Seaboard Air Line Ry. v. Smith

• Decision Date: 13 February 1907
• Citation: 43 So. 235,53 Fla. 375
• Parties: SEABOARD AIR LINE RY. v. SMITH.
• Court: Florida Supreme Court

43 So. 235

53 Fla. 375

SEABOARD AIR LINE RY. v. SMITH.

Florida Supreme Court, Division B.

February 13, 1907

Error to Circuit Court, Columbia County; Bascom H. Palmer, Judge.

Action by Sam Smith against the Seaboard Air Line Railway. Judgment for plaintiff. Defendant brings error. Reversed and remanded.

Syllabus by the Court

SYLLABUS

The sequestration of witnesses from the courtroom during a trial is a matter for the exercise of a sound judicial discretion by the trial court, and its action will not be disturbed unless it appears there has been an abuse of such discretion.

A party to a cause should not ordinarily be excluded from the courtroom because he is also a witness, and this doctrine applies to the agent of a corporation whose duty it is to look after the interests of the corporation in the case on trial, but, where such an agent is not excluded from the courtroom during the trial, and is not put on the stand as a witness, and nothing was offered to be proved by him, the corporation does not show any injury of which it can complain because the court refused to except the agent from an order excluding all the witnesses from the courtroom during the trial.

Where a declaration in an action against a railroad company for damages alleges that plaintiff 'had occasion to walk a short distance on the railroad track of the defendant,' and was struck and run over by one of its engines, such allegations are sufficient to authorize him to testify that at the time and place of the alleged injury he was walking on the track of the defendant railroad.

A witness who had 'railroaded' for 16 years, and one who had been traveling on railroad trains for 20 years, may give their opinions as to the speed at which a train was running; they being present, and seeing the moving train.

The city of Lake City is authorized by its charter, as well as by general law, to pass an ordinance prescribing the speed of trains and engines within the corporate limits of said city not in conflict with section 2264, Rev. St. 1892, but under said section such an ordinance cannot apply to the speed of a train running on a track located on a 'traveled street,' if it conflicts therewith.

Certain language used by the plaintiff's attorney in his address to the juryheld to be an abuse of the privileges of counsel upon which the comments of the judge to the jury were not sufficient to remove the prejudice which such language was calculated to create.

A requested instruction predicated upon an hypothesis which limited the grounds of possible negligence to one, when under the evidence there may have been others, for the consideration of the jury, is properly refused.

Under chapter 4071, p. 113, Laws of 1891, when an action is brought against a railroad company for damages for personal injury the burden of proving the injury is on the plaintiff; and this being shown, the burden of showing absence of negligence is on the defendant.

There is no rule of law that it is not negligence for an engineer to run his engine within a municipal corporation over a street crossing (not through the traveled streets) at the rate of 20 miles an hour if he gives notice by ringing his bell and has his engine under control, and exercises such diligence as is necessary to be observed under the ordinary necessities of the company's business. The question of negligence must always depend upon the circumstances of each particular case.

Section 2264, Rev. St. 1892, requiring signboards at or near the crossings of highways, does not apply to the streets of an incorporated town or city, nor does the speed limit therein provided for apply to any streets except those traveled streets of a city upon or through which a track is located.

A railroad company has not only a right, but it is its duty, to operate its trains, and, while it should always observe reasonable precautions to prevent injury, it is not required to observe unreasonable ones. People who walk on the tracks must take notice of these considerations, and should exercise a prudence commensurate with the known risks. If they fail to do so and are injured, they are themselves guilty of negligence, and, in order that damages may be recovered by any one so injured, negligence of the railroad company must have existed and must have been the proximate cause of the injury; for, if the heedlessness or lack of prudence of the party injured was the sole proximate cause of the injury, he cannot recover damages, however negligent the railroad company may otherwise have been.

COUNSEL

Geo. P. Raney, for plaintiff in error.

