Florida East Coast Railway Co. v. Frederitzi

81 So. 104, 77 Fla. 150

• Court: Supreme Court of Florida
• Decided: February 4, 1919
• Status: Published

Opinion

Whitfield, J.

— Frederitzi obtained a judgment for damages for the death of his minor son caused by the railroad company’s train at a crossing, and on writ of error the company contends merely “that the evidence shows that the killing of plaintiff’s son was the result of the son’s own negligence,” which would make a recovery error. See Tampa Electric Co. v. Bourquardez, 72 Fla. 161, 72 South. Rep. 668; Seaboard Air Line Ry. v. Tomberlin, 70 Fla. 435, 70 South. Rep. 437; Louisville & N. R. Co. v. Padgett, 71 Fla. 90, 70 South. Rep. 998; Atlantic Coast Line R. Co. v. Miller, 53 Fla. 246, 44 South. Rep. 247; Live Oak P. & G. R. Co. v. Miller, 72 Fla. 8, 72 South. Rep. 283; Seaboard Air Line R. Co. v. Barwick, 51 Fla. 304, 41 South. Rep. 70; Seaboard Air Line Ry. v. Smith, 53 Fla. 375, 43 South. Rep. 235.

In this case the evidence does not show that the negligence of the deceased was the sole proximate, cause of his death or that the defendant was free from fault as in the cases above cited. It appears that the decedent was negligent; but there is evidence as to the speed of the train, the obstruction of the view at or near the crossing and other circumstances from which the jury may have found negligence in operating the train that appreciably contributed to the cause of the death of the decedent; and as under the statute there may be a recovery, but the damages shall be reduced in proportion to the decedent’s fault, the verdict will not be disturbed, there being no contention that the verdict is excessive if there is any liability and the amount awarded not being patently unreasonable.

Judgment affirmed.

Browne, C. J., Taylor, Ellis and West, J. J., concur.