58 Fla. 307 | Fla. | 1909
Writ of error from a judgment of the circuit court of Escambia County in favor of the defendant in error for $608.70 damages and interest, and $1.72 costs.
J. H. Willis, a practicing physician, sued the defendant company, alleging in substance in his declaration that in December, 1907, he was a passenger for hire on a train of said company, riding in a Pullman car; that he went into the toilet of the Pullman car to meet a call of nature, and when he started to leave said toilet the train being in motion, was so negligently and carelessly handled and run that it swayed violently from side to side, and lurched in an unusual and violent manner, and that the door of
The evidence of Dr. Willis sustains the allegations of his declaration. He says that the lurching of the train was so violent and unusual he was thrown as he was going through the door, his thumb was caught in the door as it slammed with violence, and he was caught by a gentleman in the smoker. It was done so quickly that he could hardly realize anything. His thumb was crushed, caused great suffering and pain for some months, and is permanently injured so as to interfere with its use in his profession, especially in obstetric cases. He says that he had ridden on trains before and had since that time, and has never experienced such a lurch as this one. He described in detail the injury to this thumb, and his sufferings from it. On cross-examination he says it is common for trains to lurch from side to side, but never experienced so violent a one as this; that he was standing up coming out of the toilet when the lurch occurred; that he made no specific complaint to the conductor; that there were persons in the smoker who rendered him assistance, and he was thinking more of his physical condition than of anything else; that he doesn’t know the speed of the train, but does not think it was unusual; that he does not know what happened to cause the sudden concussion; that he felt a shock as if putting on brakes, but that is supposition; felt as if the train was being checked; paid very little attention to the train after he was hurt; does not know whether the engineer did anything he ought not to have done, or not; does not know “whether it stopped
We are not impressed with any one of these assignments. The witness had stated once and again that he was hurt by the sudden unusual lurching of the train which caused the door to violently close upon his thumb, and that he did not cause the lurching of the train. Besides the questions were not in cross of anything he had ¡•■aid on his examination in chief for he had not undertaken to give any sort of reason for the lurching of the
The defendant introduced as a witness Mr. J. B. McGill, who was the conductor of the train on which the plaintiff was injured. He stated in substance that he had no independent recollection of the trip at all, but knew from his memorandum book that he was on that train; that no accident happened ando nothing unusual occurred as shown by his record; the engine ran badly and there was some delays on account of fuel; that it was not usual for the train to lurch so it will throw a man across the smoking compartment of the sleeper; that in case of bad weather the roadbed sometimes becomes soft, the track will sag a little and cause an unusual jerk. This witness does not testify, however, that such was the condition of the weather or track at the time Dr. Willis was injured.
The defendant also introduced Mr. B. L. Barclay, who was the engineer on the train on which plaintiff alleges he was injured. Speaking from his record he stated that no accident happened on that run that he knew of or had a record of; that the train was operated by him in the usual way he operated his engine; that there was no irregularity that he knew of; that nothing unusual happened in the running or operation of the engine that he has any record of; that he had no specific recollection of the trip at all.
Quite a number of assignments of error are based on particular words' or sentences of the trial judge’s charge to the jury. For instance, the 5th assignment is as follows: The court erred in instructing the jury that the plaintiff had alleged “that he was injured by the negligent running and operation of the train which caused it
The declaration charged that “the employees of the defendant company so negligently and carelessly handled cmd ran the same” &c., and did not confine the negligence to the mere running o,f the train in its narrow sense. The charge of the court, before using the language objected to, viz.: “the negligent operation and running of the defendant’s train,” &c., had several times stated the prima faoie liability created by statute from the occurrence of an injury caused by the running of the cars or machinery. The court evidently used the term operation as synonymous with the term running, for which he had the express authority of this court in the case of Louisville & N. R. Co. v. Jones, 45 Fla., 407, 34 South. Rep. 246; 6 words and phrases, 4990.
The sixth assignment is based on the following sentence in the trial judge’s charge, viz.: “The exact manner in which the accident occurred is set out in the declaration.” It is contended here that this was a charge on the facts. But it is perfectly apparent from what precedes this sentence and from what follows it that the trial judge had reference only to the allegations of the declaration. He informed the jury particularly that “If you find that the accident to the plaintiff occurred as alleged in the declaration and that the defendant company was negligent in and about the running of the train,” &c., thus leaving it entirely to the jury to find from the evidence whether the injury occurred as alleged in the declaration.
The seventh assignment is based on the use of the word operation, as in the fifth assignment.
