Florida East Coast Ry. Co. v. Geiger

• Decision Date: 08 January 1913
• Citation: 60 So. 753,64 Fla. 282
• Parties: FLORIDA EAST COAST RY. CO. v. GEIGER.
• Court: Florida Supreme Court

60 So. 753

64 Fla. 282

FLORIDA EAST COAST RY. CO. v. GEIGER.

Florida Supreme Court

January 8, 1913

Rehearing Denied Jan. 28, 1913.

Error to Circuit Court, Duval County; R. M. Call, Judge.

Action by George Geiger against the Florida East Coast Railway Company. Judgment for plaintiff, and defendant brings error. Reversed, and new trial awarded.

Additional Syllabus by Editorial Staff

Syllabus by the Court

SYLLABUS

A motion 'to set aside the verdict,' containing grounds that are peculiarly applicable to a motion for new trial which was treated by the trial court and by counsel as a motion for new trial, will be so regarded by the appellate court. If the verdict is set aside, a new trial would necessarily and inevitably follow.

While contributory negligence is an affirmative defense that should be pleaded and proven by the defendant, yet if the circumstances, shown by the plaintiff, or shown by the defendant without objection, indicate contributory negligence, the defendant is entitled to the benefit of the rules of law applicable to such circumstances.

In an action for personal injuries alleged to have been received in jumping off a train, where there is evidence indicating carelessness on the part of a passenger, who was an active normal man, in jumping off a moving train, it is error to refuse to give a requested charge that 'it is the duty of every person, about to get on or off of the car of a passenger train propelled by steam, to exercise due and ordinary care and prudence commensurate with the danger to be apprehended.'

A demurrer to a count of a declaration alleging that defendant while the train was in motion, carelessly and negligently refused to allow plaintiff to pass through the coach, and ordered him off the train in an angry and threatening manner was properly overruled.

COUNSEL

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

D. C Campbell, of Jacksonville, for defendant in error. The first count of the declaration herein is as follows:

'The said plaintiff, George Geiger, a negro, by his attorney, sues the said defendant, Florida East Coast Railway Company, a corporation duly organized, chartered, and existing under the laws of Florida, which has been summoned to answer herein in this first count of his declaration, for that, whereas:

'That about 5 o'clock in the afternoon of about Saturday, May 20, A. D. 1911, the said defendant was operating a certain railway passenger train for the transportation of passengers along and over a certain railway, a portion of which extended from the village of Atlantic Beach in Duval county, Fla., to the city of Jacksonville in Duval county, Fla. And about the time aforesaid, and just as said railway passenger train was leaving said village for said city, said plaintiff ascended the steps and onto the platform entrance of the regular passenger coach, nearest the locomotive of said train (and which is usually the position of the coach set apart in passenger trains, by railway companies, for negro passengers to occupy) to be transported as a passenger by said defendant from said village to said city, and said plaintiff, upon reaching said platform entrance of said coach on said train, observed said coach was being occupied by white passengers; and, said train being in motion, said plaintiff thereupon started through said coach and in search of the coach occupied by negro passengers. And, said train being in motion as aforesaid, it then and there became and was the duty of said defendant to allow said plaintiff to pass through said coach (and other coaches) to the coach occupied by negro passengers on said train, and not to order said plaintiff off said train while said train was in motion, and not to put said plaintiff in fear of personal violence from any of its employés, and to remove its baggage trucks from alongside its railway so passengers ordered off said train, by it, while said train was in motion, would not be thrown against the said baggage trucks by the motion of said train, and to safely transport said plaintiff from said village to said city; and said defendant, through its regular railway passenger train conductor on said train, and while said train was in motion, then and there carelessly and negligently refused to allow said plaintiff to pass through said coach, and ordered said plaintiff off of said train, while the same was in motion, in an angry and threatening manner, words, and tone of voice, and said plaintiff, fearing personal violence from said defendant, through its said conductor, and in obedience to said order of said defendant through its said conductor, and while said plaintiff was stepping from the lower step of said platform, and upon the ground, said train was passing certain baggage trucks along the side of, and near, said railway, and said plaintiff, by the motion of said train, was then and there thrown against said baggage trucks, and thence, under said moving train, and thereby, said plaintiff's left arm was badly cut, wounded, and mangled, and had to be amputated near the shoulder, and said plaintiff's two toes, on said plaintiff's right foot, were cut, wounded, and mangled, and had to be amputated, and other parts of said plaintiff's limbs, body, and head were bruised and cut, and said plaintiff was permanently injured and confined to his bed and forced to endure great pain, suffering, and anxiety, for a long period of time, and to incur liabilities, and expend large sums of money for hospital, trained nurse, and medical and surgical skill and attention, and medicines and bandages and crutches in an effort to be healed and cured of his said injuries, and was prevented from earning money and attending to his business and affairs, and was greatly damaged.

