FLORIDA EAST COAST RAILWAY COMPANY, A FLORIDA CORPORATION, APPELLANT,
v.
DENVER C. BOOTH, APPELLEE

Fla. 3d DCA | 1963-01-15
No. 62-168
Before CARROLL, BARKDULL and HENDRY, JJ.
148 So. 2d 536 Florida District Court of Appeal, Third District (1963) Positive Treatment
Cited by 9 cases

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Holding

The court held that the railroad pass was not gratuitous, rendering its exculpatory provisions ineffective, and that the railroad's knowledge of prior rock-throwing incidents made the plaintiff's injury a foreseeable risk.

Facts & Procedural History

A railroad employee was injured when a rock thrown at the train shattered a window, causing glass to enter his eye. He was traveling on a special pass…

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Topics
Common Carrier Liability Exculpatory Clause Foreseeability Of Harm Duty Of Care

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Opinion of the Court
CARROLL, Judge.

CARROLL, Judge.

This is an appeal by the defendant below from an adverse judgment entered on a jury verdict. The plaintiff was injured while en route from Miami to Ft. Pierce where he was to perform trainman duties for the defendant railway company. The injury occurred when a rock, thrown at the defendant’s train in which the plaintiff was riding, shattered a window and caused broken glass to lodge in one of his eyes. Plaintiff was traveling pursuant to a special railroad pass which contained printed conditions that the user assumed all risks of travel and that the railroad should not be considered a common carrier or liable to the user for its negligence. The pass was issued consistent with an exception in the Hepburn Act, 49 U.S.C. § 1(7).

The evidence disclosed that the windows of the car in which plaintiff was riding were made of 14 inch thick plate glass; that the car, known as a “dead head” coach, was separated from the regular passenger cars, and plaintiff as an employee of the railroad was required to ride in that car; that other passenger cars were equipped with laminated two-pane safety glass; that over the past few years there had been a number of rock-throwing incidents in the area involved and that defendant had notice thereof.

Appellant challenged the ruling of the trial court that the exculpatory provisions printed on the back of the pass were not operative as to the plaintiff because he was a passenger for hire rather than a gratuitous one. Appellant also argued that the sole proximate cause of plaintiff’s injury was the wrongful act of a third person for which act defendant could not be held liable.

The trial court ruled correctly that the pass was not a gratuitous one, and, therefore, that the exculpatory provisions did not apply to plaintiff. A union contract requirement for issuance of the pass removed its gratuitous nature and made it *538one issued for consideration, which in turn rendered ineffective the provisions limiting the defendant’s liability. See Martin v. Greyhound Corp., 6 Cir.1955, 227 F.2d 501, cert. den., 350 U.S. 1013, 76 S.Ct. 657, 100 L.Ed. 873 (1956). See also Sassaman v. Pennsylvania R. Co., 3 Cir.1943, 144 F.2d 950; Fowler v. Western & A.R.R., 75 Ga.App. 156, 42 S.E.2d 499 (1947). Compare Charleston & Western Carolina R. Co. v. Thompson, 234 U.S. 576, 34 S.Ct. 964, 58 L.Ed. 1476 (1914); Francis v. Southern Pacific Co., 333 U.S. 445, 68 S.Ct. 611, 92 L.Ed. 798 (1948). Appellant’s second contention, that it was not shown to have been negligent, also is without merit. While the use of a passenger car having windows of plate glass rather than laminated safety glass has not of itself been held to constitute negligence,1 it is different when the carrier has warning or knowledge of facts making the act of rock-throwing reasonably foreseeable.2 Here, as stated above, the defendant railway company knew of numerous instances of rocks being thrown at its passenger trains, including a number in the area involved. On such a record, the jury was entitled to find that the act of rock-throwing, notwithstanding its maliciousness or criminality, was a reasonably foreseeable occurrence, and that defendant subjected the plaintiff to an unreasonable risk of harm by not equipping its passenger car with laminated safety glass. See Hall v. Seaboard Air Line. Ry. Co., 84 Fla. 9, 93 So. 151; Kenan v. Houstoun, 150 Fla. 357, 7 So.2d 837; Bullock v. Tamiami Trail Tours, Inc., 5 Cir.1959, 266 F.2d 326. In Bullock v. Tamiami Trail Tours, Inc., supra, the United States Court of Appeals for the Fifth Circuit, discussing Florida law stated as follows (266 F.2d at 331):

“Therefore, in Hall v. Seaboard Air Line Ry. Co. and Kenan v. Houstoun, supra, the rule may be generally stated that a carrier is liable for injury to its passenger caused by a fellow passenger or a third party if such injury by its nature could have been ‘reasonably anticipated’ or ‘naturally expected to occur’ or ‘reasonably foreseen’ in time to have prevented the injury. [84 Fla. 9, 93 So. 157.] If the injury could have been reasonably anticipated in time to have prevented its occurrence, the carrier is subjected to the highest degree of care to its passenger either to protect him from or to warn him of the danger.”

For the reasons stated, the judgment appealed from should be and hereby is

Affirmed.

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Cited By

  • Maybell Holley v. MT. Zion Terrace Apts., Inc., 382 So. 2d 98 (Fla. 3d DCA 1980)
    …305 So. 2d 255 (Fla.3d DCA 1974); Cooper v. IBI Security Service of Florida, Inc., 281 So. 2d 524 (Fla.3d DCA 1973), cert. denied, 287 So. 2d 95 (Fla.1973); Homan v. Dade County, 248 So. 2d 235 (Fla.3d DCA 1971); Florida East Coast R. Co. v. Booth, 148 So. 2d 536 (Fla.3d DCA 1963), cert. denied, 155 So. 2d 551 (Fla.1963); see also Hernandez v. Motrico, Inc., 370 So. 2d 836 (Fla.3d DCA 1979); Angell v. F. Avanzini Lumber Co., 363 So. 2d 571 (Fla.2d DCA 1978); Sparks v. Ober, 192 So. 2d 81 (Fla.3d DCA 1966); c…
  • Cooper v. IBI Sec. Serv. OF Fla., Inc., 281 So. 2d 524 (Fla. 3d DCA 1973)
    …is therefor, sufficiently alleged to be known to exist. On the allegations of the amended complaint it could not be held that the facts disclosed showed absence of proximate cause as a matter of law. Florida East Coast R. Co. v. Booth, Fla.App.1963, 148 So. 2d 536; Homan v. County of Dade, Fla.App.1971, 248 So. 2d 235. In Homan the Court said: “Foreseeable acts of third persons are not superseding causes which insulate a prior tort fea-sor from liability as a matter of law, where such acts combine with the to…
  • Homan v. Cnty. OF Dade, 248 So. 2d 235 (Fla. 3d DCA 1971)
    …he bus had inadequate glass protection and the type of injury was foreseeable, particularly in the area involved and, therefore, the County was liable in accordance with this court’s prior opinion in Florida East Coast R. Co. v. Booth, Fla.App.1963, 148 So. 2d 536. Following the verdict and judgment, a number of post-trial motions were filed; the trial court denied the motion for new trial but granted the defendant County a judgment in accordance with his prior motion for a directed verdict, and this appeal…

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