Atlantic Coast Line R. Co. v. Webb

• Decision Date: 27 October 1933
• Citation: 150 So. 741,112 Fla. 449
• Parties: ATLANTIC COAST LINE R. CO. v. WEBB.
• Court: Florida Supreme Court

150 So. 741

112 Fla. 449

ATLANTIC COAST LINE R. CO. v. WEBB.

Florida Supreme Court, Division B.

October 27, 1933

Error to Circuit Court, Duval County; G. C. Gibbs, Judge.

Action by Cora Garrett Webb, as executrix of the estate of J. H Brown Scheuyeaulle, deceased, against the Atlantic Coast Line Railroad Company. To review a judgment in favor of the plaintiff, the defendant brings error.

Reversed and cause remanded for a new trial.

COUNSEL

W. E. Kay, J. L. Doggett, and J. L. Doggett, Jr. all of Jacksonville, for plaintiff in error.

Evan Evans and T. W. McIlvain, both of Jacksonville, for defendant in error.

OPINION

BROWN Justice.

This case was tried upon plaintiff's second amended declaration. It contained two counts alleging in substance that plaintiff was the executrix of the estate of J. H. Brown Scheuyeaulle, deceased; that said decedent left surviving no widow, child, or other person dependent upon him for support; that, while deceased was on August 12, 1927, upon the premises of defendant's passenger depot or station at Dover, Hillsborough county, Fla., for the purpose of taking passage on a passenger train then and there operated by defendant, the defendant carelessly and negligently propelled and ran said train against and upon said J. H. Brown Scheuyeaulle, whereby he was fatally injured and died on, to wit, August 15, 1927, by reason whereof the estate of said deceased was deprived of his prospective earnings, to the damage of plaintiff in the sum of $50,000.

The only plea interposed by the defendant was the plea of the general issue, not guilty.

The jury rendered a verdict for plaintiff for $2,500. Defendant filed a motion for new trial, which was denied, and writ of error was sued out to the judgment rendered on the verdict.

Plaintiff introduced four eyewitnesses, who testified to the manner in which the deceased was injured, and two witnesses as to the damage to his estate. At the close of the plaintiff's case, the defendant moved the court for a directed verdict in its behalf, which was denied. The defendant introduced no evidence.

The accident happened at Dover, a small station, near which station were located two stores. Dover is on defendant's main line, about sixteen miles from Tampa. The defendant had a small depot and platform at Dover, which station some of the witnesses testified was a flag station, at which trains stopped only when flagged. Whether defendant's officially published schedules showed Dover to be a flag station was not shown. It was testified that the defendant had an agent or operator there, whose duties were not clearly defined by the testimony, but he was not on duty at the time of the accident, that he usually closed his office or quit work about 5 o'clock in the afternoon, and that the train which struck the deceased came through Dover about on time, at 6:30 p. m.

It was good daylight, on a clear day, and the track in the direction from which the train was approaching was straight for about a mile.

The plaintiff's testator was some sixty odd years of age, in good health, vigorous and active for one of his age, and in the possession of all his faculties. From the time the approaching train came into sight about a mile away, he stood in the middle of the main track, opposite the depot, and about ten feet from the platform, facing and looking toward the train, and waving a large piece of paper, evidently endeavoring to flag the train down (and inferentially for the purpose of boarding the same as a passenger). He continued to stand in such place of danger, waving the paper and facing toward the train until just before the train struck him, when he turned toward the platform to get off the track, but he failed to get out of the way in time to avoid being hit by the train. He was struck by the side of the engine and thrown against the platform. The train, according to the various estimates of the witnesses, was coming at a speed of forty to fifty-five miles per hour, and never slackened its speed until the impact took place. Nor did the engineer blow the whistle or ring the bell; but undoubtedly the deceased saw the train, and hence did not need any signals merely to warn or apprise him of its approach. There was nothing to obstruct the engineer's view of the man standing in the middle of the track, nor was there anything to obstruct the latter's view of the approaching train. The train came to a stop about a quarter of a mile beyond the depot.

