Horton v. Louisville & N.R. Co.

• Decision Date: 02 May 1952
• Citation: 61 So.2d 406
• Court: Florida Supreme Court
• Parties: HORTON v. LOUISVILLE & N. R. CO.

Page 406

61 So.2d 406

HORTON v. LOUISVILLE & N. R. CO.

Supreme Court of Florida, Special Division A.

May 2, 1952.

As Modified on Rehearing en Banc Nov. 14, 1952.

D. W. Berry, Pensacola, for appellants.

Yonge, Beggs & Lane, Pensacola, for appellee.

MATHEWS, Justice.

This appeal grows out of the death of John Murray Horton, a minor, at a railroad crossing in Escambia County. In an amended declaration the appellee filed a motion to dismiss upon the following grounds:

'(1) The complaint fails to charge any act of negligence against the defendant.

'(2) It affirmatively appears that the defendant was guilty of no negligence in connection with the accident described in the complaint.

'(3) It affirmatively appears that the accident was due solely to the negligence of the plaintiff's son.'

The lower court granted the motion to dismiss the amended complaint, and the appellant refusing to amend further, entered a final judgment in favor of the appellee. From that final judgment this appeal is prosecuted.

It was alleged in the amended complaint that the appellee was a common carrier of passengers and freight in the State of Florida and maintained tracks from Pensacola in Escambia County to Flomaton, and such tracks crossed various public highways and roads and one of the roads being Olive Road, which runs in an Easterly and Westerly direction in Escambia County, and the railroad tracks traverse said road in a Northerly and Southerly direction. On the date in question the railroad company was operating a freight train in Escambia County and carelessly and negligently stopped in the nighttime directly across the path of Olive Road a long freight train of cars from 10:30 p. m. until Midnight. The paved highway was dark and was the same color as the train and the freight cars could not be seen at the crossing standing across the highway. The engine of the train was about 200 yards away from the crossing in one direction and the caboose about 200 yards away from the crossing in another direction. The railroad company failed to provide any warning of any kind such as, flares, lights, or a flagman to notify pedestrians that the train was across the road. The road was in the country and about six miles from Pensacola. The deceased was not familiar with the territory in question as he had only been in the community for a few days and had never been on this road before. The deceased was 19 years of age and on the night in question was riding on Olive Road on a motor bike which he had borrowed. At the time he was traveling about 15 miles per hour and the light on the motor bike, or scooter, was a proper one and was low to the ground and did not reflect high enough to show a box car standing across the highway. The deceased could see lights from the Pensacola-Flomaton and Palafox Highway passing thereon (indicating that he could either see underneath the box car, or through the box car, if the doors were open) while traveling at a speed not in excess of 15 miles per hour. He ran underneath the box car and as he did so the train started up and carried him a distance of about 35 feet from the point of collision and by reason of the accident, he was injured and bled to death.

This is not an ordinary accident where contributory negligence would be a complete bar to recovery. In this case a railroad company is involved and Sections 768.05 and 768.06, F.S.A., govern liability. They are as follows:

'768.05 Liability of railroad company

'A railroad company shall be liable for any damage done to persons, stock or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employ and service 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.'

'768.06 Comparative negligence

'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 plaintiff and the agents of the company are both at fault, the former may recover, but the amount of recovery shall be such a proportion of the entire damages sustained, as the defendant's negligence bears to the combined negligence of both the plaintiff and the defendant.'

The complaint filed in this case requires an answer. An accident happened and a person was killed by reason of the operation of the train. The duty is upon the company to make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption being against the company.

From this record it cannot be said that the accident resulted from the consent of the deceased or that it was caused entirely by his own negligence.

If the deceased and the agents of the company are both at fault, the amount of recovery shall be such proportion of the entire damages sustained, as the defendant's negligence bears to the combined negligence of both parties. Under the allegations of the complaint in this case which included allegations that the road was a black paved road in the country and away from lights, that the railroad company left the box car standing across the road unguarded and without flares or lights or any other device, or any person present to give warning, requires an answer.

The order of the Circuit Judge granting the motion to dismiss and entering final judgment should be set aside and the appellee be required to file his defenses.

Reversed for further proceedings in accordance with this opinion.

SEBRING, C. J., and CHAPMAN and THOMAS, JJ., concur.

On Rehearing

MATHEWS, Justice.

The Court granted the petition for rehearing in this cause with the limitation that 'such argument be confined to the question as to whether the 'operation of a train' was involved in the application of the Statute.'

In the original opinion the following language was used: 'He ran underneath the box car and as he did so the train started up and carried him a distance of about 35 feet from the point of collision and by reason of the accident, he was injured and bled to death.' In order to clarify this language we quote from the allegations of the amended complaint. After alleging that the vehicle with the boys on it ran underneath the box car, the amended complaint alleges, 'and the said defendant's servants, agents and employees proceeded with said train to Pensacola, Escambia County, Florida, six miles away, and did not learn of the accident until they found the scooter tangled up in the freight car after they had arrived at Pensacola * * * that when said freight train moved on, it dragged the plaintiff's son, John Murray Horton, about 35 feet from said collision, or point of impact, and the agents, servants and employees of the railroad company did not render any aid but had they had someone to flag the stationary train or string of freight cars at the said point which was a menace, the plaintiff's son, John Murray Horton, would not have bled to death.'

It matters not whether the train started up at the time the motor bike ran under the box car or thereafter, the result is the same. It did not start up by itself. The engine had to be put in motion by some person in the employ and service of such company and the dragging of the body of the boy was caused by the running of the locomotives, cars, or other machinery of the company. The difference between the operation of the train after it started up and the running of the train is the difference between 'twiddle-de-dee' and 'twiddle-de-dum'.

The main contention of the appellee is that the statutory presumption against a railroad cannot apply unless the locomotive or cars are actually running; that the words 'operation of the train' in this case are not synonymous with the words 'running of the locomotives, or cars'; and that there is a material difference between the words 'running of the locomotives, or cars' and the words 'operation of the locomotives or cars'.

The appellee relies strongly upon the case of Tampa Electric Co. v. Soule, 84 Fla. 557, 94 So. 692, 697, decided by this Court on March 3, 1923. In that case there was a trial before a jury and the evidence did not show that Miss Soule was injured by any act of the defendant, or the movement of its cars, or other machinery. It was not claimed that the injury was done by any person in the employ and service of the company or that the company had failed to provide a safe place for her to alight from the car. It appeared that she sustained an injury from a fall which occurred while she was alighting from the car after it had come to a complete stop. There was no movement of any kind of its machinery or cars. There was testimony that her fall was caused by her skirt catching on something on the car. There was testimony that a loose bolt found by her was on a different car from the one from which she fell. She testified, however, that the conductor told her it was the same car. It is apparent that the case of Tampa Electric Co. v. Soule, supra, is not applicable in this case. It established no 'standing train doctrine' which is applicable in all cases of a standing train at a crossing. The running, operation, or standing of the train had nothing to do with the injuries sustained by Miss Soule. On rehearing granted in a Per Curiam opinion in Tampa Electric Co. v. Soule, supra, the Court held:

'* * * When that activity on the part of the railroad company results in some injury to a person, the presumption of negligence created by the statute attaches to the railroad company.

'* * * before the presumption of negligence attaches it must first be shown that the railroad company's act produced the injury before the presumption created by the...