Powell v. American Sumatra Tobacco Co.
| Decision Date | 03 March 1944 |
| Citation | 154 Fla. 227,17 So.2d 391 |
| Parties | POWELL et al. v. AMERICAN SUMATRA TOBACCO CO. et al. |
| Court | Florida Supreme Court |
Rehearing Denied April 18, 1944.
Appeal from Circuit Court, Leon County; W. May Walker Judge.
Ausley Collins & Ausley, of Tallahassee, for appellants.
Caldwell & Parker and Leo L. Foster, all of Tallahassee, for appellees.
A judgment was recovered against appellants for the negligent operation of a train which resulted in the killing of appellees' cows.
We are asked to reverse the judgment because the trial judge charged the jury that there was a statutory (Sec. 768.05, F.S.A.1941) presumption of fact against the railroad where the damage was shown to have been inflicted by the operation of the train. Appellants rely on our opinion in Atlantic C. L. R. R Co. v. Voss (Atlantic C. L. R. R. Co. v. The Redemptorists) 136 Fla. 32, 186 So. 199, and Loftin et al. v. Skelton, Fla., 12 So.2d 175.
Appellees recognize our holding in these cases but insist that the judgment should be affirmed notwithstanding these cases because the error was harmless and also that under the facts of this case the giving of the charge was proper.
We cannot agree that the erroneous charge was harmless error. Both parties had a right to have the issue submitted to the jury under proper instructions. We have heretofore said in the above cited opinions that the giving of the charge was calculated to improperly influence the jury. In fact, this same argument was rejected in the above cited cases. We can only reiterate what we have heretofore said and now hold that this case is ruled by the above cited cases.
Turning now to the suggestion that the facts of this case rendered the charge proper. The basis for this claim is that, while the appellants did go forward with the evidence, in so doing it was made to appear that the train crew was in fact negligent and for that reason the presumption did not vanish. As to whether such a showing was made we make no commitment inasmuch as this judgment is to be reversed for another trial.
The purpose of every trial is to ascertain the truth. The reason for statutes of this character is to burden the party of revealing the truth who is most nearly in position to know the facts. A train is a large and complex vehicle. Naturally its crew members are in better position to know what, if anything, is wrong when an accident occurs. For that reason the legislature saw fit to require in such cases that they go forward with the evidence and show that they had exercised all ordinary and reasonable care and diligence in operating the train. When the railroad goes forward with the evidence and makes the required showing the presumption vanishes regardless of whether they make a case against themselves, for in that event the purpose of the statute has been fulfilled; the facts have been elicited and plaintiff can fairly make his claim to the jury thereon.
For the above reasons the judgment is reversed for a new trial.
Reversed.
Plaintiffs below (appellees here) recovered in the Circuit Court of Leon County, Florida, a joint judgment in the total sum of $1016.46 against the Receivers of the Seaboard Air Line Railroad Company. The basis of the judgment is the total value of two head of Jersey milk cows and six head of young Hereford cows killed by the railroad company in the operation of its freight train on November 4, 1942, between mile posts 69 and 70 on the line between Tallahassee, Florida, and Bainbridge, Georgia.
The trial court submitted to a jury the issues made by a single count declaration charging negligence in the operation of its freight train at the time and place of killing the cattle and a plea of not guilty and a second plea specially denying that at the time and place (stated in the declaration) the railroad company operated its train in the fenced field of one of the plaintiffs.
Counsel for appellants post for adjudication here two questions, while the appellees, by cross assignment permitted under the rule, seek an adjudication of three questions which it is contended emerge out of the controversy and are calculated to increase appellees' amount of recovery, provided the contention of counsel is sustained or allowed.
Appellants' questions may be stated, consolidated, and ruled upon under a single assignment. They are, viz.: (1) Was the verdict and judgment contrary to the legal effect of the evidence? (2) When, in an action against a railroad company for damages done to stock by the running of its train, the defendant company offers material evidence that it exercised ordinary and reasonable care and diligence, is it prejudicial error for the trial court to charge the jury regarding the presumption of negligence statute, Section 768.05, Fla.Stat.1941, F.S.A. even if the references to such statute are correctly stated as an abstract proposition of law?
Pursuant to the several provisions of Section 768.05, Fla.Stat.1941, F.S.A. the trial court charged the jury, viz.:
'* * * Where, in appropriate proceedings, gentlemen, there is damage done to persons or property by the running of a railroad train or cars, and such is shown by competent evidence, a statutory presumption of fact arises that the servants or agents of the railroad were negligent in operating the train, and the railroad has the burden of proving that its agents exercised all ordinary and reasonable care and diligence in operating the train, which was allegedly negligently operated when the injury occurred.
'Where in an appropriate proceeding plaintiffs show by competent evidence that damage has been done to property or to stock by the operation of a train, the burden shifts to the railroad to make it appear that the railroad employees have exercised all ordinary and reasonable care and diligence in operating the train which is alleged to have been negligently operated when the damage occurred, but when the railroad introduces substantial evidence to this effect, that presumption of fact vanishes and disappears.
It is contended by counsel for the appellants that the charges supra, as given by the trial court, were not justified by the facts adduced,...
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