Cline v. Powell

• Decision Date: 19 December 1939
• Citation: 141 Fla. 119,192 So. 628
• Parties: CLINE v. POWELL et al.
• Court: Florida Supreme Court

192 So. 628

141 Fla. 119

CLINE v. POWELL et al.

Florida Supreme Court, Division A.

December 19, 1939

Rehearing Denied Jan. 11, 1940.

Error to Circuit Court, De Soto County; W. T. Harrison, Judge.

Suit by Ada C. Cline, as administratrix of the estate of Robert Laurine Cline, deceased, against L. R. Powell, Jr., and Henry W. Anderson, as receivers of Seaboard Air-Line Railway Company, for alleged wrongful death of plaintiff's intestate in crossing collision. To review a judgment for defendants, the plaintiff brings error.

Affirmed.

COUNSEL

W. D. Bell, of Arcadia, for plaintiff in error.

Treadwell & Treadwell, of Arcadia, for defendants in error.

OPINION

BUFORD Justice.

Plaintiff in error filed suit against defendants in error for the alleged wrongful death of her intestate.

An original declaration, an amended declaration and a second amended declaration were filed. Demurrer was filed to the second amended declaration and sustained.

The plaintiff declined to plead further and thereupon judgment was entered in favor of the defendant and the cause dismissed.

The second amended declaration was in four counts, the first count of which was as follows:

'Ada C. Cline, as administratrix of the estate of Robert Laurine Cline, deceased, who died intestate, Plaintiff, by her attorney W. D. Bell, sues L. R. Powell, Jr., and Henry W Anderson, as receivers of the Seaboard Air Line Railway Co., a corporation, for this to-wit;

'That heretofore and at the time of committing the grievances hereinafter mentioned, the said defendants were the receivers and operators of a certain railway running through the City of Arcadia and used then, before, since and now for the purpose of running steam engines, cars and trains of cars on and over the same; and that said railway runs over and across Hickory Street within the corporate limits of the City of Arcadia, Florida; that the said Hickory Street is a street frequently traveled as a highway by the public generally, which was a fact well known to the agents and employees of defendants; that on the fourth day of October, 1935, the agents and employees of the defendants unlawfully blocked the said public street at said crossing by placing flat cars across said public street and that the defendants by their said servants so negligently managed their said train of cars by leaving it parked upon and across said highway that Robert Laurine Cline, while lawfully driving along the said highway in an automobile in the night time of said day and exercising due care and caution collided with the said cars unlawfully parked upon said highway and the said Robert Laurine Cline was thereby thrown down, wounded, bruised, mangled, mashed, crushed and caused to languish in great pain and torture and in mental and bodily suffering from that time until shortly thereafter, to-wit: on the sixth day of October, 1935, when he died from the effects thereof.

That at the time of his death the said Robert Laurine Cline had no wife or minor children or any person or persons dependent upon him for support and plaintiff is the duly appointed and qualified administratrix of the estate of Robert Laurine Cline, deceased.

'Wherefore Plaintiff says that damages have been sustained to the amount of $25,000.00 and that by virtue of the statute in such cases made and provided she has the right to recover said amount and therefore brings this suit and claims $25,000.00 damages.'

There is no material difference between the first and second counts. The third count of the said declaration is:

'That the said Robert Laurine Cline was on the Fourth day of October, A. D. 1935, possessed of an automobile and he was lawfully driving the same along a public highway namely Hickory Street within the corporate limits of the City of Arcadia, using due caution, and that the agents and employees of defendants negligently placed and left a flat train across said street without any warning and that the said train was parked across said street; that the said Robert Laurine Cline was lawfully driving in said automobile on said date after eight o'clock P. M., and that it was so dark that he was unable to see the defendant's train of cars and that the said automobile so propelled was suddenly stopped by said cars and the deceased was then and there bruised, maimed, wounded and suffered great pain and anguish from which he subsequently died.

'That at the time of his death the said Robert Laurine Cline had no wife or minor children or any person or persons dependent upon him for support and plaintiff is the duly appointed and qualified administratrix of the estate of Robert Laurine Cline, deceased.'

