Farnsworth v. Tampa Electric Co.

• Court: Florida Supreme Court
• Writing for the Court: SHACKLEFORD, J.
• Citation: Farnsworth v. Tampa Electric Co., 62 Fla. 166, 57 So. 233 (Fla. 1911)
• Decision Date: 05 December 1911
• Parties: FARNSWORTH v. TAMPA ELECTRIC CO.

57 So. 233

62 Fla. 166

FARNSWORTH v. TAMPA ELECTRIC CO.

Florida Supreme Court, Division A.

December 5, 1911

Headnotes filed Jan. 3, 1912.

Error to Circuit Court, Hillsborough County; J. B. Wall, Judge.

Action by J. J. Farnsworth against the Tampa Electric Company. Judgment for defendant and plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

In an action brought against a railroad company by one seeking to recover damages for injuries, whether to his person or his property, alleged to have been occasioned by the negligence of the defendant, there can be no recovery if the evidence establishes the fact that the plaintiff's own negligence was the sole cause of the injury, and this may be shown under the general issue.

Chapter 4071 of the Laws of Florida, Acts of 1891, p. 113, changed the common-law rule in actions brought against railroad companies in certain particulars therein set forth, and section 2 thereof, now section 3149 of the General Statutes of 1906, provides that, if the plaintiff and the defendant company are both in fault, the plaintiff may recover 'but the damages shall be diminished or increased by the jury in proportion to the amount of default attributable to him.' While contributory negligence as a defense in such an action should be pleaded, yet, where it appears from the proofs adduced by the plaintiff, the defendant company may avail itself of the same under the general issue.

Section 3148 of the General Statutes of 1906 creates the presumption that a person injured by the operation of a railroad was thus injured through the negligence of such road, which presumption it is incumbent upon the defendant railroad company, in an action brought against it, to overcome by proofs.

In any action seeking to recover damages for injuries to person or property, whether brought against a railroad company, in which action section 3148 of the General Statutes of 1906 would apply, or against some other defendant, alleged to have been caused by the negligence of the defendant, all that may properly be required of the plaintiff is to establish by competent evidence the negligence of the defendant in casuing the injury, as laid in the declaration. The plaintiff cannot be required to show that he was not guilty of contributory negligence, the burden is the other way, and if the evidence is evenly balanced the fact of contributory negligence is not established, and upon this issue the verdict should be for the plaintiff. The only difference in this respect in an action brought against a defendant who does not come within the class enumerated in such section 3148, is that in such case the fact of injury, is not made prima facie evidence of the negligence of the defendant.

To the jury is given the function of passing upon the credibility of the witnesses and the weight of the evidence, and it is error for the trial judge to usurp such function.

It is the duty of the trial judge to charge the jury upon the law of the case, and, since the jury must take the law from the trial judge and be guided by his utterances, it is of the utmost importance that he should charge the law applicable to the issues being tried correctly.

Questions of negligence and of contributory negligence are for the jury to determine when the facts are controverted.

A charge or instruction should not impose either upon the plaintiff or defendant a duty not shown to exist.

Where there is evidence to sustain the verdict, and no material error of law or procedure appear, the judgment will be affirmed, but, where it appears that an erroneous charge could reasonably have misled or confused the jury to the injury of the party complaining of it, a new trial will be granted.

In an action against an electric railroad company, seeking to recover damages for injuries alleged to have been occasioned by the negligence of the defendant company, where an instruction is given which erroneously defines the duty of the plaintiff to such defendant company or imposes an unnecessary or improper burden upon the plaintiff, the judgment rendered in favor of such defendant company should be reversed, unless the evidence adduced was of such a character as would not reasonably have warranted any other than a verdict for the defendant company.

Contradictory charges or instructions should not be given, as their tendency necessarily is to confuse and mislead the jury.

Only such instructions should be requested by either the plaintiff or defendant as bear upon the law of the case and will aid the jury in trying and determining the issues, as unnecessary instructions afford opportunities for error, and are burdensome to the courts. When a large number of instructions are given, they are also well calculated to confuse and mislead the jury.

