Atlantic Coast Line R. Co. v. Hendry
| Decision Date | 19 October 1933 |
| Citation | 150 So. 598,112 Fla. 391 |
| Parties | ATLANTIC COAST LINE R. CO. v. HENDRY. |
| Court | Florida Supreme Court |
Error to Circuit Court, Taylor County; H. W. Adams, Judge.
Action by W. B. Hendry against the Atlantic Coast Line Railroad Company. To review a judgment in favor of the plaintiff, the defendant brings error.
Affirmed on condition of remittitur.
COUNSEL J. L. Doggett, of Jacksonville, for plaintiff in error.
W. T Hendry, of Perry, for defendant in error.
In 1927 the plaintiff in error constructed its line of railroad from Monticello to Perry, Fla. A few miles north of Perry it bisected the farm of defendant in error, near which was a natural waterway known as Two Mile creek. To enable it to cross this creek, plaintiff in error constructed a fill for its roadbed in which it placed a four-foot culvert for the passage of the water. In the spring and summer of 1928 heavy rains overflowed the farm of defendant in error, destroying a large portion of his crop. This action was brought to recover damages for the loss of his crop, it being alleged that the overflow was caused from failure of plaintiff in error to place sufficient culverts or other openings in said fill to permit the passage of the water at flood periods. A jury was waived, and the cause was tried by the court on the plea of the general issue and on pleas alleging that the damages to defendant's crop were the sole and proximate result of the act of God. Final judgment was rendered for the plaintiff in the sum of $500, and this writ of error was taken to that judgment.
It is contended here that such damages as resulted to defendant's crop were solely from the act of God, that the judgment of the trial court was predicated on an incorrect measure of damages, that there was in fact no measure of damages on which the judgment could have been found, and that the judgment was predicated on evidence secured outside the record.
The defense of vis major may be sucessfully interposed in an action for damages resulting solely from an act of God; but if the defendant's negligence is a present contributing proximate cause, which, commingled with the act of God produces the injury, then the defendant is liable notwithstanding the act of God. Davis v. Ivey, 93 Fla. 387, 112 So. 264; Case note 29 L. R. A. (N. S.) 663; Case note 42 L. R. A. (N. S.) 709.
The burden is on the defendant who interposes the defense of vis major to show that the damages resulted solely from the act of God and that it contributed in no way thereto. The defendant failed to carry that burden in this case; besides there is...
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Florida East Coast Ry. Co. v. U.S.
...for only 33 years and it was proper for the trial court to consider that fact in arriving at its decision.53 Atlantic Coastline R. Co. v. Hendry, 112 Fla. 391, 150 So. 598 (1933). ...
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Wm. G. Roe & Company v. Armour & Company
...caused by the vis major or the defendant must bear the entire loss in accordance with the rule laid down in Atlantic Coast Line R. Co. v. Hendry (1933) 112 Fla. 391, 150 So. 598." Id., 370 F.2d at 831. (Emphasis On remand, the evidence on causation adduced at trial was reargued pursuant to ......
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Dworkis v. Dworkis
...have made himself a witness, unsworn and not cross-examined. Kovacs v. Szentes, 130 Conn., 229, 33 A.2d 124. Cf. Atlantic Coast Line R. Co. v. Hendry, 112 Fla. 391, 150 So. 598; Hammond v. Carlyon, Fla.1957, 96 So.2d 219. Disbelief of the denials by one party, of facts which must be proved ......
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Tarpley v. Hornyak
...evidence of record sufficient to support the judgment. See Hammond v. Carlyon, 96 So.2d 219, 222 (Fla.1957); Atlantic Coast Line R. Co. v. Hendry, 112 Fla. 391, 150 So. 598 (1933); Russell v. Bartlett, 139 So.2d 770, 774 (La.App.1961) (recognizing the general rule that although a judge may ......