Hammond v. Jacksonville Electric Co.

Cockrell, J. There was judgment for the defendant upon a directed verdict, and the plaintiff takes writ of error. The evidence tends to show that George W. Hammond, the plaintiff’s husband, was killed by being run against by a street car operated by the defendant company on Jessie Street in the City of Jacksonville. In addition to the statutory presumption of negligence from these facts, it is further in evidence that the car was being operated at night on a dark street, without a headlight, and with [146] the interior of the car but dimly lighted; no bell was sounded upon the approach to the street crossing where the accident occurred; the car was going full speed on a street recently paved and so banked with sand on either side, as to render the portion of the street covered by the car tracks the usual foot passage for a large number of people, and the car was operated by a motorman, so careless of his duties under these circumstances as not to light the electric headlight with which the car was equipped, and to turn his face to the rear to talk with some one in the car. It is difficult to conceive of greater negligence in the operation of a car upon the streets of a city. The defendant seeks to justify the affirmative charge in its behalf upon the theory that these acts of negligence did not proximately contribute to the injury, and that the fatal injury was caused solely by the failure of the plaintiff’s husband to exercise his own faculties, or else that the testimony shows a deliberate act of suicide. Comparative negligence is not a complete defense in this State for an injury received from the operation of street cars, and such injury having been shown, a presumption of negligence on the part of the one operating the car arises. Although the street car company failed to fulfil its duty to the public rightfully occupying the city streets, in the particulars indicated, yet because certain witnesses saw or heard the car before it struck the deceased husband, it is asserted that as matter of law he must be held to have seen or heard it, and therefore to be deprived of a right of action because he did not earlier get off that portion of the public street over which the car passed. It is uncertain exactly how long he had been on the [147] track, but it appears he was getting off it at the crossing of another street when the car struck him. We cannot say that he would not have gotten off earlier had he been warned by the glare of an approaching headlight, the usual equipment of these cars, or the sounding of a gong, required by ordinance upon nearing a street crossing; nor can we say that a proper lookout by the motorman at this particularly frequented place might not have disclosed the presence of the man upon the track, in ample time to have averted the taking of this human life. We are not dealing with the case of one walking along or crossing a railroad track, upon which are operated long trains which may not be readily and quickly stopped, but with' cars operated electrically in the streets of a city, with no complications as to the law of treas-pass where the presence of others may be expected on that portion of the streets which the street cars use permissively only, and the proper use of which the citizen using the street has a right to anticipate. In the instant case the deceased may have misjudged the distance from the car, by reason of the excessive speed at which it was being run and the absence of proper headlights and other warning; but this miscalculation shows neither an intentional injury nor an accident that the street car company should not have anticipated; or to use the language of the statute, it does not appear that the injury was “done by his consent or is caused by his own negligence.” It seems clear to us that the defendant was not.entitled to the affirmative charge, and the judgment based thereon is accordingly reversed. [148] Shackleford, C. J., and Taylor, and Hooker, J. J., concur.