Judges: ADAMS, J.:
Attorneys: Ausley, Collins Ausley, for appellants.
Caldwell Parker and Leo L. Foster, for appellees.
Filed: Mar. 03, 1944
Latest Update: Mar. 02, 2020
Summary: A judgment was recovered against appellants for the negligent operation of a train which resulted in the killing of appellees' cows. We are asked to reverse the judgment because the trial judge charged the jury that there was a statutory (Sec. 768.05, F.S.A. '41) presumption of fact against the railroad where the damage was shown to have been inflicted by the operation of the train. Appellants rely on our opinion in A.C.L. R.R. Co. v. Voss; A.C.L. RR. Co. v. Redemptorists, 136 Fla. 32 , 186 So.
Summary: A judgment was recovered against appellants for the negligent operation of a train which resulted in the killing of appellees' cows. We are asked to reverse the judgment because the trial judge charged the jury that there was a statutory (Sec. 768.05, F.S.A. '41) presumption of fact against the railroad where the damage was shown to have been inflicted by the operation of the train. Appellants rely on our opinion in A.C.L. R.R. Co. v. Voss; A.C.L. RR. Co. v. Redemptorists, 136 Fla. 32 , 186 So. 1..
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I concur in what is said by Mr. Justice CHAPMAN in the opinion prepared by him in this cause for the reason that I do not think the conclusion reached by him is in conflict with our holding in the cases of Atlantic Coast Line Railroad Company v. Voss and other like holdings cited by Mr. Justice CHAPMAN, because of the fact that while the appellant put on testimony in the trial, it failed to introduce any substantial evidence showing that it, the defendant in the court below, was not guilty of negligence, but, on the contrary, the evidence put on by the defendant showed that the defendant was guilty of negligence at the time, place and under the circumstances of the wrongful act complained of. Therefore, in the instant case the presumption flowing from Sec. 768.05 F.S. 1941 (same S.F.A.) was not eliminated by the introduction of defendant's evidence but was affirmatively supported, and the charge was without error.
The judgment should be affirmed.
CHAPMAN, J. concurs.
TERRELL, BROWN, THOMAS, ADAMS and SEBRING, JJ., dissent.
