71 Fla. 110 | Fla. | 1916
George Shields brought an action at law against the Co-operative Sanitary Baking Company, a corporation, whereby he sought to recover
The plaintiff joined issue upon all these pleas and a trial was had before a jury, which resulted in a verdict and judgment in favor of the plaintiff for the sum of $2,-250.00, which judgment is brought here for review. Twenty-four errors are assigned, the first two' being based upon the overruling of the demurrer to the amended declaration, which consisted of five counts, and the overruling of the demurrer to the sixth and seventh additional counts of the declaration. We have frequently had occasion to discuss the essential allegations of a declaration in an action for damages for personal injuries caused by the negligence of the defendant. See Warfield v. Hepburn, 62 Fla. 409, 57 South. Rep. 618, wherein we held, as follows :
“A declaration should contain sufficient allegations of all the facts that are necessary to, state a cause of action. As a general rule, only ultimate facts need be alleged.
Where the facts are, or reasonably should be, within the knowledge of the paintiff, the declaration should con*114 tain' sufficient statements of facts to apprise the defendant of the particular acts or circumstances upon which the action is based, in order that there may be no embarrassment in preparing a defense.
In actions for negligent injuries it may be necessary to allege only the relation between the parties out of which the duty to avoid negligence arises, and the act or omission that proximately caused the injury, coupled with a statement that such act or omission was negligently done or omitted.”
Also see Consumers’ Electric Light & St. R. Co. v. Pryor, 44 Fla. 354, 32 South Rep. 797, and authorities therein cited; Louisville & N. R. Co. v. Jones, 45 Fla. 407, 34 South. Rep. 246; Jacksonville Electric Co. v. Schmetzer, 53 Fla. 370, 43 South. Rep. 85; Wood Lumber Co. v. Gipson, 63 Fla. 316, text 320, 58 South. Rep. 364; Coombs v. Rice, 64 Fla. 202, 59 South. Rep. 958; Florida East Coast Ry. Co. v. Knowles, 68 Fla. 400, 67 South. Rep. 122. We would also refer especially to our discussion of the object of judicial proceeding, the functions performed by jileadings and what should characterize them, in Seaboard Air Line Ry. v. Rentz, 60 Fla. 429, 54 South. Rep. 13. As will be seen from an examination of these cited cases, the allegations of unnecessary matters may prove dangerous. The declaration in the instant case is unduly prolix and contains unessential and unnecessary allegations. It may well have been open to attack by a motion for compulsory amendment, in accordance with the provisions of Section 1433 of the General Statutes, as we can see no necessity for seven separate counts and we are of the opinion that they would tend to confuse the jury, if not also the trial judge, as to the issues to be tried and determined. We do not
In view of the conclusion which we have reached, it becomes unnecessary for a proper disposition of the case to treat the numerous assignments of error. As we have frequently stated, the common law is in force in this State, except where it has been modified by competent governmental authority. See the express provisions of Section 59 of the General Statutes, to which we have referred in a number of cases, from which we mention Hart v. Bostwick, 14 Fla. 162, text 173; Atlanta & St. A. B. Ry. Co. v. Thomas, 60 Fla. 412, text 422, 53 South. Rep. 510; Prairie Pebble Phosphate Co. v. Taylor, 64 Fla. 403, text 404, 60 South. Rep. 114; Warren v. Warren, 66 Fla. 138, 63 South. Rep. 726. As we held in German-American Lumber Co. v. Hannah, 60 Fla. 70, 53 South. Rep. 516, 30 L. R. A. (N. S.) 882, following numerous prior decisions of this court:
“A verdict should be set aside when it clearly appears to be contrary to law.
Where contributory negligence prevents recovery, and it clearfy appears from the evidence that the negligence of the plaintiff so contributed proximately to the injury complained of that it would not have occurred but for the plaintiff’s negligence, a verdict awarding damages should be set aside.
Where contributory negligence is a complete defense,
At common law a plaintiff could not recover for injuries to himself caused by the negligence of another if he in any appreciable way contributed to the proximate cause of the injury, upon the theory that there is no apportionment of the results of mutual negligence.
It is the duty of the master to use due diligence in providing a "reasonably safe place for the servant to work in, and also to inform the servant of any dangers in the employment that are not of such a character that the servant should know of them, and to warn young and inexperienced employees of dangers in their employment as to which they have no knowledge or appreciation.
If a servant fails to exercise ordinary care for his safety, he cannot in general recover damages for an 'injury.
Where dangers are obvious and the servant is capable of appreciating them a warning as to such dangers by the master is unnecessary.
Where an employee nineteen years of age, of at least ordinary intelligence and experience .and accustomed to working in a sawmill needlessly subjects, himself to an obvious danger, he cannot recover for injuries to himself that apparently would, not have occurred but for his own lack of ordinary care for his safety.”
The only modification of this common law principle which the Legislature of this State has seen fit to make is in regard to injuries occasioned by railroad companies. See Sections 3148, 3149 and 3150 of the General
We find from the plaintiff’s own testimony that the injuries inflicted upon his person which form the basis for this action occurred on the 24th or 25th day of March, 1914, and that at the time of the trial, which took place on the 24th day of November, 1914, the plaintiff was twenty-two years of age, that he was by trade a baker and that he had been employed by the defendant corporation in the capacity of “a helper” in its baking establishment for a period of about four weeks prior to the time of the injuries, his duties being to clean the pans, to clean a machine which he called “a rounder” and to do such other things as he was directed by the foreman to do. The witness further testified that on the night the injury occurred two machines were at work in the bakery, “a dough-divider” and a “round-up ma
We are clearly of the opinion that from the testimony of the plaintiff himself he was not warranted in assuming that when the foreman told him to “clean the machine,” the foreman meant the dough-divider, therefore the injuries which the plaintiff received while attempting to clean the dough-divider were a result of the plaintiff doing something which it was not his duty to do and which he had not been ordered, to do. In other words, in attempting to clean such machine, the plaintiff was acting as a mere volunteer. Undoubtedly, it was most
Judgment reversed.