Atlantic Coast Line Railroad v. Swatts , 65 Fla. 403 ( 1913 )

On Rehearing.

Per Curiam.—In

In a petition for rehearing it is suggested that the court failed to give due weight to the uncontradicted testimony of the conductor of the train that prior to the accident, the conductor instructed the deceased flagman to go to the rear of the caboose, some sixty feet distant therefrom, and flag a street crossing to prevent persons from being injured by the movement of the train, the contention being that the deceased was negligent and should not recover under the statute since he violated the order given him and was at the end of the caboose when he was killed, when he should have been sixty feet away in a place of safety.

Counsel overlook the fact that there is also uncontradicted evidence that the deceased was at the time of the injury actually working on the bumper on the end of the caboose trying to adjust it with his hands, with a flag in his hand, which was apparently in the line of his duty as flagman, and that the injury was caused by the undue violence with which the caboose was suddenly moved backward when no notice thereof was given to anyone who might have been at the end of the caboose. The evidence as to the presence of the flagman at the end of the caboose does not indicate negligence on his part. The jury settled the questions of the probative force of the evidence, and as there is testimony to sustain the finding, and nothing to indicate that the jury were not governed by the evidence, the verdict will not be set aside as being contrary to the evidence.

Rehearing denied.

Shackleford, C. J., and Taylor, Cockrell/ Hocker, er and Whitfield, J. J., concur.