Powell v. Etter

Citation10 So.2d 441,151 Fla. 866
PartiesPOWELL et al. v. ETTER (two cases).
Decision Date20 November 1942
CourtUnited States State Supreme Court of Florida

Appeals from Circuit Court, Hillsborough County; Harry N. Sandler, judge.

Knight & Thompson, of Tampa, for appellants.

McKay Macfarlane, Jackson & Ferguson, of Tampa, for appellees.

PER CURIAM.

These suits were by consent of counsel and by an order of the lower court consolidated for trial. The litigation grew out of a collision between a Buick automobile and a passenger train operating between St. Petersburg and Tampa on January 1 1941, about 12:30 during the daytime, where the track of the Seaboard intersects 4th Avenue of the City of Tampa. Leonora Etter, a girl sixteen years of age, was killed and her sister Ada Mae Etter, fourteen years of age, sustained injuries. These girls were each gratuitous passengers in an automobile driven by Guice Couch.

The two declarations were identical and charged that the defendant carelessly and negligently operated its train in such a negligent manner as to collide with the automobile in which the two girls were riding. It was alleged that at the time of the collision the train was being operated within the City of Tampa at a speed exceeding 20 miles per hour contrary to the provisions of an ordinance of the City of Tampa. The issues were submitted to a jury on pleas: (1) not guilty; (2) contributory negligence; (3) the negligence of the driver of the car was the proximate cause of the injury; (4) driving the car at a speed contrary to the ordinance; (5) failure of the Etter girls to protest at the speed the car was being driven; (6) driving on the crossing equipped with lights and signal bells which gave warning of the train approaching the crossing. From verdicts and judgments for plaintiffs below, an appeal has been perfected to this court.

Counsel for appellants contend that the primary question presented by the record for a decision by this court is: Does the evidence adduced at the trial sustain, as a matter of law, the verdicts for plaintiffs below and the judgments thereon? It is asserted that the facts involved in the two cases are controlled by the decisions of this court, viz.: Powell v. Gary, 146 Fla. 334, 200 So. 854; Roberts v Powell, 137 Fla. 159, 187 So. 766; Van Allen v Atlantic Coast Line R. Co., 5 Cir., 109 F.2d 780; Seaboard Air Line Ry. Co. v. Myrick, 91 Fla. 918 109 So. 193; Southern R. Co. v. Mann, 91 Fla. 948, 108 So. 889; Covington v. Seaboard Air Line R. Co., 99 Fla. 1102, 128 So. 426.

It is the view of counsel for appellees that the question presented by the record is not so much a question of law but rather questions of evidence and fact as to the proximate cause of the collision. They suggest that the controlling question for decision here is, viz.: A railroad train ran into and struck an automobile at an intersection of a main thoroughfare in the City of Tampa. Plaintiffs were guest passengers in the automobile. There was substantial evidence to prove that both the automobile and the train were violating the city ordinance with respect to speed Could a jury reasonably assume that the violation of the city ordinance by the railroad train contributed to the proximate cause of the collision? The holding of this court in Powell v. Jackson Grain Co., 134 Fla. 596, 184 So. 492, is cited and relied upon to sustain the judgments entered in the lower court.

The suits at bar are bottomed on the several provisions of Sections 7051 and 7052, C.G.L., and the former decisions of this court. If it is shown by competent evidence that an injury or damages were caused to persons or property by the operation of a train by a railroad company, then under the statute a presumption of fact is raised that the railroad company was negligent in the operation of the train. The statute then casts on the railroad company the burden of adducing evidence to make it appear that its agents have exercised all ordinary and reasonable care and diligence in the operation of the train which was alleged to have been negligently operated. See Warfield v. Hepburn, 62 Fla. 409, 57 So. 618; Atlantic Coast Line R. Co. v. Watkins, 97 Fla. 350, 121 So. 95; Tampa Electric Co. v. McCulloch, 115 Fla. 680, 156 So. 259; Johnson v. Louisville & N. R. Co., 59 Fla. 305, 52 So. 195; Egley v. Seaboard Air Line R. Co., 84 Fla. 147, 93 So. 170; Cason v. Florida Power Co., 74 Fla. 1, 76 So. 535, L.R.A.1918A, 1034; Atlantic Coast Line R. Co. v. Webb, 112 Fla. 449, 150 So. 741.

If the evidence shows that the plaintiff's negligence or that of his agent driving the car was the proximate cause of the injuries sustained, then there can be no recovery. See Atlantic Coast Line R. Co. v. Gornto, 89 Fla. 97, 103 So. 117; Seaboard Air Line Ry. v. Tomberlin, 70 Fla. 435, 70 So. 437; Atlantic Coast Line R. Co. v. Miller, 53 Fla. 246, 44 So. 247; Covington v. Seaboard Air Line Ry. Co., 99 Fla. 1102, 128 So. 426. See also notes in 56 A.L.R. 647.

If it is made to appear by the evidence that the damage or injury to the plaintiff was caused by the fault of both the plaintiff and the operation of the train by the railroad company, the amount of plaintiff's recovery, if any, is limited to such a proportion of the entire damage sustained by the plaintiff as the defendant's negligence bears to the combined negligence of both the plaintiff and the defendant or its agents, in the premises. See Seaboard Air Line Ry. Co. v. Callan, 73 Fla. 688, 74 So. 799; Seaboard Air...

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2 cases
  • Horton v. Louisville & N.R. Co.
    • United States
    • United States State Supreme Court of Florida
    • 2 May 1952
    ...the crossing. It was a regular street crossing situated on the outskirts of the City of Fort Lauderdale. In the case of Powell v. Etter, 151 Fla. 866, 10 So.2d 441, 443, this Court had occasion to construe the Statute in question and use the word 'operation' several times. In the course of ......
  • Kahn v. Wolf
    • United States
    • United States State Supreme Court of Florida
    • 20 November 1942

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