Atlantic Coast Line R. Co. v. Crosby

• Citation: 43 So. 318,53 Fla. 400
• Parties: ATLANTIC COAST LINE R. CO. v. CROSBY.
• Decision Date: 20 February 1907
• Court: United States State Supreme Court of Florida

43 So. 318

53 Fla. 400

ATLANTIC COAST LINE R. CO. v. CROSBY.

Florida Supreme Court, Division A.

February 20, 1907

Error to Circuit Court, Marion County; William S. Bullock, Judge.

Action by Ethel Crosby, by her next friend, J. W. Crosby, against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

While each error relied on must be separately and distinctly specified, an assignment predicated upon the overruling of a demurrer to a declaration is not required to designate or specify the particular grounds of the demurrer relied on though the plaintiff in error will be confined to the grounds stated in the demurrer and argued in the appellate court, and no other grounds will be considered, unless there is an omission in the declaration of allegations of substantive facts which are essential to a right of action, so that the declaration wholly fails to state a cause of action.

A declaration in an action against a railroad company, seeking to recover damages for personal injuries occasioned by the alleged negligence of such road, is not demurrable because it alleges 'that while said passenger cars were standing still, and while the plaintiff was on the platform extending between said passenger cars and connecting the same, the defendant negligently and carelessly' did the things which occasioned the injury.

Merely being on the platform of a train, which is not in motion, but standing still, is not such negligence of the plaintiff per se that as a matter of law it would preclude any recovery for injuries sustained by the person so being on the platform which injuries were occasioned by the alleged negligence of the defendant corporation.

Because the declaration, in an action against a railroad company seeking to recover damages for personal injuries occasioned by the alleged negligence of such road, alleges that plaintiff was on the platform of one of the passenger cars while such cars were standing still, during an interval of waiting at a regular station for the arrival of another train, it is by no means implied therein or inferable therefrom that such plaintiff had voluntarily selected such a position to stand or ride on when the train was ready to start in motion again.

As a matter of law, a person is not required to keep a seat in a passenger coach of a railroad company from the time it is first taken until the train comes to a final stop at the place of such passenger's destination. The causes which may justify a passenger, without the imputation of fault on his part, as against the carrier, in leaving his seat and going outside the car, and occupying temporarily a position upon the platform, while the cars are standing still, must be dependent upon the occasion and circumstances which induce or impel him to do so.

A passenger cannot be held to be guilty of contributory negligence as a matter of law in quitting his seat in the coach of a passenger train while the train is at a halt at a regular station, during an interval of waiting for the arrival of another train, and going on the platform of the coach.

It is elementary that a demurrer admits the truth of all such matters of fact as are sufficiently pleaded.

The granting or denial of a motion for the compulsory amendment of a pleading, based on section 1043 of the Revised Statutes of 1892, is a matter resting within the sound judicial discretion of the trial court, since such court must determine whether or not the pleading so sought to be reformed is 'so framed as to prejudice or embarrass or delay the fair trial of the action,' and the ruling of the trial court thereon will not be disturbed by an appellate court, unless it is plainly made to appear that there has been an abuse of this judicial discretion.

In an action seeking to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, the plaintiff is confined to the allegations of the declaration, and no error is committed by the trial court in overruling a motion of defendant for the compulsory amendment of the declaration, seeking to require the plaintiff to separate the acts of negligence complained of and to state the same specifically in separate and distinct counts, especially when such trial court, in its order denying such motion, stated therein 'that the plaintiff is limited in the trial of said cause to the several specific acts of negligence set forth and alleged in said declaration and that the same are properly set forth in one count.' If the plaintiff was not so confined or limited at the trial in the introduction of evidence, in accordance with such order, while such matters might form proper bases for other assignments, they are not available in support of an assignment based upon the denial of the motion for a compulsory amendment of the declaration.

A special plea, tendering an issue covered by the plea of not guilty, should be stricken out either on motion of plaintiff or by the court on its own motion, under section 1043 of the Revised Statutes of 1892, as tending to embarrass the trial though such a plea is not for that reason demurrable. There is a difference in the functions performed by a motion to strike out and a demurrer, and one cannot be used interchangeably for the other. The distinction between them should be observed.

Where a demurrer is interposed to pleas tendering an issue covered by the plea of not guilty, when a motion to strike out would have been the proper method of attack, but no such point is made either below or in the appellate court, the sustaining of the demurrer will be considered harmless error, as the court had the power, and it was its duty, to strike out such pleas sua sponte, and as it also appears and is admitted by defendant that, 'on demurrer being sustained, the defendant pleaded substantially the same facts as constituting contributory negligence on the part of the plaintiff,' and such pleas of contributory negligence were permitted to stand; a demurrer thereto being overruled.

In an action against a railroad company, seeking to recover damages for personal injuries caused by the alleged negligence of such road, special pleas interposed by the defendant to the effect that the injury complained of was caused entirely by the fault, negligence, and carelessness of plaintiff, and by no carelessness, negligence, or fault on the part of defendant, simply amounts to the general issue.

In an action against a railroad company, seeking to recover damages for personal injuries caused by the alleged negligence of such road, an allegation in the declaration that plaintiff was a passenger on the train of defendant is simply one of the facts stated in the inducement, and such fact was not put in issue by the plea of not guilty; a special plea being required to that effect. This being true, no error was committed by the trial court in sustaining objections of plaintiff to two questions propounded by defendant on the cross-examination of the mother of plaintiff, who had testified on the direct examination that she and her daughter were passengers on the train of defendant on the date of the injury to plaintiff, as to whether witness had bought two tickets or one, and as to whether her daughter, the plaintiff, had a ticket as a passenger; there being no issue in the case as to the status of the plaintiff as a passenger.

It is the province of the trial court to determine whether or not a witness offered as an expert has such qualifications and special knowledge as to warrant his testifying as an expert and the decision of such trial court is conclusive upon this point, unless it appears from the transcript to have been erroneous, or to have been founded upon some error in law.

A witness who has testified that he was in charge of the train as conductor on the day the injury was occasioned to plaintiff for which damages are sought to be recovered against the railroad for its alleged negligence, that he had had long experience as brakeman and conductor and his service had made him familiar with the general equipment of passenger trains, and that in 1902, the year in which the injury happened to plaintiff, a railroad ordinarily well equipped used appliances at the point where passenger cars came together or connect, or plates or buffer irons at such points, for the purpose of safety, and that during such year defendant used two kinds of plates or irons, one kind flat and one round, such two kinds of plates or irons being in common use at that time on railroads that were well equipped may properly be held to fall within the class of witnesses designated 'skilled witnesses.' As a railroad man possessing such skill and experience, it was not error to overrule objections interposed by defendant to questions propounded by plaintiff to witness, seeking an expression of opinion from him as to whether or not, if such appliances, buffer irons, or buffer plates had been on the cars in question, and had been proper appliances, the injury could have happened.

General objections to evidence proposed, without stating the precise ground of objections, are vague and nugatory, and are without weight before an appellate court, unless the evidence objected to is palpably prejudicial and inadmissible for any purpose or under any circumstances, when a general objection thereto, is sufficient.

When a witness on behalf of defendant has testified on his direct examination as to the habit and custom of the engineer, in charge of the engine attached to defendant's train on the day the injury is alleged to have been occasioned plaintiff by reason of the negligence of defendant, in making couplings, it is not error for the trial court to permit plain...