123 So. 920 | Fla. | 1929
Defendant in error recovered a judgment for $2,000.00 against plaintiff in error in an action for damages for personal injuries sustained in a collision between an automobile and a freight train at a railroad crossing in the town of Trilby. The automobile belonged to and was being operated by another person, but the plaintiff and such other person were together interested in the purchase of real estate and were on a trip to inspect a certain piece of land which they were considering the purchase of. But whether they were engaged in a joint enterprise or a joint venture, such as would operate to impute the negligence of the driver to the plaintiff, it is not absolutely necessary for us to decide. Aside from this question, we think that under the principles laid down in the case of S. A. L. Ry. Co. v. Watson, 113 So. R. 716,
The court overruled a demurrer to plaintiff's replication to one of defendant's pleas, but we think the replication was good to the plea as drafted, and that no reversible error in this respect appears.
While the driver of the car was undoubtedly guilty of negligence, in driving upon the crossing in front of the approaching train we cannot hold in this case, as was held in Egley v. S. A. L. Ry. Co.,
The train which ran into the automobile at the crossing was a regular schedule freight train, which, for some unexplained cause, was being operated with the engine behind the train, which consisted of eighteen cars, instead of at the front of the train as is usually done; thus depriving the engineer and fireman of adequate opportunity to keep a look out immediately ahead of the train. Nor was there any brakeman or flagman stationed at the end of the train of cars, which, in this case, was the front end; nor was this end of the train equipped with a whistle or other warning device, or an airbrake control, which could have been resorted to in just such an emergency. This, on the facts of this case, was negligence. See F. G.
P. R. Co.,
Affirmed.
WHITFIELD, STRUM AND BUFORD, J. J., concur.
TERRELL, C. J., AND ELLIS, J., not participating.