Atlantic Coast Line Railroad v. Crosby (53 Fla. 400, 1907)

Shackleford, C. J.:

On the 2áth day of December, 1903, the defendant in error brought an action against the plaintiff in error in the circuit court for Marion county seeking to recover damages for personal injuries received by defendant in error by reason of the alleged negligence of the plaintiff in error. Trial was had before a jury, resulting in a verdict for the sum of $5,000 in favor of the plaintiff, upon which judgment was entered which the defendant .seeks to have reviewed here by writ of error, returnable to the last term.

The declaration is as follows: “The plaintiff, Ethel Crosby, an infant of the age of ten years, by J. W. Crosby, her next friend, sues the defendant, the Atlantic Coast Line Railway Conpany, a corporation created and existing under and by virtue of the laws of the State of Virginia, which has been summoned, &c., and says that the defendant is a common carrier, engaged in said county and state in the regular business of operating railroad lines and thereon by its servants and employees operating railroad trains and carrying and transporting passengers and freight for hire and as such on September 19th, 1902, and before and since that date, was in possession and control of the certain line of railroad track extending from Ocala to Dunnellon in said county, and the certain engines, cars, machinery and appliances used thereon and operated therewith, commonly known and designated as the Silyer Springs, Ocala and Gulf Railroad, and operated and used said track, cars, engines, machinery and' appliances in carrying on its said business.

On the said 19th day of September, 1902, the plaintiff was a passenger on a certain train operated on said line of railroad by the defendant, and the defendant for a certain sum of money to it then paid,- received the plaintiff as a passenger and then and there undertook and agreed to safely carry the plaintiff on said train from Ocala to Dunnellon on said line of railroad. Before reaching Dunnellon and at a regular station of the defendant on said road known as Juliette, the train on which plaintiff was a passenger was stopped by defendant and there waited for a long time, to wit: about thirty minutes, for the arrival at Juliette of another train on defendant’s railroad.

Plaintiff further says that when said train was stopped, as aforesaid, at Juliette, the locomotive engine which was attached to and drawing said train was by defendant uncoupled and detached from the cars provided for and used by the passengers on said train and moved, with a car or cars which it was drawing, to another railway track or tracks of the defendant and that the car in which said plaintiff was a passenger and other cars carrying passengers, on said train, were left standing at said station called Juliette; that while said passenger cars were so standing still, and while the plaintiff was on the platform extending from and between said passenger cars and connecting tbe same, the defendant negligntly and carelessly caused said locomotive engine to be run backward with great force and violence against said passenger cars; so standing on said track, and thereby caused the plaintiff to be thrown over and between the platforms of said passenger cars, and the plaintiff’s right foot to be caught between the buffers of said passenger car platforms, whereby the plaintiff’s right foot was wounded, crushed, broken and greatly and permanently injured.

Plaintiff avers that the defendant and its agents and servants did not exercise all reasonable care and diligence in running Its slaid locomotive 'engine and cars a/nd did not use and exercise all reasonable care and diligence in running said locomotive engine • backward against said passenger cars, and that the said injury to the plaintiff was caused by the carelessness and negligence of the defendant and its agents and servants in running said engine and cars and by the failure of the defendant and its said agents to use and exercise the reasonable care and diligence required by law; that the defendant ran its said said locomotive engine against said passenger cars with great and unnecessary force and violence; that said defendant, when bringing and- running its said engine against said passenger cars and when about to bring .and run said engine to and against said cars, gave no signal notice or warning of the approach of said engine, or that the same would be brought or run to and against said cars; that the defendant in running its said- locomotive engine and train of cars did not provide and use on and between said passenger cars a certain appliance known as a buffer iron, which said appliance is a metal plate covering the space or opening between the ends or buffers of cars used for passengers, and which appliance was and is necessary for the safety and security of passengers on railway trains, occupying the platform of the cars, and in getting on and off said cars, an in going from one car to another car on the same train, and is generally and commonly used by common carriers and railway companies as a means of protection and safety for passengers and employees on railroad trains.

By means of which negligence and want of care on the part of the defendant, its agents and servants, and by reason of which failure and refusal on the part of the defendant, its agents and servants, to exercise and use all reasonable care and diligence in running its said locomotive engine and cars, the plaintiff: has sustained the injuries as aforesaid, and has lost the use of her foot, has become permanently maimed and crippled, has suffered great pain and anguish of body and mind, has been made sore and sick, and her health and strength of body have been permanently impaired, injured and damaged.

Wherefore she claims damages in the sum of twenty thousand'dollars.”

To this declaration the defendant interposed a demurrer, stating the substantial matters of law intended to be argued as follows:

“1. It appears from the allegations of the plaintiff’s declaration that the injuries alleged to have been received by the plaintiff resulted from the carelessness and negligence of the plaintiff in voluntarily standing on the platform of the car at a place of danger apparent to any one of ordinary observation.

2. The plaintiff, in standing upon the platform of the car, voluntarily assumed the risk of danger incident to a person in such position.

3. No liability would attach to the company for injuries resulting to a passenger who voluntarily and in violátión of the rule sof the company leaves the passenger coach and without necessity voluntarily stands in a position of" danger on the platform of a car, and without' knowledge on the part of the’ officers and servants in charge of the train that such passenger is in a perilous condition or situation at the time of any sudden movement of the train, and the declaration fails to allege any such knowledge on the part of the agents or servants of the defendant in charge of said train at the time of or immediately preceding the accident.

4: It appears from the allegation of plaintiff’s declaration that the negligence of the plaintiff was the proximate cause of the injury complained of. k

5. The plaintiff’s declaration fails to state any cause of action.”

At the same time the defendant filed the following' motion to strike out or for a compulsory amendment of the declaration: “Now comes the defendant in the above styled cause, by its undersigned attorneys, and not waiving the general demurrer filed to the plaintiff’s declaration in said cause, but insisting and relying upon the same, and moves the court to strike out the declaration, or to require the plaintiff to' amend the same, because in its present form it is so framed as to prejudice, embarrass and delay the fair trial of said action, and in support of said motion the defendant makes the following specifications:

1. To require the plaintiff to separate the act or acts of negligence complained of, and to state the sam specifically in separate and distinct counts, where the acts of negligence complained of are separate and distinct within themselves.

