Walsh v. Western Ry. Co. of Florida

• Decision Date: 12 June 1894
• Citation: 15 So. 686,34 Fla. 1
• Parties: WALSH v. WESTERN RY. CO. OF FLORIDA.
• Court: Florida Supreme Court

15 So. 686

34 Fla. 1

WALSH v. WESTERN RY. CO. OF FLORIDA.

Florida Supreme Court

June 12, 1894

Appeal from circuit court, Clay county; James M. Baker, Judge.

Action by Alice M. Walsh against the Western Railway Company of Florida. Demurrer to the complaint sustained, and plaintiff appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. A declaration by an employé against a railroad company alleging generally, without stating specific facts, that the plaintiff was injured in consequence of the negligence of the defendant in operating and managing its road and cars, and in using defective implements and machinery, is too general, and will be held bad on demurrer; and the same rule will apply where the wife of an employé sues for his wrongful death by the company.

2. In such actions, where negligence is the basis of recovery, it is not necessary for the plaintiff, in her declaration, to set out the facts constituting the negligence, but an allegation of sufficient acts, the doing of which caused the injury, and an averment that such acts were negligently and carelessly done, will be sufficient.

3. Although it is a complete answer to the claim for damages resulting from a failure on the part of a railroad company to furnish suitable instrumentalities that the injured servant had full knowledge of the situation, and voluntarily engaged in the employment, or continued therein with such knowledge without objection, yet where a declaration alleges that the defendant company did know of the defects mentioned, and that the plaintiff, an employé of the company, did not know of them, nor had he reason to anticipate or provide against them, and they were not such risks or hazards as were required or contemplated by his employment as such servant it will be good on demurrer.

COUNSEL

R. W. Williams and P. C. Fisher, for appellant.

A. W Cockrell & Son, for appellee. The defendant, the railway company, demurred to the declaration, and the demurrer was sustained, with leave to amend, and thereupon the plaintiff filed an amended declaration, a demurrer to which was also sustained, and plaintiff suffered final judgment to be entered, and has appealed to this court assigning as error the action on the latter demurrer.

The amended declaration is, in substance, as follows:

Alice Mary Walsh sues the Western Railway of Florida, a corporation duly created and existing under the laws of Florida, for that the defendant on April 28, 1888, was, and still is, such a corporation, and was owning, operating, and using a certain railroad in Clay county, Fla., and operating and using on said railroad on said day its engine and cars, and plaintiff was the wife, and is now the widow, of John Walsh, deceased; and defendant, before and at the time of committing the grievances hereinafter mentioned, owned, used, and operated said railroad for the carriage of goods and persons in said county and state between Green Cove Springs and Belmore, and did employ divers servants to manage and operate said road, and on said day, and before then, employed said John Walsh, the husband of plaintiff, as a servant for hire and reward; and he did then and there faithfully perform his duties as such servant in the capacity of a superintendent, and on said last-mentioned date said John, following out the line of duty assigned to him by the defendant, and at the request of defendant, and in the exercise of his duties as such servant and superintendent, and for the purpose of more effectually performing the same, did go upon one of the engines belonging to the defendant, and pass over said railroad until said engine came near a certain creek in said county over which defendant's road passes. That the track of the road over which said John was then and there passing and being at work in his proper and lawful capacity as a servant and superintendent, and for hire and reward then and there paid to him, was then and there extremely dangerous, and subjected him to great hazards, risks, and dangers of life and bodily injury; by reason whereof the defendant, well knowing the premises, ought then and there carefully to have constructed, inspected, and operated the said track and the machinery and appliances incident and necessary to its proper construction, operation, and maintenance. Yet the defendant did then and there disregard its duty in this behalf in that the said track was then and there, with its appliances, so negligently, carelessly, insecurely, and improperly and defectively constructed, inspected, operated, and maintained for the purposes and uses aforesaid; and the said John, while so employed then and there as a servant and superintendent, and while then and there exercising due care and precaution, did not know and could not see the said defects and dangers in and about said track, which defects and dangers were then and there known to defendant, and by law the defendant ought and was bound to know the said dangers and defects; and defendant did then and there so negligently, carelessly, and improperly conduct itself in and about the premises, and in and about the management, construction, and maintenance of said track, that by reason thereof, and of the imperfect, negligent, and careless manner in which said defendant then and there set and allowed to be set to work the said John in his capacity of a servant and superintendent as aforesaid, without any caution or warning or instruction of or about said dangers from said defendant, the said John, then and there, and without any fault or negligence on his part, and in the course of the lawful and proper use thereof, was then and there exposed to great and unnecessary dangers and risks, and dangers and risks not required or contemplated by his employment; whereby, and in consequence of which, said track then and there broke, gave way, fell apart, spread open, and 'sloughed,' and the engine jumped and fell from said track, and the said John was thrown therefrom with great violence and force, and down an embankment to the ground, and the engine fell upon him, and greatly hurt, bruised, and injured him, and thereby caused his death, and he then and there died from the effects of said bruises and injuries on April 28, 1888, in Clay county, Fla.

And further, that there were attached to the said engine, upon which said John was then and there at work and in his proper and lawful capacity as a servant and superintendent, certain cars that were extremely dangerous, and subjected him to great hazards and risks and dangers of life and bodily injury, by reason whereof the defendant, well knowing the premises, ought then and there carefully to have constructed and inspected and operated the said cars and the machinery and appliances incident and necessary thereto. Yet the defendant did then and there disregard its duty in this behalf, in that said cars were then and there, with their machinery and appliances, so negligently, carelessly, insecurely, improperly, and defectively constructed and operated and managed for the purposes and uses aforesaid, and the said defects in and about the construction, inspection, and use of said cars and their appliances and machinery were then and there so hidden, that the said John Walsh, while so employed then and there as a servant and superintendent, and while exercising due care and precaution, did not know and could not see the defects and dangers in and about said cars and their machinery and appliances, but said dangers and defects were known then and there to defendant, and by law he ought and was bound to know the same; and defendant did then and there so negligently, carelessly, and improperly conduct itself in and about the premises, and in and about the management, construction, and inspection of said cars and their appliances, that by reason of the premises and of the improper construction, application, and adaptation of such appliances and machinery of said cars as aforesaid, and of the imprudent, negligent, and careless manner in which said cars and machinery and appliances were then used and inspected, and of the imprudent, negligent, and careless manner in which defendant then and there set and allowed to be set to work the said John in his capacity of a servant and superintendent as aforesaid, without any caution, instruction, or warning of such danger, as aforesaid, from defendant, the said John then and there, and without any fault or negligence on his part, and in the course of the lawful and proper use thereof, was then and there exposed and subjected to great and unnecessary dangers and risks, and risks and...