Southern Ry. Co. v. Mann

• Decision Date: 17 May 1926
• Citation: Southern Ry. Co. v. Mann, 108 So. 889, 91 Fla. 948 (Fla. 1926)
• Parties: SOUTHERN RY. CO. v. MANN.
• Court: Florida Supreme Court

108 So. 889

91 Fla. 948

SOUTHERN RY. CO. v. MANN.

Florida Supreme Court, Division B.

May 17, 1926

Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Action by Willie Mann against the Southern Railway Company. Judgment for plaintiff, and defendant brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Ordinance requiring operators of railroads to erect gates and keep watchman at crossings held not violated when lessee fails to erect gates. An ordinance requiring operators of steam railroads over designated street crossings in an incorporated city to protect the public at such crossings by erecting gates and keeping a watchman to operate them is not violated when a mere lessee of said steam railroads fails or declines to erect said gates, and no duty is shown to be imposed on the lessee to do so.

Whether agents of railroad exercised reasonable care in approaching crossing held question of fact; negative testimony of witnesses will not preponderate over positive evidence of witnesses equally credible as to whether agents of railroad exercised reasonable care in approaching corssing. The question of whether or not the agents of a railroad company exercised all ordinary and reasonable care and diligence in approaching the crossing was one of fact to be determined by the weight and probative force of the evidence as other questions of fact are determined. The testimony of witnesses wholly or largely negative will not preponderate over the evidence of witnesses equally credible, whose testimony is wholly or in the main positive as to this issue.

While railroad must give warning though train has right of way traveler failing to approach crossing with ordinary care must suffer consequences of his conduct. The rights and obligations of the plaintiff and defendant at the crossing are reciprocal, but the train of the defendant has the right of way, and, while this fact no less released its duty to give warning of its approach, it was equally the duty of the plaintiff to approach the crossing with ordinary care and prudence, and, if he fails to do so, he must suffer the consequences of his conduct.

COUNSEL

Cooper, Cooper & Osborne, of Jacksonville, for plaintiff in error.

A. H. & Roswell King, of Jacksonville, for defendant in error.

OPINION

TERRELL J.

Willie Mann sued the Southern Railway Company in an action for damages in the sum of $25,000. The declaration is in three counts, the first and second of which, in substance, allege that on or about December 2, 1922, at or near the crossing of defendant's railroad track and Myrtle avenue in the city of Jacksonville, Duval county, Fla., the defendant carelessly and negligently propelled and ran its train with great force and violence against and upon a motorcycle which plaintiff was then and there driving whereby plaintiff was painfully seriously, and permanently injured throughout his head limbs, and body, and his arm was so badly bruised and crushed that it had to be amputated.

The third count of the declaration alleges all the allegations of the first and second counts, and, in addition thereto, alleges carelessness and negligence on the part of defendant in not providing gates and a watchman at said crossing, as it is required to do by Ordinance No. P-50 of the city of Jacksonville, approved June 4, 1920.

The case was tried on the plea of the general issue and the plea of contributory negligence. At the conclusion of all the testimony the trial court took from the consideration of the jury the first and second counts, because there was no evidence to support them. On the record this action by the trial court was fully warranted. After considering the testimony in support of the third count, the jury returned a verdict for the plaintiff in the sum of $5,000 on which final judgment was entered. Motion in arrest of judgment and for new trial were denied, and defendant took writ of error to the final judgment.

Did Ordinance No. P-50 of the city of Jacksonville, Duval county, Fla., as alleged in count 3 of the declaration, impose on the Southern Railway Company the duty of providing gates with a watchman to operate them at the crossing described therein? may be stated as the sole question presented here for our consideration.

The pertinent part of the third count embracing said Ordinance No. P-50 is as follows:

'That defendant was guilty of carelessness and negligence in the premises in this, to wit, that defendant then and there carelessly and negligently failed and neglected to provide and maintain gates with a watchman to operate them at said crossing contrary to the provisions of ordinance number P-50 of the city of Jacksonville, Duval county, Florida, passed June 1st, 1920, as follows, to wit:

'Be it ordained by the mayor and city council of the city of Jacksonville:

'Section 1. That section 698 of the city code, relating to railroad crossings, be and the same is hereby amended so as to read as follows:

'Section 698: Every person, firm or corporation operating a steam railroad upon and over the following street crossings shall protect the public at such crossings that shall be crossed by an engine, train or cars by providing gates with a watchman to operate them: Lackawanna avenue, Stocton street at Atlantic Coast Line Railroad crossing, Eighth street, Myrtle avenue, King's road, Main street and Pearl street.

'Section 2. This ordinance shall take effect thirty days after its publication.'

If the city of Jacksonville was authorized to enact this ordinance it applies to every person, firm, or corporation operating a steam raliroad upon or over the street crossings named therein; Myrtle avenue crossing being one of them. The evidence...