Tampa Electric Co. v. Bourquardez
| Decision Date | 08 August 1916 |
| Citation | 72 Fla. 161,72 So. 668 |
| Parties | TAMPA ELECTRIC CO. v. BOURQUARDEZ. |
| Court | Florida Supreme Court |
Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.
Action by R. C. Bourquardez, as administrator, against the Tampa Electric Company, a corporation. There was a judgment for plaintiff, and defendant brings error. Reversed.
Syllabus by the Court
In actions for negligent injuries it may be necessary to allege only the relation between the parties out of which the duty to avoid negligence arises and the act or omission that proximately caused the injury, coupled with a statement that such act or omission was negligently done or omitted.
In an action against an electric railway company, whereby it is sought to recover damages for the death of a person who is alleged to have been killed by reason of the negligent and careless operation of a car of such company, where the evidence, adduced affirmatively, shows that the deceased failed to exercise that degree of caution and prudence which the known risks required, but so negligently rode a motorcycle upon the car track as to bring about a collision between his motorcycle and the approaching car as to occasion his death, the speed of the car cannot be considered the proximate cause of the fatal injury, and there can be no recovery under the provisions of section 3149 of the General Statutes of 1906 (Comp. Laws 1914, s 3149); the deceased having come to his death through his own negligence.
COUNSEL P. O. Knight, of Tampa, for plaintiff in error.
H. S Hampton, of Tampa, for defendant in error.
R. C Bourquardez, as administrator of the estate of D. B Bourquardez, deceased, instituted an action at law against the Tampa Electric Company, a corporation, owning and operating a line of electric railway in Hillsborough county, whereby he sought to recover damages in the sum of $25,000 for the death of D. B. Bourquardez, a son of R. C. Bourquardez approximately 21 years of age, whose death was alleged to have been occasioned by the negligence of the defendant. The declaration consists of three counts, the first of which alleges that 'a car of the defendant at said time and place was so negligently and carelessly operated and propelled that the same was negligently and carelessly permitted to come into violent collision with the body of the said D. B. Bourquardez, by means whereof he was then and there killed;' the second count alleges that, as the deceased approached a certain described crossing on the line of the defendant, riding upon a motorcycle, 'a car of the defendant was negligently and carelessly permitted to approach said crossing at a dangerous rate of speed, so that by means of the said negligent and careless operation of said car at said time and place the said Bourquardez was run into by said car on or near said crossing, and by means of said collision was then and there killed,' while the third count alleges that 'a car of the defendant was negligently and carelessly permitted to approach said crossing without warning or other signal, so that by means thereof said car was carelessly and negligently permitted to come into violent collision with the body of the said D. B. Bourquardez, by means whereof he was then and there killed.' The defendant unsuccessfully interposed a demurrer to the declaration and the several counts thereof, and then filed pleas of not guilty and contributory negligence, upon which issue was joined, and the case came on for trial before a jury, which resulted in a verdict and judgment in favor of the plaintiff for the sum of $800, which judgment the defendant has brought here for review.
We shall discuss only such of the 19 errors assigned as, we think, require it for a proper disposition of the case. The first assignment is based upon the overruling of the demurrer to the declaration. As we have said, this demurrer was addressed to the several counts of the declaration, and set forth numerous grounds or matters of law intended to be argued in support thereof. In view of the conclusion which we have reached, there seems to be no necessity for any extended discussion of this assignment. We have frequently had occasion to construe sections 1441 and 1444 of the General Statutes of 1906 (Compiled Laws of 1914), relating to demurrers to pleadings in actions at law and the form thereof. See Co-operative Sanitary Baking Co. v. Shields, 71 Fla. ----, 70 So. 934, and prior decisions of this court therein cited, especially Warfield v. Hepburn, 62 Fla. 409, 57 So. 618; Consumers' Electric Light & St. R. Co. v. Pryor, 44 Fla. 354, 32 So. 797, and Jacksonville Electric Co. v. Schmetzer, 53 Fla. 370, 43 So. 85. We would also refer to IngramDekle Lumber Co. v. Geiger, 71 Fla. ----, 71 So. 552. As we held in these cited cases, in actions for negligent injuries it may be necessary to allege only the relation between the parties out of which the duty to avoid negligence arises, and the act or omission that proximately caused the injury, coupled with a statement that such act or omission was negligently done or omitted. The discussion in Morris v. Florida Cent. & P. R. Co., 43 Fla. 10, 29 So. 541, may also prove serviceable. Suffice it to say that under the principles enunciated in these cited cases we are of the opinion that this assignment has not been sustained.
