[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 598 In an action to recover damages for demolishing a motor truck and trailer and the merchandise loaded thereon, alleged to have been caused by the negligence of defendants' operating a train at the time of a collision of the railroad company's passenger train with the plaintiff's truck and trailer at a surface crossing in the suburbs of the City of Avon Park, Florida, the charge was negligence of the railroad company's employees in operating the train. Defendant receivers plead the general issue of not guilty, and, in mitigation of damages, also plead contributory negligence on the part of the truck driver. A motion for new trial was granted upon a directed verdict for the defendant.
Writ of error was taken under the statute, Section 4615 (2905) C.G.L., to the order granting a new trial, and error is assigned on the order, one of the grounds of the motion on which the new trial was granted being stated in the order to be "in directing a verdict for the defendant."
The statutes of Florida contain the following:
"A railroad company shall be liable for any damage done to persons, stock or other property, by the running of the locomotives, or cars or other machinery of such company, * * * unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company." Sec. 7051 (4964) C.G.L.
"No person shall recover damages from a railroad company *Page 599 for injury to himself or his property where the same is done by his consent, or is caused by his own negligence. If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished or increased by the jury in proportion to the amount attributable to him." Sec. 7052 (4965) C.G.L.
In a civil action, if, after all the evidence of the parties "shall have been submitted, it is apparent, to the Judge of the Circuit Court or County Court or Criminal Court of Record or Civil Court of Record that no sufficient evidence has been submitted upon which the jury could legally find a verdict for one party, the Judge may direct the jury to find a verdict for the opposite party." Sec. 4363 (2696) C.G.L.
When, in appropriate proceedings, damage done to persons or property by the running of a railroad company's train is shown by competent evidence, the statute then raises a presumption of fact that the servants or agents of the railroad company were negligent in operating the train; and the statute then casts upon the defendant railroad company the burden of evidence to "make it appear that their agents have exercised all ordinary and reasonable care and diligence" in operating the train which is duly alleged to have been negligently done when the injury occurred. See Warfield v. Hepburn, 62 Fla. 409, 57 So. 618; A.C.L.R.R. Co. v. Watkins, 97 Fla. 350, 121 So. 95; Tampa Electric Co. v. McCulloch, 115 Fla. 680, 156 So. 259; Johnson v. L. N.R. Co., 59 Fla. 305, 52 So. 195; Egley v. S.A.L. Ry. Co.,84 Fla. 147, 93 So. 170; Cason v. Fla. Power Co., 74 Fla. 1,76 So. 535; Atlantic Coast Line R. Co. v. Webb, 112 Fla. 449,150 So. 741.
If the injury alleged was proximately caused solely by the negligence of the plaintiff or his agent driving the truck, there can be no recovery. See Atlantic Coast Line R. Co. *Page 600 v. Garnto, 89 Fla. 97, 103 So. 313; S.A.L. Ry. Co. v. Tomberlin,70 Fla. 435, 70 437; A.C.L.R.R. Co. v. Miller, 53 Fla. 246,44 So. 247; Covington v. S.A.L. Ry Co., 99 Fla. 1102, 128 So. 426. See also notes in 56 A.L.R. 647.
Where, as here, under the statute the rule of comparative negligence causing damage or injury is applicable, and it is made to appear by the evidence that the agents of a railroad company in operating a railroad train and of an injured party or his agent were both at fault in causing the injury, the amount of the recovery if any is limited to such a proportion of the entire damages sustained by the plaintiff, as the defendant's negligence bears to the combined negligence of both the plaintiff or his agent and the agents of the defendant in the premises. See S.A.L. Ry. v. Callan, 73 Fla. 688, 74 So. 799; S.A.L. v. Tilghman,237 U.S. 499, 35 Sup. Ct. 653, 59 L. Ed. 1069; Davis v. Cain, 86 Fla. 18, 97 So. 305; Germak v. F.E.C. Ry. Co., 95 Fla. 991,117 So. 391; S.A.L. Ry. Co. v. Watson, 103 Fla. 477, 137 So. 719; F.E.C. Ry. Co. v. Townsend, 104 Fla. 362, 140 So. 196, 143 So. 445; Anderson v. Crawford, 111 Fla. 381, 149 So. 656; F.E.C. Ry. Co. v. Davis, 96 Fla. 171, 117 So. 842; Covington v. S.A.L. Ry. Co.,99 Fla. 1102, 128 So. 426; A.C.L. Ry. Co. v. Weir, 63 Fla. 69,57 So. 641; see also Stringfellow v. Atl. Coast Line, 290 U.S. 322,54 Sup. Ct. 175, 79 Law Ed. 339; and A.C.L. Ry. Co. v. Richardson, 117 Fla. 10, 157 So. 17.
Under the last above quoted statute, when in a trial by jury, the evidence has all been submitted, a verdict for the defendant should not be directed for the defendant unless it be apparent that no sufficient evidence has been submitted upon which the jury could legally find a verdict for the opposite party. King v. Weis-Patterson Lumber Co., 124 Fla. 272, 168 So. 858; Stevens, etal., v. Tampa Elec. *Page 601 Co., 81 Fla. 512, 88 So. 303; Florida Motor Lines v. Bradley,121 Fla. 591; 164 So. 360.
"In directing a verdict, the court is governed by practically the same rules that are applicable in demurrers to evidence.
"A party moving for a directed verdict admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.
"It is reversible error to direct a verdict for one party when there is substantial evidence tending to prove the issue upon which the jury could lawfully find a verdict for the opposite party." Anderson v. Southern Cotton Oil Co., 73 Fla. 432.
In this case there is testimony upon which, if believed by them, the jury might have found that under all the facts and circumstances in evidence the railroad company's train was being operated at a speed to show that the servants of the railroad company immediately before and at the time of the collision of the truck with the engine of the train, has not "exercised all ordinary and reasonable care and diligence" legally required by the circumstances in operating the train, and that consequently the railroad company may be liable in some damages, even though the evidence should show that the driver of the truck was guilty of negligence which largely contributed to causing the damages, unless it be shown that the plaintiff's truck driver alone was negligent in causing the collision. Whether the railroad company had gates at the grade crossing might be a proper question under appropriate circumstances in adducing evidence.
The order directing a verdict for defendant was corrected by the order granting a new trial, which latter order is here affirmed and the cause remanded for appropriate proceedings. *Page 602
It is so ordered.
WHITFIELD, TERRELL, BROWN, BUFORD and CHAPMAN, J.J., concur.
ELLIS, C.J., dissents.