Tampa Electric Co. v. Barber

• Citation: 81 Fla. 405,88 So. 302
• Parties: TAMPA ELECTRIC CO. v. BARBER.
• Decision Date: 25 March 1921
• Court: United States State Supreme Court of Florida

88 So. 302

81 Fla. 405

TAMPA ELECTRIC CO. v. BARBER.

Florida Supreme Court

March 25, 1921

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

Action by Elma Barber against the Tampa Electric Company. Judgment for plaintiff, and defendant brings error.

Reversed.

Syllabus by the Court

SYLLABUS

New trial should be granted where verdict is for plaintiff and preponderance of evidence shows exercise of due care by defendant. In an action under the statute (Comp. Laws 1914, § 3148) against a railroad or street car company to recover compensation 'for any damage done' to persons or property by the running of the company's cars, where the verdict is for the plaintiff, and the preponderance of the testimony tends to 'make it appear that the agents of the defendant company exercised all ordinary and reasonable care and diligence' in the premises, a new trial should be granted.

COUNSEL

Knight, Thompson & Turner, of Tampa, for plaintiff in error.

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

OPINION

PER CURIAM.

The declaration herein alleges that while the plaintiff, a passenger, was alighting from one of the defendant company's street cars, the defendant 'negligently and carelessly caused the car to be suddenly and violently started and to travel at a great rate of speed, on account of which the plaintiff was thrown with great force and violence from off the car to and upon the street' and injured. Trial was had on a plea of not guilty. Verdict and judgment were rendered for the plaintiff, and defendant took writ of error.

The statute provides that a railroad company shall be liable for any damage done to persons by the running of cars, 'unless the company shall make it appear that its agents exercised all ordinary and reasonable care and diligence' to avoid the injury; the burden of proof being upon the defendant company when an injury is shown to have been caused by the running of the company's cars. Section 3148, Gen. Stats. 1906, Compiled Laws 1914. This statute is applicable to street car companies. Consumers' Electric Light & St. R. Co. v. Pryor, 44 Fla. 354, 32 So. 797.

The presumption of negligence cast upon railroads by our statute in personal injury cases ceases when the railroad company has made it appear that its agents have exercised all ordinary and reasonable care and diligence. In the presence of such proof by the railroad company the jury do not take any such presumption with them to the jury room in weighing the evidence and in coming to a determination. The statute does not create such a presumption as will outweigh proofs, or that will require any greater or stronger or more convincing proofs to remove it. All that the statute does in creating the presumption is thereby to cast upon the railroad company the burden of affirmatively showing that its agents exercised all ordinary and reasonable care and diligence, and here the statutory presumption ends. And when in a suit for personal injury the railroad company proves affirmatively by undisputed and uncontradicted evidence that it and its agents exercised all ordinary and reasonable care and diligence, and were not guilty of the negligence alleged, the plaintiff has no right to recover. Seaboard Air Line R. Co. v Thompson, 57 Fla. 155, 48 So. 750.

In all cases 'the evidence should [in probative force] not only preponderate in favor of the' verdict found, 'but that the evidence should produce in the minds of the jury a reasonable belief of the facts essential to the verdict.' Escambia County Electric Light & Power Co v. Sutherland, 61 Fla. 167, text 193, 55 So. 83; Seaboard Air Line Ry. v. Royal Palm Soap Co., 80 Fla. ---, 86 So. 835. And a trial court should not sustain a verdict when it is not in accord with the manifest weight of the evidence or with the justice of the case. Schultz v Pacific Ins. Co., 14 Fla. 73, text 94; ...