#### Warren G. WILLIAMS, Jr., Appellant, v. SEABOARD AIRLINE RAILROAD COMPANY, a foreign corporation authorized to do business in the State of Florida, Appellee.

No. 69-849.

District Court of Appeal of Florida, Fourth District.

Nov. 2, 1972.

*460Joseph D. Farish, Jr., of Farish & Farish, West Palm Beach, for appellant.

Manley P. Caldwell and Arthur E. Barrow of Caldwell, Pacetti, Barrow & Salisbury, Palm Beach, for appellee.

PER CURIAM.

Appellant, Warren G. Williams, Jr., sustained severe personal injuries as a result of a collision between the vehicle he was operating and a Seaboard train. His negligence action against the railroad proceeded to trial before a jury as a result of which plaintiff was awarded a judgment. However, that judgment was reversed and the cause remanded for a new trial.1 Upon remand, the case was tried before the court without a jury resulting in a judgment for the railroad from which this appeal has been taken.

In the final judgment, the court found that “the greater weight of the evidence does not support the claim of the plaintiff”, and further found that “the greater weight of the evidence does support defendant’s defense of contributory negligence”. It is obvious that the trial court intended the latter finding to be an alternative one, that is to say, even if the court had found from the evidence that negligence on the part of the railroad was a legal cause of the collision, the outcome of the case would not be affected since the court found the plaintiff’s negligence to be a legal cause of the collision. Appellant’s sole point on appeal is the sufficiency of the evidence to sustain either of these findings.

Certain facts were without dispute. The collision occurred at a grade crossing within the city limits of West Palm Beach on July 29, 1963, at approximately S :05 a. m., at that point in predawn darkness where night begins to merge into daybreak. Appellant was operating a van-type milk truck used for retail delivery. The crossing, with which appellant was familiar, was marked only by a wooden crossbuck. Appellant was westbound, the train southbound. Municipal ordinances, in effect for a number of years prior to the collision, required the railroad to install automatic electric signal devices at the crossing, or *461alternatively, to provide a manned crossing gate, and also established the lawful speed limit for trains over the crossing at 30 miles per hour.

Other facts were in dispute. There was a substantial conflict in the evidence relating to such matters as the condition and visibility of the crossing, the speed of the train at the time of the collision, whether the train’s headlight was operating and proper warning signals were given as the train approached the crossing, and the conduct of appellant as he approached and then entered the crossing. Appellant testified that he approached the crossing slowly and with caution because he knew it was uneven and bumpy and could cause the milk cartons to fall forward on him if he was not careful, that he stopped at the crossing, looked both ways and saw no train approaching, and then proceeded slowly forward onto the tracks. In support of his case he produced the expert opinion testimony of a consulting professional engineer and the eyewitness accounts of Mr. and Mrs. Carlton who lived not far from the crossing and who had glanced at the train immediately prior to the collision. Based upon a measurement of the braking distance and the known weight of the train and its cargo, the expert witness offered the opinion that the train was travelling between 40 and 50 miles per hour at the time of the collision. This estimate was supported by the testimony of the Carltons, who further testified that they heard no whistle nor bell, nor recalled seeing a headlight on the train, before they heard the sound of the collision. Conflicting with such evidence was the testimony of various members of the train crew who testified that as the train approached the crossing its speed was between 20 and 30 miles per hour, the headlight was burning, the whistle blowing, and the bell ringing, both of these audible signals having been commenced at the whistle post north of the crossing. Two members of the train crew, who were in the engine on the left side, testified that they were keeping a lookout ahead and had seen appellant’s truck slowly approaching the crossing from the east, that the truck’s interior light was on enabling them to see appellant in the truck, and that he appeared to be looking at something in the truck. One of these witnesses testified that appellant first stopped at the crossing and then proceeded slowly across in the train’s path, while the other testified that appellant did not stop but continued at the same slow pace until struck. Both described the immediate application of emergency brakes the m.oment it became apparent that appellant was moving into the train’s path.

