63 Fla. 241 | Fla. | 1912
— The defendant in error brought an action against the plaintiff in error, wherein she sought to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant corporation. The declaration as amended consisted of five counts, but the court instructed the jury that the evidence would not warrant a recovery upon any of the first four counts and directed that the jurors confine their consideration of the case to the fifth count, which is as follows:
“The plaintiff by her attorneys, sues the defendant, for that, to-wit: On November 5, A. D. 1910, in Escambia County, Florida, the defendant was a common carrier of passengers and freight by water, for hire, and, as such common carrier, was possessed of, owned and operated between the ports of Pensacola and Apalachicola, in the State of Florida, and other ports, the steamer Tarpon; that the date aforesaid, defendant’s said steamer Tarpon was lying alongside Tarragonna Street wharf, in the city of Pensacola, Florida, and by and through defendant’s agents and servants, was discharging from defendant’s said steamer Tarpon to a certain box car on a certain railroad track on said Tarragonna Street wharf aforesaid, certain large and capacious barrels filled with resin and of great weight, preparatory to shipping said resin to inland points by railroad, said box car, the said steamer Tarpon, and said barrels of resin being at the time under the management and control of defendant’s agents and
To this count of the declaration the defendant filed the following pleas:
“1. That it is not guilty in manner and form as in said declaration alleged.
4. That tire plaintiff’s own negligence directly contributed to her alleged injury in this, that the place of the alleged injury at the time mentioned in the declaration was an obviously dangerous place, and the plaintiff voluntarily placed herself in such obvious place of danger without authority or invitation of defendant, or its authorized agent, in consequence whereof such alleged injury occurred.
5. That the plaintiff at the time of such alleged in
6. That plaintiff, by the exercise of ordinary and reasonable care for her own safety, could have seen the danger and avoided the alleged injury, but she failed to exercise such care, in consequence whereof her alleged injury occurred.
And for further pleas to the fifth count: Defendant denies that it at the time of the alleged injury to the plaintiff, through its agents and servants, had knowledge of the peril of the plaintiff, as alleged in the said count.”
The plaintiff joined issue upon all of these pleas and the case came on for trial before a jury, which resulted in a verdict and judgment in favor of the plaintiff for the sum of $1,599, which judgment the defendant had brought here for review by writ of error. Twenty-two errors are assigned, but they need not be considered in. detail.
Each of the parties litigant, as did also the trial judge, proceeded upon the theory that the statute modifying the common law rule as to the liability of railroad companies in certain cases had no applicability. See Sections 3148 and 3R9 of the General Statutes of 1906. In so doing they wouid seem to have pursued the proper course. See Atlantic Coast Line R. R. Co. v. McCormick, 59 Fla. 121, 52 South. Rep. 712, and German American Lumber Co. v. Hannah, 60 Fla. 70, 53 South. Rep. 516, 30 L. R. A. (N. S.), 882, wherein prior decisions of this court will be found cited. This being true, the doctrine of comparative negligence cannot enter into a consideration of the case. As at common law, the plaintiff could not
It will be observed that the fifth count of the declaration, which we have copied above and on which the recovery was had, does not allege that the plaintiff was at the place where the injury occurred by invitation of the defendant, either express or implied. 1‡ does not even allege that she was rightfully there, but, on the contrary alleges that she was there only for her own convenience. The ground of liability upon which the plaintiff relied was the failure of the, defendant to exex-cise reasonable care for her safety after it had discovered her presence there and that she was in peril. The undisputed evidence clearly establishes that the defendant corporation had two docks or Avharves in the city of Pensacola, one where passengers and ■ freight to and from the steamer Tarpon Avere taken on and discharged, which was the regular landing place for the steamer, and the other where there was nothing except railroad warehouses and where no kind of business was transacted except export business, “no regular commercial business done there;” “there was no place there for the landing of passengers or taking on of passengers.” Suck evidence further establishes that the plaintiff, of her own volition and for her own convenience, went down to this wharf, a most unusual place for ladies or passengers, or the public generally to go, for the purpose of receiving a package which the plaintiff’s mother had sent her from Apalachicola by one of the employes of the defendant, who worked
The judgment must be reversed, and it is so ordered.