Rayam v. Atlantic Coast Line R. Co.
| Decision Date | 17 May 1935 |
| Citation | 161 So. 415,119 Fla. 386 |
| Parties | RAYAM v. ATLANTIC COAST LINE R. CO. |
| Court | Florida Supreme Court |
Error to Circuit Court, Glades County; George W. Whitehurst, Judge.
Action by Mathew, sometimes called Mack, Rayam against the Atlantic Coast Line Railroad Company. Judgment for defendant, on demurrer to plaintiff's amended declaration, and plaintiff brings error.
Affirmed.
COUNSEL Joseph E. Williams, of Tampa, for plaintiff in error.
Henderson & Franklin, of Fort Myers, for defendant in error.
Writ of error in this case is to review a judgment in favor of the defendant on demurrer sustained to an amended declaration. The amended declaration attempted to state a cause of action against a railroad company for damages incurred when plaintiff's automobile being driven by plaintiff in the nighttime on a public highway came into collision with a flat car loaded with steel rails standing on defendant's railroad tracks, the same being a spur or service track and not a main line, and when such car was loaded was stopped and standing on the tracks obstructing the highway by reason of the fact that the engine used in moving the car had become derailed.
The declaration on its face shows that the plaintiff was familiar with the locality and conditions, and that he knew of the location of the railroad track, and that it was sometimes used by the railroad company over which to move trains.
The allegations of the declaration are sufficient to show that the plaintiff was guilty of some contributory negligence.
We do not think that the sustaining of the demurrer can be upheld on the ground that the cause of action, if there is any, is not within the purview of section 4965, Rev. Gen. St section 7052, Comp. Gen. Laws, or that it is supported on authority of Atlantic C. L. Railroad Co. v McCormick, 59 Fla. 121, 52 So. 712; Tampa Electric Co. v. Soule, 84 Fla. 557, 94 So 692; Southern Ry. Co. v. Mann, 91 Fla. 948, 108 So 889, 890. A careful perusal of the declaration, however, fails to reveal any allegation of negligent conduct on the part of the defendant, its agents or servants, which was the proximate cause of the injury alleged to have been suffered by the plaintiff and as the allegations of the declaration are not such as to bring the alleged injury within the purview of section 4964 Rev. Gen. St., section 7051, Comp. Gen. Laws, they are insufficient to constitute a basis of recovery for the plaintiff.
Therefore, the judgment should be affirmed.
It is so ordered.
Affirmed.
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