Atlantic Coast Line R. Co. v. Perry

• Decision Date: 09 February 1915
• Citation: 67 So. 639,69 Fla. 133
• Parties: ATLANTIC COAST LINE R. CO. v. PERRY.
• Court: Florida Supreme Court

67 So. 639

69 Fla. 133

ATLANTIC COAST LINE R. CO. v. PERRY.

Florida Supreme Court

February 9, 1915

Error to Circuit Court, Columbia County; M. F. Horne, Judge.

Action by J. W. Perry against the Atlantic Coast Line Railroad Company, a corporation. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

The statute requiring railroad companies to fence their right of way making no exception for way stations, and it appearing that at the place where the animal was killed is the open country, without building, platform, or side track, but that the trains stopped near the point when flagged, and that the track was unfenced in that vicinity, an exception to the statute ex necessitate did not exist as matter of law, and a finding by the jury against such theory will not be disturbed.

When a railroad company denies liability, and the owner of an animal killed in violation of a statute requiring such company to fence its right of way is compelled to bring his action to recover any damages, he is entitled to a reasonable attorney's fee, even though the jury fix the value of the animal at a reduction from the value claimed both in the preliminary demand and in the declaration.

COUNSEL J. L. Doggett, of Jacksonville, and J. B Hodges, of Lake City, for plaintiff in error.

A. J Henry, of Lake City, for defendant in error.

OPINION

COCKRELL J.

B. H Johnson recovered judgment against the railroad company for the value of a mule killed, together with an attorney's fee of $50. He died soon after the entry of the judgment, and the cause was revived in the name of the sheriff of Columbia county, who was appointed administrator ex officio.

We shall not undertake to follow the various ramifications of the pleadings. Johnson declared upon the statute giving damages for the killing of live stock when the railroad company has failed to fence its tracks. Outside the constitutional question hereafter discussed, the defense relied upon was and is that the killing took place within the station grounds, an exception to the operation of the statute alleged to exist ex necessitate.

It appears that the mule got upon the railroad tracks at a place called Cornell, and that this was a way station where trains stopped if flagged. There were no buildings used by the public, nor even a platform, and no side tracks or spurs. A public road crossed the railroad tracks near where the accident occurred, and the trains when flagged stopped near there. Exactly how near we are not definitely advised, though one witness for the defendant company testified that the distance where he was tole the train usually stopped, and where he was told the accident occurred,...