Under the statutes an action for damages may be maintained by designated classes for the wrongful death of a person, provided the decedent could have maintained an action for the injury if death had not ensued; and if negligence of the decedent proximately contributed to the *Page 323 injury, the recovery of damages will be reduced or barred according to the law applicable to the particular case. Sections 4960, 4961, 4965, Revised General Statutes of 1920.41 Fla. 1; 138 U.S. 483, 17 C. J. 1242; 8 R. C. L. 779; 74 Fla. 307; 61 Fla. 424; 72 Fla. 161; 77 Fla. 150.
In an action for injuries caused by the operation of a railroad train or a street car it is sufficient to allege ultimate facts showing that the defendant negligently committed the act that proximately caused or contributed to causing the injury, the specific fact that actually caused the injury being duly stated so that a definite issue may be presented for trial. Warfield v. Hepburn, 62 Fla. 409, 57 South. Rep. 618; Consumers' Electric Light S. R. Co. v. Pryor, 44 Fla. 354,32 South. Rep. 797.
If a declaration does not state a cause of action it is subject to appropriate demurrer; and even though a declaration does state a cause of action and is consequently not subject to demurrer, yet under the statute if the declaration "be so framed as to prejudice or embarrass or delay the fair trial of the action," the defendant "may apply to the court to strike out or amend such pleading, and the court shall make such order respecting the same * as it shall see fit." Sec. 2630 Rev. Gen. Stats. 1920; Seaboard Air Line Ry. v. Rentz Little, 60 Fla. 429,54 South. Rep. 13.
The granting or denial of a motion for the compulsory amendment of a pleading, based on Section 2630 of the Revised General Statutes of 1920