Florida Ry. & Nav. Co. v. Webster

• Decision Date: 04 March 1889
• Citation: 5 So. 714,25 Fla. 394
• Court: Florida Supreme Court
• Parties: FLORIDA RAILWAY & NAVIGATION CO. v. WEBSTER.

5 So. 714

25 Fla. 394

FLORIDA RAILWAY & NAVIGATION CO. v. WEBSTER.

Florida Supreme Court

March 4, 1889

Appeal from circuit court, Duval county; ELEAZER K. FOSTER, Judge.

Action by George W. Webster against the Florida Railway & Navigation Company, for personal injuries. Judgment for plaintiff, and defendant appeals.

Syllabus by the Court

SYLLABUS

This court will not reverse a judgment, if the case was tried on its merits, on the ground that there was no issue to be tried, because of a failure to join issue by similiter to plea of not guilty.

It is not error to refuse to exclude a deposition, because the interrogatories are vague and indefinite as to the person to be examined, where it appears from the answers of the witness that he fully knew to whom the interrogatories referred.

A charge of the court to the jury cannot be said to assume facts not in evidence, when it is so framed as to cast upon the jury the determination of the question to which the facts relate, and there is some evidence on the question to be considered.

It is proper to refuse instructions as misleading when they are based on the theory of a party as to the facts in evidence and ignore the legal effect of other facts, applicable to the relation and rights of the parties.

It is the duty of a railroad company to have a good, substantial and safe road track for the use of its trains, and default in that duty, in consequence of which a passenger is injured, is negligence for which the company will be responsible in damages. In a case in which it is shown that after an accident on the road causing injury, it was found that a rail only 10 feet long was out of place, and the track was very bad, the rails much worn, and were of all lengths, while usually they are 30 feet long, the verdict of the jury finding negligence should not be disturbed.

A person traveling on a train which has with it a stock-car carrying horses for him, his duty under his contract being 'to feed, water, and take care of the horses,' is not guilty of contributory negligence from the fact that he was on said car when he was injured, if he was on the car while stopped at a station in the performance of this duty, and had not finished when the train started off, after a stoppage of 15 or 20 minutes, instead of 45, the usual time, and if it is not shown that he had opportunity before the accident to go to any other car.

Where the case is one for only compensatory damages, the rule which restrains courts from setting aside verdicts for excessive damages is not so rigid as in cases calling for punitive or exemplary damages. It is held, on the facts of this case that the defendant was entitled to compensatory damages only and that the verdict gave excessive damages.

The rule of some appellate courts, in suggesting a remittitur, instead of total reversal, in cases like this, is adopted as a good one.

COUNSEL

John A. Henderson, for appellant.

Randall, Walkers & Foster, for appellee.

OPINION

MAXWELL, J.

This is an action to recover damages for personal injuries to the plaintiff (appellee) while riding in one of the cars of the defendant (appellant.) The points to be decided here are raised upon rulings of the court below during the progress of the trial. There was a verdict of $9,000 for the plaintiff, a motion for a new trial, which was denied, and thereupon comes this appeal.

The errors assigned are mainly included in the first,--the refusal of the court to grant a new trial. Of the others, the second and third are abandoned; and of those remaining, one is 'that there was no issue to be tried.' By this is meant that the pleadings show only a declaration, and a plea of not guilty, without a joinder of issue by similiter. This court has decided that the absence of such a joinder is not good ground for reversing a judgment after a full trial and verdict on the merits, saying in its opinion: 'In the light of all the authorities we have been able to examine, our conclusion is that asimiliter is not a substantive pleading, but is a mere expression of the acceptance of the issues tendered in referring the cause to a jury, and, after final judgment, the similiter not having been insisted on by defendant, the omission is amendable even after error brought, and cannot be well assigned for error, the cause having been fully tried on its merits.' Huling v. Bank, 19 Fla. 695.

Another error not included in the motion for a new trial is 'that plaintiff below failed to show any privity of contract between himself and defendant.' Not stopping now to consider the evidence relating to this point, it will appear hereafter from our conclusion on the whole evidence that we think it is not well founded.