Of course, determining the credibility of the witnesses and the weight to be given to their testimony is properly a function of the trier of fact.2 When the sufficiency of the evidence is challenged on appeal, the appellate function is to determine if there is in the record substantial competent evidence which supports the finding made by the trier of fact3 and in doing this the evidence in the record, together with all inferences reasonably and fairly to be drawn therefrom, must be considered in the light most favorable to the prevailing party.4

Applying these principles, the only un-contradicted evidence of negligence on the part of the railroad is its failure to comply with the municipal ordinance requiring installation of automatic electric signal devices at the crossing, or as an alternative, to *462provide a manned crossing gate. However, if the court (as trier of fact) accepted as true the other evidence favorable to the defendant’s position, it could have concluded that the failure to have such signal device at the crossing was not a legal cause of the collision. Aside from the issue of the railroad’s negligence being a legal cause of the collision, we are led inescapably to the conclusion that the record contains substantial competent evidence, which (when viewed most favorably to the railroad as the prevailing party) supports the finding of contributory negligence on the part of appellant as a legal cause of the collision. It is an irrefutable physical fact that the train was approaching the crossing as appellant drove his vehicle slowly onto the tracks, and that the forward end of the train struck appellant’s vehicle broadside. If the trier of fact concluded that the train was being operated in the manner described by the train crew, ■ then appellant’s conduct in driving the vehicle directly into the path of the oncoming train could fairly be characterized by the trier of fact as negligence which was a legal cause of the collision.

 Appellant contends that any contributory negligence on his part should not bar a recovery because the railroad was guilty of wilful, wanton and reckless misconduct as to which contributory negligence is not a defense. This is a correct principle of law (see Johnson v. Rinesmith, Fla.App.1969, 238 So.2d 659, and authorities therein cited) but wholly inapplicable to. appellant’s case. This issue was not raised in the pleadings or presented to the trial court and in fact the case went to trial on the issue of defendant’s negligence and plaintiff’s contributory negligence. Furthermore, if the trier of fact concluded that plaintiff had not carried his burden to show the defendant guilty of ordinary negligence which was a legal cause of the collision, appellant necessarily failed to prove wilful, wanton and reckless misconduct on the part of the railroad.

Appellant having failed to carry his burden of demonstrating error, the judgment is affirmed.

Affirmed.

REED, C. J., and OWEN, J., concur.

McCAIN, DAVID L., Associate Judge, dissents, with opinion.

1

. Seaboard Airline Railroad Co. v. Williams, Fla.1967, 199 So.2d 469.

2

. Peterson v. Hancock, 1941, 146 Fla. 410, 1 So.2d 255, and cases cited therein; Povia v. Melvin, Fla.1953, 66 So.2d 494, and Commercial Credit Corporation v. Yarn, Fla.App.1959, 108 So.2d 638.

3

. Marcus v. Hull, 1939, 142 Fla. 306, 195 So. 170 and cases cited therein; Nelson v. State ex rel. Quigg, 1945, 156 Fla. 189, 23 So.2d 136, and cases cited therein; and Smith v. Biscayne Park Estates, Fla. 1949, 42 So.2d 442.

4

.Martin v. Tindell, Fla.1957, 98 So.2d 473; Commercial Credit Corporation v. Varn, Fla.App.1959, 108 So.2d 638; and Prince Michael Corp. v. Zucker, Fla.App. 1962, 147 So.2d 332.

McCAIN, DAVID L.,

Associate Judge, dissents, with opinion:

I must respectfully dissent from the majority herein.

The retrial below was conducted before a judge of the Palm Beach County Circuit Court sitting without a jury. Portions of the transcript of the first trial were admitted by stipulation of the litigants, and my treatment of the testimony and the evidence will be made without reference to whether it was stipulated, or appeared fresh in the retrial. The collision occurred within the city limits of West Palm Beach, Florida; all other pertinent facts appear in the body of my dissent. The litigants will be referred to as plaintiff and defendant, according to their status below.

At the outset, I am concerned with the language used by the Circuit Court in announcing its final judgment on retrial. In part, the Court stated:

“At this point, close of evidence, the Court became the trier of fact and occupied the position of a jury. It then became the Court’s function to weigh the evidence and determine its credibility. This has been done and the Court concludes that the greater weight of the evidence does not support the claim of the Plaintiff. The Court further concludes that the greater weight of the evidence does support Defendant’s defense of contributory negligence thus barring his claim under the present holding of the Supreme Court of Florida.”