The twelfth assignment of error challenges the following part of the trial judge’s charge: “The presumption of the statute is that if a person is injured by the running of cars or other machinery of a railroad, then the law creates the presumption that the injury was caused by the negligence of the railroad,” The objection is that this part of the charge did not confine the presumption of negligence to the specific negligence mentioned in the declaration, vis., the unusual lurching of the cars. Other portions of the charge made it appear clearly to the jury that the plaintiff must be shown to have been injured as alleged in the declaration, and we find here no reversible error.
The next assignment of error which is discussed is the fourteenth, based on the following language of the judge’s charge: “You cannot guess at the probable amount of damages, except as your opinion is made up from the testimony.” It is insisted that this language
The fifteenth assignment is based on the following language of the judge’s charge: “Then the plaintiff would still be entitled to recover, but his damages would be diminished or increased in the exact proportion that he was negligent.” The contention is that this language authorized the jury to increase the damages in proportion to the negligence of the plaintiff, and also that it was erroneous in using the word exact. The whole sentence from which the foregoing is taken is as follows: “If you find that the accident to the plaintiff occurred as alleged in the declaration, and that the defendant company was negligent in and about the running of the train, and that such negligence contributed to the injury, but you also find that the plaintiff himself was not in the exercise of due care at the time, that is, he was himself negligent, so as to contribute to the accident by his negligence, in other words, if the negligence of the railroad company and the negligence of the plaintiff both contributed to the accident, thus causing the injury, then the plaintiff
The seventeenth assignment of error questions the following passage of the judge’s charge: “That is if the defendant company and plaintiff were equally negligent then the plaintiff would be entitled to recover only for one-half his real damages, and just in proportion as the plaintiff contributed to the accident, if he did contribute to the accident, his damages must be reduced.”
The last quoted portion of the charge is attacked because it authorized a verdict for the plaintiff if he was equally negligent with the defendant. It is contended that the Georgia Supreme Court.in construing the statute in that State does not permit a recovery by the plaintiff if he is equally negligent with the railroad company. The case of Brunswick & W. R. Co. v. Wiggins, 113 Ga., 842, 39 S. E. Rep. 551, is cited as authority. Whatever be the rule in Georgia this court has placed a different construction on our statute. In the case of Florida Cent. &
The following instructions, given at the request of the plaintiff, are assigned as error:
“1 Where a plaintiff shows by evidence that he has sustained damage and injury by the running of the cars of a railroad company he is entitled to recover therefor against the company, unless the company makes it appear by a preponderance of the evidence or unless it should appear from the whole of the evidence that the injury was not due to 1he negligence of the agents of the company.”
“3. If after a consideration of all the evidence you find that plaintiff was injured and damaged as alleged by the running of the defendant’s train, but the evidence is equally balanced in your minds between negligence and freedom from negligence on the part of the defendant, your verdict must be for the plaintiff.”
The statute (Paragraph 3148 Gen. Stats, of 1906) is as follows: “A railroad company shall be liable for any damage done to persons, stock or other property by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employ or service of such company, unless the company shall make it appear that their agents have exercised
The brief contains a long and ingenious discussion of the weight of the prima facie case made by the Statute. It is contended that the presumption of the statute may be removed by evidence, “not conclusive in its effect, but sufficient in weight to neutralize the effect of the artificial proof or prima facie case of the plaintiff, and thereby he makes it appear that his agents have exercised all ordinary and reasonable care' and diligence,” and that the same “would be true if the evidence was conflicting, provided credible evidence extracted from the whole evidence was sufficient to neutralize the effect of the plaintiff’s artificial proof.” In this state of the case it is contended that the defendant “would be entitled to a verdict, because the burden of proof never shifts from the plaintiff, and where defendant’s evidence is sufficient to neutralize that produced by him, he has not sustained the burden which requires a preponderance, and therefore he loses.” We do not deem it necessary to go into a metaphysical discussion of the burden of proof under the statute. The Georgia Supreme Court seems to give their statute a construction the reverse of that contended for by the plaintiff in error. In Georgia Southern & F. R. Co. v. Young, 119 Ga., 513, 46 S. E. Rep. 644, it is held: “On the trial of an action for damages against a railroad company for the killing of live stock it is not error for the court to charge that the killing being admitted the defendant must to escape liability show by a preponderance of the evidence that at the time of the killing it was in the exercise of all ordinary and reasonable care and diligence.” We discover no reversible error under these assignments.
The twentieth assignment of error fails for the reasons given above.
The only other assignments argued in the brief of the
The judgment of the court below is affirmed.
Petition for rehearing in this case denied.