There is no material difference between the third and fourth counts. Demurrer was interposed and sustained as to all counts. The demurrer to each and every count contained eight grounds. The first to the seventh grounds, inclusive, attacked the sufficiency of the allegations of the declaration to show that plaintiff's intestate at the time of the accident was exercising such care, prudence and caution as the circumstances surrounding him on the night of the accident required and that he was operating his automobile under such conditions and in such manner as to meet the requirements of prudence and caution.

The eighth ground attacks the sufficiency of the allegations of the declaration to show that the plaintiff has the legal right conferred by statute to maintain the action against the receivers.

It is true that the rule is well settled in the State that generally 'the test of the sufficiency of a declaration is whether or not it alleges distinctly every fact essential to the plaintiff's right of action, such facts to be characterized by certainty, clearness, and conciseness; that the material issue or issues may be determined quickly and with certainty; and that the defendant may be apprised of the charge or charges against him with that degree of clearness and definiteness as will enable him to prepare his defense properly.' Triay v. Seals, 92 Fla. 310, 109 So. 427, 428; Ballas v. Lake Weir Light etc. Co., 100 Fla. 913, 130 So. 421; Warner v. Goding, 91 Fla. 260, 107 So. 406. See also Butler v. Southern R. Co., 63 Fla. 95, 58 So. 225.

However, in Rayam v. A. C. L. R. Co., 119 Fla. 386, 161 So. 415, we held:

'Declaration which showed that motorist familiar with locality and general conditions was injured at night when he drove automobile against stationary flat car blocking highway across service track, due to derailment of locomotive, but which did not show any negligent conduct on railroad's part that proximately caused injury, held demurrable because no negligence by railroad proximately causing injury was shown, and because statute relating to injuries caused by running locomotives or cars did not apply.'

In Kimball v. A. C. L. R. Co., 132 Fla. 235, 181 So. 533, we held:

'A petition seeking damages for injuries suffered by truck driver in collision with train standing stationary on crossing at night was demurrable in absence of allegations that truck driver did not see and could not have seen the train, since otherwise driver's recovery would be barred by contributory negligence.'

See, also, Key West Electric Co. v. Albury, 91 Fla. 695, 109 So. 223.

In view of the enunciations in authorities cited, we cannot hold that the court erred in sustaining demurrer to the third and fourth counts of the declaration. It is true that contributory negligence must be pleaded and cannot be set up by demurrer unless the allegations of the declaration are sufficient on the face thereof to show contributory negligence. It is the duty of one driving an automobile on the highway to so drive as to be able to control the automobile within range of his vision.

Our statutes provide that:

'A railroad company shall be liable for any damage done to persons * * * by the running of the locomotives, or cars * * * 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.' Sec. 7051 (4964), C.G.L.

'No person shall recover damages 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 or increased by the jury in proportion to the amount of default attributable to him.' Sec. 7052(4965), C.G.L.

Under the statute the recovery against a railroad company must be for 'damage done * * * by the running of the locomotives, or cars * * * of such company'; and 'contributory negligence does not bar recovery as at common law, but where the causal negligence is attributable partly to the defendant and partly to the injured' party 'the recovery shall not be full damages, but only a diminished sum bearing the same relation to the full damages that the negligence attributable to the defendant bears to the negligence attributable to both; the purpose being to exclude from the recovery a proportional part of the damages corresponding to the [injured party's] contribution to the total negligence. Norfolk & Western Ry. v. Earnest, 229 U.S. 114, 122, 33 S.Ct. 654, 57 L.Ed. 1096, Ann.Cas.1914C, 172; Grand Trunk Western Ry. v. Lindsay, 233 U.S. 42, 49, 34 S.Ct. 581, 58 L.Ed. 838, Ann.Cas.1914C, 168; Seaboard Air Line v. Tilghman, 237 U.S. 499, 35 S.Ct. 653, 59 L.Ed. 1069; S. A. L. Ry. v. Callan, 73 Fla. 688, 74 So. 799'. See Key West Electric Co. v. Higgs, 118 Fla. 11, 13, 136 So. 639, 140 So. 327.

Where an injury was caused by the injured party's own negligence the statute forbids a recovery of...