Jacksonville Electric Co. v. Sloan

• Decision Date: 04 December 1906
• Citation: 42 So. 516,52 Fla. 257
• Parties: JACKSONVILLE ELECTRIC CO. v. SLOAN.
• Court: Florida Supreme Court

42 So. 516

52 Fla. 257

JACKSONVILLE ELECTRIC CO. v. SLOAN.

Florida Supreme Court, Division B.

December 4, 1906

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

Action by Lillian G. Sloan against the Jacksonville Electric Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where a witness gives an answer not responsive to a proper question propounded to him, a motion to strike the answer is the proper method of reaching the answer.

An electrician of 17 years' experience may properly be asked whether precautions were necessary in repairing broken electric wires.

Where a suit is brought by a widow to recover damages for the death of her husband under sections 2342 and 2343, Revised Statutes of 1892, declarations or admissions of the deceased husband as to his physical condition on the morning before the afternoon when he was killed, and not a part of the res gestae, are inadmissible against the objection of the widow.

There is no absolute rule applicable to all cases by which to determine the question of the liability of the master to the servant, where the servant is injured in the performance of a duty which he was ordered or requested by the master or his representative to perform, but the question of liability will depend on the circumstances of each case; and where the master or his representative orders or requests the servant to engage in an employment outside the scope of the duties which the servant has contracted to perform, which employment is attended with dangers unknown to the servant and not open to his observation, and which are not discoverable by him by means of such an inspection as he has time and opportunity to make, and the master gives him no instructions with respect to such dangers, and he is injured in consequence of so entering upon the new service, he is not deemed to have accepted the risk of such dangers, and the master is liable in damages for the injury.

When an emergency occurs in a master's business, whose serious nature calls a servant from his regular employment, and he is injured or killed while engaged in the effort to relieve the situation, in consequence of some defect or danger imputable to the negligence of the master, the servant is not as a matter of law to be charged with contributory negligence although but for the existence of such emergency he would be barred from recovering, on the ground of being a volunteer and of having accepted the risk.

In a suit for damages by a widow for the death of her husband under sections 2342 and 2343, Revised Statutes of 1892, the burden of pleading and proving negligence on the part of the deceased husband is, under law, upon the defendant.

In determining the correctness of a particular charge, all the charges given should be considered and construed as a whole.

There is no error in refusing a peremptory charge for the defendant, when there is evidence upon which the jury might find a verdict for plaintiff.

There is no error in refusing instructions which were covered by other instructions which were given.

Instructions which ignore important features of the case are properly refused as misleading.

Instructions are properly refused which present questions outside of the issues made by the pleadings. Under rule 71 of the rules of the circuit court in common-law actions, in actions for torts, the plea of not guilty operates as a denial of the breach of duty or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the inducement, and no other defense than such denial is admissible under that plea. All other pleas in denial shall take issue on some particular matter of fact alleged in the declaration. Rule 72 provides that all matters in confesson and avoidance shall be pleaded specially, as in actions on contract.

It is not only the duty of the master to exercise ordinary care and diligence to provide a reasonably safe place in which the servant is to work, but to use ordinary care and diligence to keep it safe.

Electricity is an invisible force, highly dangerous to life and property and those who make, sell, distribute, and use it are bound to use care in proportion to the danger involved.

COUNSEL

John E. Hartridge & Son, for plaintiff in error.

Alex St. Clair-Abrams, for defendant in error.

OPINION

HOCKER J.

On the 22d of September, 1903, the defendant in error, Lillian G. Sloan, hereinafter called the 'plaintiff,' sued the Jacksonville Electric Company, a corporation, in the circuit court of Duval county, Fla., for damages for the death of her husband, Henry J. Sloan, alleged to have been caused by the negligence of the electric company on the 11th of August, 1903, in Duval county. A trial was had in January, 1906, and on the 11th day of that month a verdict was rendered in favor of the plaintiff for $14,000, and a judgment for that amount and costs was entered against the electric company on the same day. A writ of error was sued out from this judgment.