2. To require the plaintiff to state specifically wherein the defendant did not exercise all reasonable care and diligence in running its locomotive engine and cars; and wherein the said defendant did not exercise reasonable care and diligence required by law; the general-allegation in plaintiff’s declaration being insufficient to advise the defendant of all the particular acts of negligence which plaintiff may rely upon for recovery.

Wherefore, the defendant, in the event the court should overrule the general demurrer filed to plaintiff’s declaration, moves the court to strike the said-declaration, or to compel the amendments thereto according to the specifications as above.”

On the 24th day of February, 1904, the court made the following, order on the denkirrer and motion: “This cause came on to be beard upon -the demurrer of the'defendant to the plaintiff’s declaration in said case, and after argument of counsel for the respective parties, and the court being advised- in the premises; it is ordered that the said demurrer- filed herein on the 26th day of January, A. D. 1904; be, and the same is hereby overruled, to which order and ruling of the court, the defendant excepts.

Whereupon the said cause came on to be further heard upon the motion of the defendant to strike the declaration, or require the plaintiff to amend the same, and after argument of counsel for the respective parties, and the court being advised- in tire premises, it is ordered that the said motion be, and the same is hereby, overruled; the court holding that the said declaration is not so framed as to prejudice, embarrass and delay a fair trial of the cause, and that the plaintiff is limited in the trial of said cause to the several specific acts of negligence set forth and alleged in said declaration, and that the same are properly set forth in one count, to which order of the court overruling the defendant’s motion the defendant did then and there except.

It is further ordered that the said defendant he, and it is hereby required, to plead to said declaration on or before the fifteenth (15th) day of March, A. D. 1904.”

This order forms the basis for the first and second assignments, which are to the effect that the court erred in overruling the demurrer as well as in overruling the motion.

It is strenuously urged before us by defendant in its brief in support of the first assignment that “It appears from the allegations of the declaration that the injury was received while the plaintiff, without necessity, was voluntarily standing on the platform of the car, in a position of danger, without the knowledge or consent of the agents and servants of the defendant. Under such circumstances, the negligence of the plaintiff was the proximate cause of the injury, and in voluntarily and without necessity leaving the car provided for passengers she assumed all extra risk of danger incident to such acts and conduct upon her part. A passenger who receives an injury while standing or riding on the platform of a car cannot recover, unless it be shown there was some urgent necessity for the passenger to occupy such position, or that those in charge of the train knew of the perilous position of the passenger at the time of the accident in time to prevent it.” This position was also elaborated and insisted upon by defendant in the oral argument before us, and the following authorities have been cited, to us: Thane v. Scranton Traction Co., 191 Pa. St. 249, 43 Atl. Rep. 136, S. C. 6 Amer. Neg. Rep. 185; Denny v. North Carolina R. R. Co., 132 N. C. 340, 43 S. E. Rep. 847, S. C. 30 Amer. & Eng. R. R. Cases, N. S. 146; Meyere v. Nashville, C. & St. L. Ry., 110 Tenn. 166, 72 S. W. Rep. 114, S. C. 29 Amer. & Eng. R. R. Cases, N. S. 947; Union Pac. R. Co. v. Roeser, 69 Neb. 62, 95 N. W. Rep. 68, S. C. 31 Amer. & Eng. R. R. Cases, N. S. 493; 2 Wood’s Railway Law, 1157 (also see 2 Wood’s Railroads, Minor’s ed., 1327); 4 Elliott’s Railroads, Sec. 1630; Patterson’s Railway Accident Law, Sec. 272; Beach’s Contributory Negligence (3rd ed.), Sec. 149; DeMahy v. Morgan L. & T. R. R. & S. S. Co., 45 La. Ann. 1329, 14 South Rep. 61, S. C. 58 Amer. & Eng. R. R. Cases, 448. We have given all of these citations our most careful consideration, bearing in mind the contention as made by defendant, both in its brief and oral argument, and have also examined quite a number of other authorities. We are also mindful of the principle established by repeated decisions of this court that a pleading is to be most strictly construed against the pleader thereof. See concurring; opinion in Atlantic Coast Line R. R. Co. v. Benedict Pineapple Company, decided at the last term, and authorities therein cited.

The plaintiff contends that this assignment is indefinite, embracing several distinct matters which this court is called upon to investigate, and fails to point out the error specifically relied on, therefore violative of the rule “that each error relied on must be separately and distinctly specified — that no one assignment shall embrace more than one specification of error — and that on a failure to comply with this requirement the court will,-as a general rule, refuse to consider the assignment.” In support of this contention plaintiff cites 2 Cyc, 986, where the quoted rule is laid down; St. Johns & Halifax R. R. Co. v. Shalley, 33 Fla. 397, 14 South. Rep. 890; Hodge v. State, 26 Fla. 11, 7 South. Rep. 593; Newberry v. State, 26 Fla. 334, 8 South. Rep. 445; Estey v. Magee, 94 Iowa 197, 62 N. W. Rep. 673; Town of Waukon v. Strouse, 74 Iowa 547, 38 N. W. Rep. 408; Anheuser-Busch Brewing Association v. Oxley, 88 Iowa 699, 53 N. W. Rep. 1075; Blocker v. Schoff, 83 Iowa 265, 48 N. W. Rep. 1079. This contention is untenable. The cited decisions of this court do not sustain it. In the case of St. Johns & Halifax R. R. Co. v. Shalley, supra, the assignment in question was “that the referee erred in refusing to admit evidence on behalf of the defendant, and in admitting evidence on the part of the plaintiff that was inadmissible and objected to by defendant.” In disposing of this assignment this court said: “The second error assigned above Is entirely too general and indefinite to be considered, as It does not point out or specify what evidence, if any, was offered for the defendant and rejected by the referee, nor any that was admitted for the plaintiff over the defendant’s objection. Neither does the appellant in its brief point out or specify the errors contended for in this respect. Because of the latter fact, we treat the second assignment as having been abandoned.” The assignments in question in the cases of Hodge v. State, supra, and Newberry v. State, supra, were of a like nature, being based upon the admission or exclusion of evidence. The third head-note in Hodges v. State, supra, is that “An assignment of error which is so general and vague that the appellate court is in doubt as to what is meant by it will not be considered,” and the third head-note in Newberry v. State, supra, is that “An alleged error will not be considered by the appellate court unless it is specially pointed out.” The other cited authorities, all of which are Iowa cases, are based upon Section 3207 of the Iowa Code of 1880, which provided that “an assignment of error must, in a way as specific as the case will allow, point out the error objected to; and that, among several points in a demurrer, it must designate which is relied on as error, and the court will only regard errors which are assigned with the required exactness.” We have no such statutory provision; therefore these citations are not in point. In construing Section 1053 of the Revised Statutes of 1892, we have held that “in determining the sufficiency of a demurrer the court will be confined to the grounds stated, and will examine no others, unless they extend to an omission to allege substantive facts which are essential to a right of action or matter of defence, and which are not implied in or inferable from those which are alleged,” and “that grounds of demurrer not noticed in brief of counsel for appellant who demurred may be regarded by the appellate court as abandoned.” Florida Cent. & P. R. Co. v. Ashmore, 43 Fla. 272, 32 South. Rep. 832; Moore v. Lanier, 52 Fla. 353, 42 South. Rep. 462; Jacksonville Electric Co. v. Schmetzer, decided here at the present term. Also see discussion and authorities cited in concurring opinion in Atlantic Coast Line R. R. Co. v. Benedict Pineapple Co., also decided here at the last term, 42 South. Rep. 530.

