Butler v. Southern Ry. Co.

• Decision Date: 26 March 1912
• Citation: Butler v. Southern Ry. Co., 63 Fla. 95, 58 So. 225 (Fla. 1912)
• Parties: BUTLER et al. v. SOUTHERN RY. CO.
• Court: Florida Supreme Court

58 So. 225

63 Fla. 95

BUTLER et al. v. SOUTHERN RY. CO.

Florida Supreme Court

March 26, 1912

Error to Circuit Court, Duval County; R. M. Call, Judge.

Action by Bessie Butler and others against the Southern Railway Company.Judgment for defendant, and plaintiffs bring error.Reversed.

Syllabus by the Court

SYLLABUS

In an action for injuries received by the operation of a train of a railroad company, it is in general sufficient to allege ultimate facts showing that the defendant negligently did or omitted the act or acts that proximately caused or contributed to causing the injury as stated; the specific fact that actually caused the injury being duly alleged so that a definite issue may be presented for trial.

While a railroad company is not held to as high a degree of care to prevent injury to trespassers as is required by law in the case of passengers, employés, and licensees, yet under the statute, where injury by the operation of the train of a railroad company is shown, there is liability of the defendant for damages unless the railroad company shall make it appear that it had exercised all ordinary and reasonable care and diligence to avoid the injury.What was ordinary and reasonable care and diligence depends upon all the circumstances of the case.If the injured person was in fact a trespasser, it may be shown in evidence as a factor to be considered in determining the degree of care required of the defendant.

COUNSELGeo. C. Bedell, of Jacksonville, for plaintiffs in error.

E. J L'Engle, of Jacksonville, for defendant in error.

Charles Butler is alleged to have been killed by a train of the Southern Railway Company, and this action, begun August 26, 1908, in the circuit court for Duval county, is in the name of his minor children by next friend under the statute to recover such damages as they may have sustained by the death of their father.Seesection 3145 of the General Statutesandsection 3146as amended bychapter 5648, Acts of 1907.

The declaration is in three counts, as follows:

'First Count.Whereas, on or about the 1st day of March, 1909 there was pending in this court a certain action at law wherein Manda Butler, now deceased, sued the defendantSouthern Railway Company, for damages suffered by the said Manda Butler for the killing of her husband, Charles Butler, by the said defendant, in the operation of its trains; that on or about the said 1st day of March 1909, the said Manda Butler departed this life; that the plaintiffs here, viz., Willie Butler and Bessie Butler, are the minor children and heirs at law of the said Charles Butler and Manda Butler; that the cause of action hereinafter alleged has survived to these plaintiffs under and by virtue of the laws of the state of Florida.

'And, whereas, on the 27th day of June, A.D. 1908, and for a long time prior thereto, the defendant was a railway company engaged in the transportation of freight and passengers as a common carrier by and with its certain lecomotives and cars, and was then and there operating its said trains between Jacksonville, Duval county, Fla., and points out of the state of Florida, and was on the said 27th day of June, A.D. 1908, operating its certain passenger train out of the city of Jacksonville, Fla., over the track and roadbed of the Jacksonville Terminal Company, and the Atlantic Coast Line Railroad Company, bound for points out of the state of Florida.And the defendant knew, or by the exercise of reasonable diligence should have known, that sundry persons were liable to be upon the said track at the time of, and at or near the place of the happening of the injury hereinafter alleged, and it was the duty of the defendant to operate its said trains at a safe and moderate rate of speed upon and over said track, and to give proper signals of its approach, yet notwithstanding its said duty, the defendant, on the said 27th day of June, A.D. 1908, between the hours of 7 and 9 p. m. and within the corporate limits of the city of Jacksonville, Duval county, Fla., by and through its certain servants and employés then in charge of the operation of its said train, recklessly ran said train over the said tracks as aforesaid, at a high and dangerous rate of speed and without giving signals or warning of its approach, and the said passenger train, so negligently operated as aforesaid, and by reason of such negligent operation, ran upon and against the father of the plaintiffs, Charles Butler, while the said Charles Butler was upon said tracks, at a point about midway between Enterprise street and Fairfax street, and thereby struck down and so wounded, bruised, broke, cut and crushed the said Charles Butler, that then and there he departed this life, killed by the defendant.That by the death of the said Charles Butler, the plaintiffs have been deprived of the care, counsel, and support of their said father, to the damage of the plaintiffs in the sum of $10,000.

