FLORIDA EAST COAST RAILWAY COMPANY, A FLORIDA CORPORATION, APPELLANT,

v.

EARLIE B. EDWARDS, A MINOR, BY AND THROUGH HIS FATHER AND NEXT FRIEND, NED EDWARDS, AND NED EDWARDS, INDIVIDUALLY, APPELLEES

PER CURIAM.

We review by direct appeal a final judgment for plaintiffs entered pursuant to an order of the trial court directing a verdict for plaintiffs on the question of liability and a jury verdict on other issues. The *294complaint alleged that defendant (appellant here) negligently operated its train so as to strike the minor plaintiff (appellee) as he was walking across defendant’s railroad tracks. Answer was filed denying negligence and pleading contributory negligence and the assumption of risk. Early in the trial plaintiffs indicated they would rely upon Section 768.05, Florida Statutes, F.S. A., which provides as follows:—

“A railroad company shall be liable for any damage done to persons, stock or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employ and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.”

Defendant objected to any reliance on the statute and moved that the court hold it unconstitutional, which motion was denied. A perusal of the record indicates clearly that F.S. Section 768.05, F.S.A. was the guiding light throughout the trial. At the conclusion of plaintiffs’ case, the defendant and plaintiffs, each, moved for a directed verdict, whereupon the court entered its order directing a verdict upon the question of liability for plaintiffs and denying the motion of defendant. The cause proceeded and the jury returned a verdict for plaintiffs.

Appellant here contends that the order of the trial court refusing to strike down the statute is reversible error, and appellees contend there is sufficient evidence without benefit of it to support their verdict.

A careful examination of the record discloses the trial was had on the basis that the statute is valid and the early ruling upholding it permeated the entire trial. In this posture the dominant question before us is the constitutionality, vel non, of the statute. It is our view, and we hold, that F.S. Section 768.05, F.S.A., is unconstitutional and void for the reasons stated in our opinions in Georgia-Southern Railroad Company v. Seven-up Bottling Company (Fla.), 175 So.2d 39, and Atlantic Coast Line R. Co. v. Ivey, 148 Fla. 680, 5 So.2d 244, 139 A.L.R. 973.

Having thus held the statute void, it is our opinion and we hold that the ends of justice will be best served by a trial of the issues without the involvement of the aforesaid statute. Accordingly, the judgment is reversed and the cause remanded, with directions for a new trial and further proceedings not inconsistent with this opinion.

THOMAS, ROBERTS, O’CONNELL and CALDWELL, JJ., concur.

DREW, J., dissents with Opinion.

THORN AL, C. J., and ERVIN, J., dissent and agree with DREW, J.

DREW, Justice

(dissenting) :

F.S. Sec. 768.05, F.S.A., has been consistently construed by this Court as creating only a procedural presumption not to be weighed in evidence when any evidence on the issue of negligence is introduced by either party,1 contrary to the construction elsewhere upon which adjudication of unconstitutionality has been based.2 In the absence of any showing in the record or on the face of the order that the court relied on the statutory presumption, the assumption must be that in accordance with uniform past construction of this statute the order for directed verdict on the issue of negligence was based only on the evidence adduced. The judgment otherwise rests *295upon a jury verdict finding no contributory negligence and assessing damages in amount of $26,500.

I find it impossible to conclude, therefore, that the appeal presents any point other than the sufficiency of plaintiff’s evidence to sustain the order for directed verdict on the issue of defendant’s negligence. The court’s rejection of defendant’s preliminary motion for a ruling on the statute’s validity clearly would not in this situation affect or inhere in the judgment ultimately rendered, and the decision accordingly is not one appealable directly to this Court. Art. V, Sec. 4, Fla.Const.F.S.A. The appeal, in my opinion, should be dismissed for lack of jurisdiction.

Even assuming the decision is one passing upon the validity of the statute, the altered conditions and penal effect relied on for invalidation of the comparative negligence statute 3 have no bearing on the validity of the procedural presumption provision now questioned. The legislative enactment must, of course, be sustained if it rests on any material distinctions between the class affected and others similarly situated. The reasons originally justifying a difference in order of proof between tort actions against railroads and those against other defendants, such as the proprietary control of the site of accidents and the presence, in the usual case, of multiple employees or agents whom the adversary party should not be compelled to make plaintiff’s witnesses, remain at the present time distinguishing factors sustaining the legislative classification. I believe, as expressly found in earlier cases, “the peculiarities of the railroad business abundantly justify this distinction,”4 and upon a review of the evidence in this cause would affirm the trial court.

THORNAL, C. J., and ERVIN, J., concur.