Key West Electric Co. v. Albury

• Decision Date: 29 April 1926
• Citation: 109 So. 223,91 Fla. 695
• Parties: KEY WEST ELECTRIC CO. v. ALBURY.
• Court: Florida Supreme Court

109 So. 223

91 Fla. 695

KEY WEST ELECTRIC CO. v. ALBURY.

Florida Supreme Court, Division A.

April 29, 1926

Error to Circuit Court, Monroe County; H. Pierre Branning, Judge.

Action by Estella Albury, a minor, by her next friend, Miguel Munoz against the Key West Electric Company. Judgment for plaintiff, and defendant brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Declaration should show causative connection between alleged negligence and injury. In an action for damages for personal injuries resulting from the negligent omission of the defendant to perform some duty which he owed to the plaintiff, the declaration should show a causative connection between the alleged negligent omission of the defendant to discharge the duty and the injury alleged to have been sustained by the plaintiff.

One falling over materials on street cannot recover if he knew or by exercise of ordinary caution could have known, of obstruction, and avoided injury. Where one seeks to recover damages for personal injuries, sustained by falling over materials placed on a public street by the defendant while working at the place where the injury occurred, the plaintiff cannot recover if she knew, or could have known by the exercise of ordinary caution, of the existence of the obstruction, and could have avoided the injury.

Where demurrer to pleas was improperly sustained, and subsequent pleas set up same defense, and issue was joined thereon, and parties went to trial, ruling on demurrer was cured, and assignment of error based thereon will fail. When a demurrer has been improperly sustained to pleas, and the defendant, by subsequent pleas, sets up the same defense as contained in the former pleas, and issue is joined thereon, and the parties go to trial upon such issues, the ruling on the demurrer will have been cured, and an assignment of error based thereon will fail.

Charges made confusing by contradiction rendering it doubtful which of two or more rules of law jury should apply, constitute reversible error. Confusing charges, made so by contradiction which renders it doubtful or uncertain which of two or more rules of law the jury should apply to the facts in the case as ascertained by them from the evidence, constitute reversible error.

COUNSEL

Knight, Thompson & Turner, of Tampa, for plaintiff in error.

H. H. Taylor, of Miami, and Arthur Gomez, of Key West, for defendant in error.

OPINION

ELLIS J.

Estella Albury, a girl about 11 1/2 years of age, walked across Simonton street in the city of Key West. As she arrived at the west side of the street, about 17 feet from the northwest corner of the intersection of Simonton and Catherine streets, she tripped and fell upon some iron rails which the plaintiff in error had placed alongside the gutter on the west side of Simonton street. The plaintiff in error was at the time operating a street railway and was engaged in replacing the street car tracks on Simonton street. It had placed four of the new rails alongside the curb line on the westerly side of Simonton street. The rails were in front of a dry goods store. The rail ends nearest Catherine street were about 17 feet from that street. The girl crossed the street at about 9 o'clock at night.

She brought an action against the company and recovered $6,000 damages. The injury she sustained from the fall was a broken leg. She received surgical attention, the broken leg was set, the bone knitted well, her recovery was almost complete within a reasonable time, leaving her with a slight, almost imperceptible, limp as she walks, due to a slight shortening of the broken leg.

A motion for a new trial was overruled and the defendant company seeks a reversal of the judgment on writ of error.

The declaration contained five counts. They are identical as to the theory upon which the action rests, which is that the defendant company should have placed 'lights, signals or other warnings' upon or near the rails 'or barricades thereabout' and that it negligently failed to do so, by reason of which the plaintiff tripped and fell sustaining the injury as alleged.

The defendant company interposed several pleas: First, not guilty; second, that the alleged negligence of the defendant was not the proximate cause of the injury; third, that the plaintiff could have avoided the accident by the exercise of reasonable care; fourth, that the rail ends nearest Catherine street were about 20 feet from that street, and that there was sufficient light from nearby places to enable one in the exercise of due caution in crossing the street at that point to see the rails and avoid the danger, and that the plaintiff crossed the street at a place other than the street crosing for pedestrians and in doing so assumed the risk incident thereto; fifth, that the plaintiff failed to exercise due care in crossing the street under the circumstances.

The plaintiff demurred to all the pleas, except the first, which demurrer was sustained. The defendant then filed additional pleas as follows: First, contributory negligence on plaintiff's part; second, that she could have seen the rails in the exercise of due caution, but that she voluntarily stepped upon them, which act resulted in her injury; third, that she knew the rails were lying in the street, or could have known it by the exercise of reasonable care, but she failed to do so, which act of carelessness on her part caused the injury of which she complained.

Demurrer to the first additional plea was sustained and the plaintiff joined issue upon the first plea and the second and third additional pleas and the parties went to trial, with the result stated.

The declaration does not clearly allege any causative connection between the alleged negligent omission of the defendant to place lights or barricades upon or about the rails and the injury alleged to have been sustained by the plaintiff. See Birmingham, E. & B. R. Co. v. Stagg, 196 Ala. 612, 72 So. 164; Bergen v. Tulare County Power Co., 173 Cal. 709, 161 P. 269; Hartnett v. Boston Store, 185 Ill.App. 332; Minnuci v. Philadelphia & Railroad Co., 68 N. J. Law, 432, 53 A. 229; Edwards v. Brayton, 25 R.I. 597, 57 A. 784; Schultz v. Moon, 33 Mo.App. 329; Tampa & J. R. Co. v. Crawford, 67 Fla. 77, 64 So. 437.

The causation connection is probably argumentatively alleged by the phrase 'because of the negligence of said defendant...