Jacksonville Elec. Co. v. Schmetzer

• Decision Date: 05 February 1907
• Citation: 43 So. 85,53 Fla. 370
• Parties: JACKSONVILLE ELECTRIC CO. v. SCHMETZER.
• Court: Florida Supreme Court

43 So. 85

53 Fla. 370

JACKSONVILLE ELECTRIC CO. v. SCHMETZER.

Florida Supreme Court, Division A.

February 5, 1907

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

Action by C. W. Schmetzer against the Jacksonville Electric Company. From the judgment in favor of plaintiff, defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Grounds of a demurrer, interposed to a declaration, but not argued in the appellate court, will be treated as abandoned.

Where the only ground of a demurrer interposed to a declaration in an action for negligence which is argued in the appellate court is that the declaration is too general in its nature and fails to set forth the 'specific acts of negligence' relied upon by plaintiff to charge defendant such ground of demurrer is so general in its nature as not to require the appellate court to do more than to examine the declaration and determine whether or not there are such essential and vital defects therein as to show no cause of action against defendant.

In actions where negligence is the basis of recovery, it is not necessary for the declaration to set out the facts constituting the negligence; but an allegation of sufficient acts causing injury, coupled with an averment that they were negligently done, will be sufficient.

Instructions requested by defendant in an action against it for negligence, which were faulty in that they state incorrectly the doctrine concerning the effect of contributory negligence on the part of plaintiff, are properly refused by the court.

A requested instruction, even though it may embrace correct legal principles, is properly refused, when such principles have been fully covered by other instructions or charges given in the case.

COUNSEL Jno. E. Hartridge & Son, for plaintiff in error.

C. B Peeler, for defendant in error.

OPINION

SHACKLEFORD C.J.

This is an action of trespass on the case, instituted by the defendant in error against the plaintiff in error in the circuit court for Duval county. Trial was had before a jury which resulted in a verdict and judgment for plaintiff in the sum of $200, which defendant seeks to have reviewed here by writ of error, returnable to the present term. The declaration contains two counts; the first alleging in substance that defendant had and was operating an electric street railway in the city of Jacksonville, having one of its tracks on Riverside avenue, and that on or about the 25th day of August, 1906, defendant was operating one of its cars on the track on such avenue, and 'then and there by its said servants so carelessly and improperly drove and managed said street car that by and through the negligence and improper conduct of the defendant, by its said servants in that behalf, the said street car ran and struck with great force and violence' the buggy in which plaintiff was riding, and thereby inflicted great personal injuries upon plaintiff, demolished his buggy and harness, and seriously injured the horse which was attached to the buggy, to the damage of plaintiff in the sum of $10,000. The second count is like the first, except that it charges defendant with 'wrongfully, wantonly, maliciously, and willfully' operating the car and running into and inflicting the injuries upon plaintiff; but no testimony was adduced in support of this count, and no charges or instructions given relating thereto or bearing thereon, so it may be considered as eliminated from the case.

Defendant interposed a demurrer to the declaration, stating the substantial matters of law intended to be argued in support thereof as follows:

'(1) The declaration, and each count thereof, states a conclusion of negligence, and does not state any act of negligence upon the part of defendant.

'(2) The declaration is so vague, uncertain, and indefinite that it is impossible for the court to understand how the accident occurred or the injuries of the plaintiff were received.

'(3) The declaration does not show that the plaintiff was himself free from fault, or that the defendant was at fault.'

The overruling of this demurrer forms the basis for the first assignment. It is difficult to determine from defendant's brief just what ground of the demurrer it relies upon in support of this assignment, as it is argued in the most general manner. In fact, the only argument made in support thereof, if argument it may be called, is in the discussion of the second, fifth, sixth, seventh, and eighth assignments, which are treated together, and to which discussion defendant refers us in its brief as supporting and sustaining this first assignment. All...