Toundas not guilty of careless driving following train collision

Submitted by Susan Hardee Steger

Is it a street or a highway? That question was the crux of the matter as Patricia Toundas appeared before Nassau County Judge Wesley Poole on March 21, 2014, to challenge a careless driving charge by the City of Fernandina Beach Police after a train struck a vehicle driven by Toundas. Following questions to various witnesses, Judge Poole ruled, “not guilty.”

• The Florida Statute that pertains to careless driving states:

“Any person operating a vehicle upon the streets or highways within the state shall drive the same in a careful and prudent manner, having regard for the width, grade, curves, corners, traffic, and all other attendant circumstances, so as not to endanger the life, limb or property of any person.  Failure to drive in such manner shall constitute careless driving and violation of this section.”

• Prior to the collision on January 13, 2014, Toundas  parked her vehicle on the railroad track in order to unload supplies for her restaurant. Although parking on railroad tracks is prohibited under Florida Statute (316.1925), Toundas was not charged with this offense.

• At the beginning of the proceedings, Judge Poole disclosed that he had represented Toundas in the past as an attorney before becoming Nassau County Judge.  Judge Poole asked Toundas if she wished  him to recuse himself from the case.  Toundas raised no objections to Poole’s hearing the case.

John Cascone, attorney representing Toundas began by requesting a  motion to dismiss based on the Florida Statue.   He said witness statements “refer to the car being parked on or driven across the railroad tracks well off the roadway on North Front Street.” Judge Poole took the motion under advisement,  and testimony began.

Fernandina Beach Police Officer Jim Carey who responded to the accident and issued the careless driving citation was called to the testify.  Poole asked, “Is that [property west of Duryee Building] a public road or drive?” Carey responded, “To my knowledge it is public . . .”  Cascone advised the court that the property in question “is private property until declared otherwise by the court in Nassau County.”  The City of Fernandina Beach and Toundas are involved in a long standing dispute over the property west of the Duryee building located at Centre and North Front Streets.

Testimony of Witnesses

Mr. John Day, train engineer, testified he first observed the vehicle on the railroad tracks when he was 650 feet away and the train began to slow “almost to a stop.” He saw Toundas attempt to move her vehicle. Admitting  visibility limitations, Day slowly increased the train’s speed after assuming the vehicle was off the tracks. Day then attempted to stop when alerted by the train’s conductor that the vehicle was still an obstruction.

In support of Cascone’s motion to dismiss, Day stated he first saw the vehicle when it was parked on  the railroad tracks, and he never saw the vehicle on the roadway [Front Street].

The second witness, First Coast Rail Conductor David Kirk, observed Toundas’ vehicle on the track.  “Her vehicle parked on the track is usually a daily occurrence,” said Kirk.  The train was preparing to stop to request Toundas move her vehicle, but the train continued forward because Toundas entered her vehicle and began moving off the tracks. About 40 or 50 feet from the vehicle, Kirk alerted the train’s engineer that the vehicle had not cleared the tracks.  When asked by Judge Poole if Kirk observed  the vehicle on Front Street or Centre Street, Kirk answered no.

Witness Wayne Connor, stated he was in the vicinity of Front and Centre Streets at the time of the accident. Connor observed Toundas move her vehicle.  He did not observe the train making an effort to slow down or stop.  He did hear the train’s horn, but it was a “pretty good ways down the track.”

The Verdict

Judge Poole determined that based on the evidence, there is no indication the vehicle was being operated on a street or highway in the day in question and thus handed down the not guilty verdict.

Previously reported in the Fernandina Observer

“On January 13, 2014,  Patricia I. Toundas, owner of the Duryee Building and the Marina Restaurant, parked on the railroad track to unload her vehicle. According to the trafffic accident report, Toundas was inside the restaurant when a customer alerted her of the approaching train.  She attempted to move her vehicle.

Both the train conductor and engineer reported Toundas moved west toward Front Street and then turned east toward a parking area behind the restaurant.  Her vehicle came to a stop in front of a telephone pole and was unable to clear the tracks.”

March 24, 2014 1:00 a.m.