79 Fla. 589 | Fla. | 1920
Lead Opinion
The husband' of defendant in error, hereinafter for convenience referred to as plaintiff, was killed by the plaintiff in error railroad company, referred to herein as defendant, in the operation of a train upon its railroad. Suit was brought by plaintiff and upon a trial of the cause she was awarded damages against defendant in 'a substantial amount. From the judgment entered upon the verdict defendant took writ of error.
There are several assignments of error, but the questions argued and the decisive questions in the case are, whether the declaration is good Us against the demurrer and whether or not the verdict of the jury is supported by the evidence.
The declaration, omiting formal parts, is as follows: “That during the month of April, 1917, and' during each day thereof, the defendant was in possession of and was managing and operating, and was during said period and still is responsible for the proper operation and management of a system of railway in the State of Florida and County of Levy, operated and managed by it.
“That J. M. Good, now deceased, was, on the 20th day of April, 1917, the husband of plaintiff; that J. M. Good, deceased, left surviving him, besides the plaintiff, his widow, a minor child the age to-wit, sixteen years respectively ; that on said 20th day of April, 1917, at about the hour of one o’clock p. m. decedent, J. M. Good in the usual course of passage and travel, was driving his auto
The legal sufficiency of this declaration was challenged by a demurrer, the grounds of which are (1) that no venue is laid in the declaration; (2) that the declaration does not show jurisdiction by the court of the cause of action; (3) that plaintiff cannot recover damages for the minor-child of the deceased; (4) that plaintiff does not allege; want of negligence on the part of the deceased; and (5) that the declaration does not show that the negligence of the defendant was the proximate cause of the injury.,. Upon a hearing this demurrer was overruled and denied and' an exception taken. There was a motion of defendant to require plaintiff to reform and amend her declaration. Upon a hearing on this motion plaintiff asked leave to amend by striking out the allegation in the-declaration referring to the minor child. This motion
In Consumers Electric Light & Street Ry. Co. v. Pryor, 44 Fla. 354, 32 South. Rep. 797, this court stated the rule for testing the legal sufficiency of a declaration in this class of cases as follows: “The rule established by this court, in actions where negligence is the basis of recovery, is that it is not necessary for the declaration to set out the facts constituting the negligence, but an allegation of sufficient acts' causing the injury, coupled with an averment that they were negligently and carelessly done, will be sufficient.” See also Jacksonville Electric Co. v. Schmetzer, 53 Fla. 370, 43 South. Rep. 85; S. A. L. Ry. Co. v. Rentz, et al., 60 Fla. 429, 54 South. Rep. 13; Fla. E. C. Ry. Co. v. Knowles, 68 Fla. 400, 67 South. Rep. 122; Aultman v. S. A. L. Ry. Co., 71 Fla. 276, 71 South. Rep. 283; in which this rule was applied' by this court.
Contributory negligence in 'an action of tort is a defense which should be pleaded by the defendant and proved by him unless it appears from the allegations and proof of plaintiff, and it is not necessary for plaintiff to negative by his declaration the existence of contributory negligence. A. C. L. Ry. Co. v. McCormick,
Taking the declaration as a whole, the Venue and the jurisdiction of the cause of action sufficiently appear and, tested by the foregoing well settled rules, the declaration is good as against the demurrer and motiom to-reform and amend.
The question of the sufficiency of the evidence to support the verdict wad raised by a mqtiori. for a directed verdict and a motion for a new trial, both of which were denied.
The public highway upqfi which 'deceased' met his death runs east and west through the town of Ealeigh, crossing practically at right angles the railroad tracks of the defendant which run north and south through said town. In attempting to drive his automobile across the railroad tracks of defendant at such crossing the deceased was struck by a moving train of defendant and seriously injured, from the effect of which he died a few hours later.
As to all the material questions of fact involved there is conflict in the evidence. The deceased was a practicing physician. His home was in Williston, ten miles approxmately from where he was killed. He had been called to the town of Ealeigh to visit a patient. After the visit he went into a store and spent a fe;w minutes there, came out and entered his automobile, which was -standing on the ea-st side of the railroad but south of a building, at a point from which a train of-defendant approaching from the north could not have been seen. He started his automobile and approached the crossing from the
There is evidence on behalf of plaintiff to the effect that in approaching this crossing from where the automobile of the deceased was started the view to the north was obstructed and obscured by buildings, trees and fences so that an approaching train from the north could not be seen until one had reached a point near the crossing. There is also some evidence that another train was approaching on the side track from the south; that this train was nearby and within the view of deceased; that he was observing this north-bound train and his attention was attracted by it in that direction and away from the train going south which collided with his automobile and killed him; that a wagon driven by a boy was approaching the crossing from the opposite direction, meeting the deceased upon the crossing, and the care necessary to be observed by him in passing this vehicle also arrested his attention and directed it away from the train approaching from the north; that the train which struck and killed deceased gave no notice of its approach; that the whistle was not blown, the bell was not rung and no alarm or warning of any kind was given of its approach.
