Jacksonville Elec. Co. v. Dillon

• Decision Date: 11 February 1914
• Parties: JACKSONVILLE ELECTRIC CO. v. DILLON.
• Court: Florida Supreme Court

64 So. 669

67 Fla. 114

JACKSONVILLE ELECTRIC CO. v. DILLON.

Florida Supreme Court

February 11, 1914

Rehearing Denied March 27, 1914.

Error to Circuit Court, Duval County; George Couper Gibbs, Judge.

Action by Albert J. Dillon against the Jacksonville Electric Company, a corporation, for personal injuries. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

That the location of its parallel tracks was constructed under municipal direction is not a defense against injury to a passenger on a street car by a passing car, when the narrow clearance between the cars is due to the act of the street car company in putting on much wider cars after the tracks were located.

The possibility that the elbow of a passenger in a street car with his arms resting naturally on the sill of an open window, may have slightly protruded, will not prevent recovery when the sudden jerking of the car threw the arm out against a passing car.

The testimony of a witness should not as matter of law be entirely rejected, because he stated that the sudden movement of the car threw him 'forward.'

The court should not submit to the jury a count in a declaration which the evidence does not tend to support.

COUNSEL John L. Doggett, of Jacksonville, for plaintiff in error.

A. G Hartridge, and John E. and Julian Hartridge, all of Jacksonville, for defendant in error.

OPINION

COCKRELL J.

For personal injuries, caused by the running of the cars operated by the electric company, Dillon recovered his judgment.

The record shows that while a passenger on a street car, with its windows open, Dillon was seated with his arm resting on the window sill, and his elbow possibly protruding; that, as two cars were passing going in opposite directions on parallel tracks, the car in which he was seated was suddenly jerked throwing his arm out, and, owing to the narrow clearance between the two cars, it was struck by the other car and crushed. There were three bars across the window, about the height of an ordinary sized man's shoulders or head, but an open space of six or eight inches between the window sill and the lowest bar.

A defense was sought to be raised upon the theory that the city authorities had fixed the location of the parallel tracks, thereby exonerating the street car company. Among other reasons that may be given why this defense may not be entertained may be noticed the fact that, six years after the tracks were laid, the company put on wider cars, materially lessening the clearance space and, in the absence of proper safeguards against such accidents as the one under consideration, requiring most careful handling in the operation of its cars. The evidence shows that the clearance between the cars of the width here used at this point was between 6 1/2 to 8 inches, which might be considerably lessened by the oscillations of the two passing cars. For these conditions the street car company must be held responsible, and it will not be permitted, as against an action for injury by a passenger, to shift the responsibility upon the municipality.

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