Johnson v. Louisville & N.R. Co.

• Decision Date: 12 April 1910
• Citation: 52 So. 195,59 Fla. 305
• Parties: JOHNSON v. LOUISVILLE & N. R. CO.
• Court: Florida Supreme Court

52 So. 195

59 Fla. 305

JOHNSON v. LOUISVILLE & N. R. CO.

Florida Supreme Court, Division A.

April 12, 1910

Error to Circuit Court, Escambia County; J. E. Wolfe, Judge.

Action by Bessie Johnson, by her next friend, David Johnson, against the Louisville & Nashville Railroad Company. There was a directed verdict for defendant, and plaintiff brings error. Reversed and remanded.

Syllabus by the Court

SYLLABUS

If no evidence is adduced at the trial of a civil action upon which a verdict for the plaintiff may be lawfully predicated, the court may direct a verdict for the defendant; or if a fair consideration of the whole evidence, or the application of controlling provisions or principles of law to the evidence adduced at the trial of a civil action, precludes a verdict for the plaintiff, the court may direct a verdict for the defendant.

The court should not direct a verdict for the defendant unless it is clear that there is no evidence whatever adduced that could in law support a verdict for plaintiff. If the evidence is conflicting, or will admit of different reasonable inferences, or if there is evidence tending to prove the issue, the case should be submitted to the jury for their finding of fact on the evidence, and not taken from them and passed upon by the court as a question of law.

The court should not direct a verdict for one party unless the evidence is such that no view which the jury may lawfully take of it favorable to the other party can be sustained. The power of the court to direct a verdict on the evidence should be cautiously exercised.

Where injury by the running of a railroad company's locomotive is established, the statute places the burden upon the railroad company to 'make it appear that their agents * * * exercised all ordinary and reasonable care and diligence' to prevent the injury; and the statute also provides that, 'if the complainant and the agents of the company are both at fault, the former may recover, but the damage shall be diminished or increased by the jury in proportion to the amount of default attributed to him.'

Where there is testimony from which the jury could lawfully infer at least some negligence on the part of the fireman of a railroad locomotive in notifying the engineer that the person injured was approaching the track with an apparent purpose to cross ahead of the train, a peremptory charge for the defendant should not have been given.

COUNSEL Reeves & Watson, for plaintiff in error.

Blount & Blount & Carter, for defendant in error.

OPINION

WHITFIELD C.J.

In an action in two counts for damages for personal injuries alleged to have been received by the plaintiff by reason of the negligent operation of the defendant's train, and also by the negligence of the defendant company in not having a reasonably safe approach to its depot, by reason of which the plaintiff stumbled and fell on the track and was injured by the negligent and careless running of defendant's engine and train of cars, the court directed a verdict for the defendant, and the plaintiff took writ of error.

In section 1469 of the General Statutes of 1906 it is provided that if 'upon the conclusion of the argument of counsel in any civil case, after all the evidence shall have been submitted, it be apparent to the judge of the circuit court, or county court, that no evidence has been submitted upon which the jury could lawfully find a verdict for one party, the judge may direct the jury to find a verdict for the opposite party.' If no evidence is adduced at the trial of a civil action upon which a verdict for the plaintiff may be lawfully predicated, the court may direct a verdict for the defendant; or if a fair consideration of the whole evidence, or the application of controlling provisions or principles of law to the evidence adduced at the trial of a civil action, precludes a verdict for the plaintiff, the court may direct a verdict for the defendant. Errors committed in admitting or excluding proffered evidence are remedied by appropriate procedure under controlling rules of law. Bass v. Hart, 59 Fla. ----, 50 So. 945; Bruner v. Hart, 59 Fla.--51 So. 593; Wade v. Louisville & N. R. Co., 54 Fla 277, 45 So. 472; Painter Fertilizer Co. v. Du Pont, 54 Fla. 288, 45 So. 507; Pensacola Bank & Trust Co. v. National Bank of St. Petersburg (decided this term) 52 So. 294.

The court should not direct a verdict for the defendant, unless it is clear that there is no evidence whatever adduced that could in law support a verdict for plaintiff. If the evidence is conflicting, or will admit of different reasonable inferences, or if there is evidence tending to prove the issue, the case should be submitted to the jury for their finding of fact on the evidence, and not taken from them and passed upon by the court as a question of law. Florida Cent. & P. R. Co. v. Williams, 37 Fla. 406, 20 So. 558; GermanAmerican Lumber Co. v. Brock, 55 Fla. 577, 46 So. 740; McKinnon v. Johnson, 57 Fla. 120, 48 So. 910.

The court should not direct a verdict for one party unless the evidence is such that no view which the jury may lawfully take of it favorable to the other party can be sustained. The power of the court to direct a verdict on the evidence should be cautiously exercised. C. B. Rogers Co. v. Meinhardt, 37 Fla. 480, 19 So. 878.

Sections 3147 and 3149 of the General Statutes of 1906, are as follows:

'2148. 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.

'3149. When Recovery of Damages Forbidden.--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.'

The injury by the running of defendant's locomotive being established, it was by the...