Jacksonville Electric Co. v. Schmetzer
Jacksonville Electric Co. v. Schmetzer
Opinion of the Court
This is an action of trespass on the case instituted by the defendant in error against the plaintiff in error in the circuit court for Duval county. Trial was had before a jury, which resulted in a verdict and judgment for plaintiff in the sum of $200.00, which defendant seeks to have reviewed here by writ of error, returnable to the present term. The declaration contains ■two counts, the first alleging in substance that defendant had and was operating an electric street railway in the city of Jacksonville, having one of its tracks on Riverside avenue, and that on or about the 25th day of August,
Defendant interposed a demurrer to the declaration, stating the substantial matters of law intended to be argued in support thereof as follows :
“1. The declaration and. each count thereof states a conclusion of negligence and does mot state any act of negligence upom the part of defendant.
2. The declaration is so vague, uncertain and indefinite that it is impossible for the court to understand how the accident occurred or the injuries of the plalhtiff were re-, ceived.
3. The declaration does not show that the plaintiff was , himself free from .fault, or that the defendant was at fault.”
The overruling of this demurrer forms the basis for
Upon the overruling of the demurrer defendant filed two pleas, not guilty, and that the injury was caused solely by plaintiff’s negligence, upon which pleas defendant joined issue.
All of the other assignments, except the tenth and eleventh, are based upon the refusal to give certain instructions requested by defendant. We have carefully examined such of these assignments as are urged before us and are of the opinion that no error was committed in refusing any of such requested instructions. All, or practically all, of them are faulty in that they fail to correctly state the doctrine concerning the effect of contributory negligence on the part of plaintiff, and, therefore, would have been calculated to confuse and mislead the jury. It would serve no useful purpose to set forth these instructions or to discuss them in detail. As we have al-, ready said, the same vice seems to have infected all of the refused requested instructions. If it be that any one of such instructions states a correct proposition of law, we are of the opinion that it was fully covered by the charge already given by the trial judge of his own motion or by some of the other instructions given at the request of defendant. So far as we are advised by the record, the plaintiff requested no instructions, but it seems to us that the jury was fully and correctly instructed as to the law applicable to the case. See Jacksonville Electric Co. v. Sloan, 52 Fla. 257, 42 South. Rep. 516; Seaboard Air Line Railway v. Scarborough, 52 Fla. 425, 42 South. Rep. 706.
The tenth and eleventh assignments are based respectively upon the overruling of defendant’s motion for a new trial, and entering judgment in favor of plaintiff. The ■
Finding no reversible error in the record, the judgment must be affirmed, and it is so ordered.
Reference
- Full Case Name
- Jacksonville Electric Company, a Corporation, in Error v. C. W. Schmetzer, in Error
- Cited By
- 15 cases
- Status
- Published
- Syllabus
- 1. Grounds of a demurrer, interposed to a declaration, but not argued in the appellate court, will be treated as abandoned. 2. Where the only ground of a demurrer interposed to a' declaration in an action for negligence which» is argued in the appellate court is that the declaration is too general in its nature and fails to set forth the “specific acts of negligence” relied upon by plaintiff to charge defendant, such ground of demurrer is so general in its nature as not to require the appellate court to do more than to examine the declaration and determine whether or not there are such essential and vital defects therein as to show no cause of-action against defendant. 3-. In actions where negligence is the basis of recovery it is not necessary for the declaration to set out the facts constituting the .negligence, but an allegation of sutilcient acts causing injury, coupled with an averment that they were negligently done, will be sufficient. 4. Instructions requested by defendant in an action against it for negligence which are faulty in that they state incorrectly the doctrine concerning the effect of contributory negligence on the part of plaintiff are properly refused by the court. 5. A requested instruction, even though it may embrace correct legal principles, is properly refused, when such principles have been fully covered by other instructions or charges given in the case.