Anderson v. Crawford
Decision Date | 13 July 1933 |
Citation | 149 So. 656,111 Fla. 381 |
Parties | ANDERSON v. CRAWFORD et al. |
Court | Florida Supreme Court |
Rehearing Denied Sept. 18, 1933.
Error to Circuit Court, Osceola County; F. A. Smith, Judge.
Action by Lee Anderson against J. B. Crawford and another. Judgment for defendants, and plaintiff brings error.
Reversed.
COUNSEL G. P. Garrett, of Orlando, and O. S. Thacker of Kissimmee, for plaintiff in error.
Warren B. Parks and LeRoy B. Giles, both of Orlando, for defendants in error.
The plaintiff in error, Lee Anderson, was injured by a freight train of the Atlantic Coast Line Railroad Company at a railroad crossing in the city of Kissimmee at about 1 o'clock p. m. on September 30, 1930. Anderson was driving an automobile approaching the track of the railroad company from the west on Pennfield avenue. At that point the railroad track lies almost at right angles with the street, which runs east and west. The train was approaching the crossing from the south, and was running at about twenty miles an hour.
Anderson brought an action for damages for personal injuries and for damages to his automobile, which was practically demolished by the collision, against the railroad company and J. B Crawford, engineer in charge of the locomotive. The negligence attributed to the railroad company and Crawford by the plaintiff in his declaration was that the train was carelessly and negligently operated.
The defendant pleaded not guilty and that the plaintiff directly contributed to his injuries, in that he could by the exercise of due diligence have seen the approaching train for several hundred yards before he attempted to cross the track, but negligently drove his 'car' directly in front of the approaching train.
A motion to strike and a demurrer were interposed to the second plea. The court considered the plea insufficient as a plea in bar, but allowed it to stand as a plea in mitigation of damages.
There was a verdict for the defendant. A motion for a new trial was denied, and judgment entered for the defendant.
The plaintiff seeks to reverse the judgment on writ of error, the evidence of the issuing of which was supplied to this court by a supplement to the transcript a week after the transcript as originally made up was filed.
The plaintiff desired to proceed separately against the engineer Crawford, and the railroad company, and to that end moved the court for an order after the jury had been sworn in the cause, and counsel for plaintiff and defendant had made their opening statements to the jury. The motion was denied. There is no merit in the contention made by plaintiff in error in this behalf. Assuming that Crawford, the engineer of the railroad company in charge of the locomotive at the time of the accident, was a joint tortfeasor with the company, the plaintiff joined them in one action which was within his rights. The defendants interposed separate pleas, but they were identical in substance. The reason urged by the plaintiff in error for separate trials of the case is one which might have appealed to the defendants, but they waived it, and insisted upon a trial together, as they had been joined as defendants in one declaration.
There is no question that joint tortfeasors are separately as well as jointly liable, but in one action against them the plaintiff may take a judgment against some of the defendants or all of them. The plaintiff chose to join them in one action, and proceeded to the impaneling of the jury, swearing them to try the issues joined, and the statement to the jury of the case sought to be established against them. The argument advanced by the plaintiff in error is that a different rule of liability applied to Crawford from that which applied to the railroad company in the case, but, even if such were the case, and an agent of the railroad company could obtain deliverance by a rule that does not apply to his principal, it was an argument that Crawford may have urged to secure a severance, but not one to be urged by the plaintiff who joined them in one action and is privileged in that action to take a judgment against one or both defendants accordingly as the evidence and verdict might warrant.
Edward Newton, a witness for the plaintiff, was called. He is city manager of the city of Kissimmee. The plaintiff sought to prove by him the existence of a city ordinance applicable at the point where the accident occurred providing that 'no locomotive, car, or train of cars shall be run within the corporate limits at a greater speed than 6 miles and hour.' There was evidence that, at the time of the accident, which occurred within the corporate...
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