PENSACOLA ELECTRIC TERMINAL RAILWAY COMPANY, A CORPORATION, PLAINTIFF IN ERROR,
v.
M. C. HAUSSMAN, DEFENDANT IN ERROR
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Pensacola Electric Terminal Railway Company appealed a judgment for passenger M. C. Haussman who was injured after jumping from a street car. The Florida Supreme Court reversed because the trial court's charge on contributory negligence addressed an issue—whether Haussman jumped unnecessarily—that was not raised by the pleadings, which specifically alleged he was thrown from the car.
The trial court erred in giving the instruction on unnecessary jumping because the charge addressed an issue substantially variant from those raised by the pleadings. The action should have been tried on the theory alleged in the declaration—that the plaintiff was thrown from the car due to negligent operation.
“This court 'has frequently ruled that a misleading charge on issues substantially variant from those raised by the pleadings is ground for reversal.”
Establishes the governing legal principle that trial court instructions must conform to the issues actually pleaded.
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Join FLexlaw to unlock all legal intelligenceHaussman, a passenger on a street car operated by Pensacola Electric Terminal Railway Company, was injured. The declaration alleged in three counts th…
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Cockrell, J.
The declaration in this case, consisting of three counts, alleges in each that Haussman while a passenger o.n a street car was by the negligent operation of the car thrown from the car and injured. The defendant pleaded the general issue and that the injury was caused solely by plaintiff’s negligence.
There was much testimony tending to show that the plaintiff was not thrown from the ear but jumped and the court charged that an unnecessary jumping off the car would defeat recovery, but also charged “If, however, the plaintiff was placed by the negligence of the defendant company in a situation of peril and attempted to escape by jumping, and the act of jumping was also dangerous, and he was injured by jumping, the plaintiff would not be guilty of contributory negligence such as will prevent him from recovery from injury if he was injured, if the jumping and attempt to escape was such an attempt as a person acting with ordinary prudence might under the circumstances make.”
There wa® verdict and judgment for the plaintiff, and the defendant proscutes this writ assigning as error the giving of the quoted charge.
No complaint is made on the charge as an abstract proposition of law, but it is insisted that the charge was justified neither by the issues raised by the pleadings nor by the evidence.
This court 'has frequently ruled that a misleading charge on issues substantially variant from those raised by the pleadings is ground for reversal. Parrish v. Pensacola & A. R. Co., 28 Fla. 251, 9 South. Rep. 696; Jacksonville, T. & K. W. Ry. Co. v. Neff, 28 Fla. 373, 9 South. Rep. 653; Hinote v. Brigman, 44 Fla. 589, text 600, 33 South. Rep. 303; Wilkinson v. Pensacola & A. R. Co., 35 Fla. 82, 17 South. Rep. 71; Louisville & N. R. Co. v. Guyton, 47 Fla. 188, 36 South. Rep. 84; Walker v. Parry, decided this term. The pleader did not content himself with a general allegation of injury through negligent operation of the car, but in all three counts declares the specific manner of the injury, and upon that theory should the action be tried.
Judgment reversed and new trial awarded.
Shackleford, C. J., and Whitfield, J., concur. Taylor and Hocker, JJ., concur in the opinion.
Parkhill, J., disqualified.
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S. Home Ins. Co. v. Putnal, 57 Fla. 199 (Fla. 1909)…att, 26 Fla. 449, 8 South. Rep. 123, S. C. 9 L. R. A. 343; Hays v. Ernest, 32 Fla. 18, 13 South. Rep. 451; Mayer v. Wilkins, 37 Fla. 244, 19 South. Rep. 632; Armour v. Doig, 45 Fla. 162, 34 South. Rep. 249; Pensacola Electric Ter. R. Co. v Haussman. 51 Fla. 286, 40 South. Rep. 196, and authorities there cited; Walker v. Parry, 51 Fla. 344, 40 South. Rep. 69. It is true that these cited cases do not deal with erroneous rulings on the pleadings, but the principle involved therein is the same as that in the i…
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Ingram-Dekle Lumber Co. v. Geiger, 71 Fla. 390 (Fla. 1916)…. Rep. 231; Walsh v. Western Ry. Co., 34 Fla. 1, 15 South. Rep. 686; Wilkinson v. Pensacola & A. R. Co., 35 Fla. 82, 17 South. Rep. 71; Louisville & N. R. Co. v. Guyton, 47 Fla. 188, 36 South. Rep. 84; Pensacola Electric Terminal R. Co. v. Haussman, 51 Fla. 286, 40 South. Rep. 196; Dexter & Connor v. Seaboard Air Line Ry., 55 Fla. 292, 45 South. Rep. 887; Coons v. Pritchard, 69 Fla. 362, 68 South. Rep. 225, L. R. A. (N. S.) 1915 F. 558. There would seem to be no occasion for further discussion. The judgme…
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Tampa Transit Lines, Inc. v. Corbin, 62 So. 2d 10 (Fla. 1952)…important and specific charge of negligence, and by reason of this negligent operation, it is alleged, she was injured. See Southern Express Co. v. Williamson, 66 Fla. 286, 63 So. 433, L.R.A. 1916C, 1208, and Pensacola Electric Term. Ry. v. Hausman, 51 Fla. 286, 40 So. 196. There was a direct conflict in the testimony. Mrs. Corbin testified that when the bus driver got in his seat, he started the bus and it made a lunge and the next thing she knew the bus was on the right side around the curve, part on th…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Parrish v. Pensacola & Atl. R.R. Co., 28 Fla. 251 (Fla. 1891)
- Wilkinson v. Pensacola & Atl. R.R. Co., 35 Fla. 82 (Fla. 1895)
- Hinote v. Brigman, 44 Fla. 589 (Fla. 1902)
- Jacksonville v. Milroy Neff, 28 Fla. 373 (Fla. 1891)
- Louisville & Nashville R.R. Co. v. Guyton, 47 Fla. 188 (Fla. 1904)