Director General of Railroads v. Into

• Decision Date: 15 March 1922
• Citation: 91 So. 269,83 Fla. 377
• Parties: DIRECTOR GENERAL OF RAILROADS v. INTO.
• Court: Florida Supreme Court

91 So. 269

83 Fla. 377

DIRECTOR GENERAL OF RAILROADS v. INTO.

Florida Supreme Court

March 15, 1922

Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Action by Fanny Into against the Director General of Railroads for damages for the death of her husband, Julius Into. Judgment for the plaintiff and defendant brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

In transitory action where venue is not contested, binding judgment may be rendered. In a transitory action, where the defendant does not contest the venue, but pleads to the merits, the court, having jurisdiction in such cases, may render a judgment in the cause that is binding on the parties.

Evidence showing minor children survived, competent on question of damages. As under the statute the widow may recover 'such damages' as she 'may have sustained by reason of the death of' her husband, the fact that there were minor children may be shown in evidence, since the loss of the husband's care and support of the children devolved that duty on the mother, and that is a portion of the damages she sustained in the death of the father, caused by the negligence of the defendant.

Contributory negligence reduces recovery. Under the statute mere contributory negligence does not bar, but reduces the amount of, a recovery for a negligent injury by the running of a train of a railroad company.

Charges on decedent's negligence held properly refused. Where the evidence does not show that a decedent's death was 'caused by his own negligence,' so as to preclude a recovery under the statute, and there is negligence of the defendant railroad company as alleged, requested charges on the theory that the decedent's own negligence was the sole proximate cause of his death are properly refused.

$15,000 for husband's death held not excessive. Where a decedent left three minor children, was earning about $200 per month and had a life expectancy of 30 years, a verdict for $15,000 in view of the rights of the wife and of the evidence as to decedent's care of his family, is not clearly excessive in amount, even though the decedent's negligence contributed to the injury.

Injury reasonably foreseen actionable. A defendant in an action for negligence cannot lawfully be charged with liability in damages for an alleged negligent injury of a nature that could not reasonably have been foreseen or contemplated as a probable result of the act or omission complained of.

Unlawful speed cause of injury at crossing. It cannot justly or fairly be said that a railroad company could not reasonably have contemplated that the running of a train through a town at an unlawful and, considering the ordinary conditions of human activities in a town, at an excessive rate of speed, would not probably result in a fatal injury to a pedestrian crossing a street over which the railroad track passes.

COUNSEL

Robt. H. Anderson and Scott M. Loftin, both of Jacksonville, for plaintiff in error.

A. H. & Roswell King, of Jacksonville, for defendant in error.

OPINION

WHITFIELD J.

In an action brought under the statute by the widow against the Director General of Railroads, to recover 'such damage as' she 'may have sustained by reason of the death' of her husband, Julius Into, the declaration alleges that on February 28, 1920, 'the defendant carelessly and negligently propelled and ran a railroad engine or train against and upon the said Julius Into with great force and violence, whereby said Julius Into was then and there killed by and through the carelessness and negligence of said defendant.' See sections 4960, 4961, 4964, 4965, Rev. Gen. Stats. 1920. The Director General by counsel filed a plea of not quilty. This gave the court jurisdiction of the defendant, although the action was not brought in the county where the plaintiff resided, or where the cause of action arose as required by the federal regulation (Alabama & V. Ry. Co. v. Journey, 255 U.S. ---- 42 S.Ct. 6, 66 L.Ed. 154. [November 7, 1921]), or in the county where the cause of action accrued as required by the state statute (section 2579, Rev. Gen. Stats. 1920; Curtis v. Howard, 33 Fla. 251, 14 So. 812; Baker & Holmes Co. v. Indian River State Bank, 61 Fla. 106, 55 So. 836; Painter Fertilizer Co. v. Du Pont, 54 Fla. 288, 45 So. 507; Santa Rosa County v. Trobuck, 77 Fla. 86, 80 So. 748; Nettles v. Gulf Fertilizer Co., 78 Fla. 490, 83 So. 298).

