Seaboard Air Line Ry. v. Scarborough
| Decision Date | 21 December 1906 |
| Parties | SEABOARD AIR LINE RY. v. SCARBOROUGH. |
| Court | Florida Supreme Court |
Error to Circuit Court, Marion County; William S. Bullock, Judge.
Action by Manley P. Scarborough against the Seaboard Air Line Railway. Judgment for plaintiff. Defendant brings error. Affirmed.
Syllabus by the Court
Errors assigned and not argued will be treated as abandoned. Where one of the errors assigned is based upon the overruling of the motion of defendant for a compulsory amendment of the declaration, and such motion consists of a number of grounds an appellate court will consider only such grounds as are argued.
The granting or denial of a motion for the compulsory amendment of a pleading, based on section 1043, Rev. St. 1892, is a matter resting within the sound judicial discretion of the trial court, since such court must determine whether or not the pleading so sought to be reformed is 'so framed as to prejudice or embarrass or delay the fair trial of the action,' and the ruling of the trial court thereon will not be disturbed by an appellate court, unless it is plainly made to appear that there has been an abuse of this judicial discretion.
In an action by a plaintiff against a railroad company for wrongful expulsion from defendant's train, an allegation in the declaration that plaintiff became a passenger in a certain train of defendant, to be carried from a certain designated station to a certain designated station for a certain reward paid to the defendant, is sufficient as against a motion for a compulsory amendment of the declaration, seeking to have stated therein 'whether plaintiff was on such train as a passenger by being the holder of a ticket purchased.'
Where issue has been joined on all of defendant's pleas except one, as to which a motion to strike has been filed, prior to the beginning of a term of court, and such cause has not been entered by the clerk on the trial docket by reason of the pending motion, the trial court has the power, after disposing of such motion, to order such case placed on the docket for trial at such term.
The denial of a motion for a continuance by the trial court will not be cause for reversal by an appellate court, unless a palpable abuse of judicial discretion is clearly and affirmatively made to appear.
The trial court is authorized to regulate the order of the introduction of evidence, and its discretion in this matter will only be interfered with by an appellate court where clearly abused.
An appellate court will consider only such grounds of objection to the admissibility of evidence as were made in the court below, the plaintiff in error being confined to the specific grounds of objection made by him in the trial court; and only such of the grounds so made below as are argued will be considered by an appellate court.
Where a question is objected to on certain specified grounds and such grounds do not appear on the face of the question, the objection should be overruled.
Where evidence has been introduced by a party, whether plaintiff or defendant, that in itself is pertinent, relevant, legal, and proper so far as it goes, but which, in the conception of the opposite party, falls short for the want of proof of other necessary facts, the proper practice for such party is to ask for appropriate instructions from the court to the jury.
Parties to a cause, who are also witnesses therein, should not be excluded from the courtroom, or put under the rule, during the trial of such cause, since it is their right to be present and to aid in or observe the progress of the trial. The only person, however, who would be in a position to complain of this action, would be the party to the cause so excluded, and no error is committed by the trial court in refusing to order the party so excluded to come into the courtroom, at the instance of the opposing party, for the purpose of identification by a witness.
In determining the correctness of instructions and charges, they should be considered as a whole, and, if, as a whole, they are free from error, an assignment predicated on isolated paragraphs or portions, which, standing alone, might be misleading, must fail.
An instruction which apparently leaves to the jury a question of law as well as of fact cannot be successfully assigned as error, if another instruction or charge which was given corrected the error by defining the law.
In an action brought by a passenger for wrongful expulsion from a train, no error is committed by the trial court in refusing to give the following instruction, at the request of defendant: 'If you believe from the evidence that the conductor of defendant requested of plaintiff his fare or ticket a short time after leaving the depot in Ocala, as testified by witnesses of defendant, and that he thereafter again requested the plaintiff to produce his ticket or pay his fare, and that he failed to do so, whereupon he was required to leave the train, you will find for the defendant.' 'A short time' might mean one second one minute, five minutes, or more, being a relative term, and might be either a reasonable time or not, and so the word 'thereafter' might mean immediately or any subsequent time after the first demand.
As to what would be a reasonable opportunity or time to allow a passenger to produce his ticket or pay his fare largely depends upon the facts and circumstances of each particular case.
A requested instruction, even though it may embrace correct legal principles, is properly refused, when such principles have been fully covered by other instructions or charges given in the case.
