67 Fla. 335. The only other assignment we deem it necessary to consider, is based on the overruling of the motion for a new trial, wherein the action of the trial judge in charging the jury they "were entitled to take into consideration any money paid out by the plaintiffs in endeavoring to have the plaintiff Dartha Carter healed or cured; any loss of time" is challenged, there being no substantial evidence [358] to justify this charge. As before said, we think this was reversible error. Where a charge given is in material substance not applicable to the pleadings or to the evidence, and it appears that such charge may reasonably have misled the jury to the injustice of the party duly complaining thereof, it may constitute reversible error. The plaintiff, Dartha Carter, began her round trip on the defendant's train on Sunday, taking passage at the Terminal Station. In returning the same day the train stopped in obedience to the statute at a railroad crossing just before reaching the Terminal Station. This stop happened to be at or near a point where the defendant had a station under a viaduct that was used for passengers on week days, but not on Sundays. The non-use of this viaduct station on Sundays was duly advertised and posted. Persons habitually alighted from the train on Sundays at this point, while the stop was being made for the railroad crossing. There was no announcement made on the train on which plaintiff was a passenger that the train would stop at the viaduct station, and the stop at or near such station was made on account of the railroad crossing as required by the statute. At the point where Mrs. Carter was in the act of alighting from the car there was no station platform and nothing to indicate an invitation to alight there, or that persons were expected to alight there. It was not the station at which she took passage, and she made no enquiry as to whether she could properly or safely leave the train at that point. Her little daughter fell to the ground in alighting just in front of its mother; and the mother standing on the bottom step without holding on to either of the rails on the platform of the car, was thrown to the ground as the train started, after the brief stop required by law [359] just before reaching the railroad crossing. These and other circumstances shown by the transcript were to be considered by the jury in determining whether there was contributory negligence requiring the damages to be diminished as provided by the statute. There being evidence of contributory neg ligence, and no evidence of money paid out, or indebtedness incurred in endeavoring to have the injured party cured, and no evidence of the extent and value of the loss of service or time, the amount of the verdict indicates harmful error in the charge that the jury "are entitled to take into consideration any money paid out by the plaintiff in endeavoring to have the plaintiff, Dartha Carter, healed or cured; any loss of time." The judgment of the Circuit Court is reversed. Taylor and Whitfield, J. J., concur. COCKRELL, J. (dissenting).-I fail to find reversal compelling error in giving the charge It confines for which this case is reversed. the damages to expenses actually paid, excluding those incurred, and of this the guilty corporation may not complain. The verdict in this case does not indicate that an intelligent jury went out of its way to include expenses not proven to be paid, or allowed one dollar for expenses incurred or paid. As to the item "loss of time," as an element of damage to the husband, who has been wrongfully deprived of the services of the wife and mother, there is evidence that before the accident she did much of the housework and supervised the upbringing of their numerous small children, and they were people of The court does not indicate meagre means. in what respect this portion of the [360] charge is defective, and I know of no one more expert or skilled than a jury drawn from all ranks of life. Should I be mistaken, however, in my view of this charge and it be error, yet this single error enters not at all into the question of liability, but only as to the quantum of damages, and therefore it seems peculiarly the case contemplated by the legislature in enacting Chapter 6467, Laws of 1913. "That hereafter an Appellate Court in reversing a judgment of a lower court brought before it for review by writ of error may, by the order of reversal, if the error for which reversal is sought is such as to require a new trial of the action in the court below, direct that a new trial shall be had on all the issues shown by the record or upon a part of such issues only, and when a reversal is had with the direction for a new trial to be had on a part only of the issues, all other issues shall be deemed to be settled conclusively in favor of the defendant in error." There has been a fair submission of the question of negligence to the jury, without error in that submisison by court or jury, and this court, acting under that authority, which is in line with the most enlightened public opinion of the day, justly decrying against the expense and delays of the courts, should accept this its first opportunity to declare itself in sympathy with such legislation. Shackleford, C. J., concurs in this