Lofton v. Jacksonville Electric Co.

• Decision Date: 11 April 1911
• Citation: Lofton v. Jacksonville Electric Co., 61 Fla. 293, 54 So. 959 (Fla. 1911)
• Parties: LOFTON v. JACKSONVILLE ELECTRIC CO.
• Court: Florida Supreme Court

54 So. 959

61 Fla. 293

LOFTON v. JACKSONVILLE ELECTRIC CO.

Florida Supreme Court, Division A.

April 11, 1911

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

Action by Henry Lofton against the Jacksonville Electric Company. A demurrer to the evidence was sustained, and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where negligence is the basis of an action, and a particular single negligent act is alleged as the proximate cause of the injury complained of, and the negligent act as alleged is not proven, there can be no recovery, since the allegata and probata must correspond in substance.

In an action for mere negligence, contributory negligence will bar recovery under the common-law rules, where they have not been modified by statute.

COUNSEL Axtell & Rinehart, for plaintiff in error.

Kay &amp Doggett, for defendant in error.

OPINION

WHITFIELD C.J.

The plaintiff in error brought an action in the circuit court for Duval county against the Electric Company to recover damages for personal injuries received by being knocked from the top of a passing freight car of a railroad company by a trolley wire of the defendant company projected over the railroad track. The particular negligence alleged is that the plaintiff 'was struck by said trolley wire, which the defendant had carelessly and negligently permitted to be and remain broken and loosened from its fastenings, and to sag down and to be out of its proper place as aforesaid, and was by said trolley wire knocked off from said freight train' and injured. Trial was had on pleas of not guilty and contributory negligence. The following demurrer to the evidence was interposed:

'Comes now the defendant, the Jacksonville Electric Company, by Kay & Doggett, its attorneys, and demurs to the evidence herein introduced by and on behalf of the plaintiff, and says that said evidence is insufficient under the law upon which to base a recovery, and, therefore, this defendant prays judgment of the plaintiff thereon.

'For the purposes of this demurrer, this defendant admits as true all of the evidence introduced, with all reasonable deductions and inferences to be drawn therefrom.

'Kay & Doggett,

'Attorneys for Defendant.

'Matters of Evidence Admitted as True, with All Reasonable Deductions and Inferences to be Drawn Therefrom That are Pertinent to the Questions of Law Raised Hereunder.

'That Henry Lofton, the plaintiff in this case, is now of the age of 23 years, that at the time of his injury he was working for the Southern Railway, or what is commonly known as the St. Johns River Terminal Company, and that he had been working for the said Southern Railway for about two months continuously prior to said accident. That previous to his working for the said Southern Railway he had been working for the Seaboard Air Line Railway. That the Seaboard Air Line Railway is an entirely different railroad from the Southern Railway or St. Johns River Terminal Company. That in March, 1908, about 10 o'clock in the morning, down on East Bay street, he got permission from Conductor Patterson, the conductor of the switch engine and train of box cars and flat cars, about 10 or 15 box cars and about 10 or 15 flat cars in a switching train, to go from Bay street to Eighth street, where Henry Lofton lives. That this train ran on the Seaboard Air Line Belt Line, which was a different railroad from the Southern Railway or the St. Johns River Terminal Company. That this was not a train for the carrying of passengers, nor did it have any passenger coaches on it, but was merely engaged in switching. That he caught the last car, which was a box car, and rode on top of the box car. That the said Henry Lofton was injured while standing on an elevated position on a platform on top of the box car. That he was looking east at the time he was injured, while the train that he was riding on was going north. That just before he was injured, a lady sitting at a window at the intersection of Jessie and Railroad avenue, which was the point of injury, exclaimed, before the trolley wire struck him, that Lofton was going to be struck by the trolley wire. That the trolley wire struck him while in this position on the box car, and then vibrated back and forth for some minutes before it stopped. That at the time that Lofton was riding on the said box car and during the whole time, he was performing no business on the said box car, was not a passenger for hire, and was not an employé of the Seaboard Air Line Railway upon whose train he was riding. That while riding on the said box car, at the corner of Railroad avenue and Jessie street, the said Hery Lofton, plaintiff, was struck by a trolley wire of the Jacksonville Electric Company. That the impetus of the train he was riding on brought him in contact with the said wire, knocking him off, and injuring him.

'Matters of Law Presented Hereunder.

'(1) Under the evidence in this case, there was no breach of duty owing to the plaintiff by the defendant, and the doctrine of damnum absque injuria applies.

'(2) Under the first count of the declaration, it is charged that the plaintiff was injured in the following manner: 'Without fault on his part was struck by said trolley wire, which the defendant had carelessly and negligently permitted to be and remain broken and loosened from the fastening, and to sag down and be out of its proper place as aforesaid.'

'Under the second count it is charged that

...