Consumers' Electric Light & St. R. Co. v. Pryor

• Citation: 44 Fla. 354,32 So. 797
• Court: United States State Supreme Court of Florida
• Decision Date: 18 February 1902
• Parties: CONSUMERS' ELECTRIC LIGHT & ST. R. CO. v. PRYOR.

32 So. 797

44 Fla. 354

CONSUMERS' ELECTRIC LIGHT & ST. R. CO. v. PRYOR.

Florida Supreme Court

February 18, 1902

Error to circuit court, Hillsborough county; Barron Phillips Judge.

Action by Mary E. Pryor against the Consumers' Electric Light &amp Street Railroad Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. In actions where negligence is the basis of recovery, it is not necessary for the declaration to set out the facts constituting the negligence, but an allegation of sufficient acts causing injury, coupled with an averment that they were negligently done, will be sufficient.

2. Where the declaration is not drawn upon the theory of the rule stated in the preceding headnote, but undertakes to set forth the acts relied on as a cause of action, without stating they were negligently done, it must appear from the direct averments of the declaration that the acts causing the injury were per se the result of negligence, or negligence must appear from a statement of such facts as certainly raise the presumption that the injury was the result of the defendant's negligence.

3. The act of 1891 (chapter 4071) applies to street railroads, but it does not change the rule of pleading negligence to the extent of permitting only an allegation of injury or damage by the running locomotives, cars, or other machinery of a defendant company. The statute does not fix arbitrarily liability for an injury done, but under it there is a presumption of negligence arising from injury.

4. The measure of duty under the act of 1891 is all ordinary and reasonable care and diligence, and what will constitute the amount or kind of diligence required will vary under different circumstances, as the terms 'ordinary' and 'reasonable' are relative, and what under some conditions would be ordinary and reasonable diligence might under other conditions amount to even gross negligence.

5. Street cars, regardless of the power by which they are impelled, have no superior rights to other vehicles or pedestrians at regular street crossings, in the absence of a specific legislative grant, but their rights are equal and in common, and impose correlative duties on the respective parties.

6. The employés of a street car company in operating cars have the right to presume that a pedestrian will exercise ordinary and reasonable care and avoid injury from moving cars, and they are not required to stop a car until it becomes evident to a person of ordinary and reasonable care and prudence that the pedestrian has failed in his duty, and has placed or is about to place himself in a perilous situation. The duty, however devolves upon the employés to keep a vigilant lookout for persons on or approaching the track, especially at street crossings, and, when they are discovered to be in danger or going into danger on the track, to use every effort consistent with the safety of passengers to avoid injuring such persons.

7. Additional pleas amounting only to the general issue may properly be stricken out on motion.

8. In an action against a street car company for damages for alleged injury caused in the running of a car, an instruction to the jury is properly refused that seeks to limit the duty of the company's employés to avoid the injury to the time when they became aware of plaintiff's danger, without reference to whether they had observed all ordinary and reasonable care before that time to discover the dangerous situation of plaintiff.

9. When the question of negligence arises upon a state of facts on which reasonable men may fairly arrive at different conclusions, the fact of negligence cannot be determined until one or the other of those conclusions has been drawn by the jury. The inferences to be drawn from the evidence must be certain and uncontrovertible, or they cannot be decided by the court. Taylor, C.J., dissents from the conclusion reached, on the ground of insufficiency of the testimony to support the verdict.

COUNSEL

P. O. Knight, for plaintiff in error.

Wall & Stevens, for defendant in error. Defendant in error sued plaintiff in error, and obtained a judgment for $775 and costs, to which a writ of error was sued out.

