64 Fla. 409 | Fla. | 1912
The plaintiff in error brought an action
The averment in one of the special pleas that defendant did not discover the peril of the plaintiff in time to avoid the accident is covered by the plea of not guilty. On the authority of Atlantic Coast Line Ry. v. Weir, 63 Fla. 69, 58 South. Rep. 641, the averments of the pleas as to the operation of the automobile on the public highway without a license for the machine or the chauffeur are not a defense to this action. The averment of a special plea that the operator of the machine by his negligence contributed to the plaintiff’s injury, is not in view of the statute, (Secs. 3148-9, Gen. Stats.) a full defense; and the allegations of the replication that the plaintiff was a passenger in the automobile and had no interest in or control over the automobile or the driver thereof, was a sufficient reply to the averments of the pleas that the
The negligence of a chauffeur in driving an automobile is not in general imputable to a person riding in the automobile, but having no authority or control over the machine or the driver. Dale v. Denver City T. Co., 178 Fed. Rep. 787, 19 Ann. Cas. 1223 and notes; Cotton v. Willmar & S. F. Ry. Co. 99 Minn. 366, 109 N. W. Rep. 835, 9 Ann. Cas. 935; Shultz v. Old Colony St. R. Co., 193 Mass. 309, 79 N. E. Rep. 873, 9 Ann. Cas. 402; Colorado & S. R. Co. v. Thomas, 33 Colo. 517, 81 Pac. Rep. 801, 3 Ann. Cas. 700; Little v. Hackett, 116 U. S. 366, 6 Sup. Ct Rep. 391. See also note to St. Louis & S. F. R. R. Co. v. McFall, 5 Ann. Cas. 163, and note in Christy v. Elliott, 1 L. R. A. (N. S.) 215.
The judgment is reversed.