'Wherefore, plaintiffs bring this their suit, and claim $10,000 damages from the defendant.

'Second Count.And for a second count plaintiffs allege all of the matters alleged in the first paragraph of the first count of this amended declaration, to which reference is prayed, as if fully and specifically set forth herein, and further allege: That on the 27th day of June, A.D. 1908, and for a long time prior thereto, the defendant was a railway company engaged in the transportation of freight and passengers as a common carrier by and with its certain railway locomotives and cars, and was then and there operating its said trains between Jacksonville, Duval county, Fla., and points out of the state of Florida, and was on the said 27th day of June, A.D. 1908, operating its certain passenger train out of the city of Jacksonville, Duval county, Fla., over the track and roadbed of the Jacksonville Terminal Company and the Atlantic Coast Line Railroad Company, bound for points out of the state of Florida.That the said tracks so used as aforesaid, by the defendant in the operation of its trains and at and near the place of the happening of the injury and damage hereinafter alleged, was then and has been for a long period of time, to wit, more than 12 months prior thereto, used as a footpath by the numerous inhabitants of that portion of the city of Jacksonville, of which the deceased, Charles Butler, was one, and the defendant well knew, or by the exercise of reasonable diligence should have known, that said railway track was so used as a footpath, as aforesaid, and it was the duty of the defendant to use reasonable care and caution in the operation of its said trains on and over said tracks so as not to injure any person so using said track as a footpath; yet the defendant, by and through its servants and employés then in charge of the operation of said train utterly disregarding its duty in such regard, on the said 27th day of June, A.D. 1908, in the state of Florida, and county of Duval, and within the corporate limits of the city of Jacksonville, between the hours of 7 and 9 p. m., wantonly and recklessly ran its certain passenger train over the said tracks at a high and dangerous rate of speed and without giving warnings or signals of its approach, and the said train so negligently operated as aforesaid, and by reason of such negligent operation ran upon and against the father of the plaintiffs, Charles Butler, while the said Charles Butler was walking upon and along the said track, at a point about midway between Enterprise street and Fairfax street, and thereby struck down and so wounded, bruised, broke, cut, and crushed the said Charles Butler that then and there he departed his life, killed by the defendant.That by the death of the said Charles Butler, the plaintiffs have been deprived of the care, counsel, and support of their said father to the damage of the plaintiffs in the sum of $10,000.

'Wherefore, plaintiffs bring this their suit, and claim $10,000 damages from the defendant.

'Third Count.And for a third count, plaintiffs allege all of the matters alleged in the first paragraph of the first count of this amended declaration, to which reference is prayed as if fully and specifically set forth herein, and further allege That on the 27th day of June, A.D. 1908, and for a long time prior thereto, the defendant was a railway company engaged in the transportation of freight and passengers as a common carrier by and with its certain railway locomotives and cars, and was then and there operating its said trains between Jacksonville, Duval county, Fla., and points out of the state of Florida, and was on the said 27th day of June, A.D. 1908, operating its certain pasenger train out of the city of Jacksonville, Duval county, Fla., over the track and roadbed of the Jacksonville Terminal Company and the Atlantic Coast Line Railroad Company bound for points out of the state of Florida.That the said tracks so used by the defendant in the operation of its trains, and at and near the happening of the injury and damage hereinafter alleged, was then and had been for a long period of time, to wit, more than 12 months prior thereto, used as a footpath by the numerous inhabitants of that portion of the city of Jacksonville, of which the deceased, Charles Butler, was one, and the defendant well knew, or by the exercise of reasonable diligence should have known, that said railway tracks were so used as a footpath as aforesaid, and it was the duty of the defendant to use reasonable care in the operation of its said trains on and over the said tracks so as not to injure any person so using said track as a footpath; yet the defendant, by and through its certain servants and employés then in charge of the operation of said train, utterly disregarding its...