Ingram-dekle Lumber Co. v. Geiger

CourtUnited States State Supreme Court of Florida
Citation71 So. 552,71 Fla. 390
PartiesINGRAM-DEKLE LUMBER CO. v. GEIGER.
Decision Date05 April 1916

Error to Circuit Court, Pasco County; F. M. Robles, Judge.

Action by J. A. Geiger against the Ingram-Dekle Lumber Company. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

A corporation or company engaged in the operation of a sawmill and as an incident to such business operates a steam railroad about six or seven miles long, commonly known as a log road is not 'a railroad company' within the terms and meaning of sections 3148, 3149, and 3150 of the General Statutes of 1906.

The common law is in force in this state, except where it has been modified by competent governmental authority.

In actions for the recovery of damages to a person or his property, alleged to have been occasioned by the negligence of the defendant, the common-law principle which prevents a recovery of the plaintiff's own negligence contributed proximately to his injuries has not been modified or changed except as modified by sections 3148, 3149, 3150, of the General Statutes of 1906, and chapter 6521 of the Acts of 1913.

At the common law where the master himself has performed his duty he is not liable to one of his servants for personal injuries received by such servant in the course of his employment through the negligence of a fellow servant or coemployé of such servant, when engaged in the same undertaking or common work or enterprise, unless such fellow servant or coemployé sustains a representative relation, such as vice principal, to the master. This common-law principle is in force in this state, except as modified by sections 3148, 3149, 3150, of the General Statutes of 1906, and chapter 6521 of the Acts of 1913.

In actions for negligent injuries it may be necessary to allege only the relations between the parties out of which the duty to avoid negligence arises, and the act or omission that proximately caused the injury, coupled with a statement that such act or omission was negligently done or omitted.

A declaration should contain sufficient allegations of all the facts that are necessary to state a cause of action. As a general rule, only ultimate facts need be alleged.

In an action whereby it is sought to recover damages for personal injuries alleged to have been occasioned by the negligence of a railroad company or corporation, a count in the declaration alleging 'that the said track and rails were wet, and the said locomotive engine and tender leaked in such a way the water therefrom fell upon the rails of said track, and the sand box on said locomotive engine was in such a defective condition that sand would not fall therefrom upon the rails of said track, by reason whereof the said locomotive engine upon which plaintiff was riding could not be stopped and collided with the said derailed locomotive engine,' is not demurrable for failing to allege that acts or omissions of the defendant which caused the plaintiff's injuries.

Except as modified by statute, an engineer and a track repairer, though in different departments of the railroad company, are fellow servants engaged in the same common work or enterprise, and where such track repairer, while riding on the engine in charge of such engineer to the place where such track repairer has to work, received injuries by reason of the negligence of such engineer in operating the engine, there can be no recovery by the track repairer against the railroad company, the engineer not sustaining a representative relation, such as vice principal, to the defendant company.

The allegata and probata must meet and correspond, the issues being made by the pleadings to which the proofs must be confined. There can be no recovery upon a cause of action, however meritorious it may be, that is in substance variant from that which is pleaded by the plaintiff.

COUNSEL McKay, Withers & Phipps, of Tampa, for plaintiff in error.

H. S. Hampton, of Tampa, and J. A. Hendley, of Dade City, for defendant in error.

OPINION

SHACKLEFORD J.

J. A. Geiger instituted an action at law against the Ingram-Dekle Lumber Company, a corporation, for the recovery of damages for personal injuries alleged to have been sustained by the plaintiff by reason of the negligence of the defendant. The amended declaration consists of two counts, the first of which is as follows:

'Whereas, on the 16th day of September, A. D. 1910, the defendant maintained and operated a railroad known as a log road in Pasco county, state of Florida; and on said date plaintiff was in the employ of the said defendant, and was directed by defendant, with other employés of said defendant, to board a locomotive engine of the defendant, neither the plaintiff nor the said emplo employes so directed to board the said locomotive engine were employed on or about any locomotive engines or cars of defendant, and they were directed to ride on said locomotive engine to a point on said railroad of said defendant where another locomotive engine of the defendant had been derailed, and to assist the other said employés who boarded said engine with plaintiff in placing the said derailed locomotive on said railroad track; that in consideration of the performances of plaintiff's services in connection with this employment it became and was the duty of the said defendant to use reasonable and proper care to provide the plaintiff with a reasonably safe place in which to work, and not to subject him to any extraordinary hazard or risk in the course of his duty or employment; yet the said defendant heretofore, to wit, on the 16th day of September, A. D. 1910, not regarding its duty in this behalf did not use reasonable and proper care to provide the plaintiff a reasonably safe place in which to discharge his duties and work, as aforesaid, but wholly failed to do so, and to the contrary did subject him to extraordinary risk and hazard in the course of his duty and employment in this, to wit, that the said defendant, through its agents and employés in charge of the operation of said locomotive engine upon which the plaintiff was then riding, so negligently operated the same that it collided with the said derailed locomotive engine, and just prior to said collision plaintiff and the other said employés, who were employed on or about the said locomotive engine, saw that a collision with said derailed locomotive engine could not be avoided, and in order to save his life plaintiff jumped from said locomotive engine upon which he was riding, and in jumping therefrom plaintiff struck a stump standing close beside the said track, which caused his said leg to be thrown back on the track, and by reason thereof it was mashed by the said locomotive engine; and by reason thereof the muscles and bones of the plaintiff's said leg were so mashed, torn, and lacerated that it became necessary to amputate plaintiff's said leg; and the plaintiff was thereby permanently injured, and was so greatly bruised, broken and damaged in his body and limbs that he became and was thereby made sick, sore and lame and disordered, and so remained for a long space of time, to wit, for 4 months; that the same will and does permanently affect and impair the health, strength and activities of the plaintiff, and that the plaintiff since the said accident has continuously suffered great pain of body and anguish of mind, and by reason of said accident plaintiff was compelled to employ the services of physicians, and was forced to expend large and divers sums of money in payment of the services of said physicians, nurse hire, and for medicine; that at the time of the said accident the plaintiff was 41 years of age, and was earning $2.25 per day; and that by reason of said accident the said plaintiff is not able or in a condition to earn a livelihood; wherefore plaintiff claims he has sustained damages to the amount of $15,000.'

The second count of the declaration contains the allegations of the first count, except that the negligence of the defendant is particularized as follows:

'That the said track and rails were wet, and the said locomotive engine and tender leaked in such a way the water therefrom fell upon the rails of said track, and the sand box on said locomotive engine was in such a defective condition that sand would not fall therefrom upon the rails of said track by reason whereof the said locomotive engine upon which plaintiff was riding could not be stopped and collided with the said derailed locomotive engine.'

To this declaration the defendant interposed a demurrer, setting forth certain substantial matters of law to be argued in support of the same separately as to each count. This demurrer was overruled, whereupon the defendant filed the following pleas:

'And now comes the defendant in the above-entitled cause by its attorney and for pleas to the amended first and second counts of the declaration says:

'First. That it is not guilty in manner and form as in said counts is alleged.

'Second. That if the plaintiff was injured in the manner complained of in said amended first and second counts, the injury was caused by the neglect or default of a fellow servant of the said plaintiff, for which this defendant is not legally responsible.

'Third. That if the plaintiff were injured in the respect complained of by him, it was due to his own negligence in recklessly jumping from the locomotive and unnecessarily subjecting himself to danger of injury.

'Fourth. That the plaintiff was not injured through any negligence on the part of the defendant, but was injured solely through jumping from a moving locomotive, and it was not necessary for said plaintiff to expose himself to the danger of injury from jumping from said locomotive as is...

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