Florida Land Company, a corporation, of 3. CARRIERS (§§ 280, 325*)-PASSENGERS-LIAwhich Weil was president. BILITY OF CARRIER-DUTY OF PASSENGER Carriers are held to the highest degree of care for the safety of passengers, and passengers should use ordinary care to protect themselves in getting on or off trains, when safe and suitable means of boarding or alighting from trains are provided. They must take the responsibility of the ordinary incidents of travel, including the stoppage of cars required by statute at railway junctions, and must govern themselves accordingly. [Ed. Note.-For other cases, The land company failed to comply Cent. Dig. §§ 1085–1092, 1098-1103, 1105, 1106, see Carriers, 1109, 1117, 1348; Dec. Dig. §§ 280, 325.*] 4. CARRIERS (§ 248*)-RULES-ABANDONMENT. By failing to enforce a rule, a railroad company may allow it to become a dead letter, and in effect waive, abandon, or abrogate it. By express provisions the contract contemplated the sale of the lands in small quantities by the land company at greatly advanced prices, and the payment to the vendor of stated prices per acre under stated conditions. Numerous sales were made by the land company to various persons, including Ganey, who made partial payments on the small purchases. with the contract in material respects, and the court was justified in decreeing a forfeiture and cancellation of the contract as to the land company. As the contract contemplated sales of the lands to small purchasers who could get title only through a conveyance made by Slemmons, trustee, to the land company, as the performance of the contract required, the chancellor properly provided for the carrying out of the small contracts, and for forfeitures when the small purchasers failed to comply with reasonable requirements. The decree reserved the rights of the parties among themselves as to money due and unpaid. The legal effect of the decree is not an unwarranted hardship on the original vendor of the land, since he contemplated and made possible the sales to small purchasers; and his rights as against such purchasers are fully protected, should their contracts not be carried out. The decree does substantial justice, and is affirmed. SHACKLEFORD, C. J., and TAYLOR, COCKRELL, and HOCKER, JJ., concur. (67 Fla. 335) FLORIDA EAST COAST RY. CO. v. (Supreme Court of Florida. April 7, 1914. (Syllabus by the Court.) 1. CARRIERS (§ 314*)-INJURY TO PASSENGERDECLARATION-SUFFICIENCY. In judging of the sufficiency of a declaration in a suit for damages for personal injuries, the essentials of such a declaration set forth in the case of German-American Lumber Co. v. Brock, 55 Fla. 577, 46 South. 740, are approved and applied. [Ed. Note. For other cases. see Carriers, Cent. Dig. $$ 1260, 1270, 1273, 1274, 12761280; Dec. Dig. § 314.*] 2. CARRIERS (§ 248*)-Passengers-DUTIES. Railroad companies have the power to make reasonable regulations for the management of their trains, and one who buys a ticket is bound to inform himself of the rules and regulations of the company governing the transit and conduct of the trains upon which he proposes to travel. He should inform himself when about to take passage on a railroad train when, where, and how he can go or stop, according to the regulations of the railroad company. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 994-996; Dec. Dig. § 248.*] [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 994-996; Dec. Dig. § 248.*] 5. CARRIERS (§ 334*)--INJURY TO PASSENGER -CONTRIBUTORY NEGLIGENCE. Where a railroad company fails to enforce one of its rules, and a passenger is injured in neglecting to observe it, under our statutes the mere contributory negligence of the passenger is not an absolute bar to recovery. [Ed. Note. For other cases, see Carriers, Cent. Dig. § 1355; Dec. Dig. § 334.*] 6. CARRIERS ($ 303*)—ALIGHTING Passenger -DUTY OF CARRIER. Where passengers habitually get off the trains at a point where they are not invited to get off, and no effectual means are attempted to be used to prevent them from doing so, there is a duty on the company to see that they have a safe opportunity to alight. [Ed. Note.-For other cases, see Carriers. Cent. Dig. §§ 1216, 1218, 1224, 1226-1232, 1234– 1240, 1243; Dec. Dig. § 303.*] 7. WITNESSES (§ 390*)-INCONSISTENT STATEMENTS-ANTE MORTEM STATEMENT - COMPE TENCY. An ante mortem statement of a witness purporting to give what the plaintiff, in a suit for damages for a personal injury, said to him as to how she was injured, tending to contradict her testimony on the stand in the trial, is not competent evidence. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 1247; Dec. Dig. § 390.