54 Fla. 192 | Fla. | 1907
— On January nth, 1906, the defendant in error filed in the circuit court for Duval county a declaration alleging that on December 2nd, 1905, the Jacksonville Electric Company was operating a certain street car in Jacksonville, and on that day the plaintiff was a passenger on said car; that' plaintiff gave notice to the conductor to stop the car, which the conductor did, and after said car had stopped, plaintiff arose from her seat and proceeded to the door to leave the car, and when plaintiff got near the door, the car, without signal or notice started again, and on. the conductor again signaling to stop, the car was by the carelessness and negligence of the motorman in operating stopped suddenly with a jerk, and by reason of said jerk, the plaintiff was thrown over the back of one of the seats, inflicting upon her several internal injuries,
The declaration alleges several internal injuries to the plaintiff which caused her great.pain and suffering to her special damjage in (1) medical attendance; (2) board for plaintiff and nurse; (3) medicine and attendance; (4) rent for plaintiff’s place of business; (5) servant hire at plaintiff’s place of business; (6) injuries sustained and pain and suffering endured; making a total of $5,000.00 claimed as special damages. There is no allegation of general damages to the plaintiff as the result of defendant’s negligence beyond the total amount of the damages above alleged; consequently the plaintiff is confined to the special damages alleged.
Damages should not be recovered, no matter 'how fully proven, unless there is an appropriate allegation of the damage sustained. Evidence outside of the issues made by the pleadings should be excluded upon proper steps duly taken for its exclusion. See Atlantic Coast Line R. Co. v. Crosby, 53 Fla. 400, 43 South. Rep. 318, text 334.
Such damages as the law holds to be the direct, natural and necessary result of the injury complained of may be recovered under a general allegation of dam
Under the allegations of the declaration of special damages sustained by the plaintiff, testimony as to amjounts paid by the plaintiff as rent for her place of business, which she was compelled to keep closed during her confinement in her room for two weeks as the proximate result of the injury complained of, was properly admitted.
Testimony as to' the loss of plaintiff’s earnings in her occupation because of the injury, was admitted over an objection by the defendant that “there is no allegation in the declaration in regard to loss of business.”
If the loss to plaintiff of earnings in her occupation was a direct, natural and necessary result of the injury complained of, so as to be covered by an allegation of general damages, there is no general allegation of damages’ in excess of the special damages claimed, and such damages are not specifically alleged. Loss of earnings cannot fairly be included in any damage stated and cannot be clearly inferred fromf any facts alleged in the declaration. The allegations of damage because of injuries and pain and suffering clearly refer to injuries to the person, and not to pecuniary losses. Loss of earnings is not fairly included in or plainly inferable
The condition of plaintiff’s health more than a year before the injury complained of does not appear to have been material, and evidence as to it offered by the defendant was properly excluded, particularly where the plaintiff’s witnesses had, on cross-examination, testified to the condition of her health a short time before the injur}'.
The declaration alleges that a passenger, on a street car that had stopped, was near the door leaving the car, when the car without signal or notice started again and was by the carelessness and negligence of the motorman •in operating stopped suddenly with a jerk, which threw the passenger against a seat injuring' .her. This constitutes a cause of action, and, as the proofs tend to sustain these allegations, a charge that the plaintiff is entitled to recover if the jury find such to be the facts, is not erroneous.
There was evidence tending to show that the plaintiff was in normal health at the time of the injury, therefore it would not be error under the allegations of the declaration and proofs to charge that if it be found from the evidence that the plaintiff on the day she was injured was in a normal condition of health and attending to her business, the jury should not consider any previous illness or disease under which she may have labored in the past, and from which she had recovered at the time of the injury, in considering the compensation to which she might be entitled if she is entitled to damages; but the safe rule is not to confine the charge to the plaintiff’s normal condition.
The court charged the jury that among the elements to be embraced in the measure of damlages was plaintiff’s “occupation and the losses she incurred in her earnings ; and in considering- any losses incurred in her earnings the jury have the right to consider plaintiff’s occupation, the time of the year and its bearing on her business, her average earnings in her occupation, her loss by being-compelled to' abandon her business, and all the elements set forth in the evidence going- to prove her loss.” This charge was duly excepted to and it is assigned as error..
Instructions to juries should be confined to the issues made by the pleadings. See Walker v. Parry, 51 Fla. 344, 40 South. Rep. 69; Hinote v. Brigman & Crutchfield, 44 Fla. 589, 33 South. Rep. 303.
As there was no allegation of general damages 'u addition to the allegations of special damages, and as there is 110 allegation of special damages to the plaintiff for loss of earnings in her occupation, and as such special damages are not fairly included in airy damages alleged and cannot be clearly inferred from any facts alleged in the declaration, the jury should not have been instructed that the measure of damages embraced plaintiff’s occupation and the losses she incurred in her earnings, and that all the elements set forth in the evidence going to prove her loss might be considered in determining the damages.
The judgment is reversed and a new trial awarded.
Shackleford, C. J., and Cockrell, J., concur;
Taylor, Hocker and P-arkhill, JJ., concur in the opinion.