J. Ray Arnold Lumber Co. v. Carter

• Citation: 91 Fla. 548,108 So. 815
• Parties: J. RAY ARNOLD LUMBER CO. v. CARTER.
• Decision Date: 26 March 1926
• Court: United States State Supreme Court of Florida

108 So. 815

91 Fla. 548

J. RAY ARNOLD LUMBER CO. v. CARTER.

Florida Supreme Court, Division A.

March 26, 1926

Rehearing Denied April 29, 1926.

Error to Circuit Court, Lake County; J. C. B. Koonce, Judge.

Action by Thomas L. Carter, as administrator of the estate of Walter L. Carter, deceased, against the J. Ray Arnold Lumber Company. Judgment for plaintiff, and defendant brings error.

Reversed for a new trial.

Syllabus by the Court

SYLLABUS

Company operating sawmill with ordinary log road for transporting logs from forest to mills held not 'railroad company' within statute (Rev. Gen. St. 1920,§§ 4964-4966). A corporation or company engaged in the operation of a sawmill and operating as an incident to such business an ordinary log road or tram road for the sole purpose of transporting logs from the forest to the mills, is not a 'railroad company' within the provisions of sections 4964, 4965 and 4966, Rev. Gen. Stat. 1920. [Ed. Note.--For other definitions, see Words and Phrases, First and Second Series Railroad Company.]

Statutory presumption of negligence applicable to railroads does not apply to those operating logging road, and burden of proving negligence is on him who alleges it (Rev. Gen. St. 1920, §§ 4960, 4964-4966). In an action to recover for injuries caused by the running of trains over a logging road, the owner of which is not a 'railroad company' within the contemplation of sections 4964, 4965, and 4966, Rev. Gen Stat., recovery must be had under the rule that the burden of proving negligence is upon him who alleges it. The statutory presumption of negligence applicable to railroad companies does not apply to those operating such a log road.

Care commensurate with dangers incident to operation is required of those operating logging road, principle of respondent superior being applicable (Rev. Gen. St. 1920, §§ 4960 4964-4966). Although a logging road operated solely for the purpose of transporting logs from the forest to the mill, in connection with the operation of the mill, is not a railroad within the contemplation of sections 4964, 4965, and 4966, Rev. Gen. Stat. 1920, it is operated by rolling stock, motive power, and roadbed utilities similar to railroads, and care commensurate with the dangers incident to its operation is required by law of those engaged in its operation; the principle of respondent superior being applicable as in other cases.

One walking on logging road track in pursuance of long prevailing public custom held implied 'licensee.' A deceased person who at the time of his fatal injuries was walking upon a logging road track of the defendant in pursuance of a long prevailing custom of the public in general to use defendant's track as a walkway at the point where deceased was struck by defendant's train, such custom having been exercised without defendant's express authority, but so openly, visibly, and continuously, and by such large numbers of persons over such a long period of time, that the defendant may be said to have recognized that use after it knew, or under the circumstances should have known of it, occupied at that point on the track the status of an implied 'licensee.' [Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Licensee.]

Presence of implied licensees on logging road track should be more readily anticipated than in case of trespassers, and operation of trains should be viewed in light thereof. Where there exists an implied license in behalf of the public to use a logging road track at a given point as a walkway, the probability that persons may be upon the track at that point should be more readily anticipated by the operators of the road than in the case of mere trespassers, in the light of which consideration the operation of trains at that point should be viewed.

Logging train operator owes to implied licensee on tracks duty to use reasonable care, and action lies for negligent injuries to licensee exercising due care. One operating a logging train in the manner referred to in the opinion herein owes to an implied licensee upon its tracks the duty to exercise a reasonable degree of care and diligence, commensurate with all the circumstances, to avoid injuring him. For a breach of that duty an action will lie for injuries suffered by such a licensee while in the exercise of due care for his own safety under all the circumstances.

Where no statutory presumption of negligence obtains, negligence must be substantially proven as alleged, or verdict for plaintiff will be reversed. Where negligence on the part of the defendant is the basis of an action, and no statutory presumption of negligence obtains, the acts of negligence relied upon by the plaintiff for a recovery must be substantially proven as alleged, otherwise a verdict for the plaintiff will be reversed.

