Atlantic Coast Line R. Co. v. Jones
| Decision Date | 25 September 1929 |
| Citation | 98 Fla. 470,123 So. 920 |
| Parties | ATLANTIC COAST LINE R. CO. v. JONES. |
| Court | Florida Supreme Court |
Error to Circuit Court, Pasco County; J. C. B. Koonce, Judge.
Action by Benjamin W. Jones against the Atlantic Coast Line Railroad Company. Judgemnt for plaintiff, and defendant brings error.
Affirmed.
Syllabus by the Court
Evidence held not to require holding as matter of law that automobile driver's negligence was sole proximate cause of collision with train operated by pusher engine. Evidence that freight train was pushed over crossing with engine at rear of train and that brakeman at front end had no whistle, warning device, or air brake control, held not to warrant holding as matter of law that negligence of driver of car was sole proximate cause of collision between automobile and train.
Evidence of negligence in pushing train with engine at rear held to warrant verdict for automobile passenger for collision injuries. Evidence that train was pushed over crossing by engine at rear of train and that front end brakeman had no whistle, warning device, or air brake control for use in emergency, held to sustain verdict for owner of auto mobile driven by another for injuries suffered in collision with train.
Kelly & Shaw, of Tampa, for plaintiff in error.
Hampton Bull & Pencke, of Tampa, for defendant in error.
Defendant in error recovered a judgment for $2,000 against plaintiff in error in an action for damages for personal injuries sustained in a collision between an automobile and a freight train at a railroad crossing in the town of Trilby. The automobile belonged to and was being operated by another person, but the plaintiff and such other person were together interested in the purchase of real estate and were on a trip to inspect a certain piece of land which they were considering the purchase of. But whether they were engaged in a joint enterprise or a joint venture, such as would operate to impute the negligence of the driver to the plaintiff, it is not absolutely necessary for us to decide. Aside from this question, we think that, under the principles laid down in the case of Seaboard Air Line Ry. Co. v. Watson, 94 Fla. 571, 113 So. 716, the jury, on the evidence in this case, might well have concluded that the plaintiff was not absolved from all personal care and responsibility for his own safety, but was under the duty of exercising reasonable or ordinary care and diligence to avoid injury and to notify the driver when he was about to run into apparent danger, and that in this respect plaintiff failed in his duty and was himself guilty of negligence which proximately contributed to the causation of his injuries. No doubt the jury reached this conclusion and diminished the amount of damages accordingly.
The court overruled a demurrer to plaintiff's replication to one of defendant's pleas, but we think, the replication was good to the plea as drafted, and that no reversible error in this respect appears.
While the driver of the car was undoubtedly guilty of negligence in driving upon the crossing in front of the approaching train, we cannot hold in this case, as was held in Egley v. S. A. L. Ry. Co., 84 Fla. 147, 93 So 170, and Atlantic Coast Line R. Co. v. Gornto, 89 Fla. 97, 103 So. 117, that such negligence, under the peculiar circumstances of this case, was the sole proximate cause of the collision and resulting injury. Per contra, the evidence clearly shows negligence on the part of the defendant railway company which the jury might well have found, as they apparently did, proximately...
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