Seaboard Air Line Railway v. Callan

Citations

• 73 Fla. 688
• 74 So. 799

Syllabus

<p>1. Whether an allegation that the defendant railroad company negligently propelled one of its trains backwards without any warning, be regarded as a general or a special allegation of negligence, upon proof that the plaintiff was injured by the train when it was being propelled backwards without any warning, the statute, Section 3148 General Statutes, 1906, raises , a presumption that the defendant^railroad company was negligent as alleged, and the burden was thereby cast upon the defendant company to overcome such presumption by proof that it was not negligent in the manner alleged.</p> <p>2. The fact that there was conflicting evidence as to lack of warning does not prevent the operation of the statute imposing upon the defendant railroad company the burden to “make it appear” that it did not negligently propel the train backwards without any warning when the plaintiff was injured.</p> <p>3. In determining whether the defendant was negligent as alleged, the jury under the statute were to consider the statutory presumption in connection with the evidence.</p> <p>4. Conflicts in the evidence are determined by the jury; and where the finding is not manifestly against the weight of the evidence and the justice of the cause, it will be allowed to stand unless errors of law or procedure make the verdict erroneous.</p> <p>5. Where the charges given conform substantially to the law and the evidence, and the charges .refused are in the main covered by other charges given, and the verdict and entire record indicate that error, if any, in giving or refusing charges were harmless, the judgment will not be reversed, no material error of law or procedure appearing.</p> <p>6. Where'damages are to be apportioned under the statute, the recovery should be such a proportion of the entire damages sustained as the defendant’s negligence bears to the combined negligence of both the plaintiff and the defendant in the premises.</p> <p>7. A verdict is not so excessive as to require int