In this case Mr. Chief Justice DAVIS, Mr. Justice WHITFIELD and Mr. Justice BROWN are of the opinion that liability of the railroad company was shown, but that the jury did not sufficiently diminish the amount of damages in proportion to the negligence attributable to the driver of the truck, and that the judgment be affirmed only on condition that remittitur of $2,500.00 of the amount of the judgment as of the date of the judgment be entered within thirty days after the going down of the mandate herein, otherwise the judgment to stand reversed. *Page 536
Mr. Justice ELLIS, Mr. Justice TERRELL and Mr. Justice BUFORD are of the opinion that no liability whatsoever has been shown and that the judgment should be unconditionally reversed.
All the Justices are agreed that since the judgment must be affirmed on the authority of State ex rel. Hampton v. McClung,47 Fla. 224, 37 Sou. Rep. 51, because of the equal division of the Court, that the judgment should be affirmed upon that authority only on condition that a remittitur be entered by plaintiff in the amount suggested by those Justices of this Court who favor affirmance on condition of remittitur, the Justices favoring reversal voting therefor in order to avoid unduly prolonging the litigation in this Court, it appearing that the Justices after repeated conferences, are equally and permanently divided on the proposition whether the judgment should be reversed.
Affirmed on condition of remittitur of $2,500.00 as of date of entry of judgment below, otherwise reversed.
DAVIS, C. J., and WHITFIELD, ELLIS, TERRELL, BROWN and BUFORD, J. J., concur.