Sea Board Air Line Ry. Co. v. Watson
| Decision Date | 01 August 1927 |
| Citation | 113 So. 716,94 Fla. 571 |
| Parties | SEA BOARD AIR LINE RY. CO. v. WATSON. |
| Court | Florida Supreme Court |
Error to Circuit Court, Leon County; E. C. Love, Judge.
Action by Gertrude M. Watson against the Sea Board Air Line Railway Company. Judgment for plaintiff, and defendant brings error.
Affirmed on condition of a remittitur.
Syllabus by the Court
Striking pleas denying thoroughfare where collision with train occurred was public street held harmless, in view of evidence. Where in an action for personal injuries the declaration alleged that the injury resulted from the collision of an automobile with a train at a point where the railway tracks of the defendant were intersected by a public street, and the evidence tended to show that the thoroughfare in question was and had been for some time used as a public street and that heavy traffic passed over it constantly, with the knowledge and acquiescence of the defendant, the error if any, of the court in striking pleas denying that the thoroughfare in question was a public street, will be considered as error without injury, although there was no evidence introduced by either party as to whether the thoroughfare in question had ever been opened and established in due form of law as a public street.
Party cannot justify or excuse inherently negligent act by proving he was customarily negligent in performing same or similar acts. If a party's act is inherently negligent, he cannot justify or excuse it by proving that he was customarily negligent in the performance of the same or similar acts.
Where method alleged negligent is not clearly and inherently dangerous, evidence of general custom of others in same business is admissible. In cases where the method used by the defendant and alleged to constitute negligence is not clearly and inherently dangerous, it is proper to admit evidence of the general custom of others engaged in the same kind of business or occupation as to the particular method under investigation for whatever light it may throw upon the question as to whether or not the method used was negligent under the circumstances of the particular case, not as being conclusive of the question, but as relevant evidence for the consideration of the jury.
What is usually done by those engaged in same business is relevant to what ordinarily prudent person would do under circumstances what should be done is to be determined by standard of reasonable prudence, whether usually complied with or not. There is a reasonable basis in most cases for the contention that what is ordinarily and usually done by men generally engaged in the same work or business has some relevancy to the inquiry as to what an ordinarily prudent person would do under the same circumstances. What usually is done may be evidence of what ought to be done, but what ought to be done is ultimately to be determined by a standard of reasonable prudence, whether usually complied with or not.
Federal Safety Appliance Act and Interstate Commerce Commission's rules concerning air brakes do not generally apply to switching operations (U. S. Comp. St. §§ 8605-8623). The federal Satety Appliance Act (U. S. Comp. St. §§ 8605-8623) and the rules of the Interstate Commerce Commission pursuant thereto relating to the use of air brakes on trains, is not construed to apply, as a general rule, to ordinary switching operations in railroad yards.
Contributory negligence of husband driving automobile on railroad corssing held not imputable to wife riding. In an action by the wife for personal injuries sustained by her on a railroad crossing, the contributory negligence, if any, on the part of plaintiff's husband, who was driving the automobile in which plaintiff was riding, could not be imputed to plaintiff, who was riding, could not seat of the automobile, she being so occupied and situated at the time as not to be able to observe the highway ahead. The mere existence of the marital relation does not have the effect of imputing to the wife the negligence of the husband.
Automobile passenger in position to keep lookout should exercise reasonable care to avoid injury and to notify driver of danger. A person riding in an automobile driven by another and in a position to keep a lookout ahead, even though under such circumstances as not to be chargeable with the driver's negligence, is not absolved from all personal care and responsibility for his own safety, but is under the duty of exercising reasonable or ordinary care and diligence to avoid injury and to notify the driver when he is about to run into apparent danger.
If negligence of husband driving automobile was sole proximate cause of collision, wife could not recover against railroad company. Although the plaintiff wife is not under the evidence chargeable with the negligence of her husband in driving an automobile upon a railroad track in front of an approaching train, yet if this negligence on his part was the sole proximate cause of the collision and resulting injury, the plaintiff would have no right to recover against the defendant railway company.
Wife, injured through concurring negligence of husband driving automobile and railroad, may recover against railroad. Where in an action by the wife for personal injuries sustained by her against a railway compay, it appears that her injuries were proximately caused by the concurring negligence of the defendant railway company and that of her husband, who was driving the automobile in which she was riding, a recovery by the plaintiff wife against the railway company will be sustained.
There may be concurrent causes of single injury, but if two distinct causes are successive and unrelated, they are not concurrent. It is negligence which proximately causes or contributes to causing an injury or damage which creates legal liability. There may be concurrent causes of a single injury which, operating contemporaneously, together constitute the efficient proximate cause of the injury inflicted, and without either one of which the harm would not have been done. But if two distinct causes are successive and unrelated in their operation, they cannot be concurrent. One would be proximate and the other the remote cause.
Whether wife's injury was caused by concurrent negligence of railroad and husband driving automobile, or by his negligence, held for jury. Whether the defendant was guilty of negligence proximately causing or contributing with the negligence of the husband to the causation of the injury complained of, or whether the husband's negligence was the sole proximate cause of such injury,held, under the conflicting evidence in this case, questions for the jury.
In estimating damages from diminished earning capacity jury should be instructed to reduce such damages to present value. In cases where a plaintiff's prospective losses in the future from diminished earning capacity resulting from his or her injuries is made a ground of recovery, the jury should be instructed that in estimating such prospective future damages from diminished earning capacity, they should reduce such damages to their present value, and that such present value only should be included in their verdict.
$12,000 for possibly permanent injury to vocal cords of kindergarten teacher, causing loss of $450 per year, held excessive by $3,000. Verdict of $12,000 for possibly permanent injury to vocal cords of kindergarten teacher, causing loss of $450 per year in earning power, held excessive by $3,000.
W. J. Oven, of Tallahassee, for plaintiff in error.
Fred H. Davis, of Tallahassee, and Watson & Taylor, or Quincy, for defendant in error.
The defendant in error brought suit in the circuit court of Leon county against the plaintiff in error for personal injuries sustained when the automobile in which she was riding, and which was being driven by her husband, was struck by a car propelled by a locomotive of the defendant at a crossing near the Union passenger depot in Tallahassee. There was a verdict and judgment for the plaintiff, and the defendant railway company took writ of error.
The defendant demurred to the declaration and also moved for compulsory amendment, but the court below overruled the demurrer and denied the motion. There was no error in the court's action in this regard. Seaboard Air Line Railway Co. v. Good, 79 Fla. 589, 84 So. 733, and cases cited.
The declaration alleged that the collision occurred at a certain point where the defendant's line of railroad was crossed by a certain public street, there being several lines of railroad track at that point, and that said public street at said point was a main thoroughfare over which passed a heavy traffic in automobiles. The defendant interposed the plea of the general issue and several pleas denying that at said point mentioned its line of railroad tracks crossed a public street; also two pleas of contributory negligence. Plaintiff moved to strike the special pleas denying that the place of collision was at a point where the tracks were crossed by a public street, which motion was granted by the court, and in the order granting such motion to strike the court stated that it was of the opinion 'that all matters of defense which could be urged or put in issue by said pleas * * * are fully covered by the first plea of not guilty.' If there was error in this action of the court it will be regarded as error without injury, because the language of the court's order shows that it would have given the defendant the benefit, under the general issue, or any evidence which it might have seen fit to introduce in support of the special pleas, but the defendant did not offer any. Gainesville & G. R. Co. v. Peck, 55 Fla. 402, 46 So....
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