Seaboard Air Line Ry. v. Tomberlin

• Citation: 70 So. 437,70 Fla. 435
• Parties: SEABOARD AIR LINE RY. v. TOMBERLIN.
• Decision Date: 30 November 1915
• Court: United States State Supreme Court of Florida

70 So. 437

70 Fla. 435

SEABOARD AIR LINE RY. v. TOMBERLIN.

Florida Supreme Court

November 30, 1915

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Action by J. H. Tomberlin against the Seaboard Air Line Railwa, a corporation. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

Section 2841, Gen. St. 1906, prescribing the speed or trains passing through any of the traveled streets of a city applies only to the traveled streets of a city upon and through which the track of the railroad is located.

A charge to the jury which has no application to the evidence adduced in the case and is misleading in character as to the duties resting upon the defendant to the latter's injury constitutes reversible error.

In a suit against a railroad company for damages for personal injuries sustained in attempting to cross a railroad track at a street crossing, where the evidence affirmatively shows that the plaintiff failed to exercise that degree of prudence which the known risks required, but negligently rode a motorcycle upon the railroad track in front of an approaching train, the speed of the train cannot be considered the proximate cause of the injury.

COUNSEL P. O. Knight, of Tampa, for plaintiff in error.

Dickenson & Dickenson, of Tampa, for defendant in error.

OPINION

ELLIS J.

The defendant in error sued the plaintiff in error in the circuit court for Hillsborough county for damages for personal injuries alleged to have been sustained while attempting at a street crossing to cross the railroad track of the plaintiff in error on a motorcycle which it is alleged was struck by a passing train, throwing the defendant in error to the ground and injuring him.

The declaration contains two counts. One charges the plaintiff in error with negligence in running its train along the street in Plant City, where the accident occurred, in a 'high rapid, and excessive rate of speed.' The other count charged the plaintiff in error with negligence in running the train along the street at a greater rate of speed than permitted by the city or town ordinance of Plant City and the laws of the state, without ringing any bell, blowing a whistle or giving any alarm or warning of the approach of the train.

There was a plea of not guilty, and one in the following words:

'And for a second plea to said declaration, and each and every count thereof, defendant says that the plaintiff attempted to cross the tracks of the defendant company on a motorcycle, immediately in front of an approaching train whose presence was known to the plaintiff, or could have been known by the exercise of reasonable care on his part, and that, while on the track of the defendant, plaintiff saw the approaching train and turned the motorcycle upon which he was riding into a ditch, and was thereby then and there thrown from the motorcycle to and against the fence, from which he received his injuries, and by such action on his part plaintiff did proximately contribute to the injuries alleged to have been received by him.'

Upon these pleas issue was joined, and the parties went to trial. The plaintiff obtained a verdict and judgment for $1,000, and the defendant took a writ of error.

It appears from the evidence that the track of the railroad corporation in Plant City runs along Ingram street as it approaches the depot from Tampa. About 'two city blocks' from the depot the track crosses Collins street which intersects Ingram street at right angles and curves at that point toward the depot. The defendant in error was riding a motorcycle on Collins street going north, approaching the railroad track at the point where it crosses Collins street. Both Ingram and Collins streets are about 40 or 50 feet wide. The train was approaching the crossing from the west. On the west side of Collins street near this crossing are several buildings. There is a two-story building on the southwest corner formed by the intersection of the two streets. The defendant in error was running his machine about 8 or...