'Wherefore said plaintiff sues said defendant and claims $30,000 damages.'

The second count of the declaration need not be considered.

A demurrer to the first count of the declaration, containing the following grounds, was overruled:

'(1) That the first count does not state a cause of action against this defendant.

'(2) That there is no allegation of any act on the part of the defendant's conductor to induce fear in plaintiff of violence from defendant's conductor.

'(3) That it does not appear that plaintiff was compelled to attempt to alight from a moving train.

'(4) That no actionable negligence on the part of the defendant is alleged in said count.

'(5) That plaintiff, in attempting to alight from a moving train, incurred the risk of the injury sustained.

'(6) That defendant's conductor was within his legal rights in refusing to permit a negro to pass through a coach intended exclusively for white passengers.

'(7) That defendant is not required to guard against the negligence of passengers attempting to alight from a moving train.

'(8) That the allegations of said count show that the plaintiff was injured by his own negligence.'

Pleas as follws were filed and issue joined thereon:

'And now comes the defendant, Florida East Coast Railway Company, by Alex. St. Clair-Abrams, its attorney, and for a first plea to both counts of plaintiff's declaration says that it is not guilty.

'And for a second plea (to both counts of plaintiff's declaration) defendant says that it is not true, as alleged in said counts, that the defendant's conductor on the day set forth, or any other day, and while defendant's train was in motion, refused to allow the plaintiff to pass through the coach, but while the train was in motion, in angry and threatening words and tone of voice, ordered the plaintiff off of said train.

'And for a third plea (to both counts of plaintiff's declaration) the defendant, denying each and every allegation of said counts, says that the plaintiff received the injuries complained of by his own negligence, and not by the negligence or procurement of this defendant, in that the plaintiff himself, without the knowledge, procurement, or consent of this defendant, carried a baggage truck belonging to this defendant to and on defendant's platform near the baggage car, and negligently and carelessly left it there immediately before the train started, and received his injuries by coming in contact with said baggage truck, which the plaintiff himself had left standing close to defendant's train of cars.

'And, for a fourth plea to both the counts of the declaration, the defendant, denying each and every other allegation of each count of plaintiff's declaration, says it is not true, as set forth in each of said counts, that the plaintiff was refused permission, by the conductor of defendant's train, to pass through a white car to reach what is known as the colored car; but the defendant says that plaintiff received the injuries, described in each count, by his own carelessness and negligence in leaving the baggage car of said train and getting on the standing truck and jumping therefrom and attempting, while said train was in motion, to get on said train, and by his own negligence and carelessness in running along the platform of defendant's station and coming in contact with the baggage truck, which the plaintiff himself had placed on the platform, and by reason of coming in contact with said truck, plaintiff was thrown off the platform and received the injuries complained of.

'And for a fifth plea to both counts of plaintiff's declaration, the defendant, denying each and every other allegation of each of said counts, says that it is not true, as alleged in each of said counts, that defendant had left a baggage truck on the platform of defendant's station in close proximity to defendant's train, for the defendant says that the plaintiff himself carried said baggage truck to and on the platform of defendant...