Atlantic Coast Line Railroad v. Beazley (54 Fla. 311, 1907)

Shackleford, C. J.

— This is an action of trespass on the case instituted by the defendant in error as plainr tiff againsit the plaintiff in error as defendant in the circuit court for Jefferson county, seeking to recover damages for personal injuries received by plaintiff by reason of the alleged negligence of defendant. Trial was had before a jury, resulting in a verdict for the sum of $20,-000 in favor of plaintiff, upon which judgment was entered, which defendant seeks to have reviewed here by writ of error.

The first error assigned is based upon the overruling of the demurrer to the declaration. The declaration contains four counts, but there is no occasion for setting them out in full. It will suffice to state that the declaration alleges that on the 14th day of January, 1905, the plaintiff was in the employ of defendant in the capacity of flagman, and on that day while in the due and proper course of his employment as such flagman on a freight train of defendant drawn by a locomotive, which train was in charge of a conductor, an employe of defendant, it became necessary to back such train on to a certain siding in the county of Citrus, and “plaintiff was ordered by the conductor of said train, whose orders he was required and compelled to obey, to station himself on the car or cab at the rear end of the train, and to give signals for the engineer to back said train, as soon as he, the conductor, had turned the switch at the siding, and had notified him to give such signals;” that, in obedience to the signal of the conductor, plaintiff gave the necessary signal to the engineer, but that said switch was not turned so as to enable the backing train to pass safely over the switch on the rails, but, on the contrary, was negligently and carelessly left open, or partly open, by reason whereof the cab or car on which plaintiff was stationed was thrown from the track and the plaintiff was hurled therefrom, and occasioned great bodily injuries, which are described and which resulted in the permanent crippling of plaintiff and caused him to suffer great pain and anguish. The damages were laid at $50,000.

The demurrer contained three grounds, but the first and third grounds are expressly abandoned by defendant in its brief, therefore only the second ground is before us for- consideration. Atlantic Coast Line Railroad Company v. Crosby, 53 Fla. 400, 43 South. Rep. 318 authorities there cited. This ground is as follows:

“The statute makes no distinction between the grades or classes of employes, and an employe is not compelled to obey the order of a superior when obedience thereto would take him into a place of danger or expose him to danger, or be likely to cause injury to him.”

In its brief defendant says that this ground of the demurrer “goes to this part of the declaration” which alleges that “plaintiff was ordered by the conductor of said train, whose orders he was required and compelled to obey, to station himself on the car or cab at the rear end of the train,” and the entire argument in support of this assignment is made along this line.

On inspection it is found that the demurrer was interposed to the declaration as a whole “and each of the four counts thereof.” It is settled law in this court that where the demurrer is to* the whole declaration, and it is found to contain one good count, the judgment, on the demurrer must be for the plaintiff. See concurring opinion in Atlantic Coast Line Railroad Company v. Benedict Pineapple Co., 52 Fla. 165, 42, South. Rep. 530, text 534, and authorities there cited. It is also well settled “that a demurrer cannot be addressed to fragmentary parts of a pleading. Thus a demurrer to a count in a declaration must be to' the whole count if it presents a single cause of action, and'will not be entertained if directed against a part thereof.” 6 Ency. of Pl. & Pr., 300, and authorities there cited. This is in accordance with the principle decided by this court, that a demurrer to a plea goes to’ the whole of it, and should be sustained or overruled as an entirety. Hooker v. Forrester, 53 Fla. 392, 43 South. Rep. 241, and authorities therein cited; Griffing Brothers Co. v. Winfield, 53 Fla. 589, 43 South. Rep. 687. All four of the counts in the declaration contain the statement in the same language, to which defendant says its demurrer is directed, and the negligence of defendant is charged with only slightly varying language in such counts. We must consider the declaration, then, as an entirety, but confine ourselves to the ground of demurrer urged before us and the argument made in support thereof. The only authority cited by defendant is Duval v. Hunt, 34 Fla. 85, 15 South. Rep. 876. The following language in the opinion rendered therein, on page 107 of 34 Fla., pages 883 of 15 South. Rep., quoted by this court from Western & Atlantic R. R. Co. v. Adams, 55 Ga. 279, text 281, is relied upon by defendant in support of its contention r “The statute makes no' distinction between the grades or classes of employes of a railroad company, and therefore the courts are not authorized to recognize any such distinction, so as to enable the plaintiff to recover on the principle of contributory negligence, as assumed in thé charge of the court.” We find that this quoted language in the case of Duval v. Hunt, supra was applied to the construction of Chapter 3744, Laws of 1887, which this court found was adopted by our legislature from the statutes of the state of Georgia. As was said in the opinion in the cited case, 34 Fla. 105, 15 South. Rep. 882, “Besides our adoption of the terms of the statute itself, according- to the well settled rule, we also' adopt, as forming- an integral part of the same, any known and settled construction that had been placed thereon by the courts of the state from which it has been adopted, in so far as that construction is not inharmonious with the spirit and policy of our own general legislation on the same subject.” In line with the Georgia court, this court in Duval v. Hunt, supra, held that “under the provision of the statute an employe of a railroad company cannot recover damages from such company for injuries sustained by him on account, of the negligence or carelessness of another employe, unless wholly without fault himself, even though in performing the act that results in the injury he was acting under, the orders of a superior.”