One witness testified that he had seen that train flagged before this occurence by persons who usually stood in about the same place where Mr. Scheuyeaulle was standing. Another witness testified in substance that there was nothing to prevent the engineer seeing a person flagging the train who was standing on the platform; that he had seen the depot agent flag from the platform and stop the train. The court then asked the witness this question: 'People then did flag from the platform, did they?' To which the witness replied: 'No sir; not all the time.' The court then asked: 'No, no, but sometimes?' And the witness answered: 'Yes, sir; I have seen the depot agent do that.' Then the witness continued: 'Yes, I have seen other people flag from out in the tracks where Mr. Scheuyeaulle was standing; I have seen them flag in the same place Mr. Scheuyeaulle was flagging. Yes, the train stopped when they flagged it. I have let it go by two or three times, and the mail went on by anyway--I don't know.'

The court charged the jury that the relationship of carrier and passenger existed between the decedent and the defendant, which required the defendant to exercise toward decedent care as far as human foresight could go; that is, the utmost care and diligence of very cautious persons.

The court charged the jury as to the meaning of negligence and proximate cause, and that the engineer and fireman in charge of a locomotive have the right to assume that an adult person whom they see upon or beside the track ahead of the approaching engine is in possession of his faculties, and that he will obey the instinctive law of self-preservation by getting off the track, if already on it, or that he will not get on it, if already off, following the rule laid down in Atlantic C. L. R. Co. v. Miller, 53 Fla. 246, 44 So. 247. The court also stated to the jury, without qualifications, the provisions of section 7051, Comp. Gen. Laws, sometimes referred to as the 'presumption of negligence statute,' and also the provisions of section 7052, Comp. Gen. Laws, as to diminishment of damages in proportion to the amount of default attributable to the plaintiff, where the plaintiff and the agents of the railroad company are both at fault.

But the court did not stop there. The court said: 'The defendant, not having made it appear that their agent exercised all ordinary and reasonable care and diligence, having introduced no testimony herein, the presumption of negligence is against the defendant. The Court charges you that under the evidence and the presumption aforesaid, the defendant is guilty of negligence, and you must find the defendant guilty and assess the plaintiff's damages in accordance with the instructions hereinafter stated. The undisputed evidence also shows that plaintiff's decedent was also negligent, and that his negligence proximately contributed to his death, and you will consider this in determining the amount of damages as hereinafter charged you.' In the concluding portion of the charge, the court said: 'Now, gentlemen, your verdict in this case should be for the plaintiff, as I have charged you before.'

Plaintiff in error contends that the court erred in charging the jury that the relationship of carrier and passenger existed, and in its language in charging the jury with reference to, and its construction that, section 7051, Comp. Gen. Laws, required a verdict against the defendant; and also in affirmatively instructing the jury in effect that as a matter of law the defendant was guilty of negligence proximately contributing to causing the decedent's injuries, and that they must find a verdict in favor of the plaintiff, thus taking from the jury the right to determine whether the evidence showed that the defendant was guilty of negligence, and, if so, whether such negligence was the proximate cause of the death of the decedent; plaintiff in error's contention being that under the testimony introduced the jury would have been justified in finding either that the defendant was free from negligence entirely, or that the negligence of the deceased was the sole proximate cause of the decedent's injuries; the defendant's negligence, if any, being merely a remote, and not a proximate, cause.

There is considerable discussion in the briefs as to whether or not the defendant's plea of not guilty amounted under rule 71 to an admission of the existence of the relationship of carrier and passenger. In this connection A. C. L. R. Co v. Crosby, 53 Fla. 400, 43 So. 318, is cited by defendant in error. But that is not the question here. The declaration did not expressly allege that such relationship existed. It did allege, however, that plaintiff's testator 'was upon the premises of defendant's passenger depot or station in said town of Dover for the purpose of taking passage as a passenger upon a passenger train then and there operated by the defendant,' etc. Whether this allegation was or was not admitted or denied by defendant's plea of the general issue is immaterial, for the evidence as to decedent's conduct was sufficient to afford a reasonable inference that this allegation was true. So for present purposes we will consider the facts thus alleged as proven. But this raises the question whether the facts thus alleged and proven show...