Hammond v. Jacksonville Electric Co.

• Decision Date: 18 November 1913
• Citation: 66 Fla. 145,63 So. 709
• Parties: HAMMOND v. JACKSONVILLE ELECTRIC CO.
• Court: Florida Supreme Court

63 So. 709

66 Fla. 145

HAMMOND v. JACKSONVILLE ELECTRIC CO.

Florida Supreme Court

November 18, 1913

Error to Circuit Court, Duval County; R. M. Call, Judge.

Action by Julia F. Hammond against the Jacksonville Electric Company, a corporation. Judgment for defendant, and plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

The fact that others saw or heard a street car approaching does not render the act of one who failed to get off the track in time to avoid being killed by it the sole cause of the accident, when it appears that the car was being operated at full speed on a dark night, with no headlight, by a motorman with his face to the rear, who rang no gong when nearing a street crossing at a point where, owing to the physical condition of the street, many citizens were accustomed to walk between or along the car tracks.

COUNSEL John E. & Julian Hartridge, of Jacksonville, for plaintiff in error.

Kay &amp Doggett, of Jacksonville, for defendant in error.

OPINION

COCKRELL J.

There was judgment for the defendant upon a directed verdict, and the plaintiff takes writ of error.

The evidence tends to show that George W. Hammond, the plaintiff's husband, was killed by being run against by a street car operated by the defendant company on Jessie street in the city of Jacksonville. In addition to the statutory presumption of negligence from these facts, it is further in evidence that the car was being operated at night on a dark street, without a headlight, and with the interior of the car but dimly lighted; no bell was sounded upon the approach to the street crossing where the accident occurred; that car was going full speed on a street recently paved, and so banked with sand on either side as to render the portion of the street covered by the car tracks the usual foot passage for a large number of people; and the car was operated by a motorman, so careless of his duties under these circumstances as not to light the electric headlight with which the car was equipped, and to turn his face to the rear to talk with some one in the car. It is difficult to conceive of greater negligence in the operation of a car upon the streets of a city.

The defendant seeks to justify the affirmative charge in its behalf upon the theory that these acts of negligence did not proximately contribute to the injury, and that the fatal injury was caused solely by the failure of the plaintiff's husband to exercise his own faculties or else that the testimony shows a deliberate act of suicide.

Comparative negligence is not a complete defense in this state for an injury received from the operation of street cars, and, such injury having been shown, a presumption of negligence on the part of the one operating the car arises.

Although the street car company failed to fulfill its duty to the public rightfully occupying the city streets in the particulars indicated, yet, because certain witnesses saw or heard the car before it struck the deceased husband, it is asserted that, as matter of law, he must be held to have seen or heard it, and therefore to be deprived of a right of action, because he did not earlier get off that portion of the public street over which the car passed.

It is uncertain exactly how long he had been on the track; but it appears he was getting off it at the crossing of another street when the car struck him. We cannot say that he would not have gotten off earlier had he been warned by the glare of an approaching headlight, the usual equipment of these cars, or the sounding of a going, required by ordinance upon nearing a street crossing; nor can we say that a proper lookout by the motorman at this particularly frequented place might not have disclosed the presence of the man upon the track in ample time to have averted the taking of this human life.

We are not dealing with the case of one walking along or crossing a railroad track, upon which are operated long trains which may not be readily and quickly stopped, but with cars operated electrically in the streets of a city, with no complications as to the law of trespass where the presence of others may be expected on that portion of the streets which the street cars use permissively only, and the proper use of which the citizen using the street has a right to anticipate.

In the instant case the deceased may have misjudged the distance from the car by reason of the excessive speed at which it was being run and the absence of proper headlights and other warning; but this miscalculation shows neither an intentional injury nor an accident that the street car company should not have anticipated, or, to use the language of the statute, it does not appear that the injury was 'done by his consent or is caused by his own negligence.'

It seems clear to us that the defendant was not entitled to the affirmative charge, and the judgment based thereon is accordingly reversed.

SHACKLEFORD, C.J., and TAYLOR and HOCKER, JJ., concur.

CONCURRING

WHITFIELD J. (concurring).

As the defendant offered no evidence, and the trial court, on the defendant's motion, directed a verdict for the defendant on the testimony produced by the plaintiff, the question to be determined on this writ of error is the legal effect of the plaintiff's evidence under the statutes regulating the liability of the defendant company in a case of this character. The injured person was not an employé of the defendant company.

The statutes provide that: 'A railroad company shall be liable for any damage done to person, * * * by the running of the * * * cars * * * 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. No person shall recover damages from a railroad company for injury to himself * * * 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.' Sections 3148, 3149, Gen. St. 1906. These statutes are applicable to street car companies. Consumers' Electric Light & St. R. Co. v. Pryor, 44 Fla. 354, 32 So. 797; Jacksonville Electric Co. v. Adams, 50 Fla. 429, text 439, 39 So. 183, 7 Ann. Cas. 241.

An ordinance of the city of Jacksonville put in evidence provides that: 'All cars shall be properly provided with alarm bells, and every motorman or driver shall ring or sound the same as his car approaches cross-streets and at other points when any vehicle or person appears or is immediately in front of his car upon or near to the right of way or track, whenever a collision with any person or vehicle seems imminent.' 'All conductors, motormen, drivers and all persons employed upon street cars shall use reasonable and proper care and diligence to prevent injury or damage to persons.'

If under the statutes the plaintiff's decedent could have maintained an action for damages against the defendant for the injury to decedent, had his death not occurred, the plaintiff, his widow, may maintain an action to recover such compensatory damages as she may have sustained by reason of her husband's death. Sections 3145, 3146, Gen. St. 1906.

In directing a verdict, the court is governed by practically the same rules that are applicable in demurrers to evidence. A party, in moving for a directed verdict in his or its favor admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. 6 Ency. Pl. &...