Powell v. American Sumatra Tobacco Company

ADAMS, J.: A judgment was recovered against appellants for the negligent operation of a train which resulted in the killing of appellees’ cows. We are asked to reverse the judgment because the trial judge charged the jury that there was a statutory (Sec. 768.05, F.S.A. ’41) presumption of fact against the railroad where the damage was shown to have been inflicted by the operation of the train. Appellants rely on our opinion in A.C.L. R.R. Co. v. Voss; A.C.L. R.R. Co. v. Redemptorists, 136 Fla. 32, 186 So. 199, and Loftin, et al., v. Skelton, 152 Fla. 437, 12 So. (2nd) 175. Appellees recognize our holding in these cases but insist that the judgment should be affirmed notwithstanding these cases because the error was harmless and also that under the facts of this case the giving of the charge was proper. We cannot agree that the erroneous charge was harmless error. Both parties had a right to have the issue submitted to the jury under proper instructions. We have heretofore said in the above cited opinions that the giving of the charge was calculated to improperly influence the jury. In fact, this same argument was rejected in the above cited cases. We can only reiterate what we have heretofore said and now. hold that this case is ruled by the above cited cases. Turning now to the suggestion that the facts of this case rendered the charge proper. The basis for this claim is that, while the appellants did go forward with the evidence, in so doing it was made to appear that the train crew was in fact negligent and for that reason the presumption did not vanish. As to whether such a showing was made we make no commitment inasmuch as this judgment is to be reversed for another trial. *229 The purpose of every trial is to ascertain the truth. The reason for statutes of this character is to burden the party of revealing the truth who is most nearly in position to know the facts. A train is a large and complex vehicle. Naturally its crew members are in better position to know what, if anything, is wrong when an accident occurs. For that reason the Legislature saw fit to require in such cases that they go forward with the evidence and show that they had exercised all ordinary and reasonable care and diligence in operating the train. When the railroad goes forward with the evidence and makés the required showing the presumption vanishes regardless of whether they make a case against themselves, for in that event the purpose of the statute has been fulfilled; the facts have been elicited and plaintiff can fairly make his claim to the jury thereon. For the above reasons the judgment is reversed for a new trial. Reversed. TERRELL, BROWN, THOMAS and SEBRING, JJ., concur. BUFORD, C. J., and'CHAPMAN, JJ., dissent.