Tampa Electric Co. v. Mcculloch

• Decision Date: 03 July 1934
• Citation: 115 Fla. 680,156 So. 259
• Parties: TAMPA ELECTRIC CO. v. McCULLOCH.
• Court: Florida Supreme Court

156 So. 259

115 Fla. 680

TAMPA ELECTRIC CO. v. McCULLOCH.

Florida Supreme Court, Division B.

July 3, 1934

Rehearing Denied Aug. 3, 1934.

Error to Circuit Court, Hillsborough County L. L. Parks, Judge.

Action by F. L. McCulloch against the Tampa Electric Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

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

Hampton Bull & Crom, of Tampa, for defendant in error.

OPINION

PER CURIAM.

This writ of error was taken to a judgment awarding damages for personal injuries received at a grade crossing when a street car collided with an automobile in which plaintiff was riding. Negligence of the defendant company is alleged in the operation of the street car, in excessive speed, and in failing to give warning of the approach of the street car. Trial was had on a plea of not guilty and of contributory negligence. There was evidence legally sufficient to support a finding of negligence of the defendant's employee in not giving warning of the approach of the car under circumstances of traffic and obstruction of vision near the crossing which required careful attention and the giving of timely warning signals by the motorman, and similarly as to the plaintiff who was driving the automobile; but under the statutes (Comp. Gen Laws 1927, § 7052) contributory negligence merely reduces the amount of the recovery, and, as there is no contention that the damages were not duly apportioned, but merely that a new trial should have been granted on grounds going to the lack of negligence on the part of the defendant, no material error is made to appear.

Affirmed.

WHITFIELD P.J., and BROWN and BUFORD, JJ., concur.

DAVIS C.J., and ELLIS and TERRELL, JJ., concur in the opinion and judgment.

PER CURIAM.

A petition for rehearing contains the following three grounds:

'1. Because the court in its per curiam opinion has held that under the statutes contributory negligence merely reduces the amount of recovery, whereas the point of law submitted to the court was whether or not the plaintiff had proven the allegations of negligence alleged in the declaration. Thile the comparative negligence statute permits a recovery on the part of the plaintiff if he himself contributes to the injury, yet such statute does not aid the plaintiff in proving the allegations of his declaration.

'2. The record in this case shows by an overwhelming weight of the evidence that warning was given of the approach of the street car. All witnesses in the record testify to the warning except the plaintiff, and his testimony is only negative testimony, he stating only that he did not hear any warning.

'3. The evidence, without contradiction, shows that the plaintiff himself was solely responsible for his injury by driving upon the tracks of the defendant company when he knew or could have dknown of the approaching street car.'

In an action against a railroad company or a street car company for a negligent injury to person or property, negligence must be alleged in the running of the company's train or car which caused the injury complained of; but, when an injury as alleged is shown to have been caused by the running of such train or car of the company,...