72 Fla. 161 | Fla. | 1916
—R. C. Bourquardez, as administrator of the estate of D. B. Bourquardez, deceased, insti
We shall discuss only such of the nineteen errors assigned as, we think, require it for a proper disposition of the case. The first assignment is based upon the overruling of the demurrer to the declaration. As we have said, this demurrer was addressed to the several counts of the declaration, and set forth numerous grounds or matters of law intended to be argued in support thereof. In view of the conclusion which we have reached, there seems to be no necessity for any extended discussion of this assignment. We have frequently had occasion to construe Sections 1441 and 1444 of the General Statutes of 1906, Compiled Laws of 1914, relating to demurrers to pleadings in actions at law and the form thereof. See Co-operative Sanitary Baking Co. v. Shields, 71 Fla. 110, 70 South. Rep. 934, and prior decisions of this court therein cited, especially Warfield v. Hepburn, 62 Fla. 409, 57 South. Rep. 618; Consumers’ Electric Light & St. R. Co. v. Pryor, 44 Fla. 354, 32 South. Rep. 797, and Jacksonville Electric Co. v. Schmetzer, 53 Fla. 370, 43 South. Rep. 85. We would also refer to Ingram-Dekle Lumber Co. v. Geiger, 71 Fla. 390, 71 South. Rep. 552. As we held in these cited cases, in actions for negligent injuries it may be necessary to allege only the relation between the parties out of which the duty to avoid negligence arises, and the act or omission that proximately caused the injury, coupled with a statement that such act or omission was negligently done or omitted. The discussion in Morris v. Florida Cent. & P. R. Co., 43 Fla. 10, 29 South. Rep. 541, may also prove serviceable. Suffice it to say that under the principles enunciated in these cited cases we are of the opinion that this assignment has not been sustained.
We turn now to other features of the. testimony bearing directly upon the accident and which, we think, are decisive of the case. W. A. Greenwald, the first witness introduced by the plaintiff, testified that he was a passenger on the car in question, that on such occasion the defendant was runnmg the car in three sections, making three cars going from Tampa to Sulphur Springs, probably two or three minutes apart, the car upon which witness was a passenger being the second car. There are no conflicts in the testimony as to these points and they may be considered as having been established. Such witness further testified that he saw the two motorcycles approaching the car track, the car being about one hundred feet from the crossing when he first saw the motor
On his re-direct examination the witness testified as follows: “You mean to tell Mr. Knight at the time you saw this man the first time he was looking at the street car? A. Not the first time, that was when he went to turn. Q. That was when he went to turn? A. Yes, sir. Q. These two young men were riding along; which way were their faces turned when you saw them first? A. Looking right at us in the car. Q. No, I mean when you first saw them ? A. When I first saw them ? Q. Yes? A. Just riding along talking. Q. And looking ahead of them, looking along? A. Like any, one would ride along. Q. Did they give any appearance of knowing that the street car was approaching? A. No, sir. 'Q. Mr-. Knight asked you if you had any claim against the street car company ? A. Yes. Q. Have you got any fe'eling against these people? A. None only that claim is all. Q. That have anything to do with your testifying in this case? A. Not one bit; no, sir.”
We take the following excerpt from the cross-examination of Mrs. Lillie Felts, the second witness introduced by the plaintiff: “Q. You saw these two men on the motorcycles pass by your house laughing and talking, did you? A. Yes. Q. Going towards the car track and kept going right on towards it? A. Yes, sir. Q. Paying no attention to the car? A. Well, they were riding along ordinarily like everybody else. Q. They paid no attention to the car did they, as far as you could see?
W. S. Robles, a witness on behalf of the plaintiff, testified that he and the deceased were returning from Sulphur Springs to Tampa on their motorcycles and that just before the collision he saw the approaching car and “hollowed to him (the deceased) to look out for the car and put on my brakes.” The witness then proceeded to testify on his direct examination as follows : “Q. What did he do? A. Fie immediately put on his brakes and turned over to the right. Q. As quickly as you saw that car, you hollowed to Bourqitardez to look out for the car, he immediately applied his brake and turned to the right? A. Yes, sir. Q. What did he turn to the right for? A. To shun the car. Q. To keep the car from striking him? A. Yes, sir. Q. Now, from the time that you first saw this car, did you at any time hear that car sound its gong before striking that young man ? A. No, sir; I did not. Q. From the time you first saw the car until the car struck this man was its speed slackened at all? A. On the car? Q. The street car? A. Not that I could tell; no, sir. Q. Not that you could tell? A.
On his cross-examination the witness testified: “O. Do you think that Bourquardez heard you hollow to him ? A. Yes, sir. Q. You think he did? A. Yes, sir. O. Well, now, just tell me, please, Wesley, what Bourquardez did when you hollowed to him? A. Well, he applied his brakes and turned over to the right on the right side of the road. Q. Yet you were eighty feet from the track and couldn’t escape hitting that car? A. Pie didn’t. Q. Don’t you really think that he was really going faster than twenty miles an hour? A. No, sir; I did not. Q. You really believe when he was eighty or ninety feet from the track that he heard you call to him, and that he im
No person shall recover damages from a railroad companj'' for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence. If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished or increased by the jury in proportion to the amount of default attributable to him. Sec. 3149 Gen. Stats, of 1906, Compiled Laws of 1914.
We see no useful purpose to be accomplished by copy
The judgment must be reversed.
Cockrell, J., dissents.