
    The Louisville & Nashville Railroad Company, a Corporation, Plaintiff in Error, v. W. W. Harrison, Defendant in Error.
    
    Opinion Filed October 27, 1922.
    Where it appears that the damages were not duly apportioned by the jury according to the amount of default attributable to the plaintiff, as required by the statute, a remittitur will be ordered.
    • A Writ of Error to the Circuit Court for Santa Rosa County; A. G. Campbell, Judge.
    Judgment affirmed if remittitur is entered.
    
      McGeachy & Leiuis, for Plaintiff in Error;
    
      W. W. Ciarle and Watson & Pasco, for Defendant in Error.
   Browne, C. J.

Harrison obtained a judgment against the Louisville and Nashville Railroad Company for $325.00 and interest, for damage to an automobile struck by a locomotive and train of the defendant corporation.

If there was negligence on the part of the railroad company in not maintaining and keeping in good condition the road crossing where the accident occurred, the evidence shows contribuí ary negligence on the part ,of the plaintiff below.

He testified that he knew that the crossing was in bad condition; that his car had previously stalled at the same point, and that a soda water truck had stalled there the day before the accident.

The car was a second hand five passenger Ford. The plaintiff testified that he paid $200.00 for it, and had spent $180.00 for repairs a few days before the accident. He and other witnesses placed its value at the time of the injury at $350.00. An agent for Ford automobiles testified that the price of a new five passenger Ford car on February 21, 1918, was $345.00 F. O. B. factory. That the price of such ears was advanced $90.00 on the 22nd of February,-1918. The accident occurred June 5, 1917.

It does not appear that the damages were duly apportioned as required by the statute. A. C. L. R. R. Co. v. Weir, 63 Fla. 69.

It is therefore considered, ordered and adjudged that if within thirty days from the filing of the mandate in the court below, the plaintiff shall enter a remittitur of $125.00 and the interest thereon that is included in the judgment, the judgment will stand affirmed for the remainder; otherwise the judgment will be reversed.

Taylor, Whitfield, Ellis and West, J. J., concur.  