134 So. 505

ATLANTIC COAST LINE RAILROAD COMPANY, a corporation, Plaintiff in Error, vs. W. F. TERRY, Defendant in Error.

Supreme Court of Florida, Division B.
Opinion filed May 7, 1931. Petition for rehearing denied May 23, 1931.

A writ of error to the Circuit Court for Pinellas County; O. L. Dayton, Judge.

Remittitur entered.

Kelly Shaw, for Plaintiff in Error;

H. C. Tillman, for Defendant in Error.

TERRELL, J. —

This is one of those unfortunate crossing accident cases that have too frequently appeared in this Court of late years. The record has been examined and it exhibits a degree of carelessness on the part of both parties to the cause. As to the plaintiff in error there is evidence showing that it was operating its train at a rate of speed in violation of the city ordinance and the defendant in error appears to have been driving headlong down the street heedless of his own safety when the unfortunate accident occurred. No new questions are presented and an opinion on those raised would contribute nothing to our judicial policy. It is a case for apportionment of damages under the statute, Section 4965 Revised General Statutes of

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1920 (Section 7052 Compiled General Laws of 1927), which was not done as the law directs. The judgment is excessive but will be permitted to stand if the plaintiff below will within thirty days enter a remittitur for all except $5,000.00 of the amount allowed, otherwise it is reversed and a new trial awarded.

WHITFIELD, P.J., AND DAVIS, J., concur.

BUFORD, C.J., AND BROWN, J., concur in the opinion and judgment.

ELLIS, J., dissenting:

I think that this judgment should be reversed on the authority of S. A. L. Railway vs. Myrick . . Fla. . ., 109 S. R. 192 and other cases cited therein.