Tampa Electric Co. v. Soule

• Decision Date: 28 July 1922
• Citation: 84 Fla. 557,94 So. 692
• Parties: TAMPA ELECTRIC CO. v. SOULE.
• Court: Florida Supreme Court

94 So. 692

84 Fla. 557

TAMPA ELECTRIC CO. v. SOULE.

Florida Supreme Court

July 28, 1922

On Rehearing, November 18, 1922.

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

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

Reversed.

Whitfield and West, JJ., dissenting.

Syllabus by the Court

SYLLABUS

Statutory presumption of negligence in running cars defined. Section 4964, Revised General Statutes 1920, which provides that 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 damages done by any person in the employ and service of such company, unless the company shall make it appear that its agents have exercised all ordinary and reasonable care and diligence and that in all cases the presumption shall be against the company, applies only in cases where by an act of the railroad or its agents in running its locomotives, or cars or other machinery, an injury to a person or stock occurs.

Statutory presumption of negligence in 'running' cars limited to act of company. The word 'running,' as used in that section, conveys the idea of action, the doing of something by the railroad company or its agents. The presumption of negligence is not cast upon the company in cases where, by no act of the company or its agents in running the locomotives, cars or other machinery of the company, a person or stock or other property is injured on railroad premises. [Ed. Note.--For other definitions, see Words and Phrases, First and Second Series, Running.]

Presumption of negligence not applicable where passenger was injured on descending from car atter it had come to a full stop. Where a passenger on a street car, in attempting to leave the car at a place where the car usually stops for the purpose of allowing passengers to descend from it after the car has come to a full stop, falls and injures herself, the mere fact of the injury does not cast upon the company the presumption that it either caused the injury or that the injury was the result of any negligence upon the part of the company or its agents.

COUNSEL

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

Sparkman & Knight, of Tampa, for defendant in error.

OPINION

WHITFIELD J.

The declaration herein alleges in one count that the plaintiff, a passenger, was alighting from the defendant's street car 'when the skirt of her dress without fault or negligence on her part caught and became fastened upon a nut or bolt or other part of said car which the said defendant had so negligently permitted to become loose and in a dangerous condition, and thereby the plaintiff in stepping from said car in attempting to alight therefrom was jerked, pulled and with great force and violence thrown and fell to and upon the street pavement by means whereof, then and there the plaintiff' was injured as stated; and in another count that the 'defendant had stopped said car for the purpose of permitting plaintiff and other passengers to alight therefrom, and plaintiff undertook to do so with all due care and diligence when the skirt of her dress without fault or negligence on her part caught and became fastened upon a nut or bolt or other part of said car which the said defendant had so negligently permitted to become loose and in a dangerous condition, and thereby the plaintiff in stepping from said car in attempting to alight therefrom was jerked, pulled and with great force and violence thrown and fell to and upon the street pavement by means whereof then and there the plaintiff' was injured as stated; and in another count that the defendant 'did not keep said car in good condition and repair, but neglected to do so and negligently allowed the same to become in an unsafe condition and permitted certain bolts, irons, seats, and other parts of said car to become loose and in an unsafe and dangerous condition; and plaintiff further avers that said car had reached a point at or near the intersection of Zack and Franklin streets in said city and defendant had stopped said car for the purpose of permitting plaintiff and other passengers to alight therefrom and plaintiff undertook to do so with all due care and diligence. When in attempting to alight from said car she, by reason of said unsafe and dangerous condition of said car and without any fault or negligence on her part, was in some manner to the plaintiff unknown jerked and thrown with great force and violence to and fell heavily upon the street pavement, by means whereof then and there the plaintiff's neck, hips, sides, shoulders and back were badly bruised, contused and wounded,' etc.

Trial was had on a plea of not guilty. Verdict and judgment awarding $15,000 damages to the plaintiff were rendered, and the defendant took writ of error.

The plaintiff testified:

'The car had stopped, and I started to alight forward, and in trying to reach the first step I had let go my hold, and when I started to reach the first step I thought I had my footing, you know, and my dress was caught, taking both feet from under me, and just threw me right forward. Nothing to catch me then but the pavement. When I started to alight from this car and stepped forward, I found that my skirt was caught, but it was too late. It caught on something on the car, I believe a nut or a bolt, something on the car.'

The plaintiff also testified that, several days after the injury, she was on the same street car and the conductor called her attention to a loose nut on the same car at a place where it could have caught her dress as she fell.

A witness for the plaintiff testified that the plaintiff sat in front of her on the street car; that both were leaving the car, and that----

'Just as I got up, she got up before I did, and just as I got up she fell. Her skirt caught on something on the car. I couldn't see what it was, but I heard it tear, and she fell. She fell hard, just went plump right from the first step as you step off. I don't think she fell from the flooring. She fell from the first step as you step from th flooring. As she stepped her skirt caught in this obstruction, whatever it was, and I heard it tear.'

Testimony as to the injuries received and as to the losses sustained was adduced. At the close of the plaintiff's testimony, the defendant moved for a directed verdict in its favor. This was denied and is argued as error.

The statutes provide:

'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.

'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. It the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished or increased by the jury in proportion to the amount of default attributable to him.' Sections 4964, 4965, Rev. Gen. Stats. 1920.

It is argued that as the street car had stopped and was still when the plaintiff fell as she was alighting from the car, the statutes are not applicable, since they regulate the liability of railroad companies only for damage done by the running of cars, etc., of such company. This is too narrow an interpretation of the statute. It has reference to the liability of railroad companies for damage done in the operation of cars, etc. See Smith v. Atlantic Coast Line R. Co., 5 Ga.App. 219, 62 S.E. 1020; Seaboard Air Line Ry. v. Bishop, 132 Ga. 71, 63 S.E. 1103, text 1107. Stopping a street car to allow passengers to alight is a part of the running or operation of such cars. The statute was applicable. Proof of injury to a passenger in alighting from a street car was shown, and that the injury was caused by the running or operation of the street car may fairly be inferred from the evidence adduced by the plaintiff. Thereupon the statute put upon the defendant company the burden of showing that it exercised all ordinary and reasonable care and diligence to secure the safety of the passenger under the circumstances. This included 'all ordinary and reasonable care and diligence' to have the car free from loose or projecting bolts or nuts that could catch dresses of passengers that may pass over them and cause injury in alighting from the car. The plaintiff having shown an injury to herself by the catching of the bottom of her dress on some obstruction as she alighted from the car, there was no error in refusing to direct a verdict for the defendant at the close of the plaintiff's testimony in chief.

It is contended by the defendant company that the injury was not caused by a loose nut or bolt catching the plaintiff's dress as she alighted from the car, but conflicts in the evidence as to this were settled by the verdict which has sufficient supporting evidence. The defendant's evidence as to inspection of the car and as to there being no loose or protruding bolt or nut at a place where it could have caught the plaintiff's dress as she was alighting from the car, and that the plaintiff's foot caught in her dress and tripped her, does not so clearly overcome the testimony adduced by the plaintiff as to warrant an appellate court to disturb the verdict. See North Chicago St. R. R. Co. v. Eldridge, 51 Ill.App. 430.

In developing the plaintiff's...