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Seaboard Air Line Ry. v. Smith negligence existed, and whether it was a proximate cause of the injury. The instruction, we think, was properly refused.
The thirteenth assignment is based on the ruling of the court refusing to give the following instructions, viz.: "The court instructs you that upon the allegation of negligence in this case the plaintiff has the burden of proof, and, if he is guilty of negligence substantially contributing to the injury complained of, you will find for the defendant.” This instruction was properly refused. It offends against chapter 4071, p. 113, Laws of 1891, and the decisions of this court interpreting and enforcing the same. Under the statute the burden of proving injury is on the plaintiff, and, this being shown the burden of showing the absence of negligence is on the defendant. Consumers' Electric Light & St. R. Co. v. Pryor, 44 Fla. 354, text 381, 382, 388, 32 South 797; Jacksonville Electric Co. v. Adams, 50 Fla. 429, 39 South. 183; Florida Cent. & P. R. Co. v. Foxworth, 41 Fla. 1, text 63, 25 South. 338, 79 Am. St. Rep. 149; Florida Cent. P. R. Co. v. Williams, 37 Fla. 406, 20 South. 558; Morris v. Florida Cent. & P. R. Co., 43 Fla. 10, text 25, 29 South. 541.
What we have said as to the twelfth we think applies to the instruction refused and made the basis of the fourteenth assignment of error.
The fifteenth assignment of error is based on the refusal of the court to give an instruction which undertakes arbitrarily, and in the abstract as a matter of law, to say that it is not negligence for an engineer to run his engine within a municipal corporation, not through the traveled streets, over a street crossing at the rate of 20 miles an hour if he give notice by ringing his bell, and has the engine under control, and exercises such diligence as is necessary to be observed under the ordinary necessities of the company's business. We are not advised of any such rule of law. The question of negligence must always depend upon the circumstances of each particular case. Authorities cited supra.
The trial judge of his own motion instructed the jury that “the law of this state provides that a railroad company, when its track crosses a highway, shall put up large signboards at or near said crossing with the following instructions in large letters: 'Stop, look, and listen!'” It also provides that in all incorporated towns and cities it shall cause the bell of the engine to be rung before crossing any streets of said city or town, and a train shall not go faster through any of the traveled streets or thoroughfares than at the rate of four miles an hour. This was objected to and assigned as error. It is evident that the trial judge attempted to apply each of the provisions of section 2264. Rev. St. 1892, to the facts of this case. The injury to the plaintiff occurred in what the witnesses call the railroad yard in Lake City. This yard is not a street of the city, as an uncontradicted witness positively testifies, though people walked on and about the tracks. There are four tracks at the point where the injury occurred. According to the map filed in evidence, made by the Seaboard Air Line Ry. v. Smith county surveyor of Columbia county, there is a street crossing the tracks about 425 feet east of the point where the plaintiff was injured. Defendant's passenger train was going east, on a downgrade, towards the street crossing and the passenger depot. As we have said before, we do not think the quoted section of the statute requiring signboards at or near the crossing of highways applies to the streets of an incorporated town, nor does the speed limit therein provided for apply to any streets, except those traveled streets of a city upon and through which a track is located. We think this charge taken as a whole was erroneous, as applied to the facts of this case, and calculated to inislead the jury. Whether the defendant failed in duty in not seasonably ringing its engine bell so as to warn the defendant of danger, and whether it failed in any other duty which the circumstances required, and whether, if it did so fail, such negligence was a proximate cause of the injury, should under the circumstances have been submitted to the jury; for the duty of a railroad company in operating its trains is always conditioned by the exigencies of any particular situation, and to be ascertained from them, and this is true, independent of the statutory provisions. It must not be forgotten that a railroad company has not only a right to operate its trains, but it is its duty to operate them, and, while it should always observe reasonable precautions to prevent injury, it is not to be required to observe unreasonable ones. People who walk on the tracks must take notice of these considerations, and should exercise a prudence commensurate with the known risks. If they fail to do so, they are themselves guilty of negligence, and, if they are injured, in order to their recovery of damages negligence of the railroad company must have existed, and must have been the proximate cause of the injury; for, if the heedlessness or lack of prudence of the party injured was the sole proximate cause of the injury, he cannot recover damages, however negligent the railroad company may otherwise have been. If an individual, in the possession of his faculties, heedlessly and imprudently places himself in front of a train, even though running at an excessive speed, so close to the engine that the train could not be stopped with the best devices in general use, even if it had not been running at an excessive speed, in time to prevent injuring the individual, and the railroad company did not fail in any other duty demanded by the conditions then known by its employees to exist, a compliance with which might have prevented injury, it cannot be said that its negligence in running at an excessive speed was a proximate cause of the injury. Several other charges given by the court are assigned as error, among them the eighth, fourteenth, sixteenth, and seventeenth. As to the eighth, we think it would have been better if it had been therein clearly stated that to enable the plaintiff to recover on the ground of the alleged negligence of the defendant such negligence must have been a proximate cause of the injury. Charges numbereri 14 and 16 are evidently taken from Florida Cent. & P. R. Co. 7'. Seaboard Air Line Ry. v. Smith Foxworth, supra, and the law stated in headnotes 12, 13, and 15. We think, under the circumstances of this case, these charges were calculated to mislead the jury, as in the case at bar the track of the defendant was not along the street of the city, and the plaintiff at the time of being injured was not attempting to cross the track near a crossing. He got on the track in front of the engine and was walking down the track towards his destination. Charge No. 17 was, we think, misleading as to the measure of damages, and was not in accord with the law as laid down by this court in Florida Ry. & Nav. Co. v. Webster, 25 Fla. 394, text 422, 425, 5 South. 714.
The judgment is reversed and the cause remanded.
TAYLOR and PARKHILL, JJ., concur. SHACKLEFORD, C. J., and COCKRELL and WHITFIELD, JJ., concur in the opinion.
INDEX TO NOTES.
CARRIERS OF LIVE STOCK.
See DEATH BY WRONGFUL ACT.
EES IN ALIGHTING FROM MOVING TRAINS OR CARS.
-approval of superintendent, 485.
attention withdrawn by duties-practice in yard, 484.
yard-switch stand, 481.
rection of its motion, in attempting to alight on depot plat-
-pile of rails, 480.
bered-right to stop train-presumption, 482.
-proximate cause, 482.
five miles an hour, 482.
ered with sleet, 480.
conductor injured by fall-assumption of risk, 482.
Test applicable, 479.
Jumping from car with knowleage of danger, 484.