*] 8. WITNESSES (§ 268*)-CROSS-EXAMINATION -CLAIM ADJUSTER. When the claim adjuster of the railroad company visited the plaintiff the day after she was injured in alighting from the defendant's train, she being then in bed, and when he stat ed in his testimony, among other things, that his purpose in calling on her was to see if he could help her, rigid cross-examination of this witness was proper. [Ed. Note.-For other cases, see Witnesses Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.* 9. TRIAL (§ 252*)—INSTRUCTIONS—EVIDENCE The charges to the jury should be confined to the evidence in the case. [Ed. Note.-For other cases, see Trial, Cent Dig. §§ 505, 596-612; Dec. Dig. § 252.**] 10. EVIDENCE (§ 523*)—EXPERT TESTIMONYNECESSITY-SUBJECT-MATTER. A jury should be given some substantia evidence upon questions that are not matters o common knowledge, and physicians' charges and the value of lost time are not such matters. [Ed. Note.-For other cases, see Evidence Cent. Dig. § 2331; Dec. Dig. § 523.*] 11. TRIAL (§ 139*) INSTRUCTIONS PREPONDERANCE OF EVIDENCE. Chapter 6220, Laws 1911, amending section 1496, Gen. St. 1906, does not authorize a trial judge to pass upon the preponderance of evidence, except, where the evidence of all the parties shall have been submitted, and it is apparent to the judge that no sufficient evidence has been submitted upon which the jury could legally find a verdict for one party, the judge may direct a verdict for the opposite party. [Ed. Note. For other cases, see Trial, Cent. Diz. § 332, 333, 338-341, 365; Dec. Dig. 8 139.*] 12. CARRIERS (316*)-INJURY TO PASSENGER -BURDEN OF PROOF. In a suit for damages for personal injuries against a railroad company, the effect of section 3148, Gen. St. 1906, injury having been shown, is to require the defendant company to show by a preponderance of the evidence that its servants and agents exercised all ordinary and reasonable care and diligence; the presumption being against the defendant company. [Ed. Note.-For other cases, see Carriers, Cent. Dig. $1261, 1262, 1283, 1285-1294; Dec. Dig. 316.*] 13. TRIAL (§ 194*) - INSTRUCTIONS OF EVIDENCE. WEIGHT Under our law a trial judge is not permitted to comment on the evidence, or to give to the jury his views of its weight. [Ed. Note.-For other cases, see Trial, Cent. Dig. $8 413, 436, 439 441, 446-454, 456-466; Dec. Dig. § 194.*] 14. APPEAL AND ERROR (8 544*)-PRESENTATION FOR REVIEW-BILL OF EXCEPTIONS. Facts which occur in the trial of a case can only be brought to this court for review by a bill of exceptions certified by the trial judge. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2412-2415, 2417-2420, 2422-2426, 2428, 2478, 2479; Dec. Dig. 8 544.*] 15. APPEAL AND ERROR (§ 1066*)-GROUND FOR REVERSAL-INSTRUCTIONS. In this action against a railroad company to recover damages for personal injuries, the evidence tends to show that the plaintiff was guilty of contributory negligence, and there is no evidence of money paid out or of 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, and 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, and loss of time"; therefore the judgment should be reversed. (Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 8 4220; Dec. Dig. § 1066.*] Shackleford, C. J., and Cockrell, J., dissent ing. * HOCKER, J. The defendants in error, who will be referred to as the plaintiffs, brought an action at law against the plaintiff in error, in the opinion referred to as the defendant, in the circuit court of Duval county, Fla., in September, 1910. The declaration contains two counts. The first count is as follows: "Comes now Dartha Carter and Ezekiel M. Carter, her husband, plaintiff's in the above case, by their attorney, A. H. King, and sues the defendant, Florida East Coast Railway Company, a corporation under the laws of the state of Florida, in an action of trespass for this, to wit: "That during the time herein set forth, and for a long time theretofore, the defendant, Florida East Coast Railway Company, was and still is a corporation doing business in the state of Florida, and owning, maintaining, and operating for the transportation of freight and passengers by the use of cars and steam locomotives operated thereon a line of railway and system of railroads in the state of Florida, a portion of which extends from the town of Pablo therein to the city of Jacksonville therein; that on or about the 10th day of July, A. D. 1910, at or about 4:45 p. m., the plaintiff Dartha Carter, having procured transportation in due course on the passenger train of defendant from the said town of Pablo to the said city of Jacksonville, boarded and took passage on the passenger train of the defendant then and there provided for her passage and proceeded to her destination, the said city of Jacksonville; that upon the arrival of said train of defendant's at the station of defendant in said city of Jacksonville, and after said train of