Loftin v. Skelton
| Decision Date | 02 March 1943 |
| Citation | 152 Fla. 437,12 So.2d 175 |
| Court | Florida Supreme Court |
| Parties | LOFTIN et al. v. SKELTON. |
Appeal from Circuit Court, Broward County; George W. Tedder judge.
Russell L Frink, of Jacksonville, and Robert H. Anderson and John H Wahl, Jr., both of Miami, for appellants.
Roach & Hoyl, of Fort Lauderdale, for appellee.
Plaintiff brought three suits against the Railway Company for the wrongful death of his wife and two infant children. They were consolidated for trial. Verdicts were returned for $10,000 for the wife and $5,000 for each child. The trial court ordered a remittitur of $5,000 on the verdict for the wife and entered judgment in each case for $5,000.
It is urged that the negligence of the driver in going upon the track was the sole proximate cause of the collision and no recovery should be allowed. In support of this contention it is shown that the wife drove the car on the railroad track in front of the approaching train; that the train was in full view; that the speed of the car was so slow that she might have stopped easily before going upon the track.
There is also testimony that the train was approaching at a high rate of speed (perhaps 70 miles per hour) and no warning was given for the crossing until too late to serve its purpose. Under this testimony the question of liability was one for the jury under appropriate instructions.
It is urged that the court erred by giving the following charge: 'The Court charges you when damage is done to a person by a railroad company by the running of its locomotives or cars or other machinery, or when the damage is done by any person in the employ and service of such company, the company is liable for such damage unless the company shall make it appear that its agents exercised all ordinary and reasonable care and diligence; the presumption in cases being against the company.' In that the presumption is raised to the dignity of evidence. The jury, in effect, was told to consider the presumption against the defendant along with the evidence in the case. This statute has been before this Court many times. See Atlantic Coast Line R. R. Co. v. Voss (Atlantic Coast Line R. R. Co. v. Redemptorists), 136 Fla. 32, 186 So. 199; Atlantic Coast Line Railroad Co. v Richardson, 117 Fla. 10, 157 So. 17; Seaboard Air Line Ry. Co. v. Myrick, 91 Fla. 918, 919, 109 So. 193; Seaboard Air Line R. Co. v. Thompson, 57 Fla. 155 48 So. 750; Atlantic Coast Line Railroad Co. v. Webb, 112 Fla. 449, 150 So. 741; Western & Atlantic Railroad Company v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884. In Atlantic Coast Line R. Co. v. Voss, supra, it was held that where the evidence is conflicting, as here, it is error to make any reference whatever to the presumption. That case was disposed of without a reversal, but we do not feel that this case can be...
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Alabama Great Southern R. Co. v. Morrison
...55 L.Ed. 78, 32 L.R.A.,N.S., 226. In a later decision, where the evidence as to actionable negligence was conflicting, Loftin v. Skelton, 152 Fla. 437, 12 So.2d 175, and also in a case where it appears that the defendant's evidence made a case against it self, Powell v. American Sumatra Tob......
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Seaboard Air Line R. Co. v. Bailey
...to the presumption in the court's charge to the jury. Atlantic Coast Line R. Co. v. Voss, 136 Fla. 32, 186 So. 199; Loftin v. Skelton, 152 Fla. 437, 12 So.2d 175; Powell v. American Sumatra Tobacco Co., 154 Fla. 227, 17 So.2d 391. In each of these cases it was held that the error could not ......
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Powell v. American Sumatra Tobacco Co.
...he would have contended for a verdict different from that rendered. The facts involved in Atlantic Coast Line Ry. Co. v. Voss and Loftin v. Skelton, supra, each easily distinguishable from the case at bar. Counsel for appellees in their reply breif specifically abandon questions identified ......
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Butler v. MacDougal, 59-266
...and effect, necessarily had a result similar to that assigned to a charge upon the statute, which, as stated in Loftin v. Skelton, 152 Fla. 437, 12 So.2d 175, 176, was that '* * * the presumption is raised to the dignity of evidence. The jury, in effect, was told to consider the presumption......