'Licensee' on railroad is one permitted to come on premises for his own convenience. 'Licensee' is one not passenger, servant, or trespasser, not standing in any contractual relation to railroad, who is permitted by company to come on premises for his own interests, convenience, or gratification.

COUNSEL

McCollum & Howell, of Jacksonville, for plaintiff in error.

Macfarlane & Pettingill, of Tampa, for defendant in error.

OPINION

STRUM J.

In an action under section 4960, Rev. Gen. Stat. 1920, to recover for the wrongful death of his intestate, Thomas L. Carter, as administrator, who was plaintiff below and is defendant in error here, recovered judgment against the defendant below. The declaration alleges that the death of plaintiff's intestate, Walter L. Carter, was caused by the negligent operation of a logging train by servants of defendant below; the specific act of negligence alleged being:

'That the said train was being propelled backward by a steam engine attached to the rear thereof and without any light at the front end of said train or any other precaution for the purpose of warning persons so using said track as a footpath, as aforesaid, of the approach thereof.'

The declaration, as against demurrer, was heretofore sustained by this court in Carter v. Arnold Lbr. Co., 83 Fla. 470, 91 So. 893, when it was held that the allegations therein referred to, 'with others that are admitted by the demurrer, show a want of reasonable care and diligence in the operation of the log train under the circumstances, and * * * therefore, a cause of action is stated even if the decedent was technically merely a licensee.' The case was tried upon defendant's pleas of the general issue, and contributory negligence of the deceased. At the conclusion of plaintiff's testimony in chief, defendant moved for a directed verdict, renewing the motion at the end of all the testimony. In each instance the motion was denied and an exception taken. After verdict for the plaintiff, a motion for judgment non obstante veredicto, and a motion for a new trial, were made by the defendant, both of which were overruled, and to the judgment then entered this writ of error was taken.

The testimony shows that defendant was operating a sawmill, and as an incident to such business also operated an ordinary log or tram road for the sole purpose of transporting logs from the forest to defendant's sawmill. Between 8 and 9 o'clock p. m., on the 15th day of March, 1920, well after darkness had fallen, defendant was operating along this road what is usually known as a 'logging train,' which consisted of a steam locomotive, one flat car which was coupled next to the tender of the locomotive, and twelve log cars coupled one after the other behind the flat car. The log cars were 'skeleton' trucks, connected by 'reacher poles' or coupling poles 35 feet long; the length of the train over all being 248 yards. This train was backing from the sawmill out to the log camp for the purpose of picking up a load of logs, it being the usual custom in operating such trains to 'head in (to the mill) and back out' to the log camp. In the direction in which the train was moving, all the cars preceded the locomotive, the leading unit of the train being a log truck, the locomotive being at the opposite end. The train crew consisted of the engineer, the fireman, and a third man referred to as the flagman, or 'rear rider,' whose duty it was to ride upon the car at the opposite end of the train from the engine, carrying a lighted lantern at night. When the train is backing, the rear rider's station would be on the leading car; that is, the car farthest from the locomotive.

The undisputed testimony further shows that the locomotive on this train was equipped with both a headlight and rear light, the latter being mounted on the locomotive cab for use in illuminating the train and the track ahead when the train was backing. Both lights were burning at the time the deceased was injured. These lights were of a special design, new at the time. They were as penetrating as headlights used on passenger and freight trains on main line railroads, and each of a specially diffusive character, being designed for an unusual degree of 'spread,' so that at a distance of 250 yards from the locomotive they illuminated an area of 160 feet to each side of a straight track. As a witness for the defendant testified:

'When you get out a hundred or two yards from the engine there would be a wide area that was splendidly illuminated.'

And as a witness for the plaintiff expressed it:

'It was a good big light--a mighty shinin' light, I know because I could see down the train with it, as it passed, pretty plain. Yes, if you was on the train, you could see past the train. If the train's not too long, it would shine way down past the train. Yes, the ray of that light goes a good long distance, one on each side, going and coming....