defendant had come to a standstill, said plaintiff, Dartha Carter, prepared and undertook to leave said train of defendant, and had proceeded for said purpose as far as, to wit, the lower or bottom step of the platform of the passenger coach of defendant attached to defendant's said train, upon which said plaintiff train of defendant was started and run forward, had been riding as aforesaid, whereupon said whereby said plaintiff was then and there precipitated to the ground with great force and violence. And plaintiff alleges that defendant was guilty of carelessness and negligence in the premises in this, to wit: That it caused said said, while said plaintiff was in the act of train to be started and run forward, as aforealighting, as aforesaid, from said train, and before said plaintiff had time to alight; that, by fendant in so allowing said train to be started reason of said carelessness and negligence of deand run forward, as aforesaid, before said plaintiff had time to alight, as aforesaid, said plaintiff was precipitated to the ground, whereby said plaintiff was painfully, seriously, and permanently injured in and throughout her body, and by reason whereof there was caused an impacted fracture of the neck of the femur of said plaintiff on the right side, and whereby her right leg was shortened, to wit, two inches, thereby rendering said plaintiff a cripple for life, and did thereby expose and did subject the said plaintiff to great shame and mortification, by reason whereof said plaintiff, Dartha Carter, has suffered great pain and anguish at all times still suffering the same, and, by reason of such between said date and the date thereof, and is hurting, wounding, and injuring, said plaintiff, Dartha Carter, then and there became lame, sick, and disordered, and has suffered great pain and anguish, and has so continued and suffered for a long time, to wit, from then to this time, injured, and will continue permanently to suffer and the said plaintiff was thereby permanently pain and anguish, and plaintiff Dartha Carter was then and thereby during that time and still is rendered incapable of performing her duties and services by her to be done and performed, and the plaintiff Ezekiel M. Carter was at the time of said hurting, wounding, and bruising and has ever since been and still is the husband of the said Dartha Carter, and was then and thereby and has since been deprived of the services, companionship, and wifely attention, society, and aid of and consortment with said plaintiff Dartha Carter, and that plaintiffs were obliged to and did necessarily lay out divers sums of money in and about endeavoring to have the plaintiff Dartha Carter cured of her wounds, sickness, and disorder, as aforesaid, to the damage of the plaintiffs of twenty-five thousand ($25,000.00) dollars; and therefore plaintiffs bring their suit and claim twenty-five thousand ($25,000.00) dollars damages." The second count is like the first, except that it alleges defendant caused the train, after stopping at Jacksonville, to be suddenly started forward, without notice to the plaintiff, and while she was in the act of alighting, and before she had time to alight, causing the injuries described in the first count. Each count of the declaration was demurred to on 15 grounds, among others that no cause of action is shown. These demurrers were overruled, and these rulings are challenged in the first and second assignments of error. [1] We have examined the authorities cited to sustain the several grounds of demurrer, and we do not think they are based on declarations like those at bar. It is held, in the case of German-American Lumber Co. v. Brock, 55 Fla. 577, 46 South. 740, that a declaration in an action at law should, by direct allegation, or by fair inference from its direct allegation, contain all the essentials of a cause of action, and, when negligence is the basis of the recovery, the declaration should contain allegations of the negligent act or omission complained of, and also allegations of the injury sustained, and of facts showing that such injury was a proximate result of the negligence alleged. It seems to us that, applying this test, each of the counts of the declaration states a cause of action, and the demurrers were properly overruled. Pleas of not guilty and several special pleas were filed, upon which issue was joined, and a trial had. Among these pleas was one alleging that the defendant in error was injured entirely by reason of her own negligence, and another that the plaintiff in error gave notice in the newspapers published in Jacksonville, and by a notice printed in large letters on the viaduct hereinafter referred to, that no trains would be stopped to receive or deliver passengers on Sunday at a viaduct in the city of Jacksonville; that