Wade v. Louisville & N.R. Co.

• Decision Date: 13 November 1907
• Citation: 45 So. 472,54 Fla. 277
• Parties: WADE v. LOUISVILLE & N. R. CO.
• Court: Florida Supreme Court

45 So. 472

54 Fla. 277

WADE v. LOUISVILLE & N. R. CO.

Florida Supreme Court, Division A.

November 13, 1907

Rehearing Denied Dec. 18, 1907.

Error to Circuit Court, Holmes County; J. Emmet Wolfe, Judge.

Action by Amanda Wade against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

In an action where the negligence complained of is the running of a train at excessive speed without a headlight, and the evidence shows that the speed of the train and the absence of the headlight were not the cause of the accident, but that the negligence of the person injured in not leaving the track when warned to do so was the cause of the injury, the giving of an affirmative charge for the defendant was not error.

COUNSEL

D. L. McKinnon, for plaintiff in error.

Blount & Blount & Carter, for defendant in error.

OPINION

WHITFIELD J.

The plaintiff in error brought an action in the circuit court for Holmes county against the Louisville & Nashville Railroad Company to recover damages for the death of her husband, who is alleged to have been killed while riding on a lever or hand car by the negligence of the company in running an engine backward at a high rate of speed about dark without any light to advise of its approach.

On a former writ of error in this cause it was held that the statute allowing employés to recover for injuries caused by the negligence of another employé in running of locomotives etc., has no application to this case, as the deceased though in the employment of the principal whose servant's negligence occasioned the injury, was not when killed engaged in the performance of his duties as such employé, but had left the scene of his labors and was engaged in the pursuit of his own ends. Louisville & N. R. Co. v. Wade, 46 Fla. 197, 35 So. 863.

It was also held that the person killed was not a licensee rightfully upon the track of the defendant at the time of the accident and death, and that upon the showing made the measure of duty or care the defendant company owed to the person killed was that due to a trespasser upon the track at the time and place of the injury to him.

At a subsequent trial the court directed a verdict for the defendant, but an order granting a new trial was affirmed here; the merits of the case not being considered. Louisville & N. R. Co. v. Wade, 49 Fla. 179, 38 So. 49.

Another trial was had in May, 1907, and the court again directed a verdict for the defendant. Exception was taken by the plaintiff to the affirmative charge and to an order denying a new trial. Plaintiff took writ of error, and assigns the affirmative charge and the refusal of a new trial as errors.

The deceased and several others were without authority going west on a hand car propelled in part by deceased on defendant's railroad without a light after dark. A train going east, with the engine pulling backward, collided with the hand car. Being warned of an approaching train, all jumped from the hand car and escaped injury except the deceased, who disregarded the timely warning given him by his companions and was killed by the collision, though the hand car was not thrown from the track, but was pushed along ahead of the train for some distance. The deceased was found dead upon the hand car; his neck having been broken by the collision.

By section 3148 of the General Statutes of 1906 it is provided that a railroad company shall be liable for any damage done to persons 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 its agents have exercised all ordinary and reasonable care and diligence; the presumption in all cases being against the company.

Section 1496 of the General Statutes provides that if, upon the conclusion of the argument of counsel in any civil case after all the evidence shall have been submitted it be apparent to the judge that no evidence has been submitted upon which the jury could lawfully find a verdict for one party, the judge may direct...