Whether a reasonable or sufficient time was given to a passenger to produce his ticket or pay his fare is ordinarily a question of fact for the jury under the circumstances of the particular case. This is especially so when the evidence is conflicting.
Where there is evidence to support the verdict, it will not be disturbed or set aside by an appellate court as being against the evidence, where its propriety depends entirely upon the credibility of conflicting witnesses.
Geo. P. Raney and L. N. Green, for plaintiff in error.
R. L Anderson, for defendant in error.
This is an action instituted by the defendant in error against the plaintiff in error in the circuit court for Marion county, in which damages were sought to be recovered by the plaintiff for his expulsion as a passenger from defendant's train. The declaration alleges in substance that defendant was possessed of and operating a railroad from Ocala to Anthony in the county of Marion and state of Florida, together with certain trains of cars running thereon for the conveyance of goods and passengers for reward; that the plaintiff at Ocala, on the 16th day of January, 1903, then became a passenger in a certain train of defendant to be carried from Ocala to Anthony for a certain reward, paid to the defendant in that behalf, and thereupon it became the duty of defendant to safely transport plaintiff to his destination, but that the defendant, by its agents, servants, and employés, who were conducting and managing such train, at about the hour of 2 o'clock a. m., before the arrival of the train at Anthony, and at a place distant more than five miles therefrom, wrongfully and with force and arms compelled the plaintiff to leave the train and unlawfully and wrongfully ejected him therefrom, by means whereof the plaintiff was greatly injured, distressed, and damaged in mind and feelings, and by means whereof the plaintiff was also compelled to and did in the night walk from the point where he was ejected to Anthony, and was thereby exposed to the cold and inclemency of the weather, which caused him to suffer great pain and anguish of body and mind, and to become sick, lame, and disordered; also by means of the premises plaintiff was compelled to and did lay out and expend divers large sums of money, amounting to $100, in and about endeavoring to be cured of his sickness, and was prevented from transacting and attending to his business and affairs, and thereby lost divers great gains and profits, which otherwise he would have made and acquired. The plaintiff laid his damages at $2,000.
A motion was filed by defendant for a compulsory amendment of the declaration, which was overruled, with the exception of the first ground; and a demurrer was also interposed and overruled. The defendant then filed the following eight pleas:
To continue reading
Request your trial
-
White v. State
...189 U.S. 135, text 138, 23 S.Ct. 582, 47 L.Ed. 744, which we quoted in Seaboard Air Line R. Co. v. Scarborough, 52 Fla. 425, text 432, 42 So. 706, text 708, and approvingly to in Atlantic Coast Line R. R. Co. v. Crosby, 53 Fla. 400, text 476, 43 So. 318, text 341, which language was as foll......
-
Atlantic Coast Line R. Co. v. Beazley
... ... be available. See 13 Ency. of Pl. & Pr. 914, and authorities ... cited in note; Montgomery v. Seaboard Air Line Ry., ... 73 S.C. 503, 53 S.E. 987, and authorities therein cited; ... Betchman v. Seaboard Air Line Ry., 75 S.C. 68, 55 ... S.E. 140 ... of the motion for a new trial as are argued. Seaboard Air ... Line v. Scarborough (Fla.) 42 So. 706, and authorities ... there cited ... In ... addition to the grounds which we have already discussed in ... disposing ... ...
-
Atlantic Coast Line R. Co. v. Crosby
...Craft v. Smith, 45 Fla. 222, 33 So. 996; 20 Ency. of Pl. & Pr., 988. As to compulsory amendment of pleadings, we held in Seaboard Air Line Railway Co. v. Scarborough here at the last term), 42 So. 706, that the same rule was applicable thereto which prevailed in granting or denying applicat......
-
Triay v. Seals
... ... v. Van ... Ness, 53 Fla. 135, 43 So. 916; Kirton v. Atlantic ... Coast Line R. Co., 57 Fla. 79, 49 So. 1024; ... Sovereign Camp of W. O. W. v. McDonald, 76 Fla. 599, ... 314] Florida East Coast Railway Co ... v. Knowles, 68 Fla. 400, 67 So. 122; Seaboard Air ... Line Ry. v. Rentz & Little, 60 Fla. 429, 54 So. 13 ... This ... rule is ... Seaboard Air Line R. Co. v. Scarborough, 52 Fla ... 425, 42 So. 706; section 2630, Rev. Gen. Stats. 1920; ... Hildreth v. Western ... ...