the trains were obliged to stop at the switch near the viaduct to receive the signal to enter the Terminal or Union Station yard. The jury found a verdict for the plaintiffs, and assessed the damages at $12,500, upon which a judgment was entered, which is here for review On the 10th of July, 1910, Dartha Carter, one of the plaintiffs, and her son Dahl and daughter Eula bought round trip tickets over the Florida East Coast Railroad from Jacksonville to Pablo Beach, in Duval county, Fla. They went to Pablo in the morning, and about 4:45 o'clock p. m. boarded the train to return to Jacksonville. The track of the defendant railroad crosses the St. Johns river on the drawbridge, proceeds westward in the city, and under what is familiarly called in these proceedings the viaduct, being part of a street leading to Bay street. The defendant's track goes from the viaduct in a westerly direction to the Union or Terminal Station, which is about 200 yards from the viaduct. Between the viaduct and the Terminal Station the Florida East Coast Line crosses the tracks of the Atlantic Coast Line Railway and the Seaboard Air Line Railway. The Florida East Coast Railway is obliged by law to stop its trains before making these crossings. It maintains a ticket office underneath the viaduct, and keeps a notice posted over the gate of the steps leading from the viaduct to the station below that passengers will not be received or discharged on Sundays. The time-table published in the "Times Union" and "Metropolis," newspapers published in the city of Jacksonville, also state that passengers are not taken on or discharged at the viaduct on Sundays. But the trains are obliged to stop there on Sundays because of the state law with reference to crossings, and the situation, because of its easy access to the viaduct street, presented some temptation to passengers to alight there, rather than to await the cars' arrival at the Terminal Station. [2] It was proven when the train was on the return trip from Pablo neither the conductor nor any other servant of the company called out the viaduct station before reaching it, as is usual to give notice to passengers who desire to alight and have a right to alight at a station. The defendant in error admitted that she did not make any inquiry of the depot agent at Jacksonville, the conductor, or any other officer or agent of the railway company about the schedule of the railroad, or whether her train would stop at the viaduct. In the case of McRae v. Wilmington & Weldon R. R. Co., 88 N. C. 526, 43 Am. Rep. 745, it is held: "Railroad companies have the power to make reasonable regulations for the management of their trains, * and one who rules and regulations of the company governing buys a ticket is bound to inform himself of the the transit and conduct of its trains. It follows that, where a passenger purchases a ticket, he only acquires the right to be carried according to the custom of the road. When he purchases such a ticket, he should inform himself as to the usual mode of travel on the road, and, so far as the customary mode of carrying passengers is reasonable, he should conform to it. The requisite information can always be is procured, and it is but reasonable to require passengers to obtain the information, and to act upon it." (The authorities cited are omitted.) It is the duty of a person about to take passage on a railroad train to inform himself when, where, and how he can go or stop, according to the regulations of the railroad company. Beauchamp v. I. & G. N. Ry. Co., 56 Tex. 239; Summitt v. State, 8 Lea (Tenn.) | 413, 41 Am. Rep. 637. It ter of the train. The engine was near the railroad crossing 100 yards or more west from the viaduct; at the place where she got off there was no platform or other indications that it was a place where passengers were expected to alight. Mrs. Carter says she took the Times Union, but never took the trouble to examine the railroad time-tables to see whether the cars stopped at the viaduct to deliver passengers on Sundays. The conductor of the train testified that he was not permitted to lock the doors of the cars, and that he could not prevent passengers, when the ears stopped at any crossing, the viaduct station or anywhere else, from jumping off the trains if they wanted to do so. The accommodations for discharging passen [3] On Sundays the train from Pablo to Jacksonville consists of from ten to twelve cars; on week days of from five to six cars. On this particular Sunday the train consisted of about twelve cars. As the cars stopped at the viaduct on the return trip, without being in any way invited by the offi-gers at the Union Station are apparently sufcers or the servants of the company to alight, and the station not having been called, the defendant in error and her son and daughter arose from their seats at the back part of the car and immediately walked to the platform-the daughter Eula in front, Mrs. Carter next behind her, and her son Dahl next to her. Eula, who was a small girl, went down the steps and, in attempting to get off, fell to her knees. Mrs. Carter reached the lower step, and was standing square on it, and was not holding to either railing. The car jerked and started, and she was thrown to the ground and seriously injured. It does not appear that the jerk was unusual in starting a long train of twelve cars. is the duty of a passenger to exercise reasonable and ordinary care for his own safety in boarding or alighting from a train. 