The amended declaration upon which the case was tried alleged as follows: 'That the defendant on the 5th of March, 1896 in the city of Tampa, county and state aforesaid (said city being then and there a densely populated city), was the owner of and using and operating a certain electric street railroad, then running upon a certain public highway there, to wit, Florida avenue, at a certain place in the said public highway, to wit, at the crossing of said Florida avenue by Zack street, and, so being the owner of and using and operating the said railroad as aforesaid, the defendant then and there drove a certain street car along and upon the said street railroad on said Florida avenue up to, upon, and at the crossing of the same by Zack street; and it was the duty of the said defendant to so run and operate its said street railroad as not to endanger persons of vehicles traveling upon or crossing any of the streets of said city upon which said street railroad was operated, and, when necessary for the protection of persons and vehicles traveling upon or crossing any of said streets, to stop its cars. That the plaintiff, to wit, on the date aforesaid, with divers numerous persons (the same constituting a large crowd, who had just come out of the Presbyterian Church, situated near the intersection of Florida avenue and Zack street aforesaid), was crossing Florida avenue and the track of the said defendant's street railroad, laid thereon at a regular crossing thereof (the said plaintiff being accompanied by numerous other persons as aforesaid), while one of the defendant's cars was approaching said crossing on said Florida avenue; and it was then and there the duty of the conductor and motorman running said car to so run and operate the same as to enable the plaintiff and the other persons who were with her to safely cross said track; the said conductor and motorman of said car being at such a point on said Florida avenue that they could see the crowd which was crossing the track at least two hundred feet from said crossing; but therein the defendant wholly failed and made default, by not stopping said car before reaching said crossing (to enable the plaintiff, together with the crowd of people accompanying her, to cross said track in safety), by means and in consequence of which default and neglect of the defendant aforesaid (by reason of the action of its said employés) the said street car then and there ran and struck with great force and violence upon and against the plaintiff, who was then and there, with all due care and diligence, crossing the track of the said defendant's street railroad at the said regular crossing at the intersection of Florida avenue and Zack street as aforesaid, and thereby the plaintiff was then and there greatly bruised, hurt, and wounded,' etc., further alleging injury and damage for which suit was brought.

A demurrer to the declaration was overruled, and defendant filed four pleas, as follows: (1) The general issue. (2) That the injury complained of was nothing but an unavoidable accident, for which defendant was is no wise responsible. (3) 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. (4) That on the 5th day of March, 1896, defendant had car No. 10, with proper appliances, and operated by a motorman well skilled in operating electric cars, running from Ybor City into the city of Tampa; that immediately before crossing Zack street, at the crossing of that street and Florida avenue in the city of Tampa, the motorman on said car noticed several persons crossing the street; that immediately he began ringing the going and to slacken the speed of the car until every one had apparently crossed the track, or stopped for the car to pass; that, when the car had run to within about 10 or 20 feet of the south crossing of Zack street on Florida avenue, the plaintiff started to go across the track immediately in front of the car; that, the moment the motorman saw this (he keeping a lookout in the meantime), he applied the brakes and reversed the car, but it was too late, and, though the motorman did everything that could be done to stop the car, it struck plaintiff, and there by injured her; that the injury was caused entirely by the carelessness, negligence, and fault of plaintiff, and was not done by the fault, negligence, or carelessness of defendant. Issue was joined upon the first plea, and the others were stricken out on motion of plaintiff.

The testimony bearing upon the negligence or liability of defendant is in substance as follows: Plaintiff testified that she was 55 years old, and not in very good health, at the time of the injury. On the day she was injured she came out of church, hoisted her umbrella, walked to the sidewalk heard the car, looked up, and saw the car coming just as she was going to cross the track. The car was then opposite Mr. Krause's residence, and it paralyzed her so she could not move. She said, 'You are not going to run over me,' as the car struck her. She threw up her hands, and her dress caught on the steps, and she tried to move her foot, but the wheel ran over her toes. The car reversed, but did not strike her coming back. That when she first looked up and saw the car, it was 40 or 50 feet away. The accident occurred at the corner of Zack street and Florida avenue about 12 o'clock on the 5th of March, 1896, in the city of Tampa. There were about 50 persons coming out of the church. Some had...