Chapter 3744 Laws of 1887, was expressly repealed by Chapter 4071, Laws of 1891, which forms sections-3148, 3149 and 3150 of the General Statutes of 1906. However, as was said by this court in Atlantic Coast Line R. R. Co. v. Ryland, 50 Fla. 190, text 198, 40 South. Rep. 24, text 27, in construing Chapter 4071, Laws of 1891, and noting the changes made therein, “Therefore the adjudications of our own and of the Georgia courts touching other features of the statute that remain unchanged by the said Chapter 4071, Laws of 1891, will still govern.” It was therein asserted by this court, “that according to- the express terms of the. statute an employe, in order to recover from the master for an injury sustained through the negligence of a fellow servant must himself be entirely free from fault or negligence.” Also see Florida Cent. & P. R. Co. v. Mooney, 40 Fla. 17, 24 South. Rep. 148. Conceding the correctness of the principles to which we have referred as enunciated in the three cited cases, as well as of the principles enunciated in the Georgia cases, upon which the decisions of this court were based, as applied to the facts and circumstances disclosed in such cases, how does it avail defendant in support of its contention?

As was said by this court in Louisville & Nashville R. R. Co. v. Wade, 46 Fla. 197, 35 South. Rep. 863, “Section 3 of Chapter .4071 of the Acts of 1891 limits the rule that an employe cannot recover for an injury occasioned -by the negligence of a fellow servant to cases where the person injured is guilty of contributory negligence, and the word ‘employe’ as used in that relation means such an employe as would be a fellow servant under the rule above mentioned.” We must determine, then, whether or not the conductor in charge of a train and a flagman are fellow-servants.

Turning now to the decisions of the Georgia supreme court, we find that the following instructive distinction has been made by that court in opinions rendered both prior and subsequent to the adoption of our statute.

As was said in Central Railroad v. DeBray, 71 Ga .406, text 418, decided in 1883, “But it is insisted that the plaintiff was not bound to obey the orders of the conductor to g'et off of the train before the same had ceased running. The conductor acted for the defendant corporation; he had charge and command of the train, and it was not the fault of the plaintiff in obeying this order, and defendant cannot set up- the wrongful act of itself or agents to excuse itself from liability to one who merely obeys an order of this sort.”

In Prather v. Richmond & D. R. Co., 80 Ga. 427, text 436, 9 S. E. Rep. 530, it was said, “The conductor was in charge of the train. * * * The servant is bound to obey all reasonable rules and orders given him- by his superior about the business of his employment.”

