Louisville & N.R. Co. v. Wade

• Decision Date: 19 December 1903
• Court: Florida Supreme Court
• Parties: LOUISVILLE & N. R. CO. v. WADE.

35 So. 863

46 Fla. 197

LOUISVILLE & N. R. CO. v. WADE.

Florida Supreme Court, Division B.

December 19, 1903

Error to Circuit Court, Holmes County; John W. Malone, Judge.

Action by Amanda Wade against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. One suing for injury caused by the negligence of another, who, in his declaration, without general averments, alleges the negligence to be in certain specified acts or omissions, can recover only for injury resulting from the particular negligence alleged.

2. It is error for a trial judge to refuse to instruct the jury that no recovery for negligent injury can be had by the plaintiff for negligence of the defendant not covered by the declaration; and especially is this true where a charge given by the court may reasonably have led them to the contrary belief.

3. Section 3, c. 4071, p. 114, of the Acts of 1891, limits the rule that an employé cannot recover for an injury occasioned by the negligence of a fellow servant to cases where the person injured is guilty of contributory negligence, and the word 'employé,' as used in that section, means such an employé as would be a fellow servant under the rule above mentioned.

4. The rule denying the master's liability for an injury by a fellow servant has no application to one who, when injured was not engaged in the performance of his duties to the common master, but had left the scene of his labors, and was engaged in his own pursuits.

5. One who borrows a hand car for use on a railroad from an employé of the railroad company who is without either actual or apparent authority to lend it for such use does not thereby become a licensee upon the track of the company, but is a mere trespasser.

COUNSEL

Blount & Blunt and Daniel Campbell, for plaintiff in error.

D. L McKinnon, for defendant in error.

OPINION

MAXWELL J.

The defendant in error, hereinafter called the 'plaintiff,' sued the plaintiff in error, hereinafter called the 'defendant,' to recover damages for the death of her husband, caused by a collision near the eastern boundary of the village of Westville between a hand car of the defendant company, upon which he was going to Westville and an engine operated by the company, running in the opposite direction. The declaration alleges that the accident was occasioned by the negligence of the defendant in running the engine backwards in the night without the proper number of fit and suitable lights upon the engine and tender, and at an unusual and unwarranted rate of speed.

The court charged the jury as follows: 'If you find from the evidence that the defendant's agents exercised due care and caution in operating the locomotive engine and cars which collided with the lever car and caused the death of the plaintiff's husband, and used all precautions which were proper, necessary, and customary under the circumstances by blowing the whistle, ringing the bell, and exhibiting signal lights, and were not guilty of any negligence, then you should find for the defendant.' The defendant then asked the following instructions which were refused; i. e.: 'It is not shown in this case that it was necessary to blow the engine whistle passing through Westville, and it makes no difference for the purposes of this case whether the whistle was blown or not;' and, 'Unless you believe from the evidence that the ringing of the engine bell while the train was passing through Westville might have attracted the attention of the deceased, or some of the other men with him on the hand car, and caused them to stop in time to avoid collision, then you will not consider the question as to whether the bell was rung or not. The ringing of an engine bell is for the purpose of giving warning of the approach of the engine, and, if the men on the hand car could not have heard it ring by reason of the noise made by the running of the hand car, then it would make no difference, so far as your verdict it concerned, whether the bell was rung while the engine was passing through Westville or not.' Each of these rulings is assigned as error.

The declaration contained no allegation that the defendant was negligent in failing to blow the whistle or ring the bell on the engine, and no general averments of negligence under which proof of such omissions could have been given to support the plaintiff's action. The plaintiff is confined in his recovery to the cause of action alleged in his declaration (Savannah, F. & W. Ry. Co. v. Tiedeman, 39 Fla. 196, 22 So. 658), and therefore was not entitled to recover upon the ground that either of these precautions had been negligently omitted by those in charge of the engine.

Under the assignment predicated upon the giving of the charge above quoted it is contended that the instruction that if the defendant 'used all the precautions which were proper necessary, and customary under the circumstances by blowing the whistle, ringing the bell and exhibiting signal lights,' the jury should find for the defendant, is erroneous, as impliedly instructing them that the omission of any of these acts would constitute negligence which would...