Carter v. J. Ray Arnold Lumber Co.

• Decision Date: 01 April 1922
• Citation: 83 Fla. 470,91 So. 893
• Parties: CARTER v. J. RAY ARNOLD LUMBER CO.
• Court: Florida Supreme Court

91 So. 893

83 Fla. 470

CARTER v. J. RAY ARNOLD LUMBER CO.

Florida Supreme Court

April 1, 1922

Rehearing Denied May 19, 1922.

Error to Circuit Court, Lake County; C. O. Andrews, Judge.

Action by Thomas L. Carter, as administrator of the estate of W. L Carter, deceased, against the J. Ray Arnold Lumber Company, a corporation. Judgment for defendant, and plaintiff brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Care commensurate with danger from agency required. The use of a dangerous agency requires the exercise of care commensurate with the nature and uses of the agency and the conditions and circumstances under which it is operated or utilized.

Allegation of negligence held sufficient. In an action for a negligent injury, it may be necessary only to allege ultimate facts showing the relation of the parties and the circumstances out of which the duty to avoid negligence arises and the act or omission that proximately caused the injury, coupled with a statement that such negligent act was negligently done or omitted.

Contributory negligence bars recovery. At common law, contributory negligence bars a recovery of damages for a negligent injury and this rule has not been changed by statute except as to railroad companies and in favor of employees engaged in certain hazardous employments not including sawmill operations.

Contributory negligence need not be negatived. Contributory negligence being an affirmative defense, need not be negatived by the plaintiff; but, if substantial contributory negligence appears in the case made by the plaintiff, he cannot recover in cases controlled by the common law.

Administrator has right of action of decedent. Where a decedent could have maintained an action for injury to himself had he survived the injury, his administrator may have a right of action under the statute.

Care commensurate with dangers required of log train operatives. While a log train is not a railroad, it is operated by rolling stock, motive power, and roadbed utilities similar to railroads, and care commensurate with the dangers incident to its operation is required by law of those engaged in its operation; the principle of respondent superior being applicable as in other cases.

Declaration held to state cause of action for injury. The declaration alleges a cause of action, and the demurrer thereto should have been overruled.

COUNSEL

N. B. K. Pettingill and M. B. Macfarlane, both of Tampa, for plaintiff in error.

McCollum & Clark, of Jacksonville, for defendant in error.

OPINION

WHITFIELD J.

The second amended declaration herein is as follows:

'Thomas L. Carter, as administrator of the estate of Walter L. Carter, deceased, of the county of Lake aforesaid, sues the J. Ray Arnold Lumber Company, a corporation organized and existing under the laws of Florida and having its principal place of business in said county of Lake, defendant, in a civil action for damages in the sum of $10,000.

'For that, on or about the 15th day of March, 1920, and for a long time prior thereto, the defendant, under the corporation name of Edge-Dowling Lumber Company, was the owner and engaged in the operation of a railroad running from and through the county of Sumter, state of Florida, through said county of Lake to its lumber mill situated in said last named county, and in running trains of cars propelled by steam power over its said railroad; that a portion of said railroad ran between said lumber mill of the defendant and its logging car and at a point on the line therefor about 200 yards distant from said logging camp in the direction towards said lumber mill was a trestle over a creek; that at the point where the public road crossed said creek there was no bridge nor other convenience for crossing, nor was there in that vicinity any means by which a footpassenger could cross said creek without wading through it other than by crossing over the trestle of the defendant aforesaid: that, as a consequence of said condition, the said railroad track of defendant from its said logging camp to and beyond the point on said track where said trestle was located was then being, and had been for a long period of time prior thereto, to wit, for many months, used as a footpath by the people of that vicinity, of whom plaintiff's intestate, Walter L. Carter, was one, in traveling from the neighborhood of said logging camp to points along or near the line of said railroad track in the direction beyond the trestle aforesaid; that such use of said railroad track and trestle was a necessity because of the lack of other convenience for crossing said creek as aforesaid; that the defendant well knew, or by the exercise of reasonable prudence and diligence should have known, of such necessity and of such use of its said track and trestle as a footpath by the public as aforesaid; and that therefore it was the duty of the defendant and its servants to use such care in the operation of its said trains over that portion of its track above described as was reasonably necessary to prevent injury to persons using said track and trestle as a footpath for the reasons aforesaid.

'That the residence of plaintiff on the date aforesaid was situated near the railroad track of defendant at a point beyond where said trestle was located, that is, so that said trestle was located at a point on said track between said logging camp and the residence of plaintiff; that plaintiff's intestate was on the evening of said date present at or near said logging camp of defendant and, shortly after dark, started from said camp along said railroad track and across said trestle in the direction of said residence of plaintiff, for the purpose of passing the night at plaintiff's house, and for the reasons aforesaid it was then and there necessary that plaintiff's intestate should use defendant's track and trestle as a footpath; that the defendant, through its agents and servants, was at the same time running and operating its train consisting of 10 or more cars of the kind used for the transportation of sawlogs, but at the time not loaded, from the direction of its said lumber mill toward its said logging camp; that said train was being propelled backward by a steam engine attached to the rear thereof and without any light at the front end of said train or any other precaution for the purpose of warning persons so using said track as a footpath as aforesaid of the approach thereof; and that as said track approaches said trestle from the direction in which said train was coming there is, and then was, a sharp curve which prevented a person on or near said trestle from realizing the near approach of cars propelled in the manner aforesaid; and that it was the duty of the defendant under the circumstances aforesaid so to operate its said train at, near, and over the trestle aforesaid as to exercise reasonable precaution and prudence to avoid injuring plaintiff's intestate, who was then and there using said track and trestle of the defendant as a footpath for the reason aforesaid;

'Yet the defendant, wholly disregarding its duty in that respect, did so negligently, carelessly, and without due precaution for the rights of others, including plaintiff's intestate, then and there run and operate its...