Seaboard Air Line Ry. v. Callan

• Decision Date: 21 March 1917
• Citation: 74 So. 799,73 Fla. 688
• Parties: SEABOARD AIR LINE RY. v. CALLAN.
• Court: Florida Supreme Court

74 So. 799

73 Fla. 688

SEABOARD AIR LINE RY. v. CALLAN.

Florida Supreme Court

March 21, 1917

Error to Circuit Court, Manatee County; F. A. Whitney, Judge.

Action by T. C. Callan against the Seaboard Air Line Railway. Verdict and judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Whether an allegation that the defendant railroad company negligently propelled one of its trains backwards without any warning be regarded as a general or a special allegation of negligence upon proof that the plaintiff was injured by the train when it was being propelled backwards without any warning, the statute, section 3148, Gen. St. 1906, raises a presumption that the defendant railroad company was negligent as alleged and the burden was thereby cast upon the defendant company to overcome such presumption by proof that it was in fact not negligent in the manner alleged.

The fact that there was conflicting evidence as to lack of warning does not prevent the operation of the statute imposing upon the defendant railroad company the burden to 'make it appear' that it did not negligently propel the train backwards without any warning when the plaintiff was injured.

In determinng whether the defendant was negligent as alleged the jury under the statute were to consider the statutory presumption in connection with the evidence.

Conflicts in the evidence are determined by the jury; and, where the finding is not manifestly against the weight of the evidence and the justice of the cause, it will be allowed to stand unless errors of law or procedure make the verdict erroneous.

Where the charges given conform substantially to the law and the evidence, and the charges refused are in the main covered by other charges given, and the verdict and entire record indicate that error, if any, in giving or refusing charges were harmless, the judgment will not be reversed; no material error of law or procedure appearing.

Where damages are to be apportioned under the statute, the recovery should be such a proportion of the entire damages sustained as the defendant's negligence bears to the combined negligence of both the plaintiff and the defendant in the premises.

A verdict is not so excessive as to require interference by the appellate court, where the amount awarded is not clearly more than could reasonably have been found on the evidence as to the nature and extent of the injury.

COUNSEL John B. Singeltary, of Bradentown, for plaintiff in error.

H. S. Glazier, of Bradentown, and N. B. K. Pettingill and Howard P. Macfarlane, both of Tampa, for defendant in error.

OPINION

WHITFIELD J.

In an action for personal injuries, Callan alleges in the first count of his declaration that, while he was in a wagon crossing a street called Manatee avenue in the city of Manatee, Fla., 'the defendant by its servants and employés wrongfully, carelessly, and negligently caused the cars of one of its trains to be propelled backward without any warning across said avenue at and on said crossing and towards and upon the said wagon of plaintiff, and thus wrongfully, carelessly, and negligently caused the rear car of its said train to collide with said wagon in which plaintiff was then and there riding and to overturn the same; whereby the plaintiff was' injured. The distinct allegations of the second and third counts need not be here stated. Trial was had on pleas of not guilty and contributory negligence. Verdict and judgment for $1,500 were rendered for the plaintiff, and the defendant took writ of error.

In effect, the complaint is that the...