Atlantic Coast Line R. Co. v. Ivey

• Decision Date: 02 December 1941
• Parties: ATLANTIC COAST LINE R. CO. v. IVEY.
• Court: Florida Supreme Court

5 So.2d 244

148 Fla. 680

ATLANTIC COAST LINE R. CO. v. IVEY.

Florida Supreme Court

December 2, 1941

Rehearing Denied Jan. 8, 1942.

THOMAS and ADAMS, JJ., dissenting.

John B. Sutton, of Tampa, and Charles Cook Howell, of Jacksonville, for plaintiff in error.

Knight &amp Knight, of Jacksonville, for defendant in error.

BUFORD, Justice.

In a suit to collect damages under Sections 4586 et seq., R.G.S., 6669 et seq., C.G.L., resulting from the killing of a cow by the Railroad Company on the unfenced right-of-way of the railway the defendant railroad interposed a plea, viz:

'4 A. The defendant alleges the following facts and avers that upon and because of them the Florida Statutes upon which the Declaration herein is based (Sections 6669, 6670, 6671, 6672, 6673, and 6676 Compiled General Laws of Florida, 1927) are each unconstitutional as applied to the case stated by said Declaration, because said statutes severally deny to the Defendant the due process of law, and also the equal protection of the law guaranteed to the Defendant by Sections 1, 4 and 12, of the Declaration of Rights to the Constitution of the State of Florida, and by the 14th Amendment to the Constitution of the United States, in this to-wit:

'In the year 1899 when said statutes were passed, there were no paved highways in the State of Florida, no automobiles, no motor busses, no motor trucks, and substantially all the freight and passenger traffic into, in and out of the State of Florida was transported by railroads; today there are many thousands of paved highways in Florida, thousands of automobiles, and hundreds of motor busses and motor trucks carrying and transporting daily, besides their operators property of great value and thousands of passengers at rates of speed fairly comparable to, and in many instances exceeding, the rate of speed at which the Defendant operates its trains; much of said freight and passenger transportation is for hire and is in competition with the transportation of passengers and freight by the defendant and other railroad companies in the State, and at some seasons of the year more passengers in number are carried by said automobile, bus and truck transportation upon the paved highways of the State than by all the railroads operating within said State whatever of hazard, jeopardy or danger there now may be to property or to passengers on railroad trains from the failure to fence the railroad tracks, exists to an equal, and in many instances, to a greater degree in respect to the property and passengers carried in such automobiles, trucks busses; since the year 1889, the numbers of domestic livestock roaming at large in Florida have continuously decreased so that at all times mentioned in the Declaration herein approximately 70% of the domestic livestock in Florida does not did not roam at large, whereas in 1889 practically all domestic live stock in Florida did roam at large, by consequence of such changed conditions the burden placed by said statutes upon this Defendant as a railroad company has become is greatly disproportionate to the public good or benefit, an unreasonable expense on this Defendant; it has been many years since any property being carried by a railroad train in Florida has been damaged, injured or destroyed, or any persons being so carried killed or injured, as a result of a collision between a railroad train domestic live stock; but injury to death of persons being carried in automobiles trucks upon the public highways of the State resulting in collisions between motor driven vehicles domestic live stock are a matter of almost daily occurrence, in each of the years 1937, 1938 1939, from 20 to 25 persons were so killed; the changed economic, transportation, safety conditions respecting the carriage of passengers property their protection from roaming domestic live stock while being carried, as hereinabove alleged, render it unfair, unjust inequitable to require this Defendant as a railroad company to fence its tracks, for the protection safety of the traveling public their property, against such live stock roaming at large, without making a similar fencing requirement of the owners of automobiles, trucks buses carrying passengers upon the unfenced public highways of the State upon which said vehicles operate; there is no longer any reasonable basis for such classification as said statutes make of railroads required to comply with said statutes, as compared with the aforesaid other methods of transportation under the facts circumstances hereinabove alleged; such classification, on account of the aforesaid changes in property passenger transportation since the year 1889, has become is now arbitrary, unreasonable unjust, such classification deprives the defendant as a railroad company of the equal protection of the law on the subjects covered by said statutes which is enjoyed by the owners of automobiles, busses trucks engaged, as aforesaid, in the property passenger transportation business, deprives the defendant as a railroad company of its property without due process of law.', together with the additional plea, viz:

'4-B. The defendant here alleges every fact alleged in its plea numbered 4-A and says further; The paved highways aforesaid are public highways of the State of Florida, built, constructed, kept in repair and maintained by taxation, and are not themselves taxed or subject to taxation. On the contrary, the railroad tracks aforesaid and the rights-of-way upon which they are laid are built, constructed, kept in repair and maintained by private corporations; they are subject to taxation, and are taxed by the State of Florida and divers of its governmental agencies.'

Demurrers to the pleas were sustained and, on the trial, judgment was for plaintiff including double damages and attorney's fees. Defendant took writ of error.

The sole question which we are asked to determine is whether or not the application of the said statutes under conditions obtaining by reason of the adoption of modern methods of transportation by common carriers of freight and passengers which have come to exist in both interstate and intra-state transportation and commerce, violate the equal protection guarantee of the State and Federal Constitutions.

It stands adjudicated that the purpose of the statutes, supra, is the protection against accidents to life and property in conducting public transportation and that such statutes are in the exercise of the police power. See Jacksonville, etc., Ry. Co. v. Prior, 34 Fla. 271, 15 So. 760, 764; Atlantic C. L. R. Co. v. Perry, 69 Fla. 133, 67 So. 639.

It cannot be questioned that those transportation companies engaged as common carriers on the public roads and those so engaged on their privately owned roads such as railroad companies, owe like duties to the public and are under like obligations for the protection against accidents to life and property in conducting such business.

The pleas allege, and the demurrers admit, that the hazard of accidents to life and property by reason of cattle straying onto the line of traffic of motor driven vehicles on the public road is greater than that so arising by cattle straying onto the line of traffic of the railroad carrier.

The courts will take judicial notice of the fact, which is generally known that there was no such thing as motor carriers engaged in common carriage on the public roads when these statutes were enacted in 1889. ...