Wilkinson v. Pensacola & Atlantic Railroad

Citations

• 35 Fla. 82

Syllabus

<p>1. A demurrer to the evidence admits the truth thereof and also such conclusions as the jury may fairly and justifiably draw therefrom. Forced or violent inference from the evidence are .not thereby admitted, but the testimony is to he taken most strongly against the demurrant, and such conclusions as a jury might justifiably draw therefrom the court ought to draw.</p> <p>2.The right of recovery is confined to the cause of action alleged in the declaration, and there can be no recovery upon a cause of action, however meritorious, or satisfactorily proven, that is substantially variant from the one alleged by the plaintiff.</p> <p>3. If a plaintiff, in an action to recover damages foralleged personal injuries, describes with needless particularity and minuteness the tort and the means by which it was effected, and his proof fails to sustain, or is substantially variant from, the allegations ' of the declaration, he is not entitled.to recover</p> <p>4. The provisions of the statute relating to the recovery of damages against railroad corporations, that 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, does not relieve the plaintiff of the necessity of estab. lishing the cause of action alleged against the company, and a failure to prove the negligence or fault alleged will defeat the plaintiffs right of recovery.</p>