Roberts v. Powell
| Decision Date | 07 April 1939 |
| Citation | 187 So. 766,137 Fla. 159 |
| Parties | ROBERTS v. POWELL et al. |
| Court | Florida Supreme Court |
Error to Circuit Court, Highlands County; W. J. Barker, Judge.
Action by Savilla Mills Roberts, as administratrix of the estate of Julian Holman, deceased, against L. R. Powell and another, as receivers of the Seaboard Air Line Railway Company, to recover damages for deceased's death as the result of a collision between an automobile in which he was riding and defendants' train at a public crossing. Judgment for defendants, and plaintiff brings error.
Affirmed.
Edwin Brobston, T. B. Castiglia, and James Wishart Jr., all of Tampa, for plaintiff in error.
Haskins & Fielding, of Sebring, for defendants in error.
This case is here on writ of error to review a final judgment for the defendants below entered by the Circuit Court of Highlands County, Florida. It is a railroad accident case and occurred at a country crossing between Sebring and Avon Park at a station known as motion are: 'First, the defendants have established, by undisputed, affirmative testimony that their agents have exercised all ordinary and reasonable care and diligence to avoid the accident and the resultant injury complained of; second, that the defendants have established by undisputed, affirmative testimony that the negligence of the driver of the automobile in which plaintiff's intestate was riding at the time of the accident was the sole proximate cause of said accident; third, that no evidence has been submitted in the cause from which the jury could lawfully find a verdict for the plaintiff.
The order of the Court on the motion is, viz.:
'Gentlemen of the Jury, it becomes the duty of the Court to direct a verdict for the defendants when it appears from the evidence as a matter of law, that under no view of the evidence, could a verdict for the plaintiff be sustained if entered by the jury; in other words, the Court finds, as a matter of law, that there is no issue of fact to go before you gentlemen; the question in the case was the negligence on the part of the defendants and the Court, after a very long and careful consideration of the evidence in the case and the law involved, is of the opinion that, as a matter of law, there is no negligence shown by the proof upon which you could base a verdict against the defendants in this case, and therefore, directs you to enter a verdict for the defendants. The court is very reluctant to take cases away from the jury; dislikes to do it; if there is any issue at all for the jury to determine, the jury should, of course, determine it and it would not be a proper function for the Court to do that, but in the status of this case, the Court finds it his duty to direct you to enter a verdict for the defendants, and I will ask one of you gentlemen to sign this verdict as foreman: 'We, the jury, find the defendants not guilty, so say we all.”
The law controlling the case at bar is well expressed in the case of Atlantic Coast Line R. Co. v. Watkins, 97 Fla. 350, 121 So. 95, 98, when this Court said:
'When damage is done to a person by a railroad company by the running of its locomotives or cars or other machinery, or when the damage is done by any person in the employ and service of such company, the company is liable for such damage unless the company shall make it appear that its agents exercised all ordinary and reasonable care and diligence; the presumption in cases being against the company. See section 4964, Revised General Statutes 1920; section 7051, Comp. General Laws 1927.
'Under the above statute it has been held that the burden of proving the injury is on the plaintiff and the burden of showing absence of negligence is on the defendant. See Seaboard Air Line Ry. v. Smith, 53 Fla. 375, 43 So. 235; F. E. C. R. Co. v. Welch, 53 Fla. 145, 44 So. 250, 12 Ann.Cas. 210; F. E. C. R. Co. v. Carter, 67 Fla. 335, 65 So. 254, Ann.Cas.1916E, 1299; Tampa Electric Co. 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. 495; Davis v. Cain, 86 Fla. 18, 97 So. 305; Dina v. S. A. L. R. Co., 90 Fla. 558, 106 So. [416], 417.
'The above decisions and many others of this court have settled the question raised by the first assignment of error against the contention of the plaintiff in error.
'The doctrine may be considered as established that, in a case where one is entitled to bring an action against a railroad company for damages for personal injury of another or for the wrongful death of one caused by the running of its locomotive cars or other machinery it is only for the plaintiff in the declaration, after alleging matter proper to be included in the inducement, to allege the injury sustained; that it was caused by the railroad company; that the act causing the injury was negligently done and the damages sustained; that, when the trial occurs, the plaintiff is only required to prove or show the injury; that it was caused by the railroad company; and the damages sustained. When that is done, the burden shifts to the railroad company to affirmatively show that its agents or employee used all ordinary and reasonable care in the transaction.
'In such case the presumption of negligence arises against the railroad where evidence is offered by the plaintiff showing or tending to show the injury by the defendant, and that presumption is not removed until and when the defendant company has made it to appear that its agents have exercised all ordinary and reasonable care. See Seaboard Air Line R. Co. v. Myrick, 91 Fla. 918, 109 So. 193.
* * *
'The relation of a railroad company operating a train at a railroad crossing and a traveler on the public highway desiring to cross the railroad track at the crossing involves reciprocal rights and obligations. The railroad company's trains have the right of way, and persons on the highway should give precedence to the passing trains. It is as much the duty of a person traveling upon the highway who is...
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Pitton v. Atlantic Coast Line R. Co.
...question on a motion for a directed verdict. The evidence in the case at bar, in our opinion, is stronger than plaintiff's case in Roberts v. Powell, supra. think the lower court erred in sustaining the motion of the defendant for a directed verdict and the testimony of the plaintiff, as we......
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...of diligence and caution to be exercised by each is such as a prudent man would exercise in the circumstances involved. Roberts v. Powell, 137 Fla. 159, 187 So. 766; Texas & P. Ry. Co. v. Cody, 166 U.S. 606, 17 S.Ct. 703, 41 L.Ed. 1132. A railroad company can not regulate or remove obstruct......
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