45 Fla. 286 | Fla. | 1903
This was an action instituted by defendant in error against plaintiff in error in the Circuit Court of Levy county to recover damages for personal injuries. Upon writ of error from a judgment, for plaintiff such judgment was reversed by this court (Florida Cent. & P. R. Co. v. Mooney, 40 Fla. 17, 24 South. Rep. 148), and at a subsequent trial plaintiff recovered judgment for $7,000, from which the present writ of error was taken. The pleadings and most important facts of the case will he found stated in the former opinion.
The first assignment of error is based upon the ruling sustaining objection to the following question propounded by defendant upon cross-examination of plaintiff as a witness, vis: “Was it. not in violation of the rules of the company to jump on or off of cars or to uncouple them while in motion?” The objection interposed was that the printed rules were the best evidence. The objection was untenable, as at the time it was interposed there was no proof that defendant ever had any -printed rules Whether, as contended by defendant in error, the ruling would be material in view of the fact that subsequently the defendant produced its printed rules-arid interrogated the witness respecting them, it is unnecessary to decide, as the judgment is reversed upon another ground, and - this precise question may not, and probably will not. arise upon another trial.
The second assignment of error complains that the
The third assignment of error is based upon the ruling sustaining objections to the following question propounded to the same witness, vis: “If the company knew that you had made running switches at night, what would have -bom the - result?” The defendant contended that plaintiff was injured in making a running switch a\ night and sought to prove . by this witness that a vule of the company prohibited employes from making ru±.ning switches. The witness stated that running switches wem ver.y dangerous to persons and property; that he at other places on defendant's line of road had made them — that he i„ade them at night, but did not let the officers of the company know it. Thereupon the question quoted was propounded. The court was right in excluding it. The witness’ answer .would have been merely his opinion, regarding a matter as to which opinion evidence is inadmissible.
The fourth assignment complains of the ruling admitting in evidence two letters Avritten by defendant's Avitness Ned F. Launt to plaintiff about a year after the injury. Launt was defendant’s loeomotiA’e engineer at the time of the injury, and according to plaintiff’s testin»onv his failure to obey A signal to stop the engine and cars caused the injury. This witness had testified that the fln
“'Mt. Carmel, 111., 54, 1894.
Dear Friend Jack:
The F. O. & P. lawyer, whose up'here, and tried his best to get me to tell him something about tba accident, and I would not tell him a word; and if b« eomes to 0.'Keys, and tries to bluff you, you fell him r<> go to hell. He may have* some papers, but dont you compromise with a thing, for I did not sign my name i'<> anything. For I did not do anything that would Jmi'f you in the least, for 1 would not be that kind of a jnan., -lack, you just keep still and wait, for' you b--<ve some enemy in that town that you dom suspect U 1 do not go to work, I will be there by and Jr- Hon’1 not'«how (his lo anyone, and when I con:'-- 1 will tell you something that you‘don’t know. Ans. ■<'áís “at oiice.
Yours, N. F. Launt, Mt. Carmel, 111.
Cedar Keys, 548, 1894.
Jack Mooney,
Albion, Florida.
Dear Friend .Jack;
Meet me at the depot Sunday, on the arrival of No. 10, 1 want to speak to you — I am going to Waldo Sunday. And please give me that letter, I wrote you from Áíf. Car mel. Don’t fail to he there.
Resp.
Ned Launt.’’
The fifth assignment of error is not argued, and is, therefore, treated as abandoned.
The sixth and seventh assignments of error are based upon the following instructions given at plaintiff’s request: ''Third charge: Jf in the performance of his duties, J. IT. Mooney had no instructions to pursue a particular method, and two or more methods were open to him, he can ntvf be said to have been negligent, if he, in good faith, adopted that method which was more hazardous than another, it the one adopted, be one which reasonable and prudent •per.-ons would adopt, under like circumstances.
Fourth charge. Shifting cars Uv means o^ the kicking back process, is not necessarily at ar»t¡ines iU1 ¡1(.† 0f negligence, per se. even though there may ue a safer method of shifting them.” These instructions <.ssert correct propositions (F. C. & P. Ry. Co. v. Mooney, and were'applicable to the case made by the pleadings evidence. There was. therefore, no error in giving them.
The eighth assignment of error complains of the refusal to give the second instruction requested by .defendant as follows: “Second charge. To entitle the plaintiff to recover damages in this action he must himself have been free from fault. It is not enough for him to show that the company was guilty of the negligence, but if must appear from the evidence that the plaintiff himself employed all reasonable means to foresee and prevent the injury, ami that he was entirely free from fault or negligence. Any fault or negligence on his part will prevent
The tenth assignment of erroi is based upon exception to cezfain portions of tlíó argument of counsel for plaintiff. As the judgment is reversed upon another ground it is not necessary decide the quesiion presented by tin's assignment, .for the reason that the samp quesiion will not necessary arise upon another trial.
The jM'iith assignment of error complains of the refusal vto the sixth instruction requested by the defendant its follows: “If you should find that the plaintiff is entitled to any damages, you should si ale. how much, and in making up your verdict you can only find such actual damages as niay be proved by the evidence. You can not find any exemplary or punitive damages.” The bill of exceptions states that “said charge, was predicated upon the following state of facts: There was an entire absence of :iny wilful or culpable negligence on flu: pari of the defendant company that would justify exemplary or punitive damages; that the only evidence of any negligence at all
The only other question presented is the sufficiency of
The judgment is reversed and a. new trial granted..