Florida East Coast Ry. Co. v. Townsend

• Decision Date: 26 February 1932
• Citation: Florida East Coast Ry. Co. v. Townsend, 104 Fla. 362, 140 So. 196 (Fla. 1932)
• Parties: FLORIDA EAST COAST RY. CO. v. TOWNSEND.
• Court: Florida Supreme Court

140 So. 196

104 Fla. 362

FLORIDA EAST COAST RY. CO. v. TOWNSEND.

Florida Supreme Court, Division B.

February 26, 1932

Error to Circuit Court, Putnam County; George William Jackson Judge.

Action by Francis Melville Townsend, an infant, by Duncan Townsend his next friend, against the Florida East Coast Railway Company. To review a judgment in favor of plaintiff defendant brings error.

Reversed for a new trial.

COUNSEL

J. P. Lamb, of Palatka, and John H. Summerlin and Robert H. Anderson, both of Jacksonville, for plaintiff in error.

Thomas B. Dowda and Hilburn & Merryday, all of Palatka, for defendant in error.

OPINION

PER CURIAM.

The declaration herein is as follows:

'Francis Melville Townsend, an infant, suing by his next friend, Duncan C. Townsend, of Putnam County, Florida, plaintiff, sues Florida East Coast Railway Company, a railroad corporation, defendant, for this to wit:

'That at all times hereinafter mentioned, the defendant was in possession of and was managing and operating a railway system in Putnam County, Florida, including the certain train hereinafter mentioned, and the plaintiff was an unmarried minor child.

'That on or about December 8, A. D. 1928, at the crossing of the lateral public highway and the defendant's railway track, at a point about one half mile south of the village of Orange Mills, the defendant carelessly and negligently propelled and ran a train against and upon an automobile which the said Francis Melville Townsend was then and there operating upon said lateral public highway and over said crossing; whereby the said Francis Melville Townsend was thrown down, wounded, bruised and greatly injured, to-wit: permanently, and suffered great bodily pain and mental anguish, and will continue to do so, to-wit: permanently.

'Wherefore plaintiff sues and claims damages in the sum of Fifty Thousand Dollars.'

The defendant pleaded 'That it is not guilty.'

Writ of error was taken to a judgment awarding $18,000 damages to the plaintiff.

The plaintiff below, a minor, was injured, and a companion, Clarence Guilford, also a minor, was killed at a grade crossing in a collision between an automobile sedan in which they were riding and a freight train of the railroad company. The automobile and its occupants were thrown some distance from the track on the side from which they came, indicating that the fore part of the sedan was the point of impact.

The statutes of the state contain the following provisions:

'A railroad company shall be liable for any damage done to persons * * * by the running of the locomotives, or cars, or other machinery 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.' Section 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.' Section 7052(4965), C. G. L.

Under the laws of Florida, where a person attempts to drive an automobile over a railway crossing with which he is familiar, when his view of the railroad track is so obstructed that an approaching train cannot be seen, and he does not stop and look and listen or take such precautions for his safety as are reasonably required by the existing conditions and circumstances, he is negligent so as to prevent recovery of damages from the railroad company for his injury or death, by being struck by the train, Germak v. F. E. C. Ry. Co., 95 Fla. 991, 117 So. 391; A. C. L. Ry. Co. v. Gornto, 89 Fla. 97, 103 So. 117; F. E. C. Ry. Co. v. Davis, 96 Fla. 171, 117 So. 842; S. A. L. Ry. Co. v. Myrick, 91 Fla. 918, 109 So. 193; Egley v. S. A. L. Ry. Co., 84 Fla. 147, 93 So. 170; Covington v. S. A. L. Ry. Co., 99 Fla. 1102, 128 So. 426, unless some appreciable negligence of the railway company's agents proximately contributed to such injury or death, in which case the damages awarded should be such a proportion of the entire damage sustained as the defendant's negligence bears to the combined negligence of both parties. Section 7052(4965), C. G. L.; S. A. L. Ry. v. Callan, 73 Fla. 688, 74 So. 799; Germak v. F. E. C. Ry. Co., supra; S. A. L. Ry. v. Tilghman, 237 U.S. 499, 35 S.Ct. 653, 59 L.Ed. 1069; Dina v. S. A. L. Ry., 90 Fla. 558, 106 So. 416; A. C. L. Ry. Co. v. Watkins, 97 Fla. 350, 121 So. 95.

In an action against a railroad company for damages done by the running of its trains, the defendant may, under the general issue of not guilty, prove that the alleged injury was caused solely by the negligence of the party injured, or that the defendant's agents exercised all ordinary and reasonable care and diligence to prevent the injury. Upon proof of either by the probative force of legal evidence, the defendant will have sustained the statutory burden of proving its plea of not guilty.

The plaintiff under the general issue having shown the injury was caused by the running of the defendant's train, the statute put upon the defendant the burden of showing that its servants exercised all ordinary and reasonable care and diligence to avoid the injury. When such evidence is adduced the statutory presumption of negligence against the defendant ceases and the issue is to be determined upon a due consideration of the evidence without reference to the statutory presumption. S. A. L. Ry. Co. v. Thompson, 57 Fla. 155, 48 So. 750. This rule does not conflict with W. & A. R. R. v. Henderson, 279 U.S. 639, 49 S.Ct 445, 73 L.Ed. 884. If contributory negligence of the injured party is duly made to appear by the evidence, whether contributory negligence is pleaded or not, the damages should be appropriately reduced in an action under the statute against a railroad company for damage done by the running of its...