63 Fla. 95 | Fla. | 1912
{After stating the facts.) — Sections 3148 and 3149, General Statutes of 1906, provide that “A railroad company shall be liable for any damage done to persons, stock or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employ and service of such company,, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care, and diligence, the presumption in all cases being against the company.”
“No person shall recover damages from a railroad company for injury to himself or- his property, where the same is done by his consent, or is caused by his own negli
Where the death of a person is caused in this State by the wrongful act, negligence, carelessness or default of any person or corporation, and the act, negligence, carelessness or default is such as would, if death had not ensued, have entitled the party injured thereby to maintain an action for damages in respect thereof, then the negligent party shall be liable in damages to those who are designated in the statutes as being entitled to maintain an action therefor; and in. every such action the jury shall give such damages as the party entitled to sue may have sustained by reason of the death of the person killed. Sections 3145 and 3146, General Statutes of 1906, as amended by Chapter 5648, Acts of 1907.
If Charles Butler could have recovered damages for the injury to himself had he lived, his minor children can recover damages for losses they sustained because of the father’s death, the widow of the deceased having died since his death.
In an action for injuries received by the operation of a train of a railroad company, it is in general sufficient to allege ultimate facts showing that the defendant negligently did or omitted the act or acts that proximately caused or contributed to causing the injury as stated, the specific fact that actually caused the injury being duly alleged so that a definite issue may be presented for trial. Warfield v. Hepburn, 62 Fla. 409, 57 South. Rep. 618; Morris v. Florida Cent. & P. R. Co., 43 Fla. 10, 29 South. Rep. 541; see also notes to 59 L. R. A. 209.
Stated in a, condensed form, each of the several counts of the, declaration is in substance as follows-:
The allegations as abstracted above are sufficient statements of ultimate facts to show negligence of the defendant in the operation of its train and also injury to the plaintiffs’ decedent proximately resulting from a particular fact stated, viz. the negligent running of said train upon and against the decedent while he was upon the track. If the other allegations contained in the counts do not by repugnancy destroy the efficacy of the declaration, or do not negative the defendant’s liability, the 4emxirrer to the several counts were erroneously sustained. • ,.
The allegations of the several counts as to 'the presence ,of the deceased on the railroad track negative any theory that he.was,.there, as .a. trespasser, and support an inference or presumption ■■ that, the decedent was lawfully
The allegations of specific acts of negligence, whether admitted by the demurrer or' not, do not appear as matter of law to be insufficient. Whether the alleged specific acts and omissions were in fact negligent and impose liability depended upon the circumstances to be developed at the trial.
The unnecessary allegations in the several counts are not repugnant to the allegations that state a cause of
If the injury to the plaintiffs’ decedent was in fact caused solely by his OAvn negligence, or if the defendant in fact exercised all ordinary and reasonable care and diligence due under the circumstances to prevent the injury, it is not liable in damages; and this may be shown under the general issue. If the defendant’s negligence was a proximate contributing cause of the injury, mere contributory negligence of the plaintiffs’ decedent is, under the statute, not a bar to the action, but it may operate to., diminish (the damages recoverable.
The judgment is reversed.