Jacksonville Elec. Co. v. Adams

• Citation: 50 Fla. 429,39 So. 183
• Parties: JACKSONVILLE ELECTRIC CO. v. ADAMS.
• Decision Date: 26 July 1905
• Court: United States State Supreme Court of Florida

39 So. 183

50 Fla. 429

JACKSONVILLE ELECTRIC CO. v. ADAMS.

Florida Supreme Court, Division B.

July 26, 1905

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

Action by Stanley Adams, by Wright Alexander Adams, his next friend against the Jacksonville Electric Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

The contributory negligence of parents in permitting a child, a boy four years and one month old, to go without a caretaker upon the streets of a city upon which electric cars are operated, cannot be imputed to the child in an action by him against the corporation operating the electric cars for damages resulting to him from the negligent operation of an electric car.

An instruction calculated to mislead the jury is properly refused.

Where the motorman of an electric car, being operated upon the streets of a city, should and must have seen a child of tender years, unattended, in dangerous proximity to the track upon which the car was being operated, it was his duty to use means 'strictly commensurate with the demands and exigencies of the occasion' to prevent injuring such child, the burden of proof being upon the electric car company to show that such means were used; and under such circumstances, if such proof is not satisfactorily made, the company is negligent and liable for damages.

If there are several important issues in a case, it is not proper to single out one of them in an instruction, in such a way as might impress the jury that such issue was the controlling one, and thus mislead the jury; and such an instruction is properly refused.

Where the bill of exceptions does not show any exception to the ruling of the trial judge denying a motion for a new trial this court cannot consider the merits of such motion.

COUNSEL

J. E. Hartridge, for plaintiff in error.

Bryan &amp Bryan, for defendant in error. On the 21st of April, 1903, the defendant in error, Stanley Adams, hereinafter called the plaintiff, by W. A. Adams, his next friend, filed his declaration against the plaintiff in error, hereinafter called the defendant, containing six counts. The first count is as follows:

'Stanley Adams, by Wright Alexander Adams, his next friend, plaintiff, by Bryan & Bryan, his attorneys, in this first count of his declaration sues Jacksonville Electric Company, a corporation organized and doing business under the laws of the state of Florida, defendant, for that heretofore, on, to wit, March 26th, 1903, the said defendant was the owner and operator of a certain street car propelled by the power of electricity, numbered 88; that defendant through its agents and servants, has the exclusive control and management of said street car and was operating same in the city of Jacksonville, Duval county, Florida, upon certain street railroad track of defendant, located upon Bridge street and Monroe street and divers other streets in said city of Jacksonville; that plaintiff was, on the day aforesaid, to wit, March 26th, 1903, of the age of four years and one month; that on said day, to wit, March 26th, 1903, in the light of day, at to wit, 8 o'clock in the forenoon THEREOF, WHILE PLAINTIFF WAS LAWFULLY On said monroe street, at or near the intersection of said Monroe street with said Bridge street, the defendant, by the through its servants and agents, then and there carelessly and negligently propelled its said street car northward on said Bridge street, and westward into and upon said Monroe street, and then and there, by means of said street car so carelessly and negligently operated by the said defendant, did wrongfully, carelessly, violently, and negligently knock down and run upon the plaintiff; that the said street car passed over and upon the plaintiff, and one of the wheels of said street car cut, mashed, bruised, and crushed plaintiff's left foot to such an extent that it became and was necessary to amputate plaintiff's left leg between the foot and the knee; that plaintiff was thereby maimed for life, and greatly wounded, bruised, and hurt, and became sick, sore, and lame and disordered, and so remained for a long space of time, to wit, from thence hitherto, during all of which plaintiff has suffered great mental and bodily pain.

'Wherefore the plaintiff says he has sustained damages to the amount of twenty-five thousand dollars ($25,000.00), and therefore brings this, his suit.'

The second count is similar to the first, with the additional allegation that the plaintiff was 'in the exercise of due and reasonable care and caution' when he was injured.