In Mills v. East Tennessee, V. & G. Ry. Co., 87 Ga. 102, text 105, 13 S. E. Rep. 205, it was said, “In the absence of a rule or regulation prescribed by such superior officer, addressed to and binding alike on subordinates, the doctrine seems to be well settled that a conductor has the charge and control of all persons employed on this train, and that they are bound to obey his orders. In the case of Chicago, M. & St. P. Ry. Co. v. Ross, 112 U. S. 377, text 390, 5 Sup. Ct. Rep. 184, Justice Field said: 'We know from the manner in which railroads are operated that, subject to the general rules and orders of the directors of the companies, the conductor has entire control and management of the train to which he is assigned. . He directs when it shall. start, at what speed it shall run, at what stations it shall, stop, and for what length of time, and everything essential to its successful movements, and all persons employed on it are subject to his orders. In no proper sense of the term is he a fellow-servant with the fireman, the brakeman, the porters and the engineer. The latter are fellow-servants in the running of the train under his direction; as to them and the train, he stands in the place of and represents the corporation.’ This doctrine has also been recognized by this court in Prather v. Richmond & D. R. Co., 80 Ga. 427, text 436, 9 S. E. Rep. 530, wherein Justice Simmons remarked: ‘The conductor was in charge of the train. * * * He represented the company. It was his right and duty to give all necessary orders for the protection of the interests of the company and the safety of its servants.’ Other authorities could be cited, but the above are doubtless sufficient to support a proposition so well-founded in common sense and experience.” Also see to the same effect Krogg v. Atlanta and West Point R. R., 77 Ga. 202, and especially Spencer v. Brooks, 97 Ga. 681, 25 S. E. Rep. 480, citing the Prather and Mills cases supra, and holding that “under such circumstances the conductor is the vice-principal of the railroad company.” Brush Electric Light & Power Co. v. Wells, 110 Ga. 192 S. E. Rep. 365, and City Council of Augusta v. Owens, 111 Ga. 464, 36 South. E. Rep. 830, contain valuable discussions of the question and citations of authorities along the same line. Thus we see that it has been distinctly and repeatedly recognized by the Supreme Court of Georgia that the conductor of a railroad train is not a fellow servant with brakemen and flagmen, but as to them occupies the position or relation of vice-principal. The statute having had this known and settled construction put upon it by the Georgia court prior to our adoption thereof, we must be held to have adopted such construction also. However, we fully approve of this distinction and of the language which we have quoted from the Georgia decisions.

Of course a flagman or other employe of a railroad company would not be warranted or justified in obeying an order of the conductor commanding him to go into a place or position of extra hazard, unusual danger or great peril, ■ which would be readily apparent, or to assume a rash or dangerous risk that would be patent to any reasonably cautious or prudent man and repugnant to good judgment and common sense. See Roul v. East Tennessee, V. & G. Ry. Co., 85 Ga. 197, 11 S. E. Rep. 558, and authorities there cited; Whatley v. Macon & Northern Ry. Co., 104 Ga. 764, 30 S. E. Rep. 1003; Wrightsville & T. R. Co. v. Lattimore, 118 Ga. 581, 45 S. E. Rep. 453. An employe who obeyed such an order as we have indicated above would do so at his own risk and peril.

We turn again to the declaration in the instant' case and find that the first three counts thereof allege that the injury to plaintiff was occasioned by the fact that the conductor of defendant’s train “negligently and carelessly left said switch open,” etc., and that the fourth count alleges “that the defendant, regardless of its duty in this respect, negligently and carelessly left said switch and track in an unsafe and dangerous condition, whereby,” etc., and all four counts allege that plaintiff was without negligence or fault on his part. It is settled law in this ‘court that 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 sufficient acts causing injury, coupled with an averment that they were negligently done, will be sufficient. Jacksonville Electric Co. v. Schmetzer, 53 Fla. 370, 43 South. Rep. 85, and authoriities there cited. It is also elementary that a demurrer admits the truth of all such matters of fact as are sufficiently pleaded. Atlantic Coast Line R. R. Co. v. Crosby, 53, Fla. 400, 43 South. Rep. 318, and authorities there cited.

If the plaintiff within the scope of his employment or in the ordinary discharge of his duties as a flagman of defendant was ordered and required by the conductor to station himself on the top of the car or cab for the purpose of giving signals to the engineer, can it be said that he was negligent in obeying such order and that such negligence on his part occasioned or contributed to the injury? In order to answer this question in the affirmative, we would have to hold that we judicially know that it is necessarily hazardous or dang-erous for a flagman in the employ of a railroad company to station himself on the top1 of a car or cab for the purpose of giving signals to the engineer, in obedience to the orders of the conductor. It is a matter of common knowledge and every-day observation that employes of railroad companies whether flagmen or brakemen, in the ordinary discharge of their duties, do go on top of the cars of freight trains, station themselves thereon even when the train is moving. See Au v. New York, L. E. & W. R. Co., 29 Fed. Rep. 72, text 83. If the declaration had failed to show what right plaintiff had to be on top of the car, or for what purpose he stationed himself there, or that he was engaged in the discharge of any duty to defendant at the time he was injured, it might well have been open to attack by proper grounds of demurrer. See Louisville & Nashville R. R. Co. v. Hall, 87 Ala. 708, 6 South. Rep. 277, S. C. 13 Amer. St. Rep. 84, 4 L. R. A. 710. Such defects, however, are not found in the declaration in the instant case.

