43 Fla. 324 | Fla. | 1901
(After stating the facts.)
The case is disposed of on the abstract, to which no exceptions have been filed.
Several of the assignments of error are based upon the ruling' of the Court on the demurrer to the evidence, and one imputes error to the court in withdrawing the case from the jury and deciding it on the demurrer submitted. We are of opinion that the demurrer to the evidence in this case was not framed and submitted in accordance with the rule on the subject, and that the court erred in giving' judgment on it. The testimony offered by the plaintiff was parol, and we have no doubt that a demurrer
In the statement of the evidence under the) demurrer it is said that the plaintiff, his brother, William' Peters and others signalled the car to stop, and the motorman was seen to> seem to turn either thecontroller or brake of the car, and that plaintiff,while car was moving, attempted to board the rear end of the motor car and grabbed the rail with both hands swinging- to the steps, and that the speed of the car seemed to increase at this moment and his hold was broken and he fell under the car. In another place it is stated that the speed of the car never at any time slackened, but was increasing at the time' plaintiff attempted to board it and fell, and again in giving the testimony of another witness for plaintiff, George Ingram, it is said that to the witness the car seemed to slacken when he saw the motorman turn the handle of the controller or brake. Whether the car decreased or increased its speed when the signal was given to the motorman to stop is not stated as a certain and determinate fact, as it should have been before the court was called upon to dpply the law to the fact. It is not proper, as we have seen, for the court on a
- Some assignments of error relate to the rejection of certain evidence offered by plaintiff. The ordinary bill of exceptions, which presents the exceptions to the rulings rejecting the evidence, does not contain a sufficient statement to enable us to determine the correctness of the rulings made. If we were permitted to consider the ordinary bill in' connection with the evidentiary bill we might see the connection and bearing of the proposed testimony, but as the exceptions are presented in the ordinary bill we are without sufficient data to determine the questions sought to be raised under such assignments.
The judgment of the court below will be reversed, with directions that a new trial be awarded. Ordered accordingly. '