Davis v. Cain

• Citation: 97 So. 305,86 Fla. 18
• Parties: DAVIS, Agent v. CAIN.
• Decision Date: 13 June 1923
• Court: United States State Supreme Court of Florida

97 So. 305

86 Fla. 18

DAVIS, Agent v. CAIN.

Florida Supreme Court

June 13, 1923

Rehearing Denied July 31, 1923.

Error to Circuit Court, Manatee County; M. A. McMullen, Judge.

Action by Marian B. Cain against James C. Davis, Agent under presidential proclamation. From a judgment for plaintiff defendant brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

At common law plaintiff must prove negligence; contributory negligence bar at common law. By the common law, in an action to recover damages for an injury caused by the negligent operation of a railroad train, the plaintiff must duly allege and prove negligence of the defendant's employees that proximately caused the injury; and contributory negligence barred recovery.

Under statute presumption of negligence arises; recovery reduced by contributory negligence. Under the statute, where damage to persons or property is duly shown to have been caused by the running of the locomotives or cars of a railroad company, a presumption of negligence arises, and compensatory damages may be recovered, unless the defendant company shows its employees were not negligent as alleged; and, if the person injured was also at fault in proximately causing the injury there may be a recovery, but the amount awarded as damages should be reduced in the proportion that the plaintiff's negligence or fault bears to the combined negligence of both the defendant's employees and the plaintiff.

Evidence for jury. When the plaintiff has duly alleged and shown an injury caused by the running of a locomotive or cars of a railroad company, and the defendant introduces evidence tending to show that its employees were not negligent as alleged, the plaintiff may adduce opposing evidence and the jury must determine conflicts, if any, in the testimony, and also determine the credibility and probative force of the evidence.

Not error to charge jury in language of statute under which action brought. It is not error to give a charge in the language of the statute under which the action is brought.

COUNSEL

John B. Singeltary, of Bradentown, for plaintiff in error.

W. B Shelby Crichlow and Isaac Breeding, Jr., both of Bradentown, and Hilton S. Hampton, of Tampa, for defendant in error.

OPINION

WHITFIELD J.

In an action to recover damages for personal injuries sustained at a railroad crossing, the first count of the declaration alleges that when plaintiff in a motor vehicle was in the act of crossing the track of the defendant railroad company a train of defendant was so negligently and carelessly propelled that the same was negligently and carelessly permitted to collide with the motor vehicle in which plaintiff was riding, by means whereof plaintiff was injured as alleged. In a second count it is alleged that, the plaintiff being unaware of its approach, the train was carelessly and negligently permitted to run with great speed over the crossing without giving warning of its approach, and by means whereof same was negligently and carelessly permitted to run into and collide with the truck on which plaintiff was riding, injuring him.

A demurrer to the declaration was overruled. Pleas of not guilty and of plaintiff's negligence were filed, and issue joined thereon.

It is not material to state other proceedings except that judgment was rendered for $4,000 damages, and the defendant took writ of error.

By the common law, in an action to recover damages for an injury caused by the negligent operation of a railroad train, the plaintiff must duly allege and prove negligence of the defendant's employees that proximately caused the injury; and contributory negligence barred recovery.

Under the statute, where damage to persons or property is duly shown to have been caused by the running of the locomotives or cars of a railroad company, a presumption of negligence arises, and compensatory damages may be recovered unless the defendant company shows its employees were not negligent as alleged; and if the person injured was also at fault in proximately causing the injury, there may be a recovery, but the amount awarded as damages should be reduced in the proportion that the plaintiff's negligence or fault bears to the combined negligence of both the defendant's employees and the plaintiff. Seaboard Air Line Ry. v. Callan, 73 Fla. 688, 74 South. 799; Warfield v. Hepburn, 62 Fla. 409, 57 So. 618.

The statutes provide that:

'A railroad company shall be liable for any damage done to persons, stock or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employ 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.'

And that:

'No person shall recover damages from a railroad company for injury to himself of his property, when the same is done by his consent, or is caused by his own...