As we said in Jacksonville Electric Co. v. Sloan, 52 Fla. 257, 42 South. Rep. 516, “There is no absolute rule applicable to all cases by which to determine the question of the liability of the master to the servant, where the servant is injured in the performance of a duty which he is ordered or required by the master or his representative to perform, but the question of liability will depend on the circumstances of each case.”

Among many authorities which we have examined, the following, in addition to those already cited, will prove instructive concerning the assignment under consideration: Roul v. East Tennessee, Virginia & Georgia Ry. Co., 85 Ga. 197, 11 S. E. Rep, 558; Wood v. Georgia R. R. & Banking Co., 84 Ga. 363, 10 S. E. Rep. 967; Central R. R. Co. v. Hubbard, 86 Ga. 623, 12 S. E. Rep. 1020; Simmons v. East Tennessee V. & G. Ry. Co., 92 Ga. 658, 18 S. E. Rep. 999; Middle Georgia & Atlantic Ry. Co. v. Barnett, 104 Ga. 582, 30 S. E. Rep. 771; Augusta Southern R. R. Co. v. McDade, 105 Ga. 134, 31 S. E. Rep. 420; Whatley v. Macon & Northern Ry. Co., 104 Ga. 764, 30 S. E. Rep. 1003; Wrightsville & Tenville R. R. Co. v. Lattimore, 118 Ga. 581, 45 S. E. Rep, 453; Rolseth v. Smith, 38 Minn. 14, 35 N. W. Rep. 565, S. C. 8 Amer. St. Rep. 637; Wallace v. Central Vermont R. R. Co., 138 N. Y. 302, 33 N. E. Rep. 1069; Hopkins Law of Personal Injuries, §§277, 311 and 312.

Giving the ground of the demurrer urged before us the most favorable construction possible, we could not say, as a matter of law, that the allegations of the declaration show that plaintiff voluntarily exposed himself to a known and obvious danger which was impending at the time he obeyed the order of the conductor to station himself on the car or cab. at the rear end of the train for the purpose of giving signals to the engineer as to the backing of the train: Western & Atlantic R. R. Co. v. Bryant, 123 Ga. 77, 51 S. E. Rep. 20. In other words, it is not apparent as a matter of law from the allegations of the declaration that plaintiff was guilty of negligence, so as to preclude any recovery for the injuries sustained by him. Wood v. Georgia R. R. & Banking Co., 84 Ga. 363, 10 S. E. Rep. 967; Central R. R. Co. v. Hubbard, 86 Ga. 623, 12 S. E. Rep. 1020; Central R. R. Co. v. DeBray, 71 Ga, 406.

As is well said on page'273 of Buswell’s Personal Injuries (2nd ed.), “An employe, acting in the strict line 'of his duty, may properly do that which, in a stranger, would clearly be negligent, but which may not estop the employe from: recovery against his master.”

We are clear that no error was committed in overruling the demurrer to the declaration, therefore the first assignment must fail.

■II.

Upon the overruling of the demurrer to the declaration, defendant filed a plea setting up what is termed in defendant’s brief “the Relief and Hospital Department Contract” of plaintiff with 'defendant, to which plea plaintiff filed ten replications; to all of which defendant demurred and also filed a motion'to strike them out under section 1043 of the Revised Statutes of 1892, as well as a motion to require plaintiff to be put to his election as to which replication he would • retain. Subsequently defendant also filed a plea of not guilty.

