Butler v. Southern Railway Co.

Whitfield, C. J., {After stating the facts.) — Sections 3148 and 3149, General Statutes of 1906, provide 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 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 negli [105] gence. 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.” Where the death of a person is caused in this State by the wrongful act, negligence, carelessness or default of any person or corporation, and the act, negligence, carelessness or default is such as would, if death had not ensued, have entitled the party injured thereby to maintain an action for damages in respect thereof, then the negligent party shall be liable in damages to those who are designated in the statutes as being entitled to maintain an action therefor; and in. every such action the jury shall give such damages as the party entitled to sue may have sustained by reason of the death of the person killed. Sections 3145 and 3146, General Statutes of 1906, as amended by Chapter 5648, Acts of 1907. If Charles Butler could have recovered damages for the injury to himself had he lived, his minor children can recover damages for losses they sustained because of the father’s death, the widow of the deceased having died since his death. In an action for injuries received by the operation of a train of a railroad company, it is in general sufficient to allege ultimate facts showing that the defendant negligently did or omitted the act or acts that proximately caused or contributed to causing the injury as stated, the specific fact that actually caused the injury being duly alleged so that a definite issue may be presented for trial. Warfield v. Hepburn, 62 Fla. 409, 57 South. Rep. 618; Morris v. Florida Cent. & P. R. Co., 43 Fla. 10, 29 South. Rep. 541; see also notes to 59 L. R. A. 209. Stated in a, condensed form, each of the several counts of the, declaration is in substance as follows-: [106] That Charles Butler deceased left a widow Manda Butler who has since died; that plaintiffs are the minor children and heirs at law of said Charles and Manda Butler; that on June 27th, 1908, the defendant a railroad company was operating its trains in Duval County, Florida; that on said date in said county, the defendant so negligently operated one of its trains that by reason thereof. the said train was negligently run upon and against Charles Biltler, the father of plaintiffs, while he .vas upon the railroad track at a point about midway between Enterprise Street and Fairfax Street, in the city of Jacksonville, in Duval County, Florida, and thereby struck down and so wounded, bruised, broke, cut and crushed the said Charles Butler, that he then and there departed this life, killed by the defendant; that by the death of the said Charles Butler, the plaintiffs have been deprived of the care, counsel and support of their said father to the damages of the plaintiffs in ten thousand dollars. The allegations as abstracted above are sufficient statements of ultimate facts to show negligence of the defendant in the operation of its train and also injury to the plaintiffs’ decedent proximately resulting from a particular fact stated, viz. the negligent running of said train upon and against the decedent while he was upon the track. If the other allegations contained in the counts do not by repugnancy destroy the efficacy of the declaration, or do not negative the defendant’s liability, the 4emxirrer to the several counts were erroneously sustained. • ,. The allegations of the several counts as to 'the presence ,of the deceased on the railroad track negative any theory that he.was,.there, as .a. trespasser, and support an inference or presumption ■■ that, the decedent was lawfully [107] on the track. Even if the decedent was a mere trespasser, it is alleged that he was fatally injured by the negligence of the defendant in the operation of its train. While a railroad company is not held to as high a degree of care to prevent injury to trespassers as is required by law in the case of passengers, employees and licensees, yet under the statute where injury by the operation of the train of a railroad company is shown, there is liability of the defendant for damages unless the railroad company shall make it appear that it had' exercised all ordinary and reasonable care and diligence to avoid the injury. What was ordinary and reasonable care and diligence depends upon all the circumstances of the case. If the defendant was in fact a trespasser, it may be shown in evidence as a factor to be considered in determining the degree of care required of the defendant. The allegations of the declaration do not shown by express language or fair inference that the injury was caused by the decedent’s own negligence, or was done by his consent. Such allegations'do in effect state that the defendant’s negligence in the operation of its train was a proximate cause of the injury complained of. This is equivalent to alleging that the defendant did not exercise due care under the circumstances in the operation of its train, and that the injury stated was a proximate result of such want of due care on the part of the defendant. The allegations of specific acts of negligence, whether admitted by the demurrer or' not, do not appear as matter of law to be insufficient. Whether the alleged specific acts and omissions were in fact negligent and impose liability depended upon the circumstances to be developed at the trial. The unnecessary allegations in the several counts are not repugnant to the allegations that state a cause of [108] action, and do not negative tlie liability of the defendant railroad company. ■ If the injury to the plaintiffs’ decedent was in fact caused solely by his OAvn negligence, or if the defendant in fact exercised all ordinary and reasonable care and diligence due under the circumstances to prevent the injury, it is not liable in damages; and this may be shown under the general issue. If the defendant’s negligence was a proximate contributing cause of the injury, mere contributory negligence of the plaintiffs’ decedent is, under the statute, not a bar to the action, but it may operate to., diminish (the damages recoverable. The judgment is reversed. Taylor, Shackleford, Cockrell and Hocker, J. J., concur.