Confining our attention, then, to the specific grounds of the demurrer urged before us, we must determine whether or not the declaration is defective in the specifications pointed out to us. Turning to the authorities cited by defendant, we find that the question chiefly discussed therein is the negligence, or contributory negligence, of the passenger in going upon or standing upon the platform of a moving train. We find that there is great conflict in the authorities as to whether or not riding or standing upon the platform of a railroad car while the train is in motion, or in rapid motion, is negligence per se, such as to defeat recovery for injuries received by the passenger while occupying such a. position. Some courts have held affirmatively as a matter of law that it is such negligence as will bar a recovery, while others have held it to be a question of fact for the jury to determine under all the circumstances in the case as given in evidence. A discussion of the question, and many authorities bearing thereon, will be found in the following: 6 Cyc. 653, 654; 5 Current Law, 539, 540; Moore’s Carriers, 856 et seq.; 2 Wood’s Railroads (Minor’s ed.), Sec. 308; Beach’s Contributory Negligence (3rd ed.), Sec. 149; Black’s Law and Practice in Accident Cases, Sec. 353; Patterson’s Railway Accident Law, Secs. 271, 272; 5 Amer. & Eng. Ency. of Law (2nd ed.), 678, 681. The following, among the many cases which we have examined, will prove instructive generally as to the rights and risks of passengers going, standing, or riding upon the platform of trains: Marquette v. Chicago & N. W. R. R. Co.., 33 Iowa 562, text 569, 570; Graham v. McNeill, 20 Wash. 466, 55 Pac. Rep. 631, S. C. 72 Amer. St. Rep. 121; Gerstle v. Union Pac. Ry. Co., 23 Mo. App. 361; Zemp v. Wilmington & M. R. R. Co., 9 Rich. Law (S. C.) 84, S. C. 64 Am. Dec. 763; Woods v. Southern Pac. Co., 9 Utah 146, 33 Pac. Rep. 628; Dewire v. Boston & Maine R. R., 148 Mass. 343, 19 N. E. Rep. 523; Agulino v. N. Y., N. H. & H. R. R. Co., 21 R. I. 263, 43 Atl. Rep. 63, S. C. 14 Amer. & Eng. R. R. Cas. 314, also see note on page 321; L. & N. R. R. Co. v. Head, 22 Ky. L. 863, 59 S. W. Rep. 23, S. C. 19 Amer. & Eng. R. R. Cas. 302; Augusta Southern R. R. Co. v. Snider, 118 Ga. 146, 44 S. E. Rep. 1005; Willis v. Long Island R. R. Co., 34 N. Y. 670; Graham v. Manhattan Ry. Co., 149 N. Y. 336, 43 N. E. Rep. 917; Watkins v. Birmingham Ry. & Elec. Co., 120 Ala. 147, 24 South. Rep. 392, S. C. 43 L. R. A. 297; McAfee v. Huidekoper, 9 D. C. App. Cas. 36, S. C. 34 L. R. A. 720, and note thereto.

