Atlantic Coast Line Railroad Co. v. Webb , 112 Fla. 449 ( 1933 )

In an action by the executor or administrator against a railroad company under Sections 7047 (4960), 7051 (4964) Compiled General Laws, to recover damages for an alleged wrongful death of a person caused by the running of the defendant company's train, where the evidence adduced for theplaintiff would afford a sufficient legal basis for a finding by the jury that negligence of both the defendant and the injured party proximately contributed to the injury as shown, and such evidence would also sustain a finding, if made by the jury, that negligence of the injured party in remaining on the track in front of a rapidly approaching train, was the sole proximate cause of the injury, which latter finding, if made, would have prevented a recovery, Section 7052 (4965) Compiled General Laws, it is error to charge the jury that because the defendant adduced no evidence (Section 7051 [4964] Compiled General Laws) to show its employees were not negligent in causing the injury, the jury should find the defendant was negligent and therefore liable in damages, but if they should also find contributory negligence, the damages should be appropriately reduced under the statute. SeSction 7052 (4965) Compiled General Laws.

In this case negligence of the decedent as a contributory cause of the fatal injury clearly appears in that the decedent remained standing on the railroad track in front of a rapidly approaching train, until too late to avoid being struck by the engine, and there was evidence from which the jury might reasonably have inferred negligence of the defendant as contributing proximately to the injury in that the speed of the train was not duly reduced when the decedent was or should have been seen by the engine crew, standing on the track waving the train to stop at a flag station, which in view of the verdict would have justified a fair though diminished recovery under the statute; but on the evidence fairly considered, the amount allowed by the verdict even without a reduction for the decedent's negligence, is in excess of the value at the decedent's death of the prospective earnings and savings that from the evidence could reasonably have been expected but for the death of the decedent, which is the extent of a recovery by an administrator or executor. Jacksonville El. Co. v. Bowden, Adm., 54 Fla. 461, 45 So.2d 735, 15 L.R.A. (N.S.) 451 n.; Section 7048 (4961) Compiled General Laws; M. B. R. R. Co. v. May, 83 Fla. 524, 91 So.2d 553.

DAVIS, C. J., and TERRELL and BUFORD, J. J., concur.