■ Upon the argument of the demurrer to the plaintiff’s replications to the defendant’s plea, the court made the following order: “This cause coming on to be heard upon the defendant’s demurrer to the plaintiff’s replications to defendant’s plea, and was argued by counsel for the respective parties, and after due consideration thereof, the court being of opinion that the defendant’s ■said plea is’bad and that its insufficiency is reached by said demurrer—

It is thereupon considered and ordered by the court thát the défendaht’s demurrer to plaintiff’s replications be and the same is hereby overruled, and that the defendant’s plea to plaintiff’s declaration be and the^same is'hereby'overruled, set aside and vacated, and that the defendant have leave to plead over on or before the first Monday in June, A. D. 1906.”

This ruling- forms the basis for the second assignment. No ruling appears from the transcript to have been made on either motion. By leave of the court, defendant filed the following additional pleas: “The defendant, by John E. Hartridge and D. A. Finlayson, its attorneys, for a further plea in this behalf to the declaration and each of the four counts thereof, by leave of the court first had and obtained, says: That prior to the time of the accident complained of the defendant and its employees organized a relief department as a department of the defendant company’s service, of the nature of a mutual'benefit association for the relief of the em- ■ ployes of said defendant company injured or becoming sick while in the service of said defendant company, and for other purposes, known as the Relief Department of the Atlantic Coast Line Railroad Company, which was a department of the defendant company, divided into five classes of members and determining the class in which an employee might be a member by his regular or usual monthly pay, as follows :

Monthly Pay. Highest Class.

Less than $35.00..............................1st.

$35.00 or more but less than $55.00..............2nd.

$55.00 or more but less than $75.00..............3rd.

$75.00 or more, but less than $95.00..............4th. .

$95.00 or more...............................5th.