We do not commit ourselves to or adopt all of the reasoning in these cited cases, nor is it necessary for us to do so in disposing of this assignment. The point now presented for determination is whether or not the declaration is sufficient to withstand the assault made upon it by the demurrer. It is alleged in the declaration that defendant’s train was stopped by defendant at a regular station 'called Juliette, situated between Ocala, where plaintiff became a passenger on the train, and Dunnellon, her destination, and defendant’s train waited at Juliette for a long time, to wit, about thirty minutes, for the arrival of another train on the defendant’s railroad; that during this waiting interval the engine which was attached to and drawing the train on which plaintiff was a passenger was by defendant uncoupled and detached from the passenger cars on said train and moved, with other cars, to another track of defendant, leaving the car on which plaintiff was a passenger, and other cars carrying passengers, standing at the station, and “that while said passenger cars were standing still, and while the plaintiff was on the platform extending 'from and between said passenger cars and connecting the same, the defendant negligently and carelessly” did the things which occasioned the injury. No authorities have been called to our attention, and we have found none, which, in our opinion, would justify or warrant us in declaring that it. is apparent from the allegations of the declaration that the. injury “resulted from the carelessness and negligence of the plaintiff in voluntarily standing on the platform of the car at a place of danger apparent to any one of ordinary observation.” To hold that merely being on the platform of a train which is not in motion, but standing still, is such negligence per se that as a matter of law it would preclude any recovery for injuries sustained by the person so being on the platform would be carrying the doctrine much further than it has been carried in any case we have been able to find. It seems to us that such a holding would be repugnant to common sense, as well as to the reason of the law. As was well said by Chief Justice Gray in Barden v. Boston, Clinton & Fitchburg R. R. Co., 121 Mass. 426, text 428, “We can have no doubt that the contract between the parties, which required the corporation to furnish the plaintiff with a seat did not, as a matter of law, oblige him to keep it from the time he first took it until the train had come to a final stop at the place of his destination.” Moore in his recent work on Carriers, 860, has the following: “The cause which may justify a passenger, without the imputation of fault on his part, as against the carrier, in leaving his seat and going outside the car, and occupying, temporarily or otherwise, a position there while in motion, must be dependent upon the occasion and circumstances which induce or impel him to do so; as, for example, where it becomes necessary for his comfort because .of the crowded condition of the car to do so.” Also see pages 866 et seq. Judge Thompson in Yol. 3 of his Commentaries on Negligence, section 2945, in discussing the leaving of his seat by a passenger, says: “It is not to be inferred from this that a passenger incurs the imputation of contributory negligence from quitting his seat in the coach under any circumstances — as where he goes to the platform of the car when the train is at a halt at a regular station, to speak to a near relative; or to meet a friend and bring her into the car; and, while doing so, receives an injury from the sudden and violent starting of the train.” Also> see the two authorities cited by him in notes 189 and 190, McCurrie v. Southern Pac. Co., 122 Cal. 558, 55 Pac. Rep. 324, S. C. 5 Amer. Neg. Rep. 117, 12 Amer. & Eng. R. R. Cas. (N. S.) 170, and note on pages 173 et seq.; Southern R. R. Co. v. Smith, 95 Va. 187, 28 S. E. Rep. 173. These two cases are well in point and are instructive not only in dealing with this assignment but with some of the other assignments also, and we shall have occasion to refer to them again. We are clear that, under th allegations of the declaration in the instant case, on the assault made thereon by the demurrer, it cannot be held as a matter of law plaintiff is precluded from a recovery against defendant for the alleged injuries. Because the declaration alleges that plaintiff was on the platform while the passenger cars were standing still, during afa interval of waiting for the arrival of another train, it is by no means implied therein, or inferable therefrom, that she had voluntarily selected such a position to stand or ride on when the train was ready to start in motion again. It is elementary that a demurrer admits the truth of all such matters of fact as are sufficiently pleaded. Barbee v. Jacksonville and Alligator Plank Road Co., 6 Fla. 262; 6 Ency. Pl. & Pr. 334. No error was committed in overruling the demurrer.

We pass now to the second assignment, which is based upon the overruling of defendant’s motion “to strike out the declaration, or to require the plaintiff to amend the same,” this motion being obviously based on section 1043 of the Revised Statutes of 1892. Before proceeding to dispose of this assignment, we call attention to the fact that plaintiff makes the same contention against its consideration that was made against the first assignment— in fact, discusses the first and second assignments together. This contention must fail for the same reasons we have already set forth in .disposing of plaintiff’s contention against the consideration of the first assignment. It can hardly he seriously contended by defendant that the declaration should have been stricken out. See Parkhurst v. Stone, 36 Fla. 456, 18 South. Rep. 594, and authorities there cited; Camp Bros. v. Hall, 39 Fla. 535, 22 South. Rep. 792; Craft v. Smith, 45 Fla. 222, 33 South. Rep. 996; 20 Ency. of Pl. & Pr., 988. As to compulsory amendment of pleadings, we held in Seaboard Air Line Railway Co. v. Scarborough, decided here at the last term, that the same rule was applicable thereto which prevailed in granting or denying applications for voluntary amendments under section 1042 of the Revised Statutes of 1892, and that the ruling of the trial court thereon would not be disturbed by this court, unless an abuse of judicial discretion was made to appear. Applying this principle to this assignment, we are clear that no error was committed in denying the motion, especially so as the trial court, in the order thereon, stated “that the plaintiff is limited in the trial of said cause to the several specific acts of negligence set forth and alleged in said declaration, and that the same are properly set forth in one count.” That a plaintiff in an action seeking to recover damages or personal injuries caused by the negligence of another is confined to the allegations of the declaration, see L. & N. R. R. Co. v. Wade, 46 Fla. 197, 35 South. Rep. 863; Parrish v. P. & A. R. R. Co., 28 Fla. 251, 9 South. Rep. 696. Also see L. & N. R. R. Co. v. Jones, 45 Fla. 407, 34 South. Rep. 246, and authorities therein cited; S., F. & W. Ry. Co. v. Tiedman & Bro., 39 Fla. 196, 22 South. Rep. 658. Vo1. 6 of Thompson’s Commentaries on Negligence, section 7452, and authorities cited in notes-, may also prove instructive.. If it be true, as defendant contends, that plaintiff! was not so confined or limited at the trial in the introduction of her evidence, in accordance with such order, while such matters might form proper bases for other assignments, they are not available in support of the present assignment.

After the overruling of the demurrer and motion within the time -fixed iff the order, the defendant filed the following pleas: “Now comes the defendant in the above styled cause, and for pleas to the plaintiff’s declaration filed herein says:

1. That it is not guilty as the said plaintiff has in her said declaration alleged and complained, and of this the said defendant puts itself upon the country.

2. And for a second and further plea this defendant says that the proximate cause of the personal injuries that may have been sustained by the said plaintiff was the reckless carelessness and- negligence of the said E-thel Crosby, and of the mother of the said plaintiff, in whose care, custody and control the said plaintiff then and there was, in voluntarily, and without necessity, leaving the passenger coach on the defendant’s train, where ample accommodations were afforded for the convenience and comfort of passengers, and, in violation of the rules of said defendant company, standing on the platform- of the said passenger coach, at or near the end thereof, while the said train was in waiting for the regular connection at said station, Juliette, and at a time when the said train so waiting, in the usual conduct and transaction of the business of the defendant at that point, was liable to be moved or started at any time. While the said plaintiff, and her mother, in whose care and custody the said Ethel Crosby then and there was, were negligently standing at or near the end of the said platform, as aforesaid, and without negligence on the part of defendant, and in the ordinary course of the business of the said defendant at that point, the said train was, without unnecessary or unusual violence, moved, and in taking up the slack between the coaches the foot of the said plaintiff was caught between the buffers, or between the ends of the platforms of the said connecting passenger coaches, and this the defendant is ready to verify.

