Florida Cent. & P.R. Co. v. Foxworth

• Decision Date: 10 February 1899
• Parties: FLORIDA CENT. & P. R. CO. v. FOXWORTH.[1]
• Court: Florida Supreme Court

25 So. 338

41 Fla. 1

FLORIDA CENT. & P. R. CO. v. FOXWORTH.^[1]

Florida Supreme Court

February 10, 1899

Appeal from circuit court, Duval county; William B. Young, Judge.

Action by Sarah A. Foxworth against the Florida Central & Peninsular Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. It is permissible in pleading to refer to, and thereby make a part of one count, the whole or a part of the allegations of another count in the same declaration. To be effective however, the reference must be definite and certain.

2. A party appellant is confined to the specific grounds of objection made by him to questions propunded to witnesses in the trial court.

3. The provisions of section 1, c. 3744, Acts 1887, and section 2 c. 4071, Acts 1891, are applicable in a suit instituted by a widow to recover damages for the death of her husband by the wrongful act of a railroad company under the provisions of chapter 3439, Acts 1883.

4. The provisions of section 1, c. 3744, having been repealed, but substantially re-enacted by chapter 4071, Acts 1891, under a well-settled rule of construction, were not by such repeal destroyed, or interrupted in their operation, but continued in full force.

5. The use of the term 'gross negligence,' in a charge to the jury, where other instructions recognize contributory negligence as a ground for apportioning damages, and the jury are instructed not to give exemplary damages, does not of itself define, nor does it include, that extreme degree of negligence which is wanton, or reckless of injurious consequences.

6. An instruction merely asserting an abstract legal proposition without attempting to apply it to the facts of the particular case on trial, is not amenable to the objection that it assumes as proven any matter of fact in dispute.

7. An instruction to the effect that it is negligence 'to back a train, without a brakeman at the rear end as a lookout across the main thoroughfare of a village, when there is no flagman at the crossing, even at a rate but little faster than a person walks,' asserts a correct legal proposition.

8. An instruction that 'a railroad company operating its trains on the thoroughfare of a village must use greater care than in less frequented localities, and any neglect of any precautions proper in the peculiar circumstances of the locality constitutes negligence,' asserts a correct legal proposition.

9. The duties of a railroad company with respect to care in operating its trains are dictated and measured by the exigencies of the occasion, or in the light of the conditions of things at the place where, and the time when, an accident happens; and the building up of a town along its line of road, causing the operation of its trains at that place to be attended with greater danger to others than formerly, imposes a duty upon the railroad company to exercise such additional care as the circumstances reasonably demand.

10. An instruction assuming as proven fact matters which upon the trial are in dispute is erroneous.

11. Under the provisions of section 1, c. 3744, Acts 1887, contributory negligence operates only in reduction or diminution of damages, and the injured person, or (in case of his death) his widow, suing under chapter 3439, Acts 1883, is entitled to recover if the defendant's negligence was one of the proximate causes contributing to the injury, notwithstanding the negligence of the injured person was greater than that of defendant; but the damages must be diminished by the jury in proportion to the default attributable to such injured person.

12. Where a railroad track is laid along a street in a town or village, one is not a trespasser upon said railroad track who crosses the street in which it is laid at a place other than at a public crossing, or the intersection of other streets.

13. If an injury occurs so near a public crossing that the means required to be adopted by those operating a train to enable a traveler to cross in safety at the crossing, if carried out, would have enabled the person injured to cross in safety at the place of the accident, the liability of the railroad company will be measured by the legal principles applicable to public crossings.

14. In operating its trains in the streets of towns and villages, and in the immediate vicinity of public crossings, a railroad company is bound to keep a lookout when making flying switches, or backing cars by the 'kicking back' process; and when it is apparent, or when, in the exercise of reasonable diligence commensurate with the surroundings, it should be apparent to the company that a person on its track, or about to get on its track, under such circumstances, is unaware of his danger, or cannot get out of the way, it becomes the duty of the company to use such precautions by warnings, application of brakes, or otherwise, as may be reasonably necessary to avoid the injury; for, in such cases, though the person injured may have been negligent, the company will, if negligent, under chapter 3744, Acts 1887, still be liable, though the damages must be diminished in proportion to the default attributable to such injured person.

15. Though a person about to cross a railroad track at or near a public crossing or in a street may be guilty of contributory negligence in failing to look and listen, yet if the company, by omitting any act required of it under the circumstances, such as ringing a bell, blowing a signal, or stationing lookouts, directly contributed to the injury to such person by the trains of such company, the company will be liable in damages, to be diminished by the jury in proportion to the contributory negligence of the injured person; but, if the negligence of the company did not directly or proximately contribute to the injury, it will not be liable.

16. In railway operation, the dangerous practice of 'kicking cars' or making flying switches in populous localities and near public crossings imposes upon the company a duty to station a lookout upon the rear of the cars, the equivalent of which is not accomplished by ringing the engine bell.

17. It is the duty of railroad companies in operating their trains to give notice of the approach of such trains at all points of known or reasonably apprehended danger, notwithstanding the statute (section 33, p. 287, McClel. Dig.) only requires them to ring the engine bell before crossing the streets of an incorporated town.

18. Where the widow sues for damages for the death of her husband by the wrongful act of another, in estimating her pecuniary loss the jury may properly take into consideration her loss of the comfort, protection, and society of the husband in the light of all the evidence in the case relating to the character, habits, and conduct of the husband as husband, and to the marital relations between the parties at the time of and prior to his death; and they may also consider his services in assisting her in the care of the family, if any; but the widow is not entitled to recover for her mental anxiety or distress over the death of her husband, nor for his mental or physical suffering from the injury. She is also entitled to recover reasonable compensation for the loss of support which her husband was legally bound to give her, based upon his probable future earnings and other acquisitions, and the station or condition in society which he would probably have occupied, according to his past history in that respect, and his reasonable expectations in the future; his earnings and acquisitions to be estimated upon the basis of deceased's age, health, business capacity, habits, experience, energy, and his present and future prospects for business success at the time of his death,--all these elements to be based upon the probable joint lives of the widow and husband. She is also entitled to compensation for loss of whatever she might reasonably have expected to receive in the way of dower or legacies from her husband's estate, in case her life expectancy be greater than his. The sum total of all these elements to be reduced to a money value, and its present worth to be given as damages. Within these limits the jury exercise a reasonable discretion as to the amount to be awarded, based upon the facts in evidence, and the knowledge and experience possessed by them in relation to matters of common knowledge and information.

COUNSEL

John A. Henderson and John C. Cooper, for appellant.

A. W Cockrell & Son, for appellee. On April 23, 1891, the appellee brought suit against appellant in the circuit court of Duval county, the declaration, filed on May 1st, alleging, in substance, in the first count, that plaintiff was the widow of one Daniel A. Foxworth, deceased; that defendant, a Florida railroad corporation, before, after, and during each day of the month of December, 1890, was operating and managing a certain railroad extending between certain named points in this state, and through the town of Callahan, in Nassau county, with its chief offices in Jacksonville; that said Daniel A. Foxworth, husband of plaintiff, on the --- day of December, 1890, in the light of day, in the usual course of foot travel, and in the exercise of due caution, proceeded to cross the track of defendant's railroad at a place on its track in the town of Callahan where he people in said town were accustomed and had the right to cross the track in going from the street on one side to the street on the other side of said town, as divided by the railroad; and while the deceased was then and there in the usual course, with due degree of caution, crossing said track at a point where he was entitled to cross, the defendant wrongfully, carelessly, and negligently propelled backward its...