dissent. Rehearing denied May 9, 1914. NOTE. Failure of Carrier to Enforce Rule as Arrecting Contributory Negligence of Passenger in Violation Thereof. If a carrier so habitually fails to enforce a rule affecting the conduct of passengers that the rule becomes practically a dead letter it is deemed to be abrogated or abandoned, and the carrier cannot predicate an assertion of negligence on the part of a passenger on his violation thereof. Chicago, etc. R. Co. v. Lowell, 151 U. S. 209, 14 S. Ct. 281, 38 U. S. (L. ed.) 131; Capital Traction Co. v. Brown, 29 App. Cas. (D. C.) 473, 10 Ann. Cas. 813, 12 L.R.A. (N.S.) 831; Hart v. Capital Traction Co. 35 App. Cas. (D. C.) 502; Chicago, etc. R. Co. v. Dickson, 143 Ill. 368, 32 N. E. 380; Coburn v. Moline, etc. R. Co. 149 Ill. App. 132, affirmed 243 Ill. 448, 90 N. E. 741, 134 Am. St. Rep. 377; Jones v. Chicago, etc. R. Co. 43 Minn. 279, 45 N. W. 444; Iluelsenkamp v. Citizens' R. Co. 37 Mo. 537, 90 Am. Dec. 399; St. Louis Southwestern Ry. Co. v. Morgan, 44 Tex. Civ. App. 155, 98 S. W. 408; Beaumont Traction Co. v. Happ, 57 Tex. Civ. App. 427, 122 S. W. 610; Houston, etc. R. Co. v. Norris (Tex.) 41 S. W. 708; San Antonio, etc. R. Co. v. Lynch (Tex.) 55 S. W. 517. See also Florida Southern R. Co. v. Hirst, 30 Fla. 1, 11 So. 506, 32 Am. St. Rep. 17, 16 L.R.A. 631. And see the reported case. In Sweetland v. Lynn, etc. R. Co. 177 Mass. 574, 59 N. E. 443, 51 L.R.A. 783, the rule was stated as follows: "We have no doubt that a railroad company, after making a rule in regard to the conduct of passengers, may waive and abandon it, and treat passengers as if it had never existed, and thus lead them to believe that the rule is no longer in force. If a railroad company does this, it cannot set up the rule to defeat the rightful claim of a passenger who has acted in the well warranted belief that the rule is not in force. Chicago, etc. Ry. v. Lowell, 151 U. S. 209 [14 S. Ct. 281, 38 U. S. (L. ed.) 131]; Dublin, etc. R. Co. v. Slattery, 3 App. Cas. (Eng.) 1155; Jones v. Chicago, etc. R. Co. 43 Minn. 279; New York, etc. R. Co. v. Ball, 53 N. J. L. 283, 286. If such signs as this are placed over the front platform of cars, and if afterwards the persons in charge of the cars are accustomed to receive passengers upon the cars in such numbers as to crowd the front and rear platforms, as well as the other parts of the cars, and the passengers are permitted to ride freely and without question upon the front platforms, paying for so riding the usual fare, the passengers may well believe, and the jury may well find, that the notice was not intended as a rule to be obeyed, and that the front platforms were intended by the company to be used by passengers. The officers of the company might be supposed to know the habitual methods of their servants in managing their cars. We are of opinion that the instructions were correct, and that the evidence well warranted the submission of the questions to the jury." In Chicago, etc. R. Co. v. Lowell, 151 U. S. 209, 14 S. Ct. 281, 38 U. S. (L. ed.) 131, wherein it appeared that the plaintiff while alighting from a train at a station turned to cross the railroad tracks in a direction contrary to a printed rule, which was, however, habitually disregarded with the acquiescence of the company, it was held that the plaintiff could maintain his action. The court said: "We are of the opinion that there was no absolute obligation on the part of the plaintiff to cross the track by way of the ravine known as Victoria Street. To do this would have required him to descend a flight of steps at the east end of the station, about fifteen feet to the level of the street, which was not graded or in any way improved, but was a natural ravine passing under the tracks at this point. There was a stream of water varying in width from two to six feet, and in depth from two or three inches to two feet, running over the surface of the street under such tracks. The ground beneath the tracks was marshy, muddy, and wet at the time; the street was uneven and irregular, and there were no lights or other illumination along the street at that point, and the night was dark. It seems to have been the universal custom for all persons living on the south side of the tracks to cross over the tracks in going to their homes, and not under the tracks by Victoria Street. Under such circumstances, the plaintiff had a right to make use of the cutsomary mode of alighting and reaching his home. The case resolves itself into the question, then, whether the plaintiff was, as matter of law, guilty of neg ligence in failing to get off the train on the north side, there being in the opinion of the court no question that if he had alighted upon the platform and waited until the train passed he would not have been injured. There was, it is true, a notice conspicuously posted at each end of the smoking car, in which plaintiff was riding, requiring passen gers leaving the car at the forward end to turn to the right and at the rear end to turn to the left, and avoid danger from the trains on the opposite track. There was testimony tending to show that this notice had never been read by the plaintiff. Assuming, however, that he was bound to read it, and was chargeable with knowledge of its contents. there was other