Bagdad Land & Lumber Co. v. Boyette

• Decision Date: 12 April 1932
• Citation: 140 So. 798,104 Fla. 699
• Court: Florida Supreme Court
• Parties: BAGDAD LAND & LUMBER CO. v. BOYETTE.

140 So. 798

104 Fla. 699

BAGDAD LAND & LUMBER CO. v. BOYETTE.

Florida Supreme Court

April 12, 1932

Commissioners' Decision.

Error to Circuit Court, Santa Rosa County; Thomas F. West, Judge.

Action by Jesse O. Boyette, in behalf of himself and his wife against the Bagdad Land & Lumber Company, a corporation. Judgment for plaintiffs, and defendant brings error.

Reversed.

See also, 138 So. 382.

COUNSEL Watson & Pasco & Brown and E. C. Maxwell, all of Pensacola, for plaintiff in error.

R. A McGeachy, of Milton, for defendants in error.

OPINION

MATHEWS C.

This is an action brought by Jesse O. Boyette, hereinafter referred to as the plaintiff, in behalf of himself and his wife against the Bagdad Land & Lumber Company, a corporation hereinafter referred to as the defendant, to recover damages under the statute, section 7049, Compiled General Laws of 1927, section 4962, Rev. Gen. St., for the death of their minor child claimed to have been caused by wrongful act of the defendant.

The declaration as amended contains eight counts. The first, second, fourth, fifth, and eighth counts allege that, while said minor child, an infant about three and one-half years old, was on defendant's railroad track, defendant negligently propelled its engine and cars over said track, and negligently failed to keep a proper lookout for said minor, and failed to use reasonable care in the operation of its train so as to avoid injuring said minor, and, after it discovered said minor in a perilous position near said track coming in the direction of, and coming upon, said track, negligently propelled said engine and cars over said track, and that, by means of said engine and cars so negligently operated, the defendant negligently ran its train upon said minor, crushing and mutilating him, and that on account of and as a result of said injury he afterward died.

To the first, second, fourth, fifth, and eighth counts, the defendant filed two pleas, first, the general issue, and, second, that the plaintiff and his wife were guilty of negligence which contributed to the injuries complained of by permitting their said minor child, not properly guarded, to loiter and go on and about defendant's railroad track on which engines and cars were habitually run and operated.

The third, sixth, and seventh counts of the declaration allege facts intended, and alleged, to show that at the time of the injury complained of the defendant was a railroad company so as to come within the meaning of the provisions of sections 7051 and 7052 of the Compiled General Laws, sections 4964, 4965, Rev. Gen. St.; and that, while said minor child was on the defendant's railroad track, the defendant negligently propelled its engine and cars over said track, and negligently failed to keep proper lookout for said minor, and by means of said engine and cars so negligently operated defendant negligently ran upon said minor child, crushing and mutilating him, on account whereof he thereafter died.

To said third, sixth, and seventh counts of the declaration, the defendant interposed eight pleas numbered 3, 4, 5, 6, 7, 8, 9, and 10. On motion of the plaintiff all the material parts of pleas numbered 5, 6, 9 and 10, except parts fully covered by other pleas, were stricken. This action of the lower court is assigned as error, but, on account of the conclusions reached, the error, if any, was harmless, and the correctness of the court's ruling will not be inquired into. The remaining pleas numbered 3, 4, 7, and 8, interposed to said third, sixth, and seventh counts, allege facts intended and alleged to show that at the time of and in respect to the alleged injury the defendant was not a railroad company within the meaning of sections 7051 and 7052, Compiled General Laws, and, in connection with those facts, set up the same defenses as were pleaded to the first, second, fourth, fifth, and eighth counts of the declaration, namely, the general issue and contributory negligence on the part of the parents of the deceased minor child.

A trial on the issues thus made up resulted in a verdict and judgment for the plaintiff, and, a motion for a new trial having been denied, a writ of error was sued out to this court.

There are numerous assignments of error, but the parties appeared to have agreed, and we think correctly, that there are five material questions presented by the assignments and the record, as follows:

(1) Was there sufficient evidence adduced to support the verdict for the plaintiff?

(2) Were the plaintiff and his wife guilty of negligence which contributed to the injury complained of?

(3) Was the verdict excessive?

(4) Was the defendant at the time of and in respect to the alleged cause of action a railroad company so as to come within the purview of the provisions of sections 7051 and 7052, Compiled General Laws?

(5) Was the evidence offered by the plaintiff and received by the court to the effect that the defendant did not maintain a fence around his home material or pertinent to the issues in the cause?

At the outset we are faced with the question of the sufficiency of the evidence, and, after careful examination of all the evidence, wa have reached the conclusion that there was no evidence sufficient to support the verdict, for the reason that it shows, we believe, that the death of the minor child was not caused by any fault or negligence of the defendant.

We consider that the following are the material facts established by the evidence as to the accident and the surrounding circumstances:

Before and at the time of the accident, the defendant was engaged in the sawmill business, having its plant and mill at Bagdad, and in connection with its business was operating a railroad which extended in a northerly direction from Bagdad to a village called Munson and beyond Munson into its logging camps, all of said places being in Santa Rosa county, Fla. At the time of the accident, the plaintiff was employed by the defendant to operate a pump used to supply water to the engines of defendant's trains, and was living, with his family, in a home consisting of two box cars joined together located near the pump house on the west side of said railroad track at a place just outside and north of Munson and about five hundred feet in a northwesterly direction from the point on said railroad track where the accident occurred. A neighbor lived across the track and about one hundred feet east of that point.

About half past 4 o'clock in the afternoon of June 6, 1929, the plaintiff's minor child, Jesse O. Boyette, Jr., then about three years and three months old, and his sister, a child five years old, left their parents' home, and were evidently going in a southeasterly direction along a beaten path or trail which ran from their home to and across a ditch by the side of said trailroad track and across the track to the neighbor's house on the east side thereof. On that afternoon, and just, prior to the time of the accident, the defendant was running one of its log trains from a point south of the place it occurred in a northerly direction along said railroad track and toward said place. Said train consisted of 'empties' being brought from defendant's mill at Bagdad to a logging camp to be reloaded, and was about one-quarter of a mile long, and at the time of the accident was...