and with further provisions covering employes paid by the trip, piece or in any other way than by the month; that said association thus formed was a department for the protection and relief solely of employes of said defendant company injured or becoming sick, or dying in the service of said company, and provided for the payment of definite sums of money for temporary and permanent injuries received, and in case of sickness or disability, temporary or permanent, or death from any cause while in the service of the company, and for care and maintenance under certain specified terms and conditions provided in the organization and rules of said Relief Department, and that said membership in said department was voluntary; that the relief fund of said department consists of voluntary contributions from- the members thereof, as follows : First class: seventy-five cents per month; Second class: one dollar and fifty cents per month; Third class: two dollars and twenty-five cents per month; Fourth class: three dollars per month; Fifth class: three dollars and seventy-five pents per month, income derived from investments and from interest paid by the defendant company, and advances made by said defendant company, when necessary to pay benefits, as they become due; that said Atlantic Coast Line Railroad Company, under and by virtue of said rules and regulations governing said Relief Department, assumed general charge of the department and guaranteed the fulfillment of its obligations and has taken charge thereof continuously, and has the custody of the moneys belonging to the relief fund, and has become responsible for the safe keeping of said fund and guaranteed to pay into- the fund interest at the rate of four per cent, per annum on monthly balances in its hands and to advance from its own funds money to pay benefits when the amount contributed by the members, with interest and other income is not sufficient to pay benefits as they become due and to' supply the necessary facilities for conducting the business of the department and to pay all of the operating- expenses thereof, and has in pursuance thereof, complied with, performed and discharged all of said obligations before mentioned upon the part of said defendant company to be complied with, performed and discharged, and has also furnished the necessary hospital buildings and furnituré, bedding, instillment.,, utensils, appliances, surgeons and nurses for the care of employes who become disabled by injuries, sickness or otherwise; that at and prior to the time of said injury, complained of in said first, second third and fourth counts of plaintiff’s declaration, to -wit: on the 18th day of Jufy, 1903, the plaintiff made application for membership in the first class, with no additional death benefit, in the relief fund of the relief department of said defendant railroad company, and in and by said application, in express terms, consented and agreed .0 be bound by the reg-ulations of the said relief department, which regulations he stated in said application he had read himself, or had had same read to him-, and was accepted and became a member thereof, and continued to be and was a member thereof at the time of the injuries sustained by him, to-wit: on the 14th day of January, 1905; that the plaintiff, as a condition of his membership in said relief fund, in his said application promised and agreed to and with the said Atlantic Coast Line Railroad Company that in consideration of the amounts paid and to be paid by said defendant company for the maintenance of said relief department, and of the guarantee of said defendant company of the payment of said benefits, that the acceptance by him of benefits for injuries should operate as a release and discharge and satisfaction of all claims against the said defendant company, and all other companies associated therewith in the administration of their relief departments, for damages arising' from, or growing' but of any injuries that might be received by the said plaintiff, while at the same time the plaintiff was, under the rules and regulations governing- said relief department in cases of injuries to members thereof, at full liberty to elect to accept the benefits of the said relief department in pursuance of the regulations, or to prosecute such claim as he might have at law ag-ainst this defendant company, or any company associated therewith in the administration of their relief departments, but that the acceptance by said plaintiff of the benefits after receiving injuries should operate as a release and satisfaction of all claims against the defendant company or any of the companies associated with it as aforesaid, for damages arising from or growing out of injuries received by the plaintiff; that said contract of membership in no way limited the time in which benefits should be paid thereunder, but specifically provided that payment for each day of disability classed as due to accident for a period not longer than fifty two weeks as follows: To a member M the first class, fifty cents; second class, one dollar; third class, one dollar and fifty cents; fourth class, two uollars; fifth' class, two dollars and fifty cents, and at half these rates thereafter during- the continuance of disability; that the contract of membership in no wise sought to exempt the master from liability to the servant, arising from negligence of the master, or of his or its servants, as such liability is fixed by law, but that under said contract,' rules and regulations it was left wholly optional with the said plaintiff in the event he should receive injuries under the employment of the defendant to elect to receive benefits under his membership in said rebel dapartment or to decline to receive benefits and to proceed thereunder to assert whatever claim he might hav^ by appropriate legal remedies; that the plaintiff elected to proceed under the terms of his contract, and the rules and regulations of said relief department, and accept the same in lieu of any claim he might have by reason of the injuries received by him and the subject matter of this law suit, and after his said election and subsequent to the injuries complained of in the declaration, applied for and then and there subsequently received medical and surgical treatment by reason of his membership in said relief department, on account of the injury complained of in the first, second, third and fourth counts of the declaration, and the defendant company, after the plaintiff received the injuries complained of, paid to the plaintiff benefits by reason of his membership in said relief department, on account of said injuries, and the same were received by the plaintiff as benefits accruing to him by reason of said injuries on account of his membership in said relief department, and more particularly, the defendant alleges, there were paid by the said relief department to the said plaintiff, on account of said injuries, benefits to the amount of $8.50 on or about, to-wit: the 20th day of February, 1905, which was the benefit rate to which the plaintiff was entitled as a member, under the rules and regulations of said relief department, and there was also paid- by said department the sum of $50.00 to certain physicians for care and surgical attendance upon said plaintiff, and also, the sum of $42.00 for board for plaintiff, and also the sum' of $8.00 for dressings of plaintiff’s injuries, making a total of $100.00 expended by said relief department for medical attention, care and board for said plain- ■ tiff, independent of said sum of $8.50 benefits paid directly to- said plaintiff. And the said relief department did all on its part to be done for and in behalf of said plaintiff by virtue of his membership in said department, whereby the defendant was released from any and all claims for damages against the defendant arising in any way out of the injuries of which plaintiff complains in his declaration.

And for a further plea in this behalf, by leave of the “court first had and obtained, the defendant says that before the commencement of this suit it discharged and satisfied plaintiff’s claim by payment.”

To the first of such additional pleas plaintiff interposed a demurrer, setting forth the following matters of law to be argued:

‘T. That the contract and agreement set up is contrary to public policy.

2. That the contract and agreement set up is contrary to the law of the state.

3. That the contract and agreement set up is a limitation of the liability of the defendant and is null and void, being' contrary to the law of the state.

4. That that contract and agreement set up do not relate to injuries inflicted by or through the negligence of the defendant, or any of its employes.

5. That a contract void in law is not binding and cannot estop a party from pleading its invalidity.

6. That the plea no where shows that, if the relief association was at any time short of funds to meet its obligations to the plaintiff, he could have maintained an action against the defendant company for the amount that was due him.

7. The plea fails to show that the defendant ever expended any money of its own in the case of the injured and disabled members of the association, or that the monies alleged to have been paid to the plaintiff had not been paid out of the fund contributed by the members.

8. That the plea fails to set forth what authority the defendant company had under its charter to guarantee the paymeñt of the sums set forth in the alleged contract by the relief association to injured or disabled members.

