Wilkinson v. Pensacola & A.R. Co.

• Decision Date: 23 January 1895
• Parties: WILKINSON v. PENSACOLA & A. R. CO.
• Court: Florida Supreme Court

17 So. 71

35 Fla. 82

WILKINSON v. PENSACOLA & A. R. CO.

Florida Supreme Court

January 23, 1895

Appeal from circuit court, Santa Rosa county; W. D. Barnes, Judge.

Action by John Wilkinson against the Pensacola & Atlantic Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Syllabus by the Court

SYLLABUS

1. A demurrer to the evidence admits the truth thereof, and also such conclusions as the jury may fairly and justifiably draw therefrom. Forced or violent inferences from the evidence are not thereby admitted, but the testimony is to be taken most strongly against the demurrant, and such conclusions as a jury might justifiably draw therefrom the court ought to draw.

2. The right of recovery is confined to the cause of action alleged in the declaration, and there can be no recovery upon a cause of action, however meritorious, or satisfactorily proven that is substantially variant from the one alleged by the plaintiff.

3. If a plaintiff, in an action to recover damages for alleged personal injuries, describes with needless particularity and minuteness the tort, and the means by which it was effected and his proof fails to sustain, or is substantially variant from, the allegations of the declaration, he is not entitled to recover.

4. The provisions of the statute relating to the recovery of damages against railroad corporations, that, if the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished by the jury trying the case in proportion to the amount of default attributable to him, does not relieve the plaintiff of the necessity of establishing the cause of action alleged against the company, and a failure to prove the negligence or fault alleged will defeat the plaintiff's right of recovery.

COUNSEL

D. L. McKinnon, for appellant.

W. A Blount, for appellee. Suit was instituted by appellant in the circuit court against appellee, a railroad company, to recover damages for injuries received on account of the alleged negligence of an employé of the company. The declaration alleges that on the 29th day of June, 1890, while plaintiff was traveling along the right of way of the defendant company, about 12 or 15 feet from its roadbed, over which one of defendant's trains was passing, the fireman on said train, in the employment of said company, and in the regular discharge of his duties as such employé, carelessly and negligently threw from said train, when passing plaintiff, a piece of wood, which struck and seriously injured him, and which caused him great suffering and pain from which wound and agony plaintiff was confined to his bed for a long time, and was forced to incur great expense for medical assistance and in moving, as well as being permanently injured in the abdomen and groins, in addition to the great mental suffering caused by the wound. The damage claimed is $10,000. The pleas were 'not guilty,' and that the negligence of plaintiff caused the injury and contributed to cause the injury received by him.

After the plaintiff had submitted his case to the jury, it was announced by counsel for defendant that he demurred to the evidence, and, the facts established by the evidence being committed to writing, under the direction of the court, the demurrer was sustained, and judgment rendered in favor of the defendant, from which judgment plaintiff appealed.

The testimony reduced to writing, and signed by the judge, is as follows, viz.: On June 29, 1889, the plaintiff and W. L. Martin were walking along the railroad track of the defendant company, about one-half mile from the village of Milligan, in Santa Rosa county. They were going from west to east, towards Milligan, when they were overtaken by a mail train of the defendant, going towards Milligan. Just before the train reached them, at a point one-half mile west of Milligan, and about 60 steps from where a public road crosses the railroad track, they stepped off the track and upon the right of way of defendant, taking a position on the right of way about 15 feet from the track, and facing it. The train did not blow for the crossing, or give any signal, and passed the spot where plaintiff and Martin stood at the rate of about 40 miles per hour. Plaintiff saw the engineer sitting on his box on the south side of the engine,--Martin and plaintiff being on that side,--and the engineer nodded to plaintiff. He did not see any one else on the engine or tender. Martin saw two men on the engine as it passed, but could not say whether they were in the cab or on the tender. Just as the engine passed, a log of wood descended from the tender and struck the ground about four feet from the track, bounded, and struck plaintiff on the left side of the abdomen and groin. The grade at that point was descending going east. Neither plaintiff nor Martin saw the log leave the tender, and they were not able to say whether it was thrown off or fell off, but they saw it in its descent, and saw it strike plaintiff. It was a log weighing 35 pounds, and seemed to be half of a stump; that is, a stump split in two. Neither of them could say whether or not it could get into the fire box of the engine.

The foregoing is all of the facts reduced to writing that has any bearing as to how the injury complained of was received, or tending to show liability on the part of the company for the same. There was further testimony as to the nature of the injury received, and the extent of plaintiff's damage resulting therefrom, but nothing further tending to show liability of the company for the injury received.

OPINION

MABRY, C.J. (after stating the facts).

Counsel for appellant contends that under the demurrer to the evidence the company admitted enough to fasten liability on it for the injuries alleged in the declaration to have been received. The rule as to the effect of a demurrer to the evidence, stated in Pawling v. U.S., 4 Cranch, 219 is approved by this court in the case of Higgs v. Shehee, 4 Fla. 382. It is that the party demurring admits the truth of the...