Before the trial below objection was made to certain interrogatories to H. J. Hammond, a witness for plaintiff, on the ground that they were vague, indefinite, and uncertain, and do not show concerning whom the inquiries were made, and on the trial the reading of his deposition was objected to because those interrogatories should not have been allowed. One of the grounds of the motion for a new trial is that the court erred in not sustaining the objections to the interrogatories. The objections rest upon the fact that the interrogatories do not in themselves disclose to whom they relate. One is this: 'Int. 2. Has he ever been under your treatment? How often, when, and for what?' The others are like this, in not giving the name of the person about whom the inquiries are made. The only interrogatory preceding the one quoted, asks the profession of the witness, and the length of time he had been practicing. But preceding that was the caption, showing the style of the court, and of the case, ('George W. Webster vs. The Florida Railway and Navigation Company,') immediately followed by this statement: 'Interrogatories to be propounded to H. J. Hammond, a witness for the plaintiff in the above case, who resides,' etc. This gave some indication, though imperfect, of the person to whom the interrogatories referred; and upon reading the deposition we find that the witness was fully advised as to the person about whom he was testifying, going so far in answering an interrogatory not objected to as to mention him by name, and to speak of the railroad on which he received his injuries. We think where it clearly appears from the answers of a witness that he knows the meaning of the interrogatories he is answering, that his deposition should not be excluded because the interrogatories are defective from being vague and indefinite.

In its charge to the jury the court said: 'If you believe from the evidence that the plaintiff was in the car (stock-car) in which he received his injuries in the discharge of his duties to his horses, and that he had no other opportunity to attend to that duty before that time, and that he had not had any safe opportunity to attend to that duty before that time, and that he had not had any safe opportunity to get out of the car previous to the accident after performing that duty, the fact of his being in the car cannot be considered as contributory negligence on his part.' This is assigned for error, but, we think, without good ground, especially when we find immediately following in the charge this alternative: 'If, on the other hand, you believe from the evidence that it was not necessary for the plaintiff to be in the car, and he went there not in the discharge of any duty, and you believe he should have been in the passenger coach, and not in the car he was in, you must find for the defendant.' That the charge of the court may be understood we recite the facts, as shown by the evidence, up to the time when the plaintiff was injured on defendant's road.

The plaintiff was moving by rail from Iowa to Florida, taking along two horses, a wagon, and other personal effects. When he started from Iowa he was furnished a stock-car for transportation, under a contract with the Chicago, Milwaukee & St. Paul Railway Company, by which he was bound to load unload, feed, water, and take care of his stock (the horses) at his own expense and risk; and in consideration of the payment made for transportation of his stock and movables, he was entitled to pass free over the road with his stock. This contract was for transportation over the company's road to Chicago. But, in contemplation that the car would pass over other roads, it was 'agreed that when stock shall pass over more than one road to reach its destination, the company upon whose road any accident, loss, or damage may occur shall alone be liable, and no suit shall be brought, or claim made, against any other company forming a part of the route, for such loss or damage.' In connection with the contract was a letter of the freight agent of the Chicago, Milwaukee & St. Paul Railway Company, as to rates to be paid by plaintiff for the car with its contents, from Banair, Iowa, to Jacksonville, Fla. At Chicago the plaintiff signed another paper, which he did not read, not having time to read it, and he has not seen it since. He had a drover's pass to Indianapolis, and asked for another there, but was told he would be passed without it. The car was attached to freight trains from the start until it reached Pensacola Junction, Ala., and the plaintiff generally rode and slept in it up to that point. There it was attached to a passenger train, and when it reached Chattahoochee Junction (in Florida) it was shifted to a passenger train of defendant, and was with that train when the accident causing the injury to plaintiff occurred. At Pensacola Junction he was told by the conductor that he could ride on the passenger car or his own, as he pleased. At Chattahoochee Junction, where his car was attached to defendant's train, the...