McWhorter v. Curby, 921
| Decision Date | 10 July 1959 |
| Docket Number | No. 921,921 |
| Citation | 113 So.2d 566 |
| Parties | Julia N. McWHORTER, Appellant, v. Billye Goldsmith CUBBY et al., Appellees. |
| Court | Florida District Court of Appeals |
Raymond Sheldon, J. Clifford Cheatwood, Sheldon, Cheatwood & Borden, Tampa, for appellant.
Stewart C. Eggert, Ralph C. Dell, Allen, Dell, Frank & Trinkle, Tampa, for appellee, Atlantic Coast Line Railroad Company.
This appeal is from an order of the lower court granting the motion of the Atlantic Coast Line Railroad Company to dismiss the third amended complaint which had been filed against it.
The appellant, plaintiff below, brought an action for personal injury against her host driver, the driver of the other vehicle involved in the collision of the two vehicles, and the Atlantic Coast Line Railroad Company.
The third amended complaint was in four counts, the first count sought damages against the host driver; the second count was against the driver of the colliding vehicle; the third count was against the Atlantic Coast Line Railroad Company; and the fourth count sought relief from each and all of the defendants. As stated above, this appeal involves only the order dismissing the third count of the third amended complaint against the appellee, Atlantic Coast Line Railroad Company. The railroad moved to dismiss the third count of the complaint on the ground that it failed to state a claim of action and that the negligence of the railroad, if any, was not the proximate cause of the accident.
The third count alleged that he railroad track intersected and crossed Cypress Street at the intersection of Rome Avenue and Cypress Street; that the Atlantic Coast Line Railroad negligently, carelessly and recklessly parked a railroad freight car at or near the northwest corner of said intersection in such a manner and position as to abstruct and obscure a clear view of said intersection; that said box car was so parked as to completely obscure the traffic control present at said intersection to traffic lawfully traveling in a southerly direction on Rome Avenue; that the particular box car completely obstructed the stop sign from the view of south bound traffic on Rome Avenue; that such act was in violation of the city ordinance of Tampa, Florida, a copy of which ordinance was attached to plaintiff's Exhibit 'A'; and that the placing of the box car in such a manner as to obstruct the traffic control sign was the direct and proximate cause, or concurred with the negligence of the other defendants, as set forth in counts one and two, so as to cause an accident between an automobile in which the plaintiff was a passenger and an automobile driven by the defendant, Eric L. Myers, and the Atlantic Coast Line Railroad Company in so placing the box car knew, or should have known, that an accident was likely to occur as a result of obstructing the said stop sign.
It will be observed that the pleader stated in the third count that the negligence of the railroad concurred with the negligence of the other defendants, as set forth in counts one and two, so as to cause the accident involved in this case. Therefore, it is necessary that the allegations of count one and count two be studied in order to determine whether count three alleged any negligence that was a contributing part of the negligence of Billye Goldsmith Curby, the host of the plaintiff, and Eric L. Myers, who was operating the automobile...
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