Seaboard Air Line Ry. Co. v. Good

• Decision Date: 24 April 1920
• Citation: 79 Fla. 589,84 So. 733
• Parties: SEABOARD AIR LINE RY. CO. v. GOOD.
• Court: Florida Supreme Court

84 So. 733

79 Fla. 589

SEABOARD AIR LINE RY. CO. v. GOOD.

Florida Supreme Court

April 24, 1920

Rehearing Denied June 12, 1920.

Error to Circuit Court, Alachua County; J. T. Wills, Judge.

Action by Mattie Laura Good against the Seaboard Air Line Railway Company. Verdict and judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

In actions where negligence is the basis of recovery, it is not necessary for the declaration to set out the facts constituting the negligence, but an allegation of sufficient acts causing injury, coupled with an averment that they were negligently done, will be sufficient.

Contributory negligence in an action of tort is a defense which should be pleaded by the defendant and proved by him, unless it appears from the allegations and proof of plaintiff, and it is not necessary for plaintiff to negative by his declaration the existence of contributory negligence.

Where the trial court concurs in the verdict of a jury by denying a motion for a new trial, and there is evidence to support the verdict, an appellate court should not disturb it, in the absence of a showing that the jurors were influenced by considerations outside the evidence.

Where the evidence does not show that negligence and carelessness upon the part of deceased at a railroad crossing were the sole proximate cause of his death, or that the defendant railroad company was free from fault, a verdict awarding damages should not be disturbed where the award was not patently unreasonable, in view of the statute allowing a recovery in case of concurring negligence and an apportionment of damages.

COUNSEL Hampton & Hampton, of Gainesville, for plaintiff in error.

A. H. &amp Roswell King, of Jacksonville, and W. S. Broome, of Gainesville, for defendant in error.

OPINION

WEST J.

The husband of defendant in error, hereinafter for convenience referred to as plaintiff, was killed by the plaintiff in error railroad company, referred to herein as defendant, in the operation of a train upon its railroad. Suit was brought by plaintiff and upon a trial of the cause she was awarded damages against defendant in a substantial amount. From the judgment entered upon the verdict defendant took writ of error.

There are several assignments of error, but the questions argued and the decisive questions in the case are whether the declaration is good as against the demurrer and whether or not the verdict of the jury is supported by the evidence.

The declaration, omitting formal parts, is as follows:

'That during the month of April, 1917, and during each day thereof, the defendant was in possession of and was managing and operating, and was during said period and still is responsible for the proper operation and management of, a system of railway in the state of Florida and county of Levy, operated and managed by it.

'That J. M. Good, now deceased, was on the 20th day of April, 1917, the husband of plaintiff. That J. M. Good, deceased, left surviving him, besides the plaintiff his widow, a minor child, of the age, to wit, 16 years, respectively. That on said 20th day of April, 1917, at about the hour of 1 o'clock p. m., decedent, J. M. Good, in the usual course of passage and travel, was driving his automobile along a certain public highway in the town of Raleigh, Fla., at which place the railway tracks of defendant are laid and operated across said highway. That at said time and place defendant carelessly and negligently propelled and ran its train against and upon the said automobile which deceased was driving, aforesaid, and upon said J. M. Good, deceased, with great force and violence, whereby deceased was then and there, by the said negligence and carelessness of defendant, killed; and plaintiff alleges that by reason of the premises she has been deprived of the support, maintenance, prospective earnings of her said deceased husband, which she is entitled to receive, and has also been deprived of the comfort, association, and protection of said deceased, to the damage of the plaintiff of one hundred thousand ($100,000) dollars. Wherefore, plaintiff brings her suit and claims one hundred thousand ($100,000) dollars damages of defendant.'

