Florida East Coast Ry. Co. v. Carter

• Decision Date: 07 April 1914
• Citation: 67 Fla. 335,65 So. 254
• Parties: FLORIDA EAST COAST RY. CO. v. CARTER et al.
• Court: Florida Supreme Court

65 So. 254

67 Fla. 335

FLORIDA EAST COAST RY. CO. v. CARTER et al.

Florida Supreme Court

April 7, 1914

Rehearing Denied May 9, 1914.

Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Action by Dartha Carter and her husband against the Florida East Coast Railway Company, a corporation. Judgment for plaintiffs, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

In judging of the sufficiency of a declaration in a suit for damages for personal injuries, the essentials of such a declaration set forth in the case of German-American Lumber Co. v. Brock, 55 Fla. 577, 46 So. 740, are approved and applied.

Railroad companies have the power to make reasonable regulations for the management of their trains, and one who buys a ticket is bound to inform himself of the rules and regulations of the company governing the transit and conduct of the trains upon which he proposes to travel. He should inform himself when about to take passage on a railroad train when, where, and how he can go or stop, according to the regulations of the railroad company.

Carriers are held to the highest degree of care for the safety of passengers, and passengers should use ordinary care to protect themselves in getting on or off trains, when safe and suitable means of boarding or alighting from trains are provided. They must take the responsibility of the ordinary incidents of travel, including the stoppage of cars required by statute at railway junctions, and must govern themselves accordingly.

By failing to enforce a rule, a railroad company may allow it to become a dead letter, and in effect waive, abandon, or abrogate it.

Where a railroad company fails to enforce one of its rules, and a passenger is injured in neglecting to observe it, under our statutes the mere contributory negligence of the passenger is not an absolute bar to recovery.

Where passengers habitually get off the trains at a point where they are not invited to get off, and no effectual means are attempted to be used to prevent them from doing so, there is a duty on the company to see that they have a safe opportunity to alight.

An ante mortem statement of a witness purporting to give what the plaintiff, in a suit for damages for a personal injury, said to him as to how she was injured, tending to contradict her testimony on the stand in the trial, is not competent evidence.

When the claim adjuster of the railroad company visited the plaintiff the day after she was injured in alighting from the defendant's train, she being then in bed, and when he stated in his testimony, among other things, that his purpose in calling on her was to see if he could help her, a rigid cross-examination of this witness was proper.

The charges to the jury should be confined to the evidence in the case.

A jury should be given some substantial evidence upon questions that are not matters of common knowledge, and physicians' charges and the value of lost time are not such matters.

Chapter 6220, Laws 1911, amending section 1496, Gen. St. 1906, does not authorize a trial judge to pass upon the preponderance of evidence, except, where the evidence of all the parties shall have been submitted, and it is apparent to the judge that no sufficient evidence has been submitted upon which the jury could legally find a verdict for one party, the judge may direct a verdict for the opposite party.

In a suit for damages for personal injuries against a railroad company, the effect of section 3148, Gen. St. 1906, injury having been shown, is to require the defendant company to show by a preponderance of the evidence that its servants and agents exercised all ordinary and reasonable care and diligence; the presumption being against the defendant company.

Under our law a trial judge is not permitted to comment on the evidence, or to give to the jury his views of its weight.

Facts which occur in the trial of a case can only be brought to this court for review by a bill of exceptions certified by the trial judge.

In this action against a railroad company to recover damages for personal injuries, the evidence tends to show that the plaintiff was guilty of contributory negligence, and there is no evidence of money paid out or of indebtedness incurred in endeavoring to have the injured party cured, and no evidence of the extent and value of the loss of service or time, and the amount of the verdict indicates harmful error in the charge that the jury 'are entitled to take into consideration any money paid out by the plaintiff in endeavoring to have the plaintiff Dartha Carter healed or cured, and loss of time'; therefore the judgment should be reversed.

COUNSEL Alex St. Clair-Abrams, of Jacksonville, for plaintiff in error.

Bisbee & Bedell and A. H. King, all of Jacksonville, for defendants in error.