*463A ruling that the plaintiff has failed to demonstrate negligence by a preponderance of the evidence is inconsistent with a ruling that an affirmative defense is deemed successful. A pleading of this defense constitutes an admission of negligence in the form of a confession and an avoidance. Not only is this so, but affirmative defenses are considered only when the greater weight of evidence supports the plaintiff; only then does it become appropriate to consider defenses so as to determine if the greater weight of the evidence supports the defense. Green v. Atlantic Co., Fla.1952, 61 So.2d 185; 23 Fla.Jur. Negligence § 110. I cannot construe the court’s finding to be in the alternative. If so, it would have been an easy matter to set forth.

If this inconsistency stood alone, I would consider simply remanding for further consideration. However, as this case is postured, it is evident to me that: (a) plaintiff has proved his case by a preponderance of the evidence; (b) the defendant did not meet its burden of proving contributory negligence by a preponderance of the evidence; (c) the actions of the defendant were sufficient under the totality of the circumstances to justify a characterization of “wilful, wanton, and reckless misconduct”.

The issue of plaintiff’s proof by a preponderance of the evidence is inherently discussed in connection with the last point regarding defendant’s misconduct, and therefore need not be treated separately. Accordingly, I first examine defendant’s burden of proving contributory negligence by a preponderance of the evidence. The doctrine of contributory negligence was again made applicable to railroad crossing cases when the Florida Supreme Court declared Fla.Stat. § 768.06 (1965), F.S.A., the railroad comparative negligence statute, unconstitutional in Georgia Southern & Florida Ry. Co. v. Seven-Up Bott. Co., Fla.1965, 175 So.2d 39. Sanders v. Florida East Coast Ry. Co., Fla.App.1968, 216 So. 2d 49; Seaboard Coastline R. Co. v. Scud-der, Fla.App.1968, 215 So.2d 760. Under this doctrine, the defendant must prove the defense by a preponderance of the evidence. C. W. Zaring & Co. v. Dennis, 1944, 155 Fla. 150, 19 So.2d 701. In speaking of this burden, the Florida Supreme Court said in Green v. Atlantic Co., supra, 61 So.2d at 186:

> “This Court is committed to the doctrine that the plea of contributory negligence not only admits negligence on the part of the defendant but places on him the burden of proving his plea. He must show that the plaintiff failed to exercise reasonable care for his safety or that he unduly exposed himself to danger and that his failure to do this was responsible for his injury . . .”

See also Nelson v. Ziegler, Fla.1956, 89 So.2d 780.

Here the only evidence presented by the railroad was, in effect, that plaintiff’s milk truck was hit on the tracks by a train that allegedly had its warning devices operating. On the other hand, plaintiff testified that he stopped at the crossing and proceeded only after he looked both ways. This was supported by a milk company supervisor, and another driver, who both testified that the condition of the approach to the crossing was known by all drivers to be uneven and bumpy; and further that they all knew that milk cartons would fall forward on the driver unless the crossing was approached with great caution. The train conductor testified that, as the train rounded a curve approaching the intersection, he saw plaintiff bring his truck to a halt before slowly moving on. A train fireman testified that plaintiff did not stop. Plaintiff also testified that he heard no horns or whistles, and saw no train lights. Additionally, Mr. and Mrs. James E. Carlton, a couple that had gotten up to feed farm animals at their home near the tracks, testified that they saw the train go by without noticing any warning signals or lights just before the collision. Members *464of the train crew, on the other hand, said that all lights and signals were operating.

With the admission of negligence inherent in the plea of the affirmative defense, the defendant bore the responsibility announced in *Green, supra,*of demonstrating by a *preponderance*of the evidence that plaintiff was contributorily negligent. I do not think the defendant has met that burden, especially in light of the other factors which I will now consider.

