Atlanta & St. Andrews Bay Railway Co. v. Kelly

82 So. 57, 77 Fla. 479, 1919 Fla. LEXIS 685
CourtSupreme Court of Florida
DecidedApril 21, 1919
StatusPublished
Cited by2 cases

This text of 82 So. 57 (Atlanta & St. Andrews Bay Railway Co. v. Kelly) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atlanta & St. Andrews Bay Railway Co. v. Kelly, 82 So. 57, 77 Fla. 479, 1919 Fla. LEXIS 685 (Fla. 1919).

Opinion

Ellis, J.

— The defendant in error recovered a judgment in the Circuit Court for Jackson County against the plaintiff in error for damages for personal injuries. The plaintiff in error now seeks a reversal of the judgment because it says that the trial court erred in holding that the third and fourth counts of the declaration were good in substance; that the court erred in the admission and rejection of certain evidence and in overruling the motion for a new trial.

The declaration at first contained two counts to which the defendant railroad company pleaded not guilty. The plaintiff then filed two amendments in the form of additional counts to the declaration. These latter counts were numbered three and four. The defendant demurred to these counts, the demurrer was overruled. The points of law indicated to be argued under the demurrer were that the two counts were vague and uncertain, and failed to allege that the plaintiff, who was a passenger on defendant’s train and was injured in attempting to alight therefrom, did so at the usual place for passengers to leave the train at the particular station, or “that he alighted from the train under the direction of, or with the knowledge or consent of defendant’s servants and employees.”

The substance of the four counts of the declaration is that C. H. Kelly on June 11, 1916, was a passenger on defendant’s train and desired to leave the train at Alford, Florida; that when the train arrived at the station and [482]*482the plaintiff Kelly was in the act of leaving it, the defendant, through its employees, negligently caused the train to move forward, throwing the plaintiff to the ground, from which fall he sustained Injuries. There is little or no variation in the four counts so far as the real cause of action is concerned. The third and fourth counts allege that the train was violently jerked while the plaintiff aws in the act of leaving, thereby causing him to fall as alleged in the third count, and causing him to lose his “equilibrium and balance” which made it necessary for him to jump from the train because of the peril he was In, and then sustained the injuries complained of.

The first ground of the demurrer is so indefinite that it does ont serve the purpose of the statute in requiring the demurrant to state the substantial matters of law intended to be argued. The third and fourth counts of the declaration contain averments which may be regarded as wholly unnecessary to the plaintiff’s case. They may,, upon a casual reading, appear to be involved in some uncertainty, but neither count fails to state a cause of action, although it may be encumbered with unnecessary detail of statement. See Sledge v. Swift, 53 Ala. 110; Warfied v. Hepburn, 62 Fla. 409, 57 South. Rep. 618; Hartford Fire Ins. Co. v. Hollis, 58 Fla. 268, 50 South. Rep. 985; Heathcote v. Fairbanks, Morse & Co., 60 Fla. 97, 53 South. Rep. 950.

The declaration is not obnoxious to the criticism of the defendant’s counsel. They say it is not alleged that the train was started with any great force, nor that it was not started in the usual manner,, nor is it alleged that the train was not stopped a sufficient length of time to allow the plaintiff to leave. We think the allegations of the declaration are sufficient in these matters. It ap[483]*483pears therefrom that the defendant knew of the plaintiffs intention to leave the train at Alford, and that before the plaintiff did in fact leave the train, but while in the act of alighting it was negligently handled and’Operated so as to violently jerk the plaintiff and cause him to fall. There is no ambiguity about this allegation. It presents a clear and definite issue and in nowise is calculated to embarrass the defendant in the trial. As to the second ground of the demurrer, viz, that it is not alleged that the train had stopped at the usual place for detraining passengers and that the plaintiff' alighted under the direction of the defendant’s employees, we think that it is insufficient. In both counts it is alleged that the plaintiff was preparing to leave the train at the “said station of Alford.” In view of the averments contained in the declaration preceding this clause, no inference is possible from the language quoted than that the train had arrived at the station where passengers entrained and detrained. See Barnwell v. Seaboard Air Line Ry., 73 Fla. 482, 74 South. Rep. 497, in which the phrase “at or near” was used in the declaration to designate the place where the train stopped. This court said that that language carried the inference that the train had not stopped “at a station” or depot or a customary or habitual alighting place. That the declaration fails to allege that the plaintiff alighted from the train under the direction or with the consent of the defendant’s servants is a correct criticism, because it does fail to so allege. But we think the allegation is unnecessary to the plaintiff’s cause of action. The entraining and detraining of passengers is always under the supervision, control and direction of the company’s employees, but it is not necessary for a bom fide passenger to obtain the consent of an employee of the company to leave the train when it has arrived at the [484]*484passenger’s destination . It is the company’s duty to provide suitable means and a suitable place and allow sufficient time for the passengers to alight safely when the train arrives at a station, and in- the performance of this duty the detraining of passengers is usually under the direction and with the assistance of the company’s employees. If a passenger undertook to leave a train in some unusual and hazardous way and was injured in the attempt, the fact would be the subject of defense under a proper plea. We think the demurrer was properly sustained.

The second assignment of error rests upon a ruling by the trial court admitting testimony of Dr. D. A. McKinnon, who attended the plaintiff as physician when he came ot Marianna soon after the accident. It is not pointed out clearly either in the assignments of error or in the brief of counsel for the defendant just what testimony, statement or language of Dr. McKinnon was objectionable. The assignment of error is that the court erred in permitting “Dr. McKinnon to testify his opinion as to the cause of plaintiff’s injury based upon a so-called history of the case taken in connection with the witness’ personal examination of the injured parts.” An examination of the testimony of Dr. McKinnon does not show that he gave any opinion as to the cause of the injury from which the plaintiff was suffering, further than to say “a fall would have caused the injury.” But to this statement there was no objection or exception. The witness had testified that from the history of the case that he had gotten, the plaintiff’s injury “had caused a ruptured blood vessel.’’ There was no objection to this statement. A controversy was produced bv counsel asking the following question: “What injury?” The witness an-[485]*485severed as follows: “A. The injury he described getting off this car.” To this testimony there was no objection by defendant’s counsel. The witness was then requested to explain to the jury “how that could have caused the injury you found?” “A. By direct violence; I was going by the history he gáve.” There was no motion to strike out this reply. Counsel for defendant, however, stated to the court that if the witness was “going by the history we object to it.” The objection, however, was not followed up.

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Cite This Page — Counsel Stack

Bluebook (online)
82 So. 57, 77 Fla. 479, 1919 Fla. LEXIS 685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atlanta-st-andrews-bay-railway-co-v-kelly-fla-1919.