In a transitory action, where the defendant does not contest the venue, but pleads to the merits, the court, having jurisdiction in such cases, may render a judgment in the cause that is binding on the parties. See Bucki v. Cone, 25 Fla. 1, 6 So. 160; Curtis v. Howard, 33 Fla. 251, 14 So. 812; St. Louis & S. F. Ry. Co. v. McBride, 141 U.S. 127, 11 S.Ct. 982, 35 L.Ed. 659; Texas & P. Ry. Co. v. Griffin, 151 U.S. 105, 14 S.Ct. 259, 38 L.Ed. 90; United States v. Hvoslef, 237 U.S. 1, 35 S.Ct. 459, 59 L.Ed. 813, Ann. Cas. 1916A, 286; 27 R. C. L. 783, 801; State ex rel. Stephens v. District Court, 43 Mont. 571, 118 P. 268, Ann. Cas. 1912C, 343; 22 Ency. Pl. & Pr. 815; Little v. Chicago, St. P. M. & O. Ry. Co., 65 Minn. 48, 67 N.W. 846, 33 L. R. A. 423, 60 Am. St. Rep. 421; 40 Cyc. 113.

Writ of error was taken to a judgment awarding the plaintiff $15,000 damages.

As under the statute the widow may recover 'such damages' as she 'may have sustained by reason of the death of' her husband, the fact that there were minor children may be shown in evidence, since the loss of the husband's care and support of the children devolved that duty on the mother, and that is a portion of the damages she sustained in the death of the father caused by the negligence of the defendant. See Escambia County Electric Light & Power Co. v. Sutherland, 61 Fla. 167, 55 So. 83.

In Seaboard Air Line R. Co. v. Barwick, 51 Fla. 304, 41 So. 70; Atlantic Coast Line R. Co. v. Miller, 53 Fla. 246, 44 So. 247; Seaboard Air Line Ry. v. Smith, 53 Fla. 375, 43 So. 235; Seaboard Air Line Ry. v. Tomberlin, 70 Fla. 435, 70 So. 437; Louisville & N. R. Co. v. Padgett, 71 Fla. 90, 70 So. 998; Live Oak, P. & G. R. Co. v. Miller, 72 Fla. 8, 72 So. 283; Tampa Electric Co. v. Bourquardez, 72 Fla. 161, 72 So. 668; Wade v. Louisville & N. R. Co., 54 Fla. 277, 45 So. 472, the person injured or killed was upon the railroad track with full opportunity to know and appreciate the immediate danger, and as it affirmatively appeared that no negligence of the defendant company proximately contributed to the injury, recovery was denied under the statute, the injury having been 'caused by' the plaintiff's or decedent's 'own negligence.' Section 4965, Rev. Gen. Stats. 1920.

In this case the decedent was killed by an engine drawing a caboose and going south through a municipality. The decedent was to take a train that was due to come a little later from the opposite direction, which train would stop only if flagged. When last seen alive the decedent, who had taken several drinks of moonshine liquor, was crossing the street ahead of the engine that killed him, going towards the southwest, apparently without knowing of the approach of the engine from the north, his attention being diverted to the opposite direction, from which direction the train he expected to take was to come, and the evidence indicating that the engine was moving at high speed, and that no whistle or bell was sounded as the engine approached decedent on the street crossing. See Seaboard Air Line Ry. Co. v. Good, 79 Fla. 589, 84 So. 733.

There is nothing to indicate an intended self-destruction. The testimony shows an effort of the decedent to avoid the impact upon realizing the impending danger. The attention of the decedent being diverted to the opposite direction, he may not have heard the running noise or appreciated the danger of the approaching engine and car, and of course did not know of its high speed. The street lights and the engine lights may have misled or confused the decedent.

It is conceded that the train was running at an unlawful rate of speed through the town if the track was on a 'traveled street.' The engine was certainly crossing a street in the town on which the decedent was walking. The testimony warranted a finding that the speed of the engine and caboose was excessive under the circumstances, independently of the law limiting the speed on a 'traveled street' in the...