We now direct our attention to the assignment based upon the overruling of the motion for a new trial, especially to the grounds thereof which question the sufficiency of the evidence to support the verdict. It is established by the pleadings and evidence that the defendant owned and operated a line of electric railway running from the city of Tampa to a pleasure resort known as Sulphur Springs, which is situated some 5 miles from Tampa, outside of the corporate limits, and on Sunday afternoon, the 25th day of January, 1914, a car of the defendant, which was filled with passengers going from the city of Tampa to Sulphur Springs, between 2 and 3 o'clock, and a motorcycle upon which D. B. Bourquardez the deceased, was riding collided with each other, which resulted in D. B. Bourquardez being killed. This collision occurred upon or near a point where Gordon avenue crosses the track of the defendant, distant about one-half a mile from Sulphur Springs. The deceased and a companion, W. S. Robles, each riding a motorcycle on Gordon avenue, were returning from Sulphur Springs to the city of Tampa. Travel was quite heavy on that day between the two points, as it usually was on Sunday, both on the cars of the defendant and by automobiles and other conveyances, Sulphur Springs being a pleasure resort, as we have said, and special attractions being offered to the public on that particular day. So far the testimony is quite clear and undisputed, but as to the rate of speed at which the car of the defendant was going, as well as to the rate of speed at which the deceased was riding on his motorcycle at the time of the collision, the witnesses who testified on behalf of the respective parties differ widely, as is so frequently the case in actions of this nature. The witnesses on behalf of the plaintiff testified that the car was going at the rate of from 20 to 30 miles an hour, Mrs. Lillie Felts testifying on behalf of the plaintiff that she lived about a block from the crossing on the car track where the accident occurred, had special occasion to observe the car as it approached such crossing at that time, and that 'it was going at the regular speed that they run out on that road,' which she considered 'very fast.' The witnesses who testified on behalf of the defendant also differed among themselves as to the rate of speed of the car, stating that it was from 10 or 12 up to 18 miles an hour. Nearly all of the witnesses who testified on behalf of the parties litigant were passengers on the car at the time the fatal collision occurred, and testified that they had no interest in the result of the action. W. S. Robles testified on behalf of the plaintiff that he and D. B. Bourquardez, the deceased, were riding on their motorcycles at the time of the accident at a speed of about 20 miles an hour, stating that 20 miles an hour on a good road was not excessive speed for motorcycles, but about the ordinary gait that they run. The only other witness on behalf of the plaintiff who testified as to the speed of the two motorcycles was Mrs. Lillie Felts, who stated that she saw them pass her place, going toward the crossing, and that 'they were riding very leisurely, I should think, from what I have seen on motorcycles out that way.' Different witnesses who were passengers on the car at the time testified on behalf of the defendant that the two motorcycles ridden by Robles and the deceased were 'going pretty fast,' variously stating the speed to have been from 25 to 35 or 40 miles an hour. The witnesses testifying for the respective parties also differed as to whether or not the gong was rung as the car was approaching the crossing, several witnesses who were passengers on the car stating that they did not hear the gong ring, and some of such witnesses stated that the gong did not ring. Mrs. Lillie Felts testified that she was listening 'to hear if they rang this little bell, signal bell to stop, and they always answered it with the gong, and they didn't ring the gong.' W. S. Robles testified on behalf of the plaintiff that from the time he first saw the car, as he and the deceased were riding toward the crossing, up to the time of the collision, he did not hear the car sound any gong. On the other hand, several witnesses who were passengers on the car at the time testified on behalf of the defendant that the gong was sounded as the car approached...
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