F. P Cone, for defendant in error. The defendant in error, Sam Smith, hereinafter called the plaintiff, sued the plaintiff in error, hereinafter called the defendant, in the circuit court of Columbia county. The declaration contains three counts. The first in substance charges that on the 24th of April, 1905, the plaintiff had occasion to walk a short distance on the railroad track of the defendant at a point about 300 yards west of the Union Passenger Station in Lake City, in Columbia county, and about 20 yards east of where one of the public streets of said city crossed the said track of the defendant, the same being used as a public crossing 'in the usual course of foot travel as has been and was then the custom then and there and before and since to be used as a public thoroughfare by the citizens of said Lake City with the knowledge and consent of the said defendant then and there and since then and for several years previous to said date with the knowledge and consent of said defendant, and while the plaintiff was then and there using due caution as a reasonable and prudent man and without any negligence on his part'; that the defendant did then and there, by its agents, etc., run one of its trains at a great and unlawful rate of speed, and without

giving any warning of the approach of same by ringing a bell or blowing a whistle, and carelessly and negligently and wantonly run said train unlawfully as aforesaid along the said track, and violently strike and run over the plaintiff and crushed and mashed off both of his legs, rendering him incapable of earning a living, and causing him great pain and suffering and permanent injury; that plaintiff at the time of the injury was a strong and healthy man, 30 years old, and was earning from $1.50 to $2 per day; that he is uneducated and unable to earn a living except by manual labor, and is without means of support; that the train was running at a great and unlawful speed, without ringing a bell or blowing a whistle, along a public and much traveled thoroughfare of the city, and within 20 yards of a public street crossing on a thickly populated section of the city.

The second count, in addition to the allegations of the first count, charges that the agents of the defendant were grossly negligent in not seeing the plaintiff, who was in full view of the train, and in not giving him warning by blowing the whistle or ringing the bell.

The third count, in addition to the allegations of the two preceding counts, avers that the plaintiff, under the circumstances, had a right to believe that the defendant would operate its trains at the speed required by law, and that he would be warned of the approach of the train by the ringing of the bell and blowing the whistle, and, if such had been the case, he could and would have gotten off the track to have prevented the injury to himself, and that the alleged conduct of the defendant was gross negligence. The plaintiff claims $25,000.

The defendant, by its attorney, A. J. Henry, filed pleas of not guilty, and that the supposed injury of the plaintiff was caused by his own negligence.

Replication was filed, a trial had, a verdict rendered for the plaintiff for $1,750, a judgment entered for that amount and costs against the defendant. From this judgment a writ of error was sued out. Other pertinent facts will be stated in the opinion.

OPINION

HOCKER, J. (after stating the facts).

The first assignment of error is based on the ruling of the court refusing to except Baya Harrison from an order excluding all the witnesses from the courtroom during the trial. The defendant moved to except Mr. Harrison because he was not only a witness for the defendant, but also because he had prepared the case for the trial, and stood in the position of client as a direct representative of the defendant. The plaintiff objected to this motion, and it was denied. The sequestration of witnesses from the courtroom is a matter for the exercise of a sound judicial discretion by the trial court, and its action will not be disturbed unless it appears there has been an abuse of such discretion. The condition of the law on this subject seems to be fairly stated in 3 Wigmore on Evidence, § 1841. It would seem that a party to the cause should not ordinarily be excluded from the courtroom because he is also a witness, and this doctrine would apply to the agent of a corporation whose duty it was to look after the interest of the corporation in the case on trial. See Seaboard Air Line Ry. v. Scarborough (decided June term, 1906, of this court). 42 So. 706. In the case at bar, however, Mr. Harrison was not excluded from the courtroom during the trial. He was not put on the stand as a witness, and nothing was offered to be proved by him. It does not appear, therefore, that the defendant was injured by the ruling of the court. Lenoir Car Co. v. Smith, 100 Tenn. 127, 42 S.W. 879; The Barke Havre, 1 Benedict's Dist. Ct. Rep. (U. S.) 295, Fed. Cas. No. 6,232; Central Railroad & Banking Co. v. Phillips, 91 Ga. 526, 17 S.E. 952; Ryan v. Couch, 66 Ala. 244; 1 Greenleaf on Ev. (16th Ed.) §§ 432, 432a.

The second assignment of error is based on...