3. And for a third and further plea this defendant sajs that each and every of the allegations in the said second plea are true as therein stated, and further says: That while said plaintiff was standing at or near the end of the platform of said passenger coach she, the said plaintiff, was then and there, recklessly and carelessly, and in the presence of her mother, who then and there -had the care and custody of said plaintiff, engaged in playing on and between the platforms of the connecting passenger coaches, and while swinging her foot across the opening between said passenger coaches the said plaintiff negligently and carelessly permitted her foot to drop and remain between the said passenger coaches, and while the same was in that position, and without any knowledge on the part of the officers and agents in charge of said train of the dangerous position of the plaintiff, the said passenger coaches, being a part of said train as aforesaid, were moved and started from a standing position, and in taking up the slack between the said coaches the foot of the said plaintiff, being then and there between the buffers, or between the platforms of said coaches, as aforesaid, was injured,' and in manner and form aforesaid, and as a result of the negligence of said plaintiff and her mother, as aforesaid, whatever personal injuries the plaintiff may have sustained were thus received, and the negligence of said plaintiff, and of the mother of said plaintiff as aforesaid, were the sole and proximate cause of the injuries so received and sustained, and this the defendant is ready to verify.”

The plaintiff interposed a demurrer to the second and third pleas, stating the substantial matters of law intended to be argued as follows:

.“1st. That said second plea does not state or set forth sufficient facts to constitute a defense good in law to the case stated in the declaration.

2nd. That said third plea does not state or set forth sufficient facts to constitute a defense good in law to the case stated in the declaration.”

On the 29th day of April, 1905, the court made an order sustaining this demurrer, upon which the third and. fourth assignments are predicated.

It is contended by defendant that these two pleas “sought to invoke the defense declared by section 2 of chapter 4071 of the Laws of 1891,” which is as follows: “No person shall recover damages from, a railroad company 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.”

It is also urged that the object of these special pleas was to be permitted to show, by testimony in support thereof, that the negligent acts averred in the pleas as having been “committed by the plaintiff, 'and her mother, were the sole and proximate cause of the injuries that may have been sustained by the plaintiff.” The third plea interposed in the case of The Consumers Electric L. & St. Ry. Co. v. Pryor, 44 Fla. 354, text 358, 32 South. Rep. 797, text 798, was of similar import, being as follows : “That the injury complained of was caused' entirely by the fault, negligence and carelessness of plaintiff, and by no carelessness, negligence' or fault on the part of defendant.” This plea, together with other pleas, was stricken out, on motion, and in disposing of the assign-, ment based thereon this court said, 44 Fla., text 386, 32 South. Rep., text 807, “We are of the opinion that the pleas, so far as they attempt to set up a defense to the action, amounted to the general issue, and were prop&rly stricken out, on motion,” citing Little v. Bradley, 43 Fla. 402, 31 South. Rep. 342. See 2 Chitty’s Pleading (16 Amer. ed.) 670; Ellis v. L. & S. W. Ry. Co., 2 H. & N. 424. It is settled law in this court that a special plea tendering an issue covered by the plea of not guilty should be stricken out, either on motion of plaintiff or by the court of its own motion, under section 1043 of the Revised Statutes of 1892, as tending to embarrass the trial. See authorities cited in Little v. Bradley, supra, especially Barco v. Fennell, 24 Fla. 378, 5 South. Rep. 9; Wade v. Doyle, 17 Fla. 522. Also see Peacock v. Feaster, 51 Fla. 269, 40 South. Rep. 74. It is also true, however, as is held in the cited cases, that a special plea tendering an issue covered by the plea of not guilty is not for that reason demurrable. The defendant admits that “on demurrer being sustained, the defendant pleaded substantially the same facts as constituting contributory negligence on the part of the plaintiff,” and such pleas were permitted to stand, as we shall see further on in this opinion.. This ■being true, we do not see how defendant was prejudiced in any way by such ruling, even though erroneous. See Little v. Bradley, supra; Parkhurst v. Stone, 36 Fla. 456, text 462, 18 South Rep. 594, text 596; Consumers Elec-L. & St. R. R. Co. v. Pryor, 44 Fla. 354, text 386, 32 South. Rep. 797, text 806. This principle applies with especial force, for the reason that the court has the power, and it is its duty, to strike out special pleas tendering an issue covered by the plea of not guilty sua sponte. However, it may well be that the pleas in question were also open to attack by proper and sufficient grounds of demurrer, for the reasons that they were not sufficiently comprehensive or broad in their scope to constitute a full reply, tó all the allegations in the declaration; that instead of traversing the' material facts in the declaration they tended to' raisé a question of. law' whether or not upon the facts stated in the declaration, and which the pleas did not specifically deny, the defendant could be held liable, and for the further reason that they sought to have imputed to the plaintiff, an infant, the negligence of her mother. It is unnecessary, however, in view of the conclusion which we have reached, that the error, if any, Avas harmless, to consume further time in the discussion of this assignment.

. On the 9th of May, 1905, by leave of the court, the defendant filed the following amended pleas:

“2. And for a second and further plea this defendant says, that the said Ethel Crosby, and her mother, in whose care the said Ethel Crosby then and there was, were guilty of contributory negligence in that they, voluntarily and without necessity, left the passenger coach on defendant’s train, where ample accommodations were afforded for the convenience and comfort of passengers, and stood upon the platform of said passenger coach, the said Ethel Crosby standing at or near the end thereof, while said train was in waiting at said station, Juliette, and at a time when said train was liable to be moved or started in the usual conduct and transaction of the business of the defendant at that point. While the said plaintiff was in charge of her mother as aforesaid, the detached engine was again coupled to said train, in the ordinary course of the business of said defendant at that point, and in taking up the slack between the coaches the foot of said plaintiff was caught between the buffers, or between the ends of the platforms, of the connecting coaches. Defendant says if the alleged injuries were not wholly caused by the negligence of the said Ethel Crosby, and her mother as aforesaid, that the said negligence contributed to whatever injuries that may have been sustained by the said Ethel Crosby, and this defendant is ready to verify.