The third count is similar to the first, with the additional allegation that the defendant propelled its street car northward on Bridge street, and westward into and upon Monroe street, 'carelessly and negligently, and without giving proper signal or signals, and without giving proper warning or warnings.'

The fourth count is like the first, with the additional allegation that the car was being run 'at great and unlawful speed' when the plaintiff was injured.

The fifth count is like the first, except that it contains allegations to the effect that Bridge street extends north and south, and Monroe street east and west, and that they intersect, and that at and near the intersection they are much frequented, and that said place of intersection was naturally attractive and interesting to a child of tender years, and such a child was likely to expose himself to injury upon the street car track at said intersection, and that the defendant's officers and agents well knew these facts.

The sixth count avers each and every allegation of the preceding five counts.

The defendant demurred to the declaration, stating in substance the following points of law to be argued:

(1) That the declaration does not state a valid cause of action and is insufficient in law.

(2) The declaration fails to allege that both the child and parents were free from fault.

(3) The declaration fails to show gross negligence upon the part of the defendant.

(4) The child being permitted to go at large, the negligence of the parent is imputed to the child.

This demurrer was overruled, and the defendant pleaded, first, not guilty; and, second, that the injuries and damages complained of were caused solely by the negligence and carelessness of the parents of Stanley Adams in permitting him to go at large and in the public streets, their home fronting the track of defendant, without any caretaker, and said Stanley Adams being a child of tender age, to wit, four years and one month, and that said negligence and carelessness became and was the negligence and carelessness of the said Stanley Adams.

The above second plea was demurred to, and the demurrer sustained by the circuit judge. No other plea was filed, and the case was tried on the plea of not guilty. The jury rendered a verdict for the plaintiff for $7,000, a judgment rendered thereon, and the case is here on writ of error from said judgment. Such other facts as it may be necessary to state will be given in the opinion.

OPINION

HOCKER, J. (after stating the facts).

The first three assignments of error involve the same question presented in different modes, viz., whether the supposed negligence of the parents of Stanley Adams, an infant four years and one month old, in permitting him to go upon the street in the city of Jacksonville without a caretaker, can be imputed to the said infant, so as to defeat a recovery by him in this action. We say 'supposed negligence,' for it does not clearly appear under what circumstances Stanley Adams happened to be on the street at the early hour of the morning when he was injured. We will treat the case upon the theory that his parents were passively negligent in permitting him to be there. The decisions of the courts upon this question are not uniform. It was held in England in the case of Lynch v. Nurden, 5 Jurist, 797, that the rule of law, under which a plaintiff who has contributed to an injury occasioned by the negligence of the defendant cannot recover a compensation in damages, does not apply where the plaintiff is a person incapable of exercising ordinary care and caution. Where therefore, the defendant's servant left a horse and cart unattended in a public street, and the plaintiff, a child under seven years of age, climbed on the wheel, and other children urged forward the horse, whereby the plaintiff was thrown to the ground and the wheel fractured his leg, it was held that 'on these facts the jury were justified in finding a verdict for the plaintiff, if they were of opinion that there was negligence on the part of the servant.' Nothing is said by Lord Denman, C.J., who rendered the opinion, about the negligence of the parent in permitting the child to be upon the streets unattended. In the case of Waite v. North Eastern Railway Co., Ellis, Blackburn & Ellis (96 E. C. L.) 728, the facts were that a grandmother, who had charge of a child too young to take care of itself, bought two tickets at a railway station for the purpose of the two being conveyed on the railway. While the grandmother and child were on the railway, after the tickets had been bought, the child was injured by an accident caused by the joint negligence of the grandmother and the company's servants. It was held that the child could not recover. Cockburn, C.J., said: 'I put the case on this ground: That when a child of such tender and imbecile age is brought to a railway station, or to any conveyance, for the purpose of being conveyed, and is wholly unable to take care of itself, the contract of conveyance is on the implied condition that the child is to be conveyed subject to due and proper care on the part of the person having it in...