Tampa Electric Co. v. Fleischaker

• Decision Date: 06 April 1943
• Citation: 12 So.2d 901,152 Fla. 701
• Parties: TAMPA ELECTRIC CO. v. FLEISCHAKER.
• Court: Florida Supreme Court

12 So.2d 901

152 Fla. 701

TAMPA ELECTRIC CO. v. FLEISCHAKER.

Florida Supreme Court

April 6, 1943

Appeal from Circuit Court, Hillsborough County; L. L Parks, judge.

Knight & Thompson, of Tampa, for appellant.

Mabry Reaves, Carlton & White, of Tampa, for appellee.

CHAPMAN, Justice.

We have for review on writ of error a final judgment entered for the plaintiff below by the Circuit Court of Hillsborough County, Florida. The declaration charged negligence on the part of the defendant in three counts. The first count alleged that the defendant stopped its street car at an unsafe place to alight from and invited plaintiff to get off without warning her of the unsafe place or assisting her to alight. Second, failure of the defendant to assist plaintiff in alighting from the car. Third, failure of the defendant to warn the plaintiff of the unsafe conditions where the plaintiff alighted.

The defendant below (appellant here) filed four pleas to plaintiff's declaration. First, a plea of not guilty. Second, that the conditions under and around the stop and the height of the step from the ground were or should have been apparent to the plaintiff had she used reasonable caution but failed so to do, thereby contributing to her own injury. Third, the plaintiff negligently stepped from the street car and thereby proximately contributed to her injury. The fourth plea denied that the place where the street car stopped for plaintiff to alight was unsafe and dangerous and that the ground under and around the stop was unpaved, rough and irregular and traversed the distance from the step to the ground as alleged in the declaration.

The issues made by the pleadings were submitted to a jury, who, after hearing all the testimony adduced by the respective parties, visited the scene of the alleged accident, heard argument of counsel and the instructions of the trial court on the law applicable to the issues, and rendered a verdict for the plaintiff in the sum of $4,250. A motion for a new trial was made and denied by the trial court. Counsel for the parties pose for adjudication on this appeal two questions viz.: (1) Was there any substantial evidence adduced at the trial to sustain the verdict and judgment? (2) Is Section 7052, C.G.L., F.S.A. § 768-06, providing for the apportionment of damages resulting from negligence of the parties in actions against railroad companies, applicable in this case?

It is disclosed by the record that the plaintiff, on January 29, 1941, was in her seventy-seventh year; was five feet and one inch in height; had a few hours to wait prior to her departure from the City of Tampa, and in consuming the time boarded a street car near the Hillsboro Hotel for a short sight seeing tour of interesting points situated around the Bay between the City of Tampa and Port Tampa. When reaching Russell Street near Ballast Point and before reaching Port Tampa, she concluded to take a car returning to the City of Tampa. In alighting from the street car at Russell Street she fell and sustained described injuries. The witnesses gave testimony as to the fall. The motorman failed to assist the plaintiff when alighting. The step of the car was about 22 inches from the ground; the pictures show a depression at the point where she alighted and these factors undoubtedly caused the plaintiff's injuries. An eyewitness testified that the weather was clear and sunshiny and the street dry and this lady (plaintiff) was getting off and as she stepped off down onto the street she fell backwards. The distance from the step of the car to the ground appeared too great for a person of plaintiff's build, but possibly not too far for a taller person.

It is contended that there was nothing about the plaintiff's appearance that suggested aid in making the exit from the car and that the plaintiff failed to establish by competent testimony the material allegations of Counts 1, 2, and 3 of the declaration. It was apparent to the motorman that the plaintiff was of small stature; the 22 inches from the steps to the ground was too great for her lower limbs; the depression and ground level at the point of exit were to the motorman discernible. These several contentions present disputes and conflicts, and inferences deducible from the testimony which made issues of fact for a jury under appropriate legal instructions by the trial court.

The plaintiff's injuries, it is contended, were sustained by her when alighting from a street car at a time when it was not in motion but at a stop at Russell Street, and the street car was not being 'operated' at the time within the meaning of Section 7051, C.G.L.,F.S.A. § 768.05. Likewise the facts reflected by the record disclose contributory negligence of the plaintiff, as a matter of law, which prevent a recovery by the plaintiff under the several provisions of Section 7052, C.G.L.,F.S.A. § 768.06.

Section 768.05 Fla.Stats. 1941, F.S.A. § 768.05 (Section 7051, C.G.L.), provides:

'Liability of railroad company.--A railroad company shall be liable for any damage done to persons, stock or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employ and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company. [Ch. 4071, Acts 1891, Sec. 1].'

Section 768.06, Fla.Stats. 1941, F.S.A. § 768.06, provides:

'768.06 Comparative negligence.--No person shall recover damages from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence. If the plaintiff and the agents of the company are both at fault, the former may recover, but the amount of recovery shall be such a proportion of the entire damages sustained, as the defendant's negligence bears to the combined negligence of both the plaintiff and the defendant.'

The Statutes supra are applicable to street railroads. See Consumers' Elec. L. & St. R. R. Co. v. Pryor, 44 Fla. 354, 32 So. 797.

The rationale and conclusions of this Court in previous cases are cited and relied upon by counsel for appellant to establish contributory negligence by the plaintiff as a matter of law, which preclude her recovery. The cases are, viz.: Atlantic Coast Line R. Co. v. McCormick, 59 Fla. 121, 52 So. 712; Seaboard Air Line Ry. Co. v. Rentz & Little, 60 Fla. 449, 54 So. 20; Taylor v. Prairie Pebble Phosphate Co., 61 Fla. 455, 54 So. 904; Lofton v. Jacksonville Electric Co., 61 Fla. 293, 54 So. 959; Florida East Coast Ry. Co., v. Johnson, 70 Fla. 422, 70 So. 397; Clark v. Atlantic Coast Line R. Co., 141 Fla. 155, 192 So. 621; Cline v. Powell, 141 Fla. 119, 192 So. 628; Crenshaw Bros. Produce Co. v. Harper, 142 Fla. 27, 194 So. 353. Other cited cases will be subsequently considered.

It is contended that contributory negligence by the plaintiff appears, as a matter of law, and in light of the authorities supra, she is barred from recovery and that it was error on the part of the trial court to refuse appellant's requested instruction, viz.:

'In addition to its plea of not guilty the defendant has filed two pleas of contributory negligence. These are affirmative pleas; that is to say, the negligence with which the plaintiff is therein charged must be proven by a fair preponderance of the evidence just as the negligence with which the defendant is charged in the plaintiff's declaration must be proven. However, notwithstanding this rule, the defendant is entitled to the benefit of any evidence produced by the plaintiff showing negligence on the part of the plaintiff, whether such negligence is that with which the plaintiff is charged in the pleas or not. Therefore, if, in your opinion, the plaintiff's evidence shows that she was guilty of negligence which proximately contributed to her own injury you must find for the defendant even though you find that the defendant was also guilty of negligence as charged in the plaintiff's declaration. The law does not undertake to apportion the consequences of mutual negligence, and if one is injured through the negligence of another but is himself guilty of some degree of negligence proximately contributing to his injury that person cannot recover even though the negligence of which the other party was guilty was greater than the negligence of the injured party. It is only necessary that the injured party is guilty of negligence which proximately contributes in any appreciable degree to the injury sustained.'

A Florida statute prescribing the duties of the motorman to the plaintiff at the time she made her exit from the street car has not been cited. It is not shown by the testimony that she on leaving the...