46 Fla. 197 | Fla. | 1903
The defendant' in error, hereinafter
called the plaintiff, sued the plaintiff in error, hereinafter called the defendant, to recover damages for the death of her husband caused by a collision near the eastern boundary of the village of Westville between a hand car of the defendant company upon which he was going to Westville, and an engine operated by the company running in the opposite direction. The declaration alleges that the accident was occasioned by the negligence of the defendant in running the engine backwards in the night without the proper number of fit and suitable lights upon the engine and tender and at an unusual and unwarranted rate of speed.
The court charged the jury as follows: “If you find from the evidence that the defendant’s agents exercised due care and caution in operating the locomotive engine and cars which collided with the lever car and caused the death of the plaintiff’s husband and used all precautions which were proper, necessary and customary under the circumstances, by blowing the whistle, ringing the bell and exhibiting signal lights, and were not guilty of any negligence,
The declaration contained no allegation that: the. defendant was negligent in failing to blow the whistle or ring the bell on the engine, and no general averments of negligence under which proof of such omissions could have been given to support the plaintiff’s action. The plaintiff is confined in his recovery to the cause of action alleged in his declaration (Savannah, F. & W. Ry. Co. v. Tiedeman, 39 Fla. 196, 22 South. Rep. 658), and therefore, was not entitled to recover upon the ground that either of these precautions had been negligently omitted by those in charge of the engine.
Under the assignment predicated upon the giving of the charge above quoted it is contended that the instruction that if the defendant “used all the precautions which were proper, necessary and customary under the circumstances, by blowing the whistle, ringing the bell and exhibiting signal lights,” the jury should find for the defendant, is
The other requested instructions related to the ringing of the bell upon the engine. For the reason above given, the court might properly have refused to submit to the jury any issue upon this point; but if it were one proper to be considered by them, and they could have inferred that it was from the charge above quoted, the charge requested was in effect an instruction that the negligence mentioned would not impose liability upon the defendant unless it was the proximate cause of the injury sued for, and stated a correct limitation upon the right to base a cause of action thereon.
Two other questions are presented by the record before us which will necessarily arise upon another trial of the cause and which we, therefore, determine. The evidence shows that Wade at the time of his death was employed as a member of the bridge gang of the defendant, engaged under the supervision of a foreman, Pooser, in repairing- bridges on the defendant’s line; that he had been discharged for the day, and had borrowed from the foreman the hand car furnished to the latter by the defendant for use in his work,
Section 3 of chapter 4071 of the acts of 1891, which provides that “if any person is injured by a railroad company by the running of the locomotives, or cars, or other machinery of such company, he being at the time of such injury an employee of the company, and the damage was caused by negligence of another employee and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to a recovery,” limits the rule that an employee can not recover for an injury occasioned by the negligence of a fellow servant to cases where the person injured was guilty of contributory negligence. The rule as to fellow servants had no application to one who, though in the employment of the principal whose servant’s negligence occasioned the injury, was not when injured engaged in the performance of his duties as such employee, but had left the scene of his labors and was engaged in the pursuit of his own ends. Wood on Master and Servant, sec. 404; Wink v. Weiler, 41 Ill. App. 336; Doyle v. Fitchburg R. Co., 162 Mass. 66, 37 N. E. Rep. 770, S. C. 44 Am. St. Rep. 335; Washburn v. Nashville & Chattanooga R. R. Co., 3 Head (Tenn.) 638. One so injured, therefore, is not an employee within the meaning of the present statute.
Nor was Wade a licensee rightfully upon the track of the defendant at the time of his death. It is true he had
Upon the case as now presented, therefore, the measure of duty or care owing to Wade was that due to a trespasser upon the track at the time and place of the injury to him.
As the evidence as to the measure of diligence shown by the defendant company and as to the character and customary use of the place where the accident occurred may be different on another trial, we express no opinion upon the sufficiency of that now presented to support the verdict.
The judgment is reversed and a new trial ordered.