There'is substantial evidence in the record sufficient to support a verdict for plaintiff. It is contradicted in some respects and as to material and essential facts, but conflicts in evidence are primarily jury questions. There is evidence also in support of defendant’s plea of contributory negligence, if it may be so regarded, but the conflict in the evidence on this feature of the case was decided by the jury adversely to defendant and the
Applying this rule to the recited' fácts the conclusion necessarily is that the judgment should not be disturbed by this court.
There were no harmful errors, of procedure. The judgment is therefore affirmed.
Concurrence Opinion
Concurring. — The action is for damages for the wrongful death of plaintiff’s husband alleged to have been caused at a street crossing by the careless and negligent running of the defendant railroad
A fatal injury to the plaintiff’s husband “by running” of the train of the defendant “railroad company,” having been shown under appropriate allegations, it' was incumbent upon the “company to make it appear that” its employees “exercised all ordinary and reasonable care and diligence” to avoid the injury. If there was any appreciable negligence on- the part of the defendant’s employees within the allegations of the declaration, that proximately contributed to the injury complained of, the defendant is liable apportionately for “any damage done.” Secs. 3148, 3149, Gen. Stats., 1906; Atlantic Coast Line R. Co. v. Pipkin, 64 Fla. 24, 59 South. Rep. 564.
If an employee of the defendant company and the plaintiff’s decedent were “both at fault” in causing the injury, the plaintiff “may recover; but the damages shall be diminished” in proportion as the negligence attributable to the defendant company bears to the entire damage sustained. See. 3149, Gen. Stats., 1906; Norfolk & W. R. Co. v. Earnest, 229 U. S. 114, 33 Sup. Ct. Rep. 654; Seaboard Air Line Ry. v. Tilghman, 237 U. S. 499, 35 Sup. Ct. Rep. 653; Atlantic Coast Line R. Co. v. Weir, 63 Fla. 69, 58 South. Rep. 641; Florida R. Co. v. Sturkey, 56 Fla. 196, 48 South. Rep. 34.
Conflicts in the testimony, and the credibility of witnesses as to the essential facts affecting defendant’s liability under .the law, were determined by the jury in rendering a verdict of liability which has substantial evidentiary support,, and there is nothing to indicate that the jury were not governed by the evidence and the law stated in the charges of the court, that were fair and not clearly erroneous as applied to the evidence under the issues.
This ease in some essential features is quite unlike the cases of Atlantic Coast Line R. Co. v. Miller, 53 Fla. 246, 44 South. Rep. 247; Seaboard Air Line Ry. v. Tomberlin, 70 Fla. 435, 70 South. Rep. 437; Seaboard Air Line Ry. v. Smith, 53 Fla. 375, 43. South. Rep. 235; Tampa Electric Co. v. Bourquardez, 72 Fla. 161, 72 South. Rep. 668; Live Oak, P. & G. R. Co. v. Miller, 72 Fla. 8, 72 South. Rep. 283; Seaboard Air Line R. Co. v. Barwick, 51 Fla. 304, 41 South. Rep. 70; Louisville & N. R. Co. v. Padgett, 71 Fla. 90, 70 South. Rep. 998.
The judgment should not be reversed or a new trial granted in any case, civil or criminal, for errors in rulings upon the admission or rejection of evidence or for errors in giving or refusing charges, or for errors in any other matter of procedure or practicó, unless it shall appear to the court from a consideration of the entire cause that such érrors injuriously affect the substantial rights of the complaining party. Nor should a judgment be reversed or a new trial granted on the ground that the verditc is not sustained by the evidence, unless it appears that’ there was no substantial evidence to support the finding or that upon the whole evidence the verdict is clearly wrong- or that the jury were not governed by the evidence in making their finding. Welles v. Bryant, 68 Fla. 113, 66 South. Rep. 562. See also Peacock v. Our Home Life Ins. Co., 73 Fla. 1207, 75 South. Rep. 799; City of Jacksonville, v. Glover, 69 Fla. 701, 69 South. Rep. 20.