Rayam v. Atlantic Coast Line Railroad Co. , 119 Fla. 386 ( 1935 )

Writ of error in this case is to review a judgment in favor of the defendant on demurrer sustained to an amended declaration. The amended declaration attempted to state a cause of action against a railroad company for damages incurred when plaintiff's automobile being driven by plaintiff in the night time on a public highway came into collision with a flat car loaded with steel rails standing on defendant's railroad tracks, the same being a spur or service track and not a main line, and when such car was loaded was stopped and standing on the tracks obstructing the highway by reason of the fact that the engine used in moving the car had become derailed.

The declaration on its face shows that the plaintiff was familiar with the locality and conditions and that he knew of the location of the railroad track and that it was sometimes used by the railroad company over which to move trains.

The allegations of the declaration are sufficient to show that the plaintiff was guilty of some contributory negligence.

We do not think that the sustaining of the demurrer can be upheld on the ground that the cause of action, if there is any, is not within the purview of Section 4965 R. G. S., 7052 C. G. L., or that it is supported on authority of A. C. L. Railroad Co. v. McCormick, 59 Fla. 121, 52 So. 712; Tampa Electric Co. v. Soule, 84 Fla. 557, 94 So. 692; Sou. Ry. Co. v. Mann, 91 Fla. 648, 108 So. 890. A careful perusal of the declaration, however, fails to reveal any allegation of negligent conduct on the part of the defendant, its agents or servants, which was the proximate cause of the injury alleged to have been suffered by the plaintiff and as the allegations of the declaration are not such as to bring the alleged injury within the purview of Section 4964 R. G. S., 7051 C. G. L., they are insufficient to constitute a basis of recovery for the plaintiff.

Therefore, the judgment should be affirmed.

It is so ordered.

Affirmed.

ELLIS, P. J., and TERRELL, J., concur.

WHITFIELD, C. J., and BROWN and DAVIS, J. J., concur specially.