Morris v. Florida Cent. & P.R. Co.

• Decision Date: 05 February 1901
• Parties: MORRIS v. FLORIDA CENT. & P. R. CO.
• Court: Florida Supreme Court

29 So. 541

43 Fla. 10

MORRIS v. FLORIDA CENT. & P. R. CO.

Florida Supreme Court

February 5, 1901

Error to circuit court, Duval county; Rhydon M. Call, Judge.

Action by William Herman Morris, by W. J. Morris, his next friend against the Florida Central & Peninsular Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. Section 1, c. 4071, Laws 1891, was adopted here from the Code of the state of Georgia. Under its provisions, what will constitute the amount or kind of diligence that will be required as 'ordinary and reasonable' must necessarily vary under different circumstances. It cannot be measured or ascertained by any fixed and inflexible standard because the words just quoted are themselves relative terms and what, under some conditions, would be ordinary and reasonable diligence, might, under other conditions, amount to even gross negligence.

2. In said statute (chapter 4071, Laws 1891), the term 'ordinary care' is not used in the narrowest and most confined sense of the word 'ordinary,' but is intended therein to require of railroad companies, in the cases falling within its provisions, all the care and diligence ordinarily due from them, under like circumstances exigencies, and conditions in like cases, such care and diligence to be in every case covered by the statute, strictly commensurate with the demands and exigencies of the occasion, and by the relationship that the company bears at the time to the party in question. It is not the design of this statute, in its use of the word 'ordinary,' to abrogate established phrases, such as 'highest degree of care,' expressive of the comparative degrees of care due from such companies in varying cases to persons occupying differing relations to the company, and surrounded by varying circumstances and conditions. Its meaning is that, in order to fulfill the required measure of 'all ordinary and reasonable care and diligence' in the particular case of one of its passengers, e. g. it must exercise all the care and diligence ordinarily due to passengers, which, by comparison, is the highest degree of care strictly and reasonably commensurate with his relationship as such to the company and with the circumstances and exigencies of the situation.

COUNSEL

Fletcher & Wurts, for plaintiff in error.

John A Henderson and John C. Cooper, for defendant in error. The plaintiff in error, William H. Morris, by W. J. Morris, his prochein ami, on the 24th day of January, 1895, instituted his action of trespass for personal injuries against the defendant in error, the Florida Central & Peninsular Railroad Company, in the circuit court of Duval county. The original declaration in the cause is as follows: '(1) Herman Morris, by his next friend, William J. Morris, through Fletcher and Wurts, his attorneys, sues the Florida Central & Peninsular Railroad Company, a corporation organized and doing business under the laws of the state of Florida, for that heretofore, to wit, on the 11th day of December, A. D. 1894, the defendant was the owner and operator of a line of railroad leading into and out of the city of Jacksonville, in the county and state aforesaid, and by means of the said lines of railroads was engaged in the business of carrying goods and passengers for hire, and in furtherance of its said business on the day aforesaid the defendant owned and maintained in the city of Jacksonville a large number of tracks, comprised within certain limits called a yard, which said tracks were then in use for the purpose of delivering and receiving freight and making up defendant's trains; that one of said tracks, to wit, the north track, nearest Bay street, in said city of Jacksonville, extended from a switch near the viaduct in said city eastward, to and along the rear of stores on Bay street, across the end of Cedar street in said city, if projected south from Bay street, and nearly opposite the intersection of said Cedar street with said Bay street the defendant commonly kept and maintained an opening to its yard and roadway leading across said north track, in order to afford access to its other tracks lying south of said tracks, and to afford ingress and egress for doing its business in connection with its tracks beyond and south of said crossing and said north track; that on the day aforesaid the plaintiff lawfully went into said opening and on said crossing, and there were box cars east of said opening or crossing, but none west thereof, on said track, but as plaintiff reached said track, and was lawfully crossing the same, a train belonging to the defendant, and controlled by servants of the defendant, and propelled by a locomotive called a 'pusher' or 'switch' engine belonging to the defendant, without any notice or signal to him, but through the negligence of the servants of the defendant then in the employ of the defendant, the said train was propelled backward with great speed, striking the plaintiff, and knocking him down, and the rear trucks of the car of the train thus propelled ran over plaintiff, and crushed, mashed, and mangled his left arm in such manner as to render it necessary that the said arm should be amputated between the wrist and elbow, and also mashed and mangled and tore the flesh from the plaintiff's leg below the knee, by reason of which the plaintiff suffered, and still suffers, great bodily harm and mental anguish, and is maimed for life, and plaintiff claims $20,000 damages.

