Defendant in error recovered judgment against plaintiff in error for injury alleged to have been received by her by reason of a train operated by the plaintiff in error coming into collision with an automobile in which she was riding.

The first assignment of error assigns the charge of the court in the following language:

"The Court further instructs you that the burden of proving the injury is on the plaintiff and the burden of showing absence of negligence is on the defendant. A railroad company would be liable for any damage done to any person by the running of its locomotives or cars unless the company should make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company. When it is shown that the injury of the plaintiff was caused by the operation of the train of the defendant company, the burden is upon the company to show that it exercised all ordinary and reasonable care and diligence to avoid the injury. Upon proof by a preponderance of the evidence of the injury complained of in the declaration, the defendant is liable for whatever damage is alleged and proven by such preponderance of the evidence to have been done by defendant to plaintiff, unless the defendant proves by a preponderance *Page 16 of the evidence that its agents exercised all ordinary and reasonable care and diligence; the presumption being against the defendant.

"What will constitute ordinary and reasonable diligence must necessarily vary under different circumstances.

"It cannot be measured or ascertained by a fixed and inflexible standard, because the words 'ordinary' and 'reasonable' are themselves relative terms, and what under some conditions would be ordinary and reasonable diligence might under other conditions amount to even gross negligence.

"In this connection the word 'ordinary' is not used in its narrowest and most confined sense, but is intended to require of the defendant all of the care and diligence ordinarily due from it, under like circumstances, exigencies, and conditions, in like cases, strictly commensurate with the demands and exigencies of the occasion, and by the relationship that the defendant bears at the time to the party in question."

The objection to that charge is the language contained in the first paragraph thereof. It is contended that this charge was prejudicial to the defendant and that it was erroneous because of a misconstruction of the provisions of Section 4964 R. G. S., 7051 C. G. L.

The latter part of the above quoted charge appears to have been taken verbatim from a charge approved by this Court in the case of S. A. L. Ry., v. Mosely, 60 Fla. 186, 53 So. 718, and which has been substantially followed in a number of cases since that time. We find that we must now modify what may have heretofore been our construction of the statute here involved.

It is the duty of the courts to so construe statutes as to hold them constitutional and valid if such a construction may reasonably and logically be placed upon the language *Page 17 of the statute. Since the opinions above referred to were promulgated by this Court the Supreme Court of the United States rendered its opinion in Western Atl. R. R. v. Mrs. Mary E. Henderson, et al., 49 Sup. Ct. Rep. 445, 279 U.S. 639,73 Law Ed. 884, wherein the court referring to the like statute obtaining in the State of Georgia, said:

"A state statute (Ga. Civ. Code, No. 2780) declaring that a railroad company shall be liable for damages to person or property by the running of its trains, '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,' which is construed by the courts of the state as permitting the presumption of negligence thereby created to be given the effect of evidence, to be weighed against opposing testimony, and to prevail unless such testimony is found by the jury to preponderate, is violative of the due process clause of the 14th Amendment."

In that opinion it is also stated by the writer:

"Legislation declaring that proof of one fact or group of facts shall constitute prima facie evidence of an ultimate fact in issue is valid if there is a rational connection between what is proved and what is to be inferred. A prima facie presumption casts upon the person against whom it is applied the duty of going forward with his evidence on the particular point to which the presumption relates. A statute creating a presumption that is arbitrary or that operates to deny a fair opportunity to repel it violates the due process clause of the 14th Amendment. Legislative fiat may not take the place of fact in the judicial determination of issues involving life, liberty or property. Manley v. Georgia, 279 U.S. 1, ante 575,49 Sup. Ct. Rep. 215, and cases cited." *Page 18

While we have heretofore held in accordance with the charge complained of in this case, we recognize that the statute is susceptible of another construction and unless we now give it that other construction we must, in the face of the above cited opinion of the Supreme Court of the United States, hold the statute to be entirely invalid because of its conflict with the 14th Amendment to the Federal Constitution.

The statute is susceptible of the construction that when one is injured by the running of locomotive or cars, or other machinery, of a railroad company and seeks to recover damage for such injury such person is only required under a declaration alleging the injury to have occurred by reason of the negligent running or operating of the locomotive or cars or other machinery of such company, to prove the injury as alleged in the declaration and, thereupon the burden temporarily in all cases rests upon the railroad company to show by some evidence that no act of negligence, either of omission or commission, was done by its employees in the running of such instrumentality and that unless the railroad company does offer such evidence it is presumed to be guilty of negligence and aprima facie case is thereby made upon which the plaintiff may recover. But, this prima facie fight to recover may be overcome by the railroad company offering some testimony to show that no act of negligence, either of omission or commission, was done by its employees in the running of the instrumentality complained of, and when the railroad company has produced such evidence there no longer exists any presumption against it. Thereupon that part of the statute which creates the primafacie case against the railroad company becomes inoperative and inapplicable further in that case. The burden is then upon the plaintiff to show by a preponderance *Page 19 of evidence the negligence complained of and the plaintiff can only recover on the production of a preponderance of evidence to sustain the charge of the negligence. The original so-called statutory presumption in cases where the defendant has offered evidence as above suggested has no place for consideration by the jury and is entirely eliminated from the case from thenceforth.

We should adopt this construction.

When in such a case the trial court charges the jury that any presumption of law exists against the defendant it is a charge as to law which does not obtain in that case and is, therefore, erroneous.

Whether a charge of this character is harmful or constitutes only harmless error is one which may be determined from the facts in each case and if it appears from all the evidence in the case that a charge so given could have worked no hardship on the defendant, it may be held harmless error.

In the instant case the charge given at the request of the defendant, which is quoted in the majority opinion, was sufficient to clarify the confusion and misconception of the law which might have been created by the giving of the charge above referred to and complained of. Therefore, finding no other reversible error disclosed by the record, I concur in the order of affirmance.

ELLIS, J., concurs.