Seaboard Air Line Ry. Co. v. Barwick

• Decision Date: 27 March 1906
• Citation: 51 Fla. 309,41 So. 70
• Parties: SEABOARD AIR LINE RY. CO. v. BARWICK.
• Court: Florida Supreme Court

41 So. 70

51 Fla. 309

SEABOARD AIR LINE RY. CO. v. BARWICK.

Florida Supreme Court, Division B.

March 27, 1906

Rehearing Denied June 1, 1906.

Error to Circuit Court, Duval County; R. M. Call, Judge.

Action by Julia A. Barwick against the Seaboard Air Line Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

Where a party on a dark night, at a point where there is no public crossing of a railroad track, steps upon the track within three feet of an approaching engine and train of cars that she knew to be present and approaching, and is struck and injured by such engine, and it is shown by such railroad company by uncontradicted proof that its servants and agents in charge of such engine and cars did use all ordinary and reasonable care and diligence under the circumstances and conditions by which they were then and there surrounded, and were guilty of no negligence that contributed in any way to the bringing about of the injury, and further showed that the injury resulted solely from the party's own negligence such party cannot in law recover for such injury.

COUNSEL

Geo P. Raney and J. C. Cooper, for plaintiff in error.

A. W. Cockrell & Son, for defendant in error.

OPINION

TAYLOR J.

The defendant in error, Julia A. Barwick, sued the plaintiff in error, the Seaboard Air Line Railway Company, a corporation, in the circuit court for Duval county for damages for personal injuries caused by the alleged negligence of the defendant in the operation of one of its trains, whereby the plaintiff was thrown from the track of said railway by one of its engines, and received personal injury. The trial of the case resulted in a verdict and judgment for the plaintiff in the sum of $1,000, for relief from which the defendant below comes here by writ of error.

There are 20 assignments of error predicated upon rulings of the court on the pleadings, on admissions of evidence, on charges given, and on refusals to give charges requested, and upon the denial of the defendant's motion for a new trial, and upon the denial of a motion by defendant to compel plaintiff to amend her declaration so as to make it more definite and explicit; but, from the conclusion we have reached after careful study and consideration of the case, it becomes unnecessary to consider any of such assignments except the eighteenth, which is: 'That the court erred in overruling the motion of defendant for a new trial in said cause.'

This motion for new trial contained 24 grounds, but we shall consider but two of them, the first and second, as follows: (1) The verdict is contrary to the evidence. (2) The verdict is contrary to the law.

The overwhelming preponderance of the evidence in the cause establishes the following state of facts, which are practically uncontroverted. The plaintiff with her sister and niece between half-past 7 and 8 o'clock on a dark night in December, 1902, were proceeding on foot from the plaintiff's millinery store located on the east side of defendant's railway tracks in the town of Wildwood in Sumter county, to her dwelling house located on the west side of said railway tracks in said town of Wildwood. They were proceeding along a private footpath that crossed the railway tracks at the point where the accident occurred, which footpath, though habitually used for some time by the plaintiff and her family in going back and forth from her residence to her store, was not a public crossing of the railway, but was distant from the public crossing several hundred feet. The plaintiff's niece carried a lantern and walked in the lead, the plaintiff's sister walking next to her while the plaintiff came last. As they got to the defendant's railway tracks a train composed of an engine and caboose was coming in from the north moving towards the south immediately across their path. The plaintiff's niece and sister succeeded in safely crossing the track immediately in front of the approaching engine, but the plaintiff, who came last, stepped upon the track about three feet (in the language of the only witness who attempts to give the distance) ahead of the engine, was struck by the engine, thrown from the track, bruised and injured with some of her ribs fractured. The engineer driving the engine sat on the right hand side of his cab looking out ahead, but did not see the plaintiff until after she was struck, the boiler of the engine being between him and the plaintiff who approached the track from the opposite side to that on which he was sitting. She was seen by the fireman of the engine, who sat on the same side of the cab as the one from which she was approaching, at the instant that she stepped upon the track in front of the engine. The fireman exclaimed 'look out,' whereupon the engineer instantly reversed his lever, put on the air brakes, and brought the train to a stand within a few feet, the rear end of the caboose stopping within 10 feet of the spot where the plaintiff was struck. The whistle of the...