OPINION

HOCKER J.

The defendants in error, who will be referred to as the plaintiffs, brought an action at law against the plaintiff in error, in the opinion referred to as the defendant, in the circuit court of Duval county, Fla., in September, 1910. The declaration contains two counts. The first count is as follows:

'Comes now Dartha Carter and Ezekiel M. Carter, her husband plaintiffs in the above case, by their attorney, A. H King, and sues the defendant, Florida East Coast Railway Company, a corporation under the laws of the state of Florida, in an action of trespass for this, to wit:

'That during the time herein set forth, and for a long time therefore, the defendant, Florida East Coast Railway Company, was and still is a corporation doing business in the state of Florida, and owning, maintaining, and operating for the transportation of freight and passengers by the use of cars and steam locomotives operated thereon a line of railway and system of railroads in the state of Florida, a portion of which extends from the town of Pablo therein to the city of Jacksonville therein; that on or about the 10th day of July, A. D. 1910, at or about 4:45 p. m., the plaintiff Dartha Carter, having procured transportation in due course on the passenger train of defendant from the said town of Pablo to the said city of Jacksonville, boarded and took passage on the passenger train of the defendant then and there provided for her passage and proceeded to her destination, the said city of Jacksonville; that upon the arrival of said train of defendant's at the station of defendant in said city of Jacksonville, and after said train of defendant had come to a standstill, said plaintiff, Dartha Carter, prepared and undertook to leave said train of defendant, and had proceeded for said purpose as far as, to wit, the lower or bottom step of the platform of the passenger coach of defendant attached to defendant's said train, upon which said plaintiff had been riding as aforesaid, whereupon said train of defendant was started and run forward, whereby said plaintiff was then and there precipitated to the ground with great force and violence. And plaintiff alleges that defendant was guilty of carelessness and negligence in the premises in this, to wit: That it caused said train to be started and run forward, as aforesaid, while said plaintiff was in the act of alighting, as aforesaid, from said train, and before said plaintiff had time to alight; that, by reason of said carelessness and negligence of defendant in so allowing said train to be started and run forward, as aforesaid, before said plaintiff had time to alight, as aforesaid, said plaintiff was precipitated to the ground, whereby said plaintiff was painfully, seriously, and permanently injured in and throughout her body, and by reason whereof there was caused an impacted fracture of the neck of the femur of said plaintiff on the right side, and whereby her right leg was shortened, to wit, two inches, thereby rendering said plaintiff a cripple for life, and did thereby expose and did subject the said plaintiff to great shame and mortification, by reason whereof said plaintiff, Dartha Carter, has suffered great pain and anguish at all times between said date and the date thereof, and is still suffering the same, and, by reason of such hurting, wounding, and injuring, said plaintiff, Dartha Carter, then and there became lame, sick, and disordered, and has suffered great pain and anguish, and has so continued and suffered for a long time, to wit, from then to this time, and the said plaintiff was thereby permanently injured, and will continue permanently to suffer pain and anguish, and plaintiff Dartha Carter was then and thereby during that time and still is rendered incapable of performing her duties and services by her to be done and performed, and the plaintiff Ezekiel M. Carter was at the time of said hurting, wounding, and bruising and has ever since been and still is the husband of the said Dartha Carter, and was then and thereby and has since been deprived of the services, companionship, and wifely attention, society, and aid of and consortment with said plaintiff Dartha Carter, and that plaintiffs were obliged to and did necessarily lay out divers sums of money in and about endeavoring to have the plaintiff Dartha Carter cured of her wounds, sickness, and disorder, as aforesaid, to the damage of the plaintiffs of twenty-five thousand ($25,000.00) dollars; and therefore plaintiffs bring their suit and claim twenty-five thousand ($25,000.00) dollars damages.'

The second count is like the first, except that it alleges defendant caused the train, after stopping at Jacksonville, to be suddenly started forward, without notice to the plaintiff, and while she was in the act of alighting, and before she had time to alight, causing the injuries described in the first count.

Each count of the declaration was demurred...