83 Fla. 470 | Fla. | 1922
The second amended declaration herein is as follows:
“Thomas L. Carter, as administrator of the estate of Walter L. Carter, deceased, of the County of Lake aforesaid, sues the J. Ray Arnold Lumber Company, a corporation organized and existing under the laws of Florida and having its principal place of business in said County of Lake, defendant, in a civil action for damages in the sum of ten thousand dollars:
“For that, on or about the 15th day of March, 1920, and for a long time prior thereto the defendant, under the corporate name of EDGE-DOWLING LUMBER COMPANY, was the owner and engaged in the operation of a railroad running from and through the County of Sumter, State of Florida, through said County of Lake to its lum
“Plaintiff further alleges that his said intestate, Walter L. Car*ter, left him surviving neither widow, nor child, nor any person dependent upon him for support; that plaintiff was duly appointed administrator of the estate of said Walter L. Darter, deceased, on the 30th day of June, 1920, by the County Judge of Sumter County aforesaid, in which county said deceased had his domicile at the time of his death; that at the time of his death said intestate was the owmer of a homestead and engaged in its care and cultivation as well as devoting a part of his time to other gainful occupations, the continuance of which would have benefited his estate; and that by virtue of the premises a cause of action against the defendant has accrued to the plaintiff, as such administrator, to recover damages, as by statute provided, for the negligent and wrongful killing of his intestate as hereinbefore alleged.
“Wherefore, plaintiff, as administrator as aforesaid,
A demurrer to the declaration was sustained and the' plaintiff “having announced his election to stand upon the second amended declaration and not to amend further,” final judgment for the defendant on the demurrer was rendered and the plaintiff took writ of error.
Actionable negligence arises where injury to one person is proximately caused by the failure of another to exercise such reasonable care and diligence as should have been exercised under the circumstances in view of the relation of the parties to each other at the time, and the complaining party is not guilty of such contributory negligence as bars recovery under the law applicable to the case. The use of a dangerous agency requires the exercise of care commensurate with the nature and uses of the agency and the conditions and circumstances under which it is operated or utilized.
In an action for a negligent injury, it may be necessary only to allege ultimate facts showing the relation of the parties and the circumstances out of which the duty to avoid negligence arises and the act or omission that proximately caused the injury, coupled with a statement that such negligent act was negligently done or omitted.
An ordinary log or tram road operated by a lumber company solely in transporting logs from the forest to a saw mill, is not within the provisions of the statute prescribing the liability of railroad companies for damage done to persons or property by the operation of trains. Ingram-Dekle Lumber Co. v. Geiger, 71 Fla. 390, 71 South. Rep. 552; Taylor v. Prairie Pebble Phosphate Co., 61 Fla. 455, 54 South. Rep. 904; Stearns & Culver Lumber Co. v.
At common law contributory negligence bars a recovery of damages for a negligent injury; and this rule has not been changed by statute except as to railroad companies and in favor of employees engaged in certain hazardous employments not including sawmill operations. Secs. 4964, 4965, 4966, 4971, 4972, 4973, Rev. Gen. Stats. 1920; Ingram-Dekle Lumber Co. v. Geiger, supra.
Contributory negligence being an affirmative defense, need not be negatived by the plaintiff; but if substantial contributory negligence appears in the case made by the plaintiff, he cannot recover in cases controlled by the common law. Ingram-Dekle Lumber Co. v. Geiger, supra; Warfield v. Hepburn, 62 Fla. 409, 57 South. Rep. 618; Louisville & N. R. Co. v. Yniestra, 21 Fla. 700; Louisville &. N. R. Co. v. Yarborough 61 Fla. 307, 54 South. Rep. 462; Wauchula Mfg. & Timber Co. v. Jackson, 70 Fla. 596, 70 South. Rep. 599; 29 Fla. 581; 73 Fla. 1155; 84 So., 733; 30 Florida 1.
If the decedent could have maintained the action for injury to him, had he survived the injury, the plaintiff administrator has a right of action. Secs. 4960, 4961, 4963, Rev. Gen. Stats. 1920; Jacksonville Electric Co. v. Bowden, 54 Fla. 461, 45 South. Rep. 755; Bowden v. Jacksonville Electric Co., 51 Fla. 152, 41 South. Rep. 400; Florida East Coast R. Co. v. Hayes, 67 Fla. 101, 64 South. Rep. 504.
While the log train of the defendant is not a railroad, it. is. operated ;by. rolling stock, motiv.es power and'road bed-
It is alleged that the defendant’s log road track on a trestle where decedent was killed “had been for many months used as a foot path as a way of necessity by the people of that vicinity, of whom decedent was one, and that the defendant well knew, or by the exercise of reasonable prudence and diligence should have known, of such necessity and of such use of its said truck and trestle as a foot-path by the public,” and that as defendant’s. ‘ ‘ said track approaches said trestle from the direction, in which said train was coming there is, and then was, a sharp curve which prevented a person on or near said trestle from realizing the near approach of cars;” that after dark a log train consisting of ten or more unloaded log cars and engine was being propelled backward by a steam engine attached to the rear “without any light at the front end of said train or any other precaution for' 'the purpose of warning persons so rising said track as a foot-path as aforesaid of the approach thereof” and that, while decedent was walking over the trestle, the defendant's said log train was without warning negligently and carelessly run upon, against and over decedent killing him. These allegations with others that are admitted by the demurrer show a want of reasonable care and diligence in the operation of the log train under the circumstances, and the allegations do not show contributory negligence, therefore, a cause of action is stated even if the decedent, was technically merely a licensee. The demurrer to the declaration should have been overruled. In the Yniestra case contributory negligence appeared in the evidence.
Reversed.