Florida Ry. Co. v. Dorsey

• Citation: 59 Fla. 260,52 So. 963
• Court: United States State Supreme Court of Florida
• Decision Date: 11 June 1910
• Parties: FLORIDA RY. CO. v. DORSEY.

52 So. 963

59 Fla. 260

FLORIDA RY. CO. v. DORSEY.

Florida Supreme Court

June 11, 1910

In Banc. Error to Circuit Court, Taylor County; B. H. Palmer Judge.

Action by M. S. Dorsey against the Florida Railway Company. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

In an action by a passenger against a railroad company, allegations that the defendant in operating and running its trains did not stop long enough to allow the plaintiff a reasonable time to alight from the car, but carelessly and negligently started said train, and carelessly put said train in violent quick motion, which said careless and negligent act threw the plaintiff violently to the ground by means of which she was injured in a specified way, states a single cause of action.

Where testimony covered by special pleas is admitted under a plea of general issue, the action of the court in striking the special pleas need not be reviewed, since no harm could have resulted from striking the special pleas.

In an action to recover damages for a mere negligent injury, not charged to have been will fully, wantonly, or maliciously done, where the injury would not have occurred but for the negligence of the plaintiff, even though the defendant was negligent as alleged, the plaintiff, having proximately contributed to the efficient cause of his own injury, cannot in general recover damages under the common-law rule that where both parties are at fault the law will leave them to the consequences of their own wrong.

To constitute such 'contributory negligence' as bars recovery, the plaintiff's negligence must have been a portion of the efficient proximate cause of the injury, and the defendant's negligence must not have been willful wanton, or malicious. If the injury was caused solely by the plaintiff's negligence, of course the defendant is not liable.

Public policy requires that every one shall exercise reasonable care and diligence for the protection of his own person and property, and, when his failure to do this concurs with the mere negligence of another and proximately causes the injury there can be no recovery under the common-law rule.

The common-law rule of nonliability of a merely negligent defendant, when the plaintiff is guilty of contributory negligence, has been modified by the statute allowing a recovery, but requiring the damages to be apportioned, where the plaintiff and the defendant are both negligent, and the injury to one not an employé is caused by the running of railroad trains or machinery, or by any person in the employment and service of a railroad company. Such enactments are within the legislative power where the limitations imposed by the Constitution are observed.

The common-law rule of duty and liability sustained by public policy does not make a common carrier an absolute insurer of the safety of its passengers; but, for the purpose of stimulating efficiency in the carrier and of securing the safety and comfort of passengers in the interest of humanity and the general welfare, a common carrier is required to exercise the highest degree of care, foresight, prudence, and diligence reasonably demanded at any given time by the conditions and circumstances them affecting the passenger and the carrier. This rule is not abrogated by the statute regulating the liability of railroad companies in certain cases.

In an action for negligence, the question whether the railroad company has exercised all ordinary and reasonable care and diligence is to be determined by a consideration of the duty imposed by law upon the company under the facts and circumstances of each case that arises.

The care and diligence that are exercised in a given case might be all that is ordinary and reasonable with reference to one duty imposed by law because of the relation and circumstances of the parties towards each other; but it may be regarded as not being ordinary or reasonable care and diligence or as being negligence with reference to another duty.

Where a person is entitled to passage on a train, he has a right to the protection due a passenger until he has safely alighted by the proper egress.

The unnecessary sudden jerking of a train while a passenger is rightfully alighting is negligence.

If a passenger improperty attempts to alight from a car that is in motion and is injured in doing so, such attempt may be the sole cause of the injury and may bar a recovery; but where a passenger is properly leaving a car at her destination, and as she is about to step to the ground from the usual egress the car is suddenly and violently jerked or moved, when the agents of the carrier should have known she was alighting, it is negligence, and, if injury to her results proximately therefrom, the plaintiff has a right of action under the statute, even though she is also negligent, the recovery being apportioned according to the relative negligence.

Ordinary prudence requires that a passenger shall not alight from a moving car; but if the exit is properly begun while the car is stationary, and the car is suddenly started with undue violence before the passenger alights, the carrier may be negligent and the passenger free from negligence.

A charge that the plaintiff sues the defendant 'in an action on the case and claims * * * damages for the negligence of the defendant in the operation of its train whereby the plaintiff was thrown from the steps of its passenger coach and injured, as set out in her declaration, which has been read in your hearing,' is merely a statement of the complaint as made, and does not assume the negligence of the defendant and is not a charge upon the facts.

In an action by a passenger against a railroad company for negligently starting the train before the passenger could alight, a charge that if the jury find from the evidence that when the train stopped at her destination 'the plaintiff in reasonable haste commensurate with her age and incumbrance of baggage directly proceeded to alight, * * * and that before she could clear herself from the steps of the train the train was started with such violent motion as to throw the plaintiff to the ground and injure her, then you should find for the plaintiff,' is within the issues and is not erroneous because of the reference to the plaintiff's baggage.

A charge that it is the duty of a railroad company 'to give a reasonably sufficient time at its stopping places for its passengers to safely alight from their trains' is not error. It is not a too high degree of duty and is within the issues.

To charge the jury 'that a railroad company cannot promulgate an arbitrary rule for the conduct of their passengers as will exempt them from liability inflicted by their sole negligence' is not error, particularly when the remainder of the charge makes the whole more clear and entirely fair to the carrier; the promulgation of a rule being testified to.

It is not error for the court to charge the language of a statute applicable to the case.

There is no error in the charge that after reasonable alighting time for passengers has elapsed the conductor of a train should then avoid all injury to a passenger that he 'possibly can when he knows or sees that she is about to suffer some damage.'

The evidence as to the length of time the train remains stationary being without conflict, a charge 'that the time required for a passenger to leave a train depends upon the circumstances of each particular case; whether the stop on the day of this accident was reasonably sufficient under the circumstances in evidence is a question for you to determine'--is not erroneous.

Where the facts are not conceded, and the testimony as to them is conflicting, the reasonableness of the time allowed for passengers to alight from a railroad train is not a question of law.

It is not error to refuse to give a charge that is not entirely correct, particularly when the substance of the requested charge is given in another instruction.

The circuit court has authority to have a judgment entered in vacation after the disposition of a motion for a new trial properly made in the case and continued in term time.

Where no errors of law appear, and there is testimony to support the verdict, and it does not appear that the jury were not governed by the evidence in their finding, the judgment will be affirmed.

COUNSEL W. B. Davis and Carter & McCollum, for plaintiff in error.

Gornto & Battle, for defendant in error.

OPINION

WHITFIELD C.J.

Mrs. M S. Dorsey, a widow, brought an action to recover damages for personal injuries while a passenger of the railway company. The negligence alleged is that the defendant in operating and running its train did not stop it long enough to allow the plaintiff a reasonable time to alight from the car, but 'carelessly and negligently, started said train, * * * and carelessly and negligently put said train in violent quick motion, which said careless...