57 Fla. 79 | Fla. | 1909
This is an action of trespass on the case instituted by the plaintiff in error as plaintiff against the defendants in error as defendants in the Circuit Court for Hillsborough County. A final judgment was entered by the trial count in favor of the defendants,
The declaration is as follows: “Florence M. Kirton, the plaintiff by Glen & Himes, her • attorneys, sues the Atlantic Coast Line Railroad Company and Atlantic Land and Improvement Company,' defendants, and each a corporation organized under the laws of the State of Virginia,—
First, For this that heretofore to-wit on March 5th, 1907, the plaintiff, Florence M. Kirton was the wife of J. R. Kirton, and is now the widow of the said J. R. Kirton, and on the date aforesaid to-wit March 5th, 1907, and for a long time prior thereto, the defendant, Atlantic Coast Line Railroad Company, was a railroad corporation possessed of, using and operating, a commercial steam railroad for the carriage of freight and passengers^ extending from Jacksonville and other points in the State of Florida through said Hillsborough County to Rout Tampa, Florida, located on the waters of Tampa Bay, and operating divers and sundry trains of cars with locomotives thereto attached over the same, and in the conduct of its said business as a common carrier received for transportation and transported great quantities of lumber, phosphate and other freight to said Port Tampa, consigned to be thence shipped by water on vessels to all parts of the world:
And for that said Atlantic Coast Line Railroad Company before and on said date to-wit March 5th, 1907, was possessed of and using a certain switch track or siding as a part of its said system of railroad at or near Port Tampa, aforesaid, and at frequent intervals operated its engines, cars and trains over, along and upon said siding; and on said date the said J. R. Kirton was
And for that on said date 'the defendant, Atlantic Land and Improvement Company was seized and possessed of certain terminals at Port Tampa aforesaid, embracing wharves, docks, yards, depot buildings and freight elevators, together with the lands upon which the same were situated, and then and for a long time prior thereto suffered and permitted the defendant, Atlantic Coast Line Railroad Company, to maintain its tracks, switches and yards over and upon said terminals, and to have the terminus of its said railroad at said Port upon the same, and to run and operate its trains, cars and locomotives transporting both freight and passengers over and upon said terminals, and said Atlantic Land and Improvement Company under a traffic agreement with and for said Atlantic Coast Line Railroad then was and for a long time ]?rior thereto had been engaged in unloading great quantities of lumber, phosphate and other freight from the cars of said railroad company into ocean-going -vessels and other water craft touching at said Port Tampa to receive said freight so transported to said Port Tampa by said Atlantic Coast Line Railroad Company, and likewise had been and then was thus engaged in loading the cars of said Atlantic Coast Line Railroad Company with great quantities of freight delivered at said Port by ocean-going vessels and other water-craft for transportation over the said line of railway of the defendant, Atlantic Coast Line Railroad Company, and which said business was carried on by said Atlantic Land and Improvement Company at said Port Tampa with and for no railroad company other than the defendant, Atlantic Coast Line Rail
And for that on said date said Atlantic Land and Improvement Company was seized and possessed of and operating a certain steam freight elevator which was then and there adjacent to the switch track hereinbefore mentioned, and said defendant by means thereof was engaged in unloading great quantities of phosphate from the cars of defendant, Atlantic Coast Line Railroad Company, on said switch track and in so doing from time to time was moving and shifting the cars of said railroad company along and upon said switch track:
And plaintiff avers that on said date, to wit on March 5th, -1907, the defendants so carelessly and negligently moved and operated a train of cars of defendant, Atlantic Coast Line Railroad Company along and upon said switch track hereinbefore mentioned, that by means thereof said cars with great force and violence ran upon, caught and crushed one of the legs and feet of the said J. R. Kirton, who was then and there upon said switch track engaged in the due performance of his said duties, and the said J. R. Kirton was thereby mortally wounded, mangled and bruised, and from the said injuries so inflicted as aforesaid the said J. R. Kirton thereafter died, to-wit, on March 7th, A. D. 1907.
Wherefore the plaintiff sues the defendants and claims Thirty Thousand Dollars damages.”
The defendants attacked this declaration by way of demurrer, which was overruled, whereupon they filed the pleas which were also called in question by demurrer and the same was likewise overruled. It is urged before us by the defendants that the demurrer to the pleas reaches back to the declaration, and if the declaration is bad the judgment of the court below was correct re
It is settled law here that every pleading is to be construed most strictly against the pleader thereof, and also that a declaration in an action at law should allege distinctly and cleárly every fact that is essential to the plaintiff’s right of action. It is also settled law that where the allegations of a declaration containing only one count are repugnant to and inconsistent with each other, such allegations neutralize each other, and the declaration will be held bad on general demurrer, provided such repugnancy and inconsistency relate to matters of substance, and not of form only. See Hoopes v. Crane, 56 Fla. 395, 47 South. Rep. 992, and authorities there cited.
Taking up the declaration for examination, we are first impressed with the amplitude of the inducement contrasted with the charging part. The plaintiff must be presumed to be acquainted with all the facts connected with and constituting the alleged negligence of the defendants which resulted in .and caused the death of the plaintiff’s husband, the liability for which she seeks to fasten upon the defendants and have them respond in damages. We must also presume that she has stated her case in' the declaration as strongly and as favorably as the facts would permit. She had the selection of the language therein in which to make her meaning clear. See concurring opinion in Atlantic Coast Line R. Co. v. Benedict Pineapple Co., 52 Fla. 165, 42 South. Rep. 529, and Atlantic Coast Line R. Co. v. Beazley, 54 Fla. 311, 45 South. Rep. 761, and the authorities there cited.
As we understand the declaration, the defendant, At
It will be observed that in the immediately preceding paragraph it was alleged that the Land Company, on the date of the injury is alleged to have occurred, “from time to time was moving and shifting the cars of said Railroad Company along and upon said switch track.” If it is intended to charge in this allegation that such Land Company was moving the cars at the time on the day in question when the alleged injury was occasioned, and if that is the correct inference to be drawn therefrom, which is by no means clear, then there is a variance, if not a contradiction, between it and the' next paragraph, which we have just copied above, wherein it is said that both defendants so carelessly and negligently operated the cars of the Railroad Company as to occasion such injury. We do not understand, and cannot gather from the allegations in the declaration, that the two defendant corporations were engaged in operating the same train of cars at one and the same time. It is not alleged in the declaration that the Railroad Company had temporarily surrendered its right to operate the cars to the Land Company, even if that could be done. We have held that “In actions where negligence''is the basis of recovery it is not necessary for the declaration to set-out the facts constituting the negligence, but an allegation of sufficient acts causing injury, coupled with an averment that they were negligently done, will be sufficient.” Jacksonville Electric Co. v. Sclimetzer, 53 Fla. 370, 43 South. Rep. 85, and authorities there cited. This is very liberal, and we are not disposed to go any further. This in no wise conflicts with the other prin
Judgment affirmed.
