Judges: PER CURIAM. —
Attorneys: Knight, Thompson Turner, for Plaintiffs in Error;
Mabry, Reaves Carlton, for Defendant in Error.
Filed: Feb. 26, 1926
Latest Update: Mar. 02, 2020
Summary: In an action for personal injuries, damages in the sum of $25,000.00 were claimed. Verdict and *Page 376 judgment for the full amount were rendered and the defendant took writ of error. It appears that the plaintiff and a companion who was driving, were in an automobile going for two young ladies to take them to a dance, that at a grade crossing over which plaintiff had heretofore passed and knew of its location and conditions, the automobile was struck by the locomotive of defendant's passing t
Summary: In an action for personal injuries, damages in the sum of $25,000.00 were claimed. Verdict and *Page 376 judgment for the full amount were rendered and the defendant took writ of error. It appears that the plaintiff and a companion who was driving, were in an automobile going for two young ladies to take them to a dance, that at a grade crossing over which plaintiff had heretofore passed and knew of its location and conditions, the automobile was struck by the locomotive of defendant's passing tr..
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While there was no plea of contributory negligence, the evidence clearly showed negligence of the plaintiff that had contributed to, if it was not the essential cause of, the injury; and without adjudicating the question of liability, the court reversed the judgment for a new trial, since if liability appears the evidence shows the amount of the verdict to be palpably excessive. Atlantic Coast Line R. Co. v. Wilson,81 Fla. 117, 87 South. Rep. 314; Tampa Electric Co. v. Barber,81 Fla. 405, 88 South. Rep. 302.
Whether contributory negligence is a bar to an action for a merely negligent injury as at common law, or operates under the statute to diminish the amount of damages recoverable in actions against railroad companies "for any damage done to persons or property by the running of" the company's trains, such contributory negligence is an affirmative defense, and to be available either as a bar to the action or to diminish the recovery, it should be pleaded and proved by the defendant, unless the plaintiff permits it to be shown without objection under other pleas, or unless
contributory negligence appears in the case made by the plaintiff. Warfield v. Hepburn, 62 Fla. 409,57 South. Rep. 618.
All concur.
