Tampa Electric Company, a Corporation, Plaintiff in Error, v. Julien Soule, Defendant in Error, 84 Fla. 557

Whitfield, J. The declaration herein alleges in one count that the plaintiff, a passenger, was alighting from the defendant’s street car, “when the skirt of her dress without fault or negligence on her

part caught and became fastened upon a nut or bolt or other part of said car which the said defendant had so negligently permitted to become loose and in a dangerous condition and thereby the plaintiff in stepping from said ear in attempting to alight therefrom was jerked, pulled and with great force and violence thrown and fell to and upon the street pavement by means whereof, then and there the plaintiff” was injured as stated; and in another count that the “defendant had stopped said car for the purpose of permitting plaintiff and other passengers to alight therefrom and plaintiff undertook to do so with all due care and diligence when the skirt of her dress without fault or negligence on her

part caught and became fastened upon a nut or bolt or other part of said car which the said defendant had so negligently permitted to become loose and in a dangerous condition and thereby the plaintiff in stepping from said car-in attempting to alight therefrom was jerked, pulled and with great force and violence thrown and fell to and upon the street pavement by means whereof, then and there the •plaintiff was injured as stated; and in another count that the defendant ‘ ‘ did not keep said ear in good condition and repair but neglected to do so.and negligently allowed the same to become in an. unsafe condition and permitted certain bolts, irons, seats, and other parts of said car to become loose and in an unsafe and dangerous condition; and plaintiff further avers that said car had reached a point at or near the intersection of Zack and Franklin Streets in said City and defendant had stopped said car for the purpose of permitting plaintiff and other passengers to alight therefrom and plaintiff undertook to do so with all due care and diligence.

When in attempting to alight from said car she by reason of said unsafe and dangerous condition of said car and without any fault or negligence on her part, was in some manner to the plaintiff unknown, jerked and thrown with great force and violence to and fell heavily upon the street pavement, by means thereof, then and there the plaintiff’s neck, hips, sides, shoulders and back were badly bruised, contused and wounded, etc. ’ ’ Trial was had on a plea of not guilty. Yerdiet and judgment awarding $15,000.00 damages to the plaintiff were rendered and the defendant took writ of error.

The plaintiff testified: ‘ ‘ The car had stopped and I started to alight forward, and in trying to reach the first step I had let go my hold, and when I started to reach the first step I thought I had my footing, you know, and my dress was caught, taking both my feet from under me, and just threw me right forward. Nothing to catch me then but the' pavement. When I started to alight from this car and stepped forward I found that my skirt was caught but it was too late.

It caught on something on the car, I believe a nut or a bolt, something on the ear. ’ ’ The plaintiff also testified that several days after the injury, she was on the same street car and the conductor called her attention to a loose nut on the same car, at a place where it could have caught her dress as she fell. A witness for the plaintiff testified that the plaintiff sat in front of her on the street car; that both were leaving the car, and that “just as I got up, she got up before I did, and just as I got up she fell. Her skirt caught on something on the car.

I couldn’t see what it was but I heard it tear and she fell. She fell hard, just went plump right from the first step as you step off. I don’t think she fell from the flooring. She fell from the first step as you step from the flooring. As she stepped her skirt caught in this obstruction whatever it was and I heard it tear. ’ ’ Testimony as to the injuries received and as to the losses sustained was adduced. At the close of the plaintiff’s . testimony the defendant moved for a directed verdict in its favor. This was denied and is argued as error.

The statutes provide: “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 damage done by any person in the employ 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. “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.” Sec. 4964, 4965, Rev. Gen. Stats. 1920. It is argued that as the street car had stopped and was still when the plaintiff fell as she was alighting from the car, the statutes are not applicable, since they regulate the liability of railroad companies only for damage done by the running of cars, etc., of such company. This is too narnow an

interpretation of the statute. It has reference to the liability of railroad companies for damages done in the operation of cars, etc. See 62 S. E. Rep. 1020; 63 S E. Rep. 1103, text 1107. Stopping a street car to allow passengers to alight is a part of the running or operation of such ears. The statute was applicable. Proof of injury to a passenger in alighting from a street car was shown and that the injury was caused by the running or operation of the street car may fairly be inferred from the evidence adduced by the plaintiff.

Thereupon the statute put upon the defendant company the burden of showing that it exercised all ordinary and reasonable care and diligence to secure the safety of the passenger under the circumstances. This included “all ordinary and reasonable care and diligence” to have the car free from loose or projecting bolts or nuts that could catch dresses of passengers that may pass over them and cause injury in alighting from the car.

The plaintiff having shown an injury to herself by the catching of the bottom of her dress on some obstruction as she alighted from the car, there was no error in refusing to direct a verdict for tbe defendant at the close of the plaintiff’s testimony in chief. It is contended by the defendant company that the injury was not caused by a loose nut or bolt catching the plaintiff’s dress as she alighted from the car; but conflicts in the evidence as to this were settled by the verdict which has sufficient supporting evidence.

The defendant’s evidence as to inspection of the car and as to there being no loose or protruding bolt or nut at a place where it could have caught the plaintiff’s dress as she was alighting from the car, and that the plaintiff’s foot caught in her dress and tripped her, does not so clearly overcome the testimony adduced by the plaintiff as to warrant an appellate court to disturb the verdict. See North Chicago St. R. R. Co. v. Eldridge, 51 Ill. App. 430.

In developing the plaintiff’s earnings prior to her injury to ascertain the pecuniary loss she sustained by the injury defendant asked her on cross examination if she had reported her income to the Government. Her answer contained a statement that she had not reported her income for taxation because she had a mother and five orphan children to care for. Defendant moved to strike this testimony. The court stated that he would not consider such testimony as prejudicing the jury and denied the motion to strike it.

In this action for personal injuries to the plaintiff, testimony as to persons whom she1 was caring for was not called for by the question, was improper and should have been stricken. But this error, though harmful, goes to the amount of the recovery and not to the defendant’s liability.

It is strenuously contended that the charges given to the jury by the court imposed too high a degree of care upon the defendant as a carrier of passengers, particularly as to the degree of care required in the construction, management and equipment of its cars; but in view of the fact that the defendant is engaged in the public service of carrying passengers in a city and' has the complete control of its cars, it ' cannot justly be said that the highest degree of care and skill which may reasonably be expected of intelligent and prudent persons, is an unreasonable requirement under the circumstances incident to the public use of street cars in a city by ladies as well as by men.

The statute requires the exercise of “all ordinary and reasonable care and diligence” demanded by the circumstances under which the public service is being rendered, and the highest degree of care and skill which may reasonably be expected of intelligent and prudent persons, is not inconsistent with the requirements of the statute in view of the nature of the service rendered by street cars in a city while engaged in transporting passengers under circumstances that demand most efficient and careful operation to avoid injury to passengers.

Certainly in this case the charges given could not reasonably have harmed the defendant with reference to the showing as to liability for reasonable compensatory damages. As to the degree of care required of carriers of passengers. See Florida R. Co. v. Dorsey, 59 Fla. 260, 52 South. Rep. 963; Pelot v. Atlantic Coast Line R. Co., 60 Fla. 159, 53 South. Rep. 937. The charges as to the measure of damages were not entirely sufficient as a guide to the jury.

In view of the whole record and upon a consideration of the law applicable to -the evidence, justice will be sub-served by allowing a remittitur of $5,000.00 to be entered as an alternative for a new trial to determine under appropriate evidence and instructions a proper allowance for damages under

section 4964 and 4965, Revised General Statutes of 1920. It is so ordered. Browne, C. J., and Taylor and West, J. J., concur. Ellis, J., dissents.