9. That the plaintiff was incompetent tO' make a valid contract with the defendant limiting its liability, such contract being forbidden by law.”

The court sustained the demurrer, which ruling forms the basis for the third assignment.

Defendant discusses the second and third assignments together. Defendant admits that it is the settled law in this court that a demurrer opens all the previous pleadings, and judgment will be given against the party who committed the first error, and concedes that if its first plea constituted no defense to' the action the ruling of the court was right. See Sanford v. Cloud, 17 Fla. 532. In making such ruling it was not necessáry for the court to' pass upon the replications or to determine whether they were good or bad. ■ If such ruling is correct, then the replications for all practical purposes are out of the case and we do not have to consider them. Before taking up the first plea for investigation, it seems advisable for us to take up the first additional plea and determine whether or not the demurrer was properly sustained to it, for the reason that defendant admits that such plea sets up' the same matters which are contained in its original plea, only more fully and completely. If then the demurrer was properly sustained io this plea, it would seem that no error was committed in holding the original plea bad.

The question of the validity of these “Relief and Hospital Department” contracts, as they have been termed, is a new one in our court, though it is not a novel question, generally speaking, having been passed upon by a number of the courts of this country, as we shall see later on in this opinion. It is true that such a contract was incidentally referred to in Florida Southern R. R. Co. v. Steen, 45 Fla. 313, 34 South. Rep. 571, but it was not necessary for us to pass upon its validity, the question not being raised.

We turn first to the Georgia decisions for the reason that, as we have already seen in considering the first assignment, Chapter 3744, Laws of 1887, was adopted b)r our legislature from the statutes of the state of Georgia, but was expressly repealed by Chapter 4071, Laws of 1891. For convenience in comparison we quote in full Chapter 3744 Laws of 1887 and Chapter 4071 of 1891.

“Chapter 3744 — (No. 64.)

An Act to Apportion the Damages in Actions against Railway Companies by Persons and Employees, and to Provide for such Recovery of Damages against said Railway Companies by its Employees.

Be it enacted by the Legislature of the State of Florida:

Section 1. That no person shall recover damages from a railroad company for injury to himself or his property when 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 by the jury trying the case in proportion to the amount of default attributable to him.

Sec. 2. If the person injured is himself an employee of the company, and the damage was caused by another employee, and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to the recovery, and no contract which restricts such liability shall be legal or binding.

Approved June 7, 1887.”

“Chapter 4071 — .(No. 62.)

An Act Defining the Liabilities of Railroad Companies in Certain Cases.

Be it enacted by the Legislature of the State of Florida:

Section 1. A railroad company shall be liable for any damage done to persons, stock or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damages done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company.

Sec. 2. 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 neglig-ence. 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,

Sec. 3. If any person is injured by a railroad company by the running of the locomotives, or cars, or other machinery of such company, he being at the time of such injury an employee of the company, and the damage was caused by negligence of another employee, and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to a recovery. No contract which restricts such liability shall be legal or binding.

Sec. 4. That Chapter 3744, Laws of Florida, approved June 7, 1887, be, and the same is hereby repealed.

Sec. 5. This act shall take effect and become of force.from; and after its passage.

Approved May 4, 1891.”

The differences in these two Chapters are obvious and were pointed out and discussed in Florida Cent. & P. Ry. Co. v. Mooney, 40 Fla. 17, 24 South. Rep. 148, and Atlantic Coast Line R. R. Co. 6v. Ryland, 50 Fla. 190, 40 South. Rep. 24, to which we had occasion to refer in considering the first assignment. As was poilited out in Florida Cent. & P. Ry. Co. v. Mooney, supra, section 1 of Chapter .4071, Laws of 1891, which formed no part of Chapter 3744, Laws of 1887, was also adopted by our legislature from the statutes of Georgia, forming section 3033 of the Georgia Code of 1882, so that both sections of Chapter 3744 and the first three sections of Chapter 4071 were adopted from the Georgia statutes. However, our legislature, after copying section 2 of Chapter 3744, without change from section 3036 of the Georgia Code of 1873, made an important addition thereto by inserting at the close the words, “and no contract which restricts such liability shall be legal or binding.” These words form no part of the section of the Georgia Code from which we adopted such section 2 ;of Chapter 3744. Such section 3036 of the Georgiá Code of 1873 was brought forward unchanged as section 3036 of such code of 1882 and as section 2323 of such code of 1895. It will also' be observed that the .quoted words also form a part of section 3 of Chapter 4071, Laws of 1891, therefore, so far as the question, which we are now-considering in the instant case is concerned, our two statutes are identical.

