Atlantic Coast Line R. Co. v. Mccormick

• Decision Date: 20 June 1910
• Citation: 59 Fla. 121,52 So. 712
• Court: Florida Supreme Court
• Parties: ATLANTIC COAST LINE R. CO. et al. v. McCORMICK et al.

52 So. 712

59 Fla. 121

ATLANTIC COAST LINE R. CO. et al. v. McCORMICK et al.

Florida Supreme Court, Division A.

June 20, 1910

Error to Circuit Court, Suwannee County; B. H. Palmer, Judge.

Action by Connie O. McCormick and husband against the Atlantic Coast Line Railroad Company and others. Judgment for plaintiffs and defendants bring error. Reversed and remanded.

Syllabus by the Court

SYLLABUS

A demurrer to evidence admits the truth of the testimony as stated in the demurrer and also such conclusions of fact as may be fairly drawn from the testimony. Forced or violent inferences from the testimony are not admitted by the demurrer; but the testimony is to be taken most strongly against the demurrant.

In passing upon a demurrer to evidence, only the evidence as stated in the demurrer can be considered.

An investigation of the facts in dispute, and the reconciliation of conflicting or inconsistent testimony cannot be had on a demurrer to evidence.

The provision of the statute defining the liabilities of railroad companies in certain cases that 'if the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished or increased by the jury in proportion to the amount of default attributable to him,' is applicable only when the injury is done 'by the running of locomotives or cars, or other machinery of such company,' or 'done by any person in the employ and service of such company.'

Where contributory negligence is a defense to an action in tort, it should be pleaded and proven by the defendant, unless it appears from the allegations or proofs of the plaintiff.

Whether contributory negligence appears by direct testimony, or by fair inference from the evidence of the plaintiff, it is a question for the jury to determine under proper instructions from the court, where a conclusion of contributory negligence does not indisputably arise from the evidence offered by the plaintiff so as to become a question of law.

While it is error to assume in charges facts that are disputed or not conceded, it is not error to assumed the existence of a fact shown by uncontroverted testimony.

COUNSEL Doggett & Smith, J. B. Johnson, Rees & Rees, and Carter & McCollum, for plaintiffs in error.

Hardee & Smith, for defendants in error.

OPINION

WHITFIELD C.J.

This writ of error is to a judgment recovered by the defendants in error against the plaintiffs in error for injuries received August 15, 1908, by the wife by stepping into a hole in the floor of the waiting room of the passenger depot used by the several defendant railroad companies.

The negligence alleged is that the railroad companies 'wrongfully and negligently suffered the said waiting room to be and remain in bad and unsafe repair and condition in this, to wit: That a portion of the flooring in said room of said passenger depot in which passengers and their friends were required to await the arrival and departure of trains running over the defendants' line of road, that is to say, that said waiting room was the only room provided by the defendants for the uses aforesaid, was rotted, decayed and broken, and by means whereof the said Connie McCormick, the wife of the said M. L. McCormick, who was then and there on the date aforesaid, in said waiting room in company with a friend whom she, the said Connie McCormick, had come to assist in boarding one of the trains of one of the said defendants, and who was about to become a passenger of one of the said defendants, then and there necessarily and unavoidably broke through the said rotted, decayed and broken floor in said room of said passenger depot, and without fault on her part, and thereby did fall with great force and violence to the floor, striking against a projection, and thereby was injured.' A single, separate plea of not guilty was filed by each one of the four defendant railroad companies. The following demurrer to the evidence was overruled:

'Comes now the defendants in the above entitled cause and demur to the evidence herein introduced by the plaintiffs and say that the plaintiffs ought not to have judgment of the defendants herein on said testimony, and the said defendants, for the purposes of this demurrer, admit as true all the testimony herein introduced, with all reasonable deduction to be made therefrom, and the defendants pray judgment of the plaintiffs hereon.

'Matters of Law to be Argued.

'(1) The testimony shows the plaintiff, Mrs. McCormick, to have been guilty of contributory negligence.

'(2) The testimony shows the said plaintiff at the time and place of her injury to have been a mere licensee, towards whom the defendants owed no duty of ordinary and reasonable care, but only the duty to refrain from willfully injuring her.

'(3) The testimony does not show any sufficient connection between these defendants, or either of them, and the place where the plaintiff was injured, as to fix responsibility upon the said defendants, or either of them, for the lack of repair or condition of the floor at the point where the said plaintiff was injured.

'(4) There is a fatal variance between the allegations in the declaration and the proof as to the time of the alleged accident.

'Matters of fact with all reasonable deductions therefrom admitted as true, applicable to the propositions of law raised herein:

'That the plaintiff, Mrs. McCormick, on September 15, 1908, went down to the Union Depot with friends to see and assist said friends off on the train of the Florida Railway Company, one of the defendants herein, said friends being two ladies and one man, and being quite a number of bundles with them, and one of the ladies had a child. That upon arriving at the depot her friends immediately boarded the train at the Union Depot, she bade them good-bye and turned at once and went into the depot waiting room to get a drink of water, and is almost sure the train was still standing on the track by the depot. The time was about 5 o'clock in the afternoon and during daylight. That the said plaintiff approached the water cooler where there was already a hole in the flooring; that plaintiff is a little nearsighted for seeing or doing anything like that. That the plaintiff stepped in the hole and injured herself. That the hole was big enough for her to get her foot in it; that she broke part of the floor on the right side. That it was about 5 o'clock in the afternoon and getting a little dark; that it was a cloudy afternoon and the waiting room was crowded with people. That the plaintiff did not look down at the floor while walking to the water cooler, but if she had she would have seen the hole in the floor before she stepped into it.

'That the defendants A. C. L. R. R. CO., S. A. L. Ry. Co., L. O. P. & G. Ry. Co., and Fla. Ry. Co. each have tracks leading past the depot where plaintiff was injured.

'That they stop at this point for passengers, and that the defendants A. C. L. R. R. Co., S. A. L. Ry. Co. and Fla. Ry. Co., in the building where plaintiff was injured, known as the 'Union Depot,' sell tickets for passage on their respective trains.'

Only the first two grounds of the demurrer to the evidence are argued here. By this demurrer to the evidence, the defendant railroad companies admitted the truth of the testimony as stated in the demurrer, and also such conclusions of fact as may be fairly drawn from the testimony. Forced or violent inferences from the testimony are not admitted by the demurrer, but the testimony is to be taken most strongly against the demurrants. Fee v. Florida Sugar Manufg. Co., 36 Fla. 612, 18 So. 853. Only the evidence as stated in the demurrer to the evidence can be considered in passing upon the demurrer. Guided by these rules, it is apparent that the liability of the defendants is shown by their use of the deport, by the condition of the floor, and by the circumstances under which the plaintiff was in the waiting room and was injured, as stated in the demurrer to the evidence.

The statement in the evidence 'that the plaintiff did not look down at the floor while walking to the water cooler, but if she had, she would have seen the hole in the floor before she stepped into it,' when considered with the statements that it was 'getting a little dark; that it was a cloudy afternoon and the waiting room was crowded with people,' and applying the rule that in a demurrer to evidence, the testimony is to be taken most strongly against the demurrants, it is not apparent from the demurrer to the...