'(2) The plaintiff, Herman Morris, by his next friend, William J. Morris, further sues the defendant, the Florida Central & Peninsular Railroad Company, a corporation as aforesaid, for that the defendant was possessed of a railroad locomotive and train of cars attached thereto, and was by its servants driving and conducting the same upon its certain track in the city of Jacksonville, county and state aforesaid, and the plaintiff was lawfully crossing the said railroad track, and the defendant, by its servants, so negligently drove and conducted the said engine and train that thereby the same was and were driven against the plaintiff, and severely injured him; wherefore the plaintiff says he has sustained damage to the amount of $20,000.

'(3) The plaintiff further sues the defendant for that heretofore, to wit, on the 11th day of December, A. D. 1894, in the city of Jacksonville, Duval county, Florida, the plaintiff walked upon and along a certain roadway, open to the public, extending from Bay street, through uninclosed grounds, across the track of defendant, nearly opposite the intersection of Bay and Cedar streets, in the city of Jacksonville, from Bay street to other tracks of defendant; and at a certain crossing of the said roadway and a certain railroad of the defendant, to wit, the north track in its yard in said city of Jacksonville, the defendant was then and there possessed of a certain locomotive engine, and train of cars then propelled thereby, which said locomotive engine and train were then and there under the management of divers then servants of the defendant, who were then and there driving the same upon and along the said railroad, near and towards the crossing aforesaid; and while the plaintiff, with all due care and diligence, was then and there walking across said railroad track at the said crossing upon the said railway there, the defendant then and there, by its servants, so carelessly and improperly drove and managed the said locomotive engine and train that by and through the negligence and improper conduct of the defendant, by its servants in that behalf, the said train was then and there run upon and struck with great force and violence the plaintiff, and thereby the plaintiff was knocked down, and the rear trucks of the rear car of the said train ran over and upon his left arm and leg, tearing and mashing the flesh from his said leg, and so mangling, crushing, and mashing his said arm as to render it necessary to amputate it between the elbow and wrist, and the plaintiff was thereby greatly wounded, bruised, and hurt, and was maimed for life, and he became sick, sore, lame, and disordered, and so remained for a long space of time, to wit, hitherto, during all which time he, the plaintiff, suffered great pain; wherefore the plaintiff says he is injured and has sustained damages to the amount of $20,000, and therefore he brings his suit.

'(4) And the plaintiff further sues the defendant for that heretofore, to wit, on the 11th day of December, A. D. 1894 the defendant owned and operated a line of railroad leading into the city of Jacksonville, county of Duval, aforesaid, and was then and there engaged in the business of carrying freight and passengers for hire, and at its terminus in said city of Jacksonville it used and maintained a large number of tracks comprised within its depot grounds or yard, lying south of Bay street, and extending along the same from Bridge to Hogan streets, in said city of Jacksonville, and across the ends of Clay, Cedar, and Julia streets; that at said time defendant's yards and tracks opposite the intersection of Bay and Cedar streets were accessible by an open roadway corresponding to an extension of Cedar street south, which was kept open by defendant, and at this point, for the width of some forty feet, there was an open roadway or driveway entering defendant's grounds, winding to the right a short distance, and then extending between coal bins, one on either side, across defendant's track, some distance southward, to other tracks of defendant; that defendant had no inclosure of its said grounds as aforesaid at this point, but maintained this opening and roadway, so leading across its tracks as aforesaid, out to Bay street; that the plaintiff on the day aforesaid...