4 Elliott on Railroads, top page 499. See, also, Florida R. Co. v. Dorsey, 59 Fla. 260, 52 South. 963. Railroad companies have a general power to make reasonable rules and regulations for the government of their business, of which passengers must take notice, and courts will not interfere with. 4 Elliott, supra, top page 368. See Florida Southern Ry. Co. v. Hirst, 30 Fla. 1, 11 South. 506, 16 L. R. A. 631, 32 Am. St. Rep. 17. "If carriers are held to the highest degree of care for the safety of passengers, passengers ought to be held to the exercise of ordinary care to protect themselves, more especially while railroad companies as a general rule are requir-note is as follows: ed to provide means of access to and egress from their trains and stations which can be used without danger. A passenger who leaves a train at a place which is not a regular station is held to the duty of exercising diligence in observing the surroundings in order that he may reasonably determine whether the train has arrived at the place where the company intended him to alight. He must take the responsibility of ordinary incidents of travel, including the stoppage of cars required by statute at railway junctions, and must govern himself accordingly." According to the statement of the defendant she was riding in a coach near the cen ficient, and there is no complaint that they were insufficient or dangerous. Dahl Carter testified that he wanted to get off at the viaduct because the street cars were generally less crowded than at the Union Station. [4-6] From the testimony of the engineer of the train, it is shown that there is always some jerking in starting a long train of cars. This is not denied, and it is not shown that the jerking in this instance was unusual. It is contended by the defendant in error that, inasmuch as the railroad company did not. enforce the rule against passengers getting off at the viaduct station on Sundays, such conduct may be regarded by the traveling public as a license to get off when the train stopped. Paragraphs 201, 202, 202a, 1 Elliott on Railroads. In section 202a, supra, it is said: By-laws may often be waived, and so, too, in some instances at least, may a rule of a railroad company. By failing to enforce a rule, the company may allow it to become a dead letter, and in effect waive, abandon, or abrogate it. We think this is a sound principle of law. Britton v. Atlanta & Charlotte Air Line Ry. Co., 88 N. C. 536, 43 Am. Rep. 749. The case of Mercher v. Texas Midland R. R. (Tex. Civ. App.) 85 S. W. 468, is somewhat similar to this. The trial judge in this case sustained a general demurrer to the complaint, and, the plaintiff not amending, a final judgment was entered dismissing the case. The second head "Where a passenger attempted to alight from a train at a crossing without notifying those in charge of the train, the facts that it was known and that the train started with a jerk which custom for passengers to alight at the crossing, threw the passenger from the step, did not relieve him from the effect of his own contributory negligence." The case is not controlling because of our statute (section 3149, Gen. Stats. of 1906). Here contributory negligence does not prevent recovery. The case at bar seems to be an unusual case. There was a station used on week days under the viaduct for selling tickets and receiving and discharging passengers. The railroad gave notice it would not be used on Sundays. It was near the railroad crossing, and for that reason the cars were obliged to stop before making the crossing into the Terminal Station, which was near by. In spite of the notice that the railroad would not receive or discharge passengers on Sundays, passengers habitually got off there on Sunday. But no officer or agent of the company was present to see that they safely alighted, or that the rule was enforced. It was under such circumstances that Mrs. Carter was injured in alighting from the train. We think she was justified in thinking, if she knew of it, that the rule was abandoned or waived. Under such circumstances it was the duty of the company to see that she had an opportunity to safely alight from the train. 