We turn now to the cases of Petty v. Brunswick & Western Ry. Co., 109 Ga. 666, 35 S. E. Rep. 82, and Carter v. Brunswick & Western Ry. Co., 115 Ga. 853, 42 S. E. Rep. 239, upon which defendant strongly relies in support of its contention. We find upon exan> ination that the statute before the court for construction in the two. cited cases was section 2613 of the Georgia Code of 1895, which reads as follows: “§26x3. -Contracts exempting master from liability for his negligence, void. All contracts between master and servant, made in consideration of employment, whereby the master is exempted from liability to the servant arising from the negligence of the master or his servants, as such liability is now fixed by law, shall be null and void, as against public policy.”

Our legislature has never adopted this section, and the difference between it and the quoted words added by óur legislature at the close of section 2 of Chaptep 3744, when it was adopted, which words also form a part of section 3 of chapter 4071, is readily apparent. It' has been repeatedly recognized by the supreme court of Georgia, that, in the absence of a statute, an employe of a railroad company may enter into a contract with such company, by which he agrees “to take upon himself all risks connected with or incident to his position on the road, and that he would in no case hold the company liable for any damag-e he might sustain by accidents or collisions on the trains or road, or which may result from the negligence or carelessness,, or misconduct of himself or other employee, or person connected with such road, or in the service of the company,” and “that such a contract, so far as it does not waive any criminal neglect of the company, or the principal officers, is a legal contract and binding upon the employee.” Western & Atlantic R. R. Co. v. Bishop, 50 Ga. 465; Western R. R Co. v. Strong, 52 Ga. 461; Hendricks v. Western & Atlantic R. R. Co., 52 Ga. 467; Galloway v. Western & Atlantic R. R. Co., 57 Ga. 512; Cook v. Western & Atlantic R. R. Co., 72 Ga. 48; Fulton Bag & Cotton Mills v. Wilson, 89 Ga. 318, 15 S. E. Rep. 322.

In line with this principle, this court in Scotch Manufacturing Co. v. Carr, 53 Fla. 480, 43 South. Rep. 427, speaking- generally of the right and power of parties to make contract, said, “the parties were free to make what contracts they pleased, so long as there was no infraction of law in so doing.”

In Fulton Bag & Cotton Mills v. Wilson, 89 Ga. 318, 15 S. E. Rep. 322, decided in 1892, the Supreme Court of Georgia, reviewed the prior decisions, which we have just cited, and held that “the acquiescence of the legislature in the principle for so long a time is strong, if not decisive, evidence of the public policy of this state touching the question, more especially as legislative attention must have been called to the subject.” In that case it was further said by the court, that “under these circumstances, this court, on a review of the above mentioned cases, declines to overrule them, but on the contrary affirms the same in so far as they are modified by the statute just cited touching railroad employees.” The statute referred to is an act passed in. 1876 and forming Section 4586b of the Georgia Code of 1882, which defines and provides punishment for the criminal negligence of the employes of railroad companies. It in no wise is applicable to the instant case and further reference thereto or discussion thereof would prove fruitless.

So the matter stood in Georgia until 1895, when the legislature passed the act which forms section 2613 of the Georgia Code of 1895 and which we have copied in full above. So far as we have been able to ascertain, the first time this statute came before the Georgia supreme court for construction was in the case of Petty v. Brunswick & W. Railway Co., 109 Ga. 666, 35 S. E. Rep. 82, upon which defendant relies and to which we referred above. This decision was approved and followed in Carter v. Brunswick & W. Railway Co., 115 Ga. 853, 42 S. E. Rep. 239, also cited to us by defendant.

We have read these cases with dare and interest. The contract • discussed therein is quite similar to the one involved in the instant case. As was said in the case of Petty v. Brunswick & W. Railway Co., 109 Ga. 666, text 671, 35 S. E. Rep. 82, after quoting the section of the Georgia Code and reciting the contention of plaintiff that the contract w