3rd. And for a third and further plea this defendant says that the said Ethel Crosby, and her mother, in whose care the said Ethel Crosby then and there was, were guilty of contributory negligence in that they, voluntarily and without necessity, left the passenger coach on defendant’s train, where ample accommodations were afforded for the convenience and comfort of passengers, and went out upon the platform of the said passenger coach, and while the said mother was standing on said platform the said Ethel Crosby, in the.presence of her mother, then and there engaged in playing on and between the platforms of the. connecting passenger coaches, and while swinging on the iron railings bordering the platforms of said coaches, negligently and carelessly permitted her foot to drop and remain down and between the ends of said coaches, and while the foot of said Ethel Crosby was in that position the said passenger coaches, being, a part of the said train as aforesaid, were slightly moved and started from a standing position, and in taking up the slack between the' said coaches the foot of the said plaintiff, being then and there between the buffers, or between the platforms of said coaches as aforesaid, was injured. At the time when the said Ethel Crosby was thus playing on and between the. platforms of said coaches as aforesaid the train was liable to be moved or started in the usual (conduct and transactions (of the business of the defendant, and this defendant says if the. alleged injuries were not wholly caused by the negligence of said Ethel Crosby, and her mother as aforesaid, the said negligence contributed to whatever injuries that may have been sustained by the said Ethel Crosby, and this the defendant is ready to verify.”

The plaintiff interposed a' demurrer to these pleas, but it was overruled, so even if error was committed in such ruling the defendant cannot raise the question. Issue was joined by plaintiff on the first plea of not guilty and the second and third pleas as amended, and the trial was had upon the issue so made up.

The fifth and sixth assignments are as follows:

“5th. The court, erred in sustaining the plaintiff’s objections to the question propounded by the defendant to Mrs. Crosby, a witness for the plaintiff, on cross-examination, said question being as follows: 'Now, Mrs. Crosby, when you took passage with yourself and daughter on the train did you buy two tickets or one?’

“6th. The court erred in sustaining the plaintiff’s objection to the following question propounded to said witness, Mrs. Crosby, on cross-examination, and in refusing to permit the said witness to answer said question: ‘Did your daughter Ethel have a ticket as a. passenger from Ocala to Dunnellon on the occasion referred to ?’ ”

We find from the bill of exceptions- that Mrs. Ida Crosby, who was the first witness introduced on behalf of the plaintiff, had testified on direct examination that she and her daughter, Ethel Crosby, 'the plaintiff, were passengers on the train of defendant from Ocala to Dunnellon on the 19th day of September, 1902, the date of the injury to plaintiff. The two questions recited above in the fifth and sixth assignments were propounded to the witness by the 'defendant -on cross-examination, to each of which the plaintiff objected on the ground “that there is no issue in the case as to the status of the plaintiff here as a passenger,” which objections were sustained to each question.

In an action of trespass on the case, “under a plea of the general issue the plaintiff was compelled at common ■law to prove the whole of the allegations in his declaration, and the defendant was left at liberty to avail himself of any matter of defense at the trial which- would, according to the circumstances of the case, bar the plaintiff’s recovery, without apprising the plaintiff by his plea of the circumstances on which it was founded, because the action is based on the mere justice and conscience of the plaintiff’s case, and is in the nature of a bill in equity.” 21 Ency. of Pl. & Pr. 921, and authorities cited in notes, especially Hall v. Snowhill, 14 N. J. L. 551, text 561; Jones v. Buzzard, 2 Ark. 415, text 442; How v. Ches. and Del. Canal Co., 5 Harr. (Del.) 245, text 247. Also see Black’s Law and Practice in Accident Cases, Sec. 164; Gould’s Pleading (5th ed. by Heard) 303; Abbott’s Trial Brief, Mode of Proving Facts (2nd ed.) 524. The common law requirement was changed by the pleading rules of Trinity Term, 1853, which rules have the force of an act of parliament. See 1 Chitty’s Pl. (16 Amer. ed.) 518; Day’s Common Law Procedure Acts (4th ed.) 490, 496, 1 Saunders’ Pl. & Ev. 765. Rule 71 of Rules of Circuit Court in Common Law Actions, which rules were adopted by this court and became effective on the first day of June, 1873, and are prefixed to 14 Fla., is an exact copy of the Trinity Term, rule on that subject, including all of the examples given, is as follows: “In action for torts; the plea of not guilty 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; all other pleas in denial shall take issue on some particular matter of fact alleged in the declaration.

Exempli gratia: In an action for a nuisance to the occupation of a house by carrying on an offensive trade,, the plea of not guilty will operate as a denial only that the defendant carried on the alleged trade in such a way as to be a .nuisance to the occupation of the house, and will not operate as a denial of the plaintiff’s occupation of the house.

In an action for obstructing a right of way, such plea will operate as a denial of the obstruction only, and not of the plaintiff’s right of way.

In an action for slander of the plaintiff in his office, profession or trade, the plea of not guilty will operate in denial of speaking the words, of speaking them .maliciously, and in tbe defamatory sense imputed, and --with, reference to the plaintiff’s office, profession or trade, but it will not operate as a denial of the fact of the plaintiff’s holding the office or being of the profession or trade alleged. ■

In actions for an escape, it will operate as a denial of the neglect or fault of the sheriff, or his officers, but not of the debt, judgment, or preliminary proceedings.

In actions against a carrier, the plea of not guilty will operate as a denial of the loss or damage, but not of the receipt of the goods by the defendant as a carrier for hire, or of the purpose for which they were received.”