The legal sufficiency of this declaration was challenged by a demurrer, the grounds of which are (1) that no venue is laid in the declaration; (2) that the declaration does not show jurisdiction by the court of the cause of action; (3) that plaintiff cannot recover damages for the minor child of the deceased; (4) that plaintiff does not allege want of negligence on the part of the deceased; and (5) that the declaration does not show that the negligence of the defendant was the proximate cause of the injury. Upon a hearing this demurrer was overruled and denied and an exception taken. There was a motion of defendant to require plaintiff to reform and amend her declaration. Upon a hearing on this motion plaintiff asked leave to amend by striking out the allegation in the declaration referring to the minor child. This motion was granted by the court. Whereupon the motion of defendant to require the plaintiff to reform her declaration was overruled. Thereupon pleas of (1) not guilty and (2) negligence and carelessness upon the part of deceased in attempting to cross the tracks of the defendant in an automobile immediately in front of its approaching train, which was then in full view, or by the exercise of proper care and caution could have been observed by him, and so near as to render the accident unavoidable and inevitable, were interposed by defendant. There was joinder of issue upon the pleas, and upon the issue thus made the case proceeded to trial.

In Consumers' Electric Light & Street Ry. Co. v. Pryor, 44 Fla. 354, 32 So. 797, this court stated the rule for testing the legal sufficiency of a declaration in this class of cases as follows:

'The rule established by this court, in actions where negligence is the basis of recovery, is that it is not necessary for the declaration to set out the facts constituting the negligence, but an allegation of sufficient acts causing the injury, coupled with an averment that they were negligently and carelessly done, will be sufficient.'

See, also, Jacksonville Electric Co. v. Schmetzer, 53 Fla. 370, 43 So. 85; S. A. L. Ry. Co. v. Rentz et al., 60 Fla. 429, 54 So. 13; Fla. E. C. Ry. Co. v. Knowles, 68 Fla. 400, 67 So. 122; Aultman v. S. A. L. Ry. Co., 71 Fla. 276, 71 So. 283; in which this rule was applied by this court.

Contributory negligence in an action of tort is a defense which should be pleaded by the defendant and proved by him, unless it appears from the allegations and proof of plaintiff, and it is not necessary for plaintiff to negative by his declaration the existence of contributory negligence. A. C. L. Ry. Co. v. McCormick et al., 59 Fla. 121, 52 So. 712; F. E. C. Ry. Co. v. Smith, 61 Fla. 218, 55 So. 871; So. Express Co. v. Williamson, 66 Fla. 286, 63 So. 433.

Taking the declaration as a whole, the venue and the jurisdiction of the cause of action sufficiently appear, and, tested by the foregoing well-settled rules, the declaration is good as against the demurrer and motion to reform and amend.

The question of the sufficiency of the evidence to support the verdict was raised by a motion for a directed verdict and a motion for a new trial, both of which were denied.

The public highway upon which deceased met his death runs east and west through the town of Raleigh, crossing practically at right angles the railroad tracks of the defendant, which run north and south through said town. In attempting to drive his automobile across the railroad tracks of defendant at such crossing the deceased was struck by a moving train of defendant and seriously injured, from the effect of which he died a few hours later.

As to all the material questions of fact involved there is conflict in the evidence. The deceased was a practicing physician. His home was in Williston, 10 miles approximately from where he was killed. He had been called to the town of Raleigh to visit a patient. After the visit he went into a store and spent a few minutes there, came out and entered his automobile, which was standing on the east side of the railroad, but south of a building, at a point from which a train of defendant approaching from the north could not have been seen. He started his automobile and approached the crossing from the east, running at such a rate of speed as to give him entire control of its movements. There are two tracks of the railroad at the crossing, the main track and a side track, which is on the east side running parallel to the main track and 10 to 15 feet distant from it. The deceased was injured on the main track, where his automobile, which was being driven by him, was struck by a train of defendant approaching from the north running south. So much seems to be conceded, and to this point the evidence of the respective parties is in practical accord.

There is evidence on behalf of plaintiff to the effect that in approaching this crossing from where the automobile of the deceased was started the view to the north was obstructed and obscured by buildings, trees, and fences, so that an approaching train from the north could not be seen until one had reached a point near the crossing. There is also some evidence that another train was approaching on the side track from the south; that this train was near by and within the view of deceased; that he was observing this north-bound train and his attention was attracted by it in that direction and away from the train going south, which collided with his automobile and killed him; that a wagon driven by a boy was approaching the crossing from the...