6 Cyc. 613, 614. The situation of the viaduct station appears to have been peculiarly tempting to many passengers to alight there. may recover; but the damages are to be increased or diminished by the jury in proportion to the amount of default attributable to him. We are not able to say that the negli gence of the plaintiff was the sole proximate cause of her injury. That was a question for the jury. What we have said also applies to the thirteenth assignment, which is based on the refusal of the court to instruct the jury to find the defendant not guilty. The fourth assignment of error does not appear to be very important, as neither in brief or on the assignment is there any reference to the page or pages of a long record of nearly 500 pages where the facts upon which it is based are to be found. [8] The eighth assignment of error is based on the action of the court overruling an objection of the defendant to a question propounded by plaintiff's attorney to Mr. Stillman on cross-examination. The question [7] The sixth and seventh assignments of error relate to the refusal of the court to admit in evidence a statement made by W. M. Wadsworth and signed by him prior to his death, purporting to give what Mrs. Carter Twelfth assignment of error: The defend- said to him as to how she was injured. This ant moved the court to instruct the jury to tended to contradict her statement as a witfind it not guilty, which motion was denied, ness on the trial. It is admitted that this and this affords the ground of the most im-statement by Mr. Wadsworth is not usually portant assignment of error. There is no regarded as competent evidence. We discovdoubt in our mind that the plaintiff is shown er no sufficient reason in this instance to deto be guilty of contributory negligence in part from the rule excluding such a stateseveral particulars. She took no pains to ment, if it should ever be done. Mr. Wadsinform herself whether the train stopped at worth was sick for several months before his the viaduct station to deliver passengers, and death, and no effort was made to take his she was not so informed by the conductor or deposition. other agent of the company. Nothing in the immediate surroundings where she got off indicated it. But we cannot say that her negligence was the sole proximate cause for her injury. Under the peculiar circumstances of this case, we think it was peculiarly the province of the jury to determine whether "the company made it appear that their agents exercised all ordinary and reasonable care and diligence; the presumption being against the company." Section 3148, Gen. Stats. of 1906. The company knew that their rule not to discharge passengers on Sunday at the viaduct station was habitually violat-stances. He also said he wanted to get the ed. No apparently effective means to prevent such violation was attempted so far as the record shows. Numbers of passengers seem to have treated it as waived or abandoned. It would seem, then, that it was the duty of the company to adopt some means to prevent injury to passengers who attempted to alight there. McDonald v. Long Island R. Co., 116 N. Y. 546, 22 N. E. 1068, 15 Am. St. Rep. 437; Poole v. Consolidated St. Ry. Co., 100 Mich. 379, 59 N. W. 390, 25 L. R. A. 744. The case of Mercher v. Texas Midland R. R. (Tex. Civ. App.) 85 S. W. 468, is relied on by the defendant company. The case in some respects is like the instant one, and the court held that the contributory negligence prevented recovery by him. But under our statute (section 3149, Gen. Stats. of 1906) it is not a bar to recovery. If the plaintiff and was: "For the real purpose of making a better defense for the railroad company as their claim adjuster, was it not?" Mr. Stillman called on Mrs. Carter the day after she was injured. She was then in bed. He testified that he wanted to see if he could help her, as she was in destitute circum real facts to report to his company. He was its claim adjuster. He said he took a statement from her of the facts of her injury. We do not think the court committed reversible error in permitting the question. The circumstances of the claim adjuster going to her home so soon after she was injured and asking from her a written statement of the facts warranted a rigid examination into his motives. The tenth and eleventh assignments question the action of the court in overruling the objections of the defendant to questions propounded to the plaintiff Mrs. Carter as to whether or not at the time she got off the train she knew of any rule or regulation of the railroad company that passengers were not to get off at that station, or if she had ever heard of any such rule or regulation in any way whatever, referring to rules and |