68 Fla. 244 | Fla. | 1914
The declaration herein alleges in effect
A demurrer to the declaration was overruled and trial was had on a plea of not guilty, which, under Circuit Court Rule 71, “shall operate as a denial only of the breach of duty or wrongful act alleged to have been committed by defendant, and not of the facts stated in the inducement, and no other defense than such denial shall be admissible under that plea.” Judgment was rendered for the plaintiffs and the defendant took writ of error. The contentions here are that the court erred in overruling the demurrer to the declaration, and in denying a motion for a new trial.
While it may be lawful under the allegations of the declaration to prove a cause of action against the defendant, the proofs adduced do not show liability of the defendant, who was acting in his official capacity in giving to his employées directions for burning brush in working on the public road in his absence. There is no statutory presumption of negligence arising from the fire loss in this case. The facts and circumstances in evidence do not fairly raise such a presumption and the doctrine of res ipsa loquitur is not applicable here, even if the burden of proof would be thereby affected or shifted. See Sweeney v. Erwing, 228 U. S. 233, 33 Sup. Ct. Rep. 416.
In recognition of the degree of negligence required to be shown in such cases as this, the plaintiffs allege that the defendant, “well knowing the premises (the facts
This evidence does not show any act or omission on the part of the defendant, an officer in the discharge óf a public duty, that indicates “a reckless disregard of consequences,” in giving instructions to employees on the public highway as is alleged. The defendant was not present and did nothing to contribute to the plaintiff’s loss, and the evidence does not show an unlawful or a reckless, or
The evidence being insufficient in law to sustain the verdict, the judgment is reversed and a new trial is alloAved.
Judgment reversed.