Payne v. Mckinnon

Decision Date22 April 1921
Citation81 Fla. 583,88 So. 495
PartiesPAYNE, Director General of Railroads v. McKINNON.
CourtFlorida Supreme Court

Error to Circuit Court, Jackson County; C. L. Wilson, Judge.

Action by D. L. McKinnon against John Barton Payne, Director General of Railroads. Judgment for plaintiff, and defendant brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Statutory presumption of negligence arises on proof of injury to property. Under section 3148 of the General Statutes 1906, section 4964, Revised General Statutes 1920, which provides that a railroad company shall be liable for any damage done to person or property by the running of its locomotives cars, or other machinery of the company unless the company shall make it appear that its agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company, the burden of proving injury is on the plaintiff; when that burden has been met the defendant must show absence of negligence.

No presumption of negligence arises until injury by cars is shown. No presumption of negligence arises against the railroad company until the injury is shown to have been caused by the running of the railroad company's locomotives, cars, or other machinery.

Property owner must show injury by cars before presumption of negligent operation arises. In an action for damages resulting from an injury to the plaintiff's property by the negligent running of the railroad company's locomotives and cars, the plaintiff must show the injury to have been committed by the running of the defendant's cars or locomotives before the presumption of negligent operation of such cars or locomotives arises against the company.

COUNSEL

Paul Carter, of Marianna, for plaintiff in error.

D. L McKinnon, of Marianna, in pro. per.

OPINION

ELLIS J.

This was an action for damages resulting from a fire which was alleged to have been set out upon the plaintiff's premises by an engine of the defendant operating the Louisville & Nashville Railroad through Jackson county. The first count alleged that the engines were 'insufficiently equipped with appliances and not kept in proper repair,' so that fire was set out by cinders and sparks from the engine causing the injury to the plaintiff's grounds. The second count alleged the same facts, and alleged the fire to have been set out at short intervals during the time the defendant operated the railroad which it was alleged to have done from February, 1917, to the last of February, 1920. The defendant pleaded not guilty, and for a second plea that the plaintiff had not been damaged as alleged. There was a verdict and judgment for the plaintiff in the sum of $250. A writ of error was taken by the defendant, who assigns two errors: First, that the court erred in refusing to direct a verdict for the defendant, and in denying the motion for a new trial. Counsel for the plaintiff in error discuss several propositions under these assignments of error: First, that the evidence did not support the verdict, and that there were errors in certain charges given by the court.

The plaintiff's premises which were damaged by fire which occurred on July 5, 1918, are located near the right of way of the Louisville & Nashville Railroad. The fence, according to one witness, was about 250 feet from the right of way. A fire occurred which destroyed part of the fence, burned over several acres of ground killing shrubbery, trees, and flowers, and according to the plaintiff producing damages amounting to about $375. Much was said by witness for the plaintiff about sparks sometimes being emitted from locomotive engines and coals being dumped from the fire box upon the railroad track by passing engines. But no one testified that the fire upon the plaintiff's premises originated that way. There was no tracing of a fire from the railroad track where a bed of coals had been deposited across the right of way to plaintiff's grounds. Nor did any one testify that sparks emitted from passing engines caused the fire by settling upon the dried grass or rubbish upon the right of way of the railroad company, or upon the plaintiff's lands and...

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11 cases
  • Atlantic Coast Line R. Co. v. Richardson
    • United States
    • Florida Supreme Court
    • 15 Octubre 1934
    ...Seaboard Air Line Ry. Co. v. Thompson, 57 Fla. 155, 48 So. 750; Stevens v. Tampa Electric Co., 81 Fla. 512, 88 So. 303; Payne v. McKinnon, 81 Fla. 583, 88 So. 495; Seaboard Air Line Ry. Co. v. Myrick, 91 Fla. 109 So. 193; Florida East Coast Ry. Co. v. Davis, 96 Fla. 171, 117 So. 842; Morris......
  • Atlantic Coast Line R. Co. v. Watkins
    • United States
    • Florida Supreme Court
    • 19 Marzo 1929
    ...1916E, 1299; Tampa Electric Co. v. Barber, 81 Fla. 405, 88 So. 302; Stevens v. Tampa Electric Co., 81 Fla. 512, 88 So. 305; Payne v. McKinnon, 81 Fla. 583, 88 So. 495; Davis v. Cain, 86 Fla. 18, 97 So. 305; Dina Seaboard Air Line Ry. Co., 90 Fla. 558, 106 So. 417. The above decisions and ma......
  • Kirch v. Atlantic Coast Line R. Co.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 5 Marzo 1930
    ...318; Seaboard Air Line Ry. v. Thompson, 57 Fla. 155, 48 So. 750; Stevens v. Tampa Electric Co., 81 Fla. 512, 88 So. 303; Payne v. McKinnon, 81 Fla. 583, 88 So. 495; Seaboard Air Line Ry. Co. v. Myrick, 91 Fla. 918, 109 So. 193; Florida East Coast Ry. Co. v. Davis, 96 Fla. 171, 117 So. 842. ......
  • Roberts v. Powell
    • United States
    • Florida Supreme Court
    • 7 Abril 1939
    ... ... v. Barber, 81 Fla. 405, 88 So. 302; Stevens v. Tampa ... Electric Co., 81 Fla. 512, 88 So. 303, 305; Payne v ... McKinnon, 81 Fla. 583, 88 So. [137 Fla. 163] 495; ... Davis v. Cain, 86 Fla. 18, 97 So. 305; Dina v ... S. A. L. R. Co., 90 Fla. 558, 106 ... ...
  • Request a trial to view additional results

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