That the adoption of this rule effected a material '.change in the principles of the common law upon that point, see Plowman v. Foster, 6 Cold. (Tenn.) 52 text 55. Defendant contends that the status of the plaintiff as a passenger was a material allegation in the declaration which was put in issue by the plea of not guilty, and it • was therefore incumbent upon the plaintiff to prove it. Undoubtedly if this contention is correct, reversible error was committed in sustaining the objections to the twk> questions, as they were strictly in cross of what had been brought out on the direct examination of the witness. The point presented for determination, then, is, Is this contention well founded? We find that the last example given, .both under Rule 71 and the English Rule, is as follows: “In actions against a carrier, the plea of not guilty will operate as a denial of the loss or damage, but not of the receipt of the goods by the defendant as a carrier for hire, or of the purpose for which they were received.” It seems to us, by analogical reasoning, though we recognize the principle that an analogy is rarely or never complete and is not a demonstration, that if this principle is applicable in an action against a carrier for the loss of goods it would apply with like force in an action brought by a passenger against a carrier for personal injuries. We do not see wherein the distinction lies. Defendant admits that the purchase of a ticket or the payment of fare is not essential to the status of one as a passenger on a railroad train. Florida Southern Ry. Co. v. Hirst, 30 Fla. 1, 11 South. Rep. 506, S. C. 32 Amer. St. Rep. 17, 16 L. R. A. 631. There is a clear distinction between actions brought by a passenger ex contractu and. ex delicto•, as to which see 15 Ency. of Pl. & Pr. 1124, 1125, and authorities cited in notes. As there stated: “When the action is in tort, the allegation of the contract of carriage is a mere inducement to the action to show the defendant’s right to sue as a passenger.” We are strengthened in our conviction as to the correctness of our conclusion by reason of the fact that at the same time Rule 71 was adopted Rule 72 was also adopted, which is as follows: “All matters in confession and avoidance shall be pleaded specially, ■ as in actions on contract.” See Jacksonville Electric Co. v. Sloan, 52 Fla. 257, 42 South. Rep. 516. If, then, the allegation in the declaration that plaintiff was a passenger is simply one of the facts stated in the inducement, such fact was not put in issue by the plea of not guilty, but would require a special plea to that effect. See Somerset & C. R. R. Co. v. Galbraith, 109 Pa. St. 32, 1 Atl. Rep. 371. It is settled law in this court that all the allegations in the declaration which are not denied by plea are admitted to be true. Supreme Lodge Knights of Pythias v. Lipscomb, 50 Fla. 406, 39 South. Rep. 637, and authorities there cited. Also see Judge v. Moore, 9 Fla. 269, text 276. It necessarily follows from what we have said that these errors are not well assigned.

The seventh assignment is abandoned.

The eighth assignment is passed by defendant and discussed together with the fifteenth, sixteenth and seventeenth assignments, and we shall treat it likewise.

The next assignment in order is the ninth, which is as follows: “The court erred in permitting witness for the plaintiff, W. L. Lowry, on direct examination, to testify and express his opinion, over the objection of the defendant, as to whether the accident would have 'occurred if the appliance, or buffer iron, or buffer plate, had been on the coaches, and if the same had been a proper buffer iron, or plate.”

This witness had already testified that he was in charge of the train of defendant as conductor on the day the plaintiff was injured, and had been in the service of the defendant at that time for about a year; that in 1877, before he had ever had any employment with defendant, he had had experience as brakeman and conductor, and his service had made him familiar Avith the general equipment of passenger trains. He had also testified to the effect that in 1902 a railroad ordinarily well equipped used appliances at the point Avhere passenger cars came together or connect, or plates or buffer irons at such points, for the purpose of' safety, and that during such year defendant used Iavo kinds of plates or irons, one kind flat and one round, such two kinds of plates or irons being in common use at that time on railroads that were ordinarily well equipped; also that he did not’ see the accident to plaintiff, and did not remember to have noticed the kind of buffer plates or irons used on the train that day or what their condition Avas. The following proceedings were then had during the further examination of this Witness by plaintiff: “ ‘Mr. Lowry, if you did not see the accident, and if you do not remember the kind of plate or buffer iron that the car had at that time, I ask you, as a practical railroad man, whether Ethel Crosby was standing on the platform with her back to her mother, and with her arms wrapped around her mother from the rear, and if her mother was standing on the car platform with her back towards Ethel, Mrs. Crosby’s face being towards the railroad station, and she holding to the rail on each side, and while in that position, if such jar or shock occurred that Ethel’s foot was caught between the cars and mashed, and Ethel fell over and caught with her hands on the rail, and if the accident occurred under those circumstances, whether, in your opinion, if the appliance, or buffer iron, or buffer plate, had been there, and had been a proper iron or plate, the injury could have happened?’

But to the admission of the question as propounded the defendant did then and there object on the ground that:

1. There has been no issue on the part of the plaintiff that the buffers or appliances as used by the railroad company on that occasion were not such buffers and appliances as were in general use by well regulated railroad companies at the time of the accident.

2. Because it is wholly irrelevant and immaterial as to what may have been the construction of the buffers or appliances in this case.

3. Because the duty of the railroad company to its passengers in all cases of this character is not to be measured or determined by the character of the engine, buffers, buffer plates or other appliances, which were remote, and had no connection whatever with the duty of the defendant to any passenger upon its train.

4. Because the witness had not qualified himself to testify as to what is or is not a proper buffer or plate.

But the said judge did then and there overrule said objection, and permitted said question to be answered, which answer was as follows:

Ans. ‘No, I do not. They used two different kinds-, the platform continuous platform, if they are both equipped, if both coaches were equipped with the same platform, the continuous platform, there is no space to drop a pencil down, or anything of that kind, but there are two different kinds, there is one with a round plate, or of some kind which comes against this fiat one, but if they are continuous it is just like this table; you could walk over it just like over this- table, when- you use coaches with continuous platforms, but when a coach is used with those rings on those plates it leaves a gap between the two coaches into which I could drop my foot, or a pencil, or anything like that, between the two coaches.’

The said plaintiff, further to maintain the issues on her behalf, propounded to said witness, Lowry, the following question: ‘If both of these cars had been equipped at the time of the. accident with an appliance like the one in the model of the rear car, could this accident have happened in the way that has already been stated to you that it happened in your direct examination ?’ But to the admission of said question as propounded the defendant then and there objected on the following grounds: ’

1. It is wholly irrelevant and immaterial.

2. It calls for the expression of opinion of the witness as to how an accident may have happened or not happened^

3. Because the answer of the witness, either affirmatively or negatively, would have no bearing on the question of alleged negligence of the railroad company.

But the said judge did then and there overrule said objections, and permitted the said question to be answered, which answer was as follows: ‘It could not.’

To which ruling the defendant then and there excepted.