Owners and operators of automobiles have the same right to use the streets and highways that owners and operators of other vehicles possess. All alike must exercise reasonable care and caution for the safety of others.

While the right of a street railway to that part of the street on which its tracks are laid is not an exclusive one, yet the rights are superior to those of the general public, except at street crossings, where the rights of both are equal.

The driver of a vehicle, whether automobile, carriage, wagon, or other kind, about to cross a street railway track at a street crossing in a city, is not in every case required as a matter of law to stop, look, and listen.

COUNSEL V. H. Knight and H. S. Hampton, for plaintiff in error.

P. O Knight, for defendant in error.

OPINION

SHACKLEFORD J.

An action was brought by the plaintiff in error against the defendant in error to recover damages for personal injuries and for injury to the plaintiff's automobile, in which he was riding and which he was operating at the time, alleged to have been received as the result of the collision of one of the cars of the defendant with the automobile of the plaintiff, at the intersection of Marion and Scott streets in the city of Tampa, which collision is alleged to have been caused by the negligence of the defendant.

The first error assigned is based upon the sustaining of a demurrer to the declaration, but, in view of the fact that the plaintiff filed an amended declaration, under which he could offer all the evidence admissible under the original declaration and no additional burden was thereby imposed on him, we must hold that the error, if any, in such ruling was harmless.

We consider it unnecessary to set out the pleadings. The defendant filed a plea of not guilty, and also two other pleas to which a demurrer was sustained. No plea of contributory negligence was filed. A trial was had, which resulted in a verdict and judgment in favor of the defendant. This judgment the plaintiff has brought here for review by writ of error and has assigned 26 errors. In view of the conclusion which we have reached, it becomes unnecessary to discuss these assignments in detail. We believe that the application of a few well-settled principles will enable us to make a proper disposition of the case.

In an action brought against a railroad company by one seeking to recover damages for injuries, whether to his person or his property, alleged to have been occasioned by the negligence of the defendant, there can be no recovery if the evidence establishes the fact that the plaintiff's own negligence was the sole cause of the injury, and this may be shown under the general issue. Atlantic Coast Line R. R. Co. v. Crosby, 53 Fla. 400, 43 So. 318, and Seaboard Air Line Ry. v. Rentz, 60 Fla. 449, 54 So. 20.

Chapter 4071 of the Laws of Florida, Acts of 1891, p. 113, changed the common-law rule in certain particulars that affect the result in this case. We have had occasion several times to construe the different sections of this chapter, so shall not go into any discussion thereof now. It is sufficient to say that section 2 thereof, which appears in the General Statutes of 1906 as section 3149, provides that, if the plaintiff and the defendant company are both in fault, the plaintiff may recover, 'but the damages shall be diminished or increased by the jury in proportion to the amount of default attributable to him.' See Atlantic Coast Line R. R. Co. v. Crosby, supra; Atlantic Coast Line R. R. Co. v. McCormick, 59 Fla. 121, 52 So. 712; Florida East Coast Ry. Co. v. Smith, 61 Fla. 281, 55 So. 871. In the last-cited case, following prior decisions, it was held that, 'while contributory negligence as a defense to an action in tort should be pleaded and proven, yet, where it appears from the proofs of the plaintiff without objection, the defendant may avail itself of the same under the general issue.'

Section 3148 of the General Statutes of 1906 creates the presumption that a person injured by the operation of a railroad was thus injured through the negligence of such road, which presumption it is incumbent upon the defendant railroad company, in an action brought against it, to overcome by proofs. Atlantic Coast Line R. R. Co. v. Crosby, supra, and Pensacola Electric Co. v. Bissett, 59 Fla. 360, 52 So. 367.

It is also true that in any action seeking to recover damages for injuries to person or property, whether brought against a railroad company, in which action the above-cited statute would apply, or against some other defendant, alleged to have been caused by the negligence of the defendant, all that may properly be required of the plaintiff is to establish by competent evidence the negligence of the defendant in causing the injury, as laid in the declaration. The plaintiff cannot be required to show that he was not guilty of contributory negligence, such burden being cast upon the defendant. Not only is it not essential...