Atlantic Coast Line Railroad v. McCormick

Citations

• 59 Fla. 121

Syllabus

<p>1. A demurrer to evidence admits the truth of the testimony as stated in the demurrer and also such conclusions of fact as may be fairly drawn from the testimony. Forced or violent inferences from the testimony are not admitted by the demurrer; but the testimony is to be taken most strongly against the demurrant.</p> <p>2. In passing upon a demurrer to evidence only the evidence as stated in the demurrer can be considered.</p> <p>3. An investigation of the facts in dispute, and the reconciliation of conflicting or inconsistent testimony cannot be had on a demurrer to evidence.</p> <p>4. The provision of the statute defining the liabilities of railroad companies in certain cases that “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,” is applicable only when the injury is done “by the running of locomotives or cars, or other machinery of such company,” or “done by any person in the employ and service of such company.”</p> <p>5. Where contributory negligence is a defense to an action in tort, it should be pleaded and proven by the defendant, unless it appears from the allegations or proofs of the plaintiff.</p> <p>6. Whether contributory negligence appears by direct testimony, or by fair inference from the evidence of the plaintiff, it is a question for the jury to determine under proper instructions from the court, where a conclusion of contributory negligence does not indisputably arise from the evidence offered by the plaintiff so as to become a question of law.</p> <p>7. While it is error to assume in charges facts that are disputed or not conceded, it is not error to assume the existence of a fact shown by uncontroverted testimony.</p>