Bookman v. Seaboard Air Line Ry.

• Decision Date: 12 March 1907
• Docket Number: 670.
• Citation: 152 F. 686
• Parties: BOOKMAN v. SEABOARD AIR LINE RY.
• Court: U.S. Court of Appeals — Fourth Circuit

152 F. 686

BOOKMAN v. SEABOARD AIR LINE RY.

No. 670.

United States Court of Appeals, Fourth Circuit.

March 12, 1907

H. P Green, for plaintiff in error.

John J McMahan (Lyles & McMahan, on the brief), for defendant in error.

Before GOFF and PRITCHARD, Circuit Judges, and WADDILL, District judge.

PRITCHARD Circuit Judge.

This is an action brought by Mary A. Bookman, plaintiff, widow of A G. Bookman, deceased, against the Seaboard Air Line Railway defendant, for damages for the alleged negligent killing of the said A. G. Bookman while on duty on the yards controlled by the Terminal Company at Jacksonville, Fla., on the 16th of January, 1904, by the engine of the defendant company. The action was brought in Lexington county, S.C., and removed to the Circuit Court of the United States at Columbia, that state. This action was instituted under the provisions of the Florida statute, which are as follows:

'Sec. 2342. Whenever the death of any person in this state, shall be caused by the wrongful act, negligence, carelessness or default of any individual or individuals, or by the wrongful act, negligence, carelessness or default of any corporation, or by the wrongful act, carelessness, negligence or default of any agent of any corporation acting in his capacity of agent of such corporation, and the act, negligence, carelessness or default is such as would, if death had not ensued, have entitled the party injured thereby to maintain an action for damages in respect thereof, then and in every such case the person or persons who, or corporation which would have been liable in damage, if death had not ensued shall be liable to an action for damages notwithstanding the death shall have been caused under circumstances as would make it in law amount to a felony.

'Sec. 2343. Every such action shall be brought by and in the names of the widow or husband, as the case may be, and when there is neither widow nor husband surviving the deceased, then the minor child or children may maintain an action; and when there is neither husband nor minor child or children, then the action may be maintained by any person or persons dependent on such person killed for support; and when there is neither of the above classes of persons to sue, then the action may be maintained by the executor or administrator, as the case may be of the person so killed; and in every such action the jury shall give such damages as the party or parties entitled to sue may have sustained by reason of the death of the party killed,' etc.

Chapter 4071, p. 113, of the Laws of Florida, approved May 4, 1891, reads:

'Section 1. A railroad company shall be liable for any damages done to persons, stock or other property, by the running of the locomotive or cars or other machinery of such company or for damages done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.'

The plaintiff's intestate had been employed for a short time by the Atlantic Coast Line Railroad Company in the performance of duties which required him to go more or less on the terminal yards. Just prior to the time when he was injured he was walking alongside the track of the main line, and suddenly stepped on the track a few feet in front of the engine, and was immediately run over and killed.

In determining the merits of this controversy, it is necessary to decide whether the death of the plaintiff's intestate was due to the negligence of the defendant company. The intestate of plaintiff in error was going in the direction of the terminal yards at the time the accident occurred, being on the main line about 100 yards from the place where his employment required his presence. His duties were such that he was required to be on the yards and to go to and from the same, and while thus engaged the defendant company owed him reasonable care. In order to enable the plaintiff to recover in this action, it is necessary to show by competent evidence that the defendant company carelessly and negligently failed to do that which would have prevented the injury.

Section 2345 of the Revised Statutes of Florida (1892) is a part of the chapter on negligence, and confers a right of action in case of death resulting from the negligence or wrongful act of another, and was relied upon by plaintiff in error, and the court below ruled that the case at bar was governed by this provision of the Florida statute. The section in question is as follows:

'No person shall recover damage from a railroad company for injury to himself, or his property where the same is done by his consent or is caused by his own negligence. If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished by the jury trying the case in proportion to the amount of default attributable to him.'

This section practically eliminates the doctrine of contributory negligence; nevertheless, in order to enable the plaintiff in error to recover, it must be made to appear that the particular negligence of which the defendant was at the time guilty was the proximate cause of the injury.

In the case of Railroad Co. v. Williams, 37 Fla. 406, 20 So. 558, among other things, the court held:

'Though the defendant may be guilty of some negligence at the time of the accident, yet, in order to justify a recovery, it must be made to appear that the particular negligence of which it was at the time guilty was the proximate cause of the plaintiff's injury.'

Under this...