testimony tending to show that it was habitually disregarded by passengers with the acquiescence of the conductor and the servants of the road about the station. There was evidence that plaintiff and his companion 67 Fla. 335. were met upon the platform of the car by the collector, who asked for their tickets, which were delivered to him; that the collector saw them get off on the south side and said nothing to them, but immediately upon receiving their tickets entered the smoking car; that no objection was raised to their getting off upon the south side, and that other people were in the habit of getting off in the same way. Now if the custom of passengers to disregard the rule was so common as to charge the servants of the road with notice of it, then it was either their duty to take active measures to enforce the rule, or to so manage their trains at this point as to render it safe to disregard it. A railway company does not discharge its entire obligation to the public by a notice of a certain requirement, permitting the requirement to be generally disregarded, and then proceeding upon the theory that every one is bound to comply with it. If, in such case, an accident occur, the defendant should not be allowed to rely exclusively upon a breach of its regulation." In Coburn v. Moline R. Co. 149 Ill. App. 132, affirmed 243 Ill. 448, 90 N. E. 741, it was said: "Appellants proved by the conductor and the motorneer of another car that appellee had frequently ridden upon the car in their charge, and had frequently gotten into the front vestibule and had been excluded therefrom by the conductor, and that on one such occasion the conductor pointed out to him a like notice in that vestibule and read it to him, though the motorneer retracted some of his testimony after leaving the stand and reading a transcript of his testimony on the former trial. Appellee testified that he never was excluded from the vestibule by said conductor or motorneer and that such notice was never read to him. By an appropriate question and by an offer of proof appellee sought to show in rebuttal that before this accident he had several times ridden on the platform of other cars of appellants, and that his attention had never been called to this rule, and that he had never been requested to leave the platform, and that on many occasions before the accident he had seen other passengers riding on the front platform of vestibuled cars. Appellants object to this proof and the court sustained the objection, and cross errors are assigned upon this rul ing. No reason appears to us why this proof was not competent as tending to rebut appellants' claim that appellee was negligent in riding upon the front platform, and also as tending to show that the rule had been practically abandoned by the company. Abrogation of a rule may be shown by proof of its habitual violation with knowledge of the party establishing the rule, and such knowledge may be constructive as well as actual, and if the practice to violate the rule is continued for such a length of time that the maker of the rule might reasonably have known of it, the knowledge of such maker will be presumed. Hampton v. Chicago, etc. R. Co. 236 Ill. 249; Chicago, etc. R. Co. v. Flynn, 154 Ill. 448, and cases there cited. Appellee was not required to introduce this evidence in chief. It was properly rebuttal after appellants had shown their reliance upon the rule as a defense. It may well be that if the introduction of this testimony had been permitted it would have appeared that in actual practice appellants had treated the rule as abrogated. The conductor of the car in question testified that he was in the habit of directing passengers who had packages to go upon the front vestibule. In view of this conflicting testimony, and of the fact that appellee went into the front vestibule by express direction of appellants' conductor in charge of the car, and in view of the darkness in the vestibule of the testimony by appellee that he did not see the rule there posted, we are of opinion that the jury were not required to find that appellee could not recover because of that rule posted in that vestibule, or otherwise known to appellee." GENERAL INDEX To Cases and Notes in this Volume. [For separate Index to Notes, see post, p. 1363.] ABANDONMENT. See Railroads. ABATEMENT. See Actions; Nuisances. ABDUCTION. Sufficiency of indictment for abduction. State v. Sanders (La.), 105. ABUSIVE LANGUAGE. See Argument of Counsel. ABUTTING OWNERS. ACCIDENT. See Workmen's Compensation Acts. ACCORD AND SATISFACTION. Settlement of claim for injuries-failure to perform in full-effect as accord and satisfaction. ACCOUNTING. See Trusts and Trustees. ACKNOWLEDGMENT. See Limitation of Actions. ACQUIESCENCE. See Adjoining Landowners; Constitutional Law. ACQUITTAL. See Malicious Prosecution. ACTIONS. Abatement-action on note-subsequent loss of note. Austin v. Calloway (W. Va.), 112. action to recover penalty for violation of intoxicating liquor statute. Stout v. State action to recover penalty for violation of intoxicating liquor statute. Commonwealth bastardy proceeding. State v. Brunette (N. Dak.), 340. Annotated Joinder-actions to recover penalties. Miami Copper Co. v. State (Ariz.), 494. ADDRESS. See Municipal Corporations. |