First, I note that § 40-1 (1962) of the West Palm Beach, Florida, City Traffic Code, in effect at the time of the accident, required defendant to install automatic electric signal devices at the crossing, or alternatively, to provide a manned crossing gate. Notwithstanding the fact that this ordinance was in effect since 1948, fifteen years before the accident, the only warning at the crossing was in the form of a wooden cross-buck. Failure to comply with an ordinance of this nature is evidence of negligence, and the familiarity of a plaintiff with the fact that the crossing exists is of no consequence. Jones v. Florida East Coast R. Co., Fla.App.1969, 220 So.2d 922. Had proper traffic signals been installed in accord with the traffic code, plaintiff would have been alerted to the onrushing train, no matter how fast it was approaching. See also St. Louis-San Francisco Railway Company and Howell H. Abrams v. Burlison and Rouse, Fla.App.1972, 262 So.2d 280.

Second, I further note that Chapter 40, § 40-2 (1962), West Palm Beach Municipal Ordinance, relating to the speed of trains and in effect at the time of the accident, established the lawful speed limit for trains over the crossing at 30 miles per hour maximum. Although the train engineer and the conductor estimated their speed coming around the curve to be between 20 and 30 miles per hour, a consulting engineer determined by measurement of braking marks that the train was traveling between 40 and 50 miles per hour at the time of the collision. This estimate is supported by testimony of Mr. and Mrs. Carlton, that the train was moving fast. Living by the rails and accustomed to train traffic and speeds, this couple’s disinterested description of the speed of the train just prior to collision is highly significant. Again, violation of an ordinance of this nature is evidence of negligence. Jones v. Florida East Coast R. Co., supra.

Of course, contributory negligence is a proper defense in those cases where the defendant’s negligence consists of the violation of an ordinance not designed to protect a class of persons from their inability to exercise self-protective care. Richardson v. Fountain, Fla.App.1963, 134 So.2d 709. But the negligence on the part of the defendant evident here goes beyond a simple violation of ordinances. The totality of the circumstances involved raises the conduct of the defendant to the level of*' wilful, wanton and reckless misconduct. Our jurisprudence has long recognized that a characterization of this nature can arise out of a composite of lesser circumstances taken in combination; see, e. g., Hodges v. Helm, Fla. 1969, 222 So.2d 418.

Let us examine the composite presented here. The collision occurred in predawn darkness at that point in time when night merges into daybreak. In that semi-darkness, plaintiff brought his truck to a stop and looked both ways, before proceeding slowly across the tracks. At that point, the train rounded a curve and came onto the crossing at an unlawful speed determined to be between 40 and 50 miles per hour, a determination supported by disinterested witnesses, notwithstanding contrary testimony by some of the members of the train crew. Though the road was known to be heavily traveled, no proper warning signals as required by law were *465stationed at the crossing. Taking together the limited visibility, the fact that the road was known to be heavily traveled, the fact that the approach to the crossing intersection was around a curve in the tracks, the fact that the train speed was excessive under prevailing conditions and under the controlling ordinance, and the fact that proper warning signals required by ordinance were disregarded, I find a composite evincing a wilful, wanton and reckless disregard for the safety of traffic, and particularly, for the safety of plaintiff. Even assuming that the train’s warning devices were operational, and disregarding testimony to the contrary, the speed of the train was sufficient to bring about a collision before plaintiff could have been aware of the presence of the onrushing train.

If plaintiff was negligent in any fashion, this negligence in no way contributed proximately to the cause of his own injury. See Nelson v. Ziegler, *supra.*Moreover, any issue of negligence on the part of plaintiff is removed from consideration under the facts of this case because contributory negligence is not a defense to wilful, wanton and reckless misconduct. Fla. Ry. Co. v. Dorsey, 1910, 59 Fla. 260, 52 So. 963; Fla. So. Ry. Co. v. Hirst, 1892, 30 Fla. 1, 11 So. 506; Johnson v. Rinesmith, Fla.App.1970, 238 So.2d 659 (on reh,).

In conclusion, I find that the trial court erred in finding that plaintiff did not meet the burden of proof required of him; that the trial court erred in finding that defendant had supported its affirmative defense with adequate proof; finally, that the trial court erred in not finding that defendant’s actions constituted wilful, wanton and reckless misconduct.

Accordingly, I would reverse the judgment appealed from and remand the cause for proceedings consistent with these views.