Mrs. Horne made we would been faced consequences. no It furnishes shield enigma mystery wrapped in a un- —the “new, independent, the Railroad. revealing general verdict. Never negligence” van- Judge, man or divine what ishes. holdings subsidiary led had plaintiffs. verdict er see wherein Nor we contributory Was issue, if it roneous submission *6 decedent? Willful wanton Railway. error, prejudiced the (i) impact, initial railroad upon the task of plaintiff himself took (ii) continuing injury from failure through eye nee going twice (iii) both? discover negotiated it once dle itWas cause? new necessary. is true all that possibili- And on one or more of these into a litigants issue converted the ties, apportioned were as be- Matterhorn, decided legal but (i) (ii) (iii) tween ? undisputed nothing From but facts. Worse, inability any- the absolute little dis physical there could be facts fog penetrate one to would have dragged 196 pute Horne was that Mrs. the law to one of its incon- forced most Arguing spur track. feet down gruous inescapable fictions —the as- de nor neither add to the law over sumption followed True, evidence. tract wrong (new independent instruction n part cause). cause, intervening probable but been liability in supports What this means is that the wonderful the evidence interrogatories inconsistency device no real There is event. general (F.R.Civ.P. 49(a))1 general en- verdict between interrogato appellate ables trial and Courts the answers hand and precisely error has found. know what the other. ries on harmless charge, And here in of occasional refutation if there was 49(b), actually ent in its verdict and the answers 1. Here it was many pitfalls interrogatories tricky procedure determined us decisively significant. jury’s being consist- avoided misguided plaintiffs’ laments from the neutrality proves
bar the device operation.
its It can hurt effect but help. Really, it should do neither simply, categorically,
—it reflects jury’s assessment truth. elimina-
The tool is indeed the doubt Special Brown, Verdicts:
tor. Federal Proceedings Eliminator,
The Doubt Conference,
the Annual Tenth Judicial States,
Judicial Circuit of United (1967).2
F.R.D. at 338 America,
UNITED STATES of Appellee,
Sidney LITTMAN, Appellant. A.
No. Docket 33682. Appeals,
United States Court of
Second Circuit.
Argued Oct. 1969.
Decided Jan. Lerner, Hill, D.
Alfred Richmond appellant. Atty. Zirin,
James D. Asst. U. S. (Robert Morgenthau, Atty., M. S. U. York, the Southern District of New *7 Schreiber, Atty., on James U. Asst. S. brief), appellee. FRIENDLY, AN- Before HAYS and Judges. DERSON, Circuit HAYS, Judge: Circuit Sidney appeals A. from a Littman judgment of after a conviction entered District trial United States New Court for Southern District of along convicted, York. Littman was co-defendants, counts five nine including fraud, wire U.S.C. § happy company serving of fact should am to have as a finder proce- authority practice leading support verdicts.” the use of the Improved dure, Joiner, Joiner, July Dean said Charles who C. W. Trials — persons pre- (1970). cently Procedures, : “All interested F.R.D.