The overruling of the defendant’s objections to these two questions forms the basis for this assignment. Defendant earnestly contends that the witness had not-qualified to testify as an expert, and therefore error was committed- in overruling the objections to the question. This court has held that “it- is the province of the trial court to determine whether or not a witness offered as an expert has such qualifications and special knowledge as-to warrant his testifying as an expert, and the decision of such trial court is conclusive upon this point, unless it appears from the transcript to have been erroneous or to have been founded upon some error in law.” Schley v. State, 48 Fla. 53, 37 South. Rep. 518; Davis v. State, 44 Fla. 32, 32 South. Rep. 832. It may -be doubtful as to whether or not this. testimony, strictly speaking, could properly be termed expert testimony. Does it not rather fall within what has been designated as the testimony of skilled witnesses? See 17 Cyc. 64, 208, and notes. If this question be answered in the affirmative, then it must be held that the witness had sufficiently qualified himself as to possessing the requisite skill and experience as a railroad man to render said question proper. Along this line the case of Baltimore & Potomac R. R. Co. v. [Elliott, 9 D. C. App. Cas. 341, will prove instructive. Viewed from either point, the evidence was admissible,, within the discretion of the trial judge, against ■ this ground of objection, and no' abuse of this discretion has been made to appear to us. As to the other grounds of objection, which are general in their nature, see Thomas v. Williamson, 51 Fla. 332, 40 South Rep. 831; Hoodless v. Jernigan, 46 Fla. 213, 35 South. Rep. 656, and authorities there cited.

This assignment has not been sustained.

The tenth assignment is that “the court erred in permitting witness, Hem*y Raysor, over the objections of thé defendant, to testify, in response to questions by plaintiff’s attorney, as to the habit of Ballard, the engineer, of making couplings on other occasions than the one in question.” This witness had first been called on behalf of the plaintiff, and later was re-called on behalf of defendant. H]e had already testified that he was in the service of the defendant as baggage master at the time of the injury to plaintiff, and had given the signals to the engineer as to the approach of the engine when it came back to be attached to the train, upon the occasion of the injury. He had further testified that he had examined the coupling between the cars when they were in motion, after the accident, south of Juliette, and found it then in a weakened condition, too much space between the buffers and drawheads, and the drawheads had too much slack in them. When recalled on behalf of the defendant, he had testified on his direct examination that he did not consider that the engine backed up or made the couplings on the occasion in question in any violent manner, and had further testified as follows: “I do not recollect any violence whatever. My recollection is that the bell was ringing. There was nothing at that time that attracted my attention as to the coupling being violent. Tt would have had to be a very unusually violent coupling for me to have noticed it, whenever made by the man they had on that engine that day, because it is his custom to jam and ram things around as much as possible ; he is a man of a very high temper, and he is always mad; and one of the roughest men I ever worked behind; and he would have had to have been very unusually rough for me to have noticed it.

Q. Mr. Raysor, I asked you the question to state whether or not you were able to testify to this jury as to whether or not that coupling was violent or otherwise on that occasion. Have you not already made a statement that it was moderate?

Ans. I said my recollection of it — it was moderate. I do not mean to go ahead and say that it was not moderate.

The name of the engineer was Ballard. He is now dead. On this occasion the coupling was moderate and the bell was ringing; that is my recollection of it. My recollection is that the coupling on this occasion was very moderate.”

On cross-examination he was asked the following question by plaintiff:

Mr. Raysor, you spoke of Mr. Ballard, the engineer. State whether or not Mr. Ballard was in the habit of making couplings with unusual force or violence in shifting trains?”

This question was objected to by defendant on the following grounds:

“1 That it is irrelevant and immaterial.

2. The question should be confined to what was the case on this particular occasion.

3. ff'he witness has already testified that on this particular occasion the couplings were not made with unusual force or violence, but were made moderately and easily.

But said judge did then and there overrule said objections and admitted- said evidence, and permitted said question to be answered,'which answer was as follows:

'Well, he was.’

Thereupon the defendant moved the court to strike out all the testimony of said witness, Raysor, as to the habit of the engineer, Ballard, of making couplings with unusual force or violence on occasions- other than that on the day in question, upon the grounds as above stated.

But the said judge did then and there overrule said motion and permitted said testimony to stand, to which ruling the defendant did then and there except.”

We are of the opinion that this assignment is without merit. The- witness had already testified on his direct examination by defendant as to the habit and custom of the engineer in making couplings, as we have seen, and the question was entirely proper on cross-examination. J. T. & K. W. Ry. Co. v. Wellman, 26 Fla. 344, text 347, 7 South. Rep. 845, text 846, is in point. We fail to see wherein the defendant was harmed in any way by the admission of this testimony.

The eleventh assignment is that “the court erred in sustaining the plaintiff’s objection to the question propounded to the witness, Dowry, by the defendant, as follows: 'Mr. Lowry, as you approached the train did you hear Mrs. Crosby make any declaration as to how the accident occurred ?’ ” This witness had already testified on behalf of plaintiff, and later was called to the witness stand- by defendant. On his direct examination he had testified that he did not witness the accident, and that it was probably from' thirty to sixty seconds after it occurred before he saw what had happened, when he then went to where plaintiff was and took her in his arms. He Avas then asked the question set forth in the above assignment, which was objected to by plaintiff on the foiloAving grounds, and the following proceedings had:

“1. Any declaration made by Mrs. Crosby is hot admissible.

2. No foundation or predicate has been laid for the asking of this Avitness questions in regard to what Mrs. Crosby said.

3. The testimony, if tending to prove anything, will tend to impute to the plaintiff in this cause some possible negligence on the part of Mrs. Crosby.

á. The testimony sought is clearly hearsay, as being a statement made by Mrs. Crosby in relation to the accident.

5. The question relates to a time subsequent to the happening of the accident, and does not relate to anything which occurred before or at the time of the accident.

In the discussion of the objections the jury Avas permitted to retire, and the counsel for the defendant stated that the evidence was offered as part of the res gestae, and that the defendant proposed to prove by the witness that within a feAV seconds after the accident happened, and while the child was still on the platform in the presence of her mother, Mrs. Crosby voluntarily explained qnd stated, in the hearing of the Avitness, that the accident was all her own fault.

But the said judge did then and there sustain said objection, and refused to permit the said question to be answered; the court stating as follows:

‘The court is of opinion that to admit declarations of Mrs. Crosby would be to admit hearsay evidence and declaration as to third parties.

2. Mrs. Crosby having testified as á witness in this case for the plaintiff, and the testimony now sought to be proved as to her declaration and statements were no/t called to her attenti