Louisville & N.R. Co. v. Padgett

• Decision Date: 31 January 1916
• Citation: 71 Fla. 90,70 So. 998
• Parties: LOUISVILLE & N. R. CO. v. PADGETT.
• Court: Florida Supreme Court

70 So. 998

71 Fla. 90

LOUISVILLE & N. R. CO. v. PADGETT.

Florida Supreme Court

January 31, 1916

Error to Circuit Court, Jackson County; D. J. Jones, Judge.

Action by T. W. Padgett against the Louisville & Nashville Railroad Company, a corporation. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

One who undertakes to cross a railroad track ahead of an approaching train which he knows to be near, is chargeable with the exercise of such caution and prudence as is demanded under the circumstances, and if, in disregard of such warnings and admonitions as the circumstances force upon him, he takes the risk of crossing, and is injured by the passing train, his conduct will be regarded as the sole proximate cause of his injury.

COUNSEL Paul Carter, of Marianna, for plaintiff in error.

James H. Finch, of Marianna, for defendant in error.

OPINION

ELLIS J.

T. W Padgett sustained personal injuries while attempting to cross the railroad track of the Louisville & Nashville Railroad Company at a street crossing in Marianna, and brought suit against the railroad company in the circuit court for Jackson county for damages. The plaintiff alleged in his declaration that one evening in November, 1913, while crossing the railroad track on Green street in the city of Marianna, he was struck by a locomotive and injured; that the locomotive was being operated at the time by the employés of the railroad company in a careless manner; that the bell on the locomotive was not rung as the train approached the crossing nor was any whistle blown to give notice of the approach of the train; that the locomotive was not equipped with a 1,500 candle power headlight; that it approached the crossing at a high rate of speed; and that the train was not stopped in time to prevent the accident, although the engineer saw, or could have seen, the plaintiff on the crossing before he was struck. The pleas were not guilty and contributory negligence. There was a verdict for the plaintiff, and the defendant took writ of error.

There are several assignments of error, but it is necessary to consider only one. There was a motion for a new trial upon the ground that the verdict was contrary to the evidence, and there were assignments of error based upon the denial of the motion and the court's refusal to instruct the jury to find for the defendant.

The plaintiff was going to the city of Marianna from his home. He was walking and was on Green street. Near the electric light plant in that city the railroad track of the defendant corporation crosses Green street. The railroad makes a curve at some distance east of the crossing, and the track runs through a 'cut' at that point. The train was approaching the city from the east. The time was about 6 o'clock in the evening, and it was 'good dark.' The plaintiff undertook to cross the track ahead of the approaching train, knowing that it was approaching, and was injured. To quote from the bill of exceptions:

'Q. You said while ago you made a little stop; where were you when you made the halt? A. I was on the track when I made the halt. Q. Do I understand you to say you got on the track and made a stop to look at the train? A. No, sir; I said I got to the railroad and stopped. Q. What prevented you from seeing it, Mr. Padgett? A. Wasn't anything. I did see it. I was in the act of stepping on the track when I saw the train, and I thought it was about 50 yards off. Q. Just as you were in the act of stepping on the track you saw the train? A. I didn't know for sure it was the train until I stepped on it. I stepped on it and looked back and saw it was the train. By the

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