The declaration contained three counts and was as follows:

'Lillian G. Sloan, by Alex. St. Clair-Abrams, her attorney, sues the Jacksonville Electric Company, a corporation duly chartered and existing under the laws of the state of Florida, and having and usually keeping an office in Duval county, Florida, for the transaction of its customary business, for that, whereas, the plaintiff, Lillian G. Sloan, is the widow of Henry J. Sloan, and was on the 11th day of August, 1903, the lawful wife of the said Henry J. Sloan, and was supported and maintained by the labor of the said Henry J. Sloan, who as her husband was her sole and only support, and the plaintiff was then and had been ever since her marriage supported and maintained by the said Henry J. Sloan; and, whereas, on the 11th day of August, 1903, the said Henry J. Sloan, being then and there employed by the defendant, the Jacksonville Electric Company, to do certain work on certain pipes on the premises of said defendant, in the said city of Jacksonville, proceeded there to do and perform said work, and it was the duty of the defendant to provide for the said Henry J. Sloan a reasonably safe place in which to work. And the plaintiff further says that the said Henry J. Sloan, being then and there in and at the place where he was required to work, the defendant, failing and neglecting to keep said place of work in a reasonably safe condition, negligently and carelessly caused the electric power in said premises, and which was under the control and operation of the defendant, to be suddenly turned on, whereby any by reason of the sudden turning on of said electric power the deceased received an electric shock, from the effects of which electric shock the said Henry J. Sloan died. And the plaintiff says that by reason of the negligence of the defendant corporation in turning on said electric power her said husband was killed, and she was and is deprived of the protection and support of her said husband, and the care and maintenance of herself and of her infant child by her said husband have been cast upon her, to the great damage and loss of the plaintiff in the sum of $25,000. Wherefore the plaintiff brings this her suit and claims $25,000 damages.

'Second Count.

'For that, whereas, the plaintiff, Lillian G. Sloan, is the widow of Henry J. Sloan, and was on the 11th day of August, 1903, the lawful wife of the said Henry J. Sloan, and was supported and maintained by the labor of the said Henry J. Sloan, who as her husband was her sole and only support, and the plaintiff was then and ever since her marriage supported and maintained by the said Henry J. Sloan; and, whereas, on the said 11th day of August, 1903, the said Henry J. Sloan was employed by the Jacksonville Electric Company to do certain work on certain pipes in a pit or cellar on the premises of said defendant, and entered into said pit or cellar to do and perform said work, and it was the duty of the defendant to provide for the said Henry J. Sloan a reasonably safe place in which to work. And the plaintiff further says that, the said Henry J. Sloan being then and there at a place where he was required to work, in and about said pit or cellar were certain electric wires pertaining to the premises and business of said defendant, and the plaintiff says it was the duty of the said defendant to keep and maintain said wires so protected and guarded that the electric power passing through them should not endanger the lives of the persons employed to work on said premises in said pit or cellar. And the plaintiff further says that the defendant knew, or could with reasonable case and diligence have known, that if any of said wires should be broken or should come in contact with any person working in said pit or cellar while charged with electricity it would cause death or great bodily injury. And the plaintiff further says that the defendant carelessly and negligently permitted a loose electric wire to become and remain charged with electricity, and said wire, coming in contact with the person of the said Henry J. Sloan, inflicted upon him an electric shock, from the effects of which electric shock the said Henry J. Sloan died. And the said plaintiff says that by reason of the negligence of the defendant corporation in turning on said electric power her said husband was killed, and she was and is deprived of the protection and support of her said husband, and the care and maintenance of herself and of her infant child by her said husband have been cast upon her, to the great damage and loss of the plaintiff in the sum of $25,000. Wherefore the plaintiff brings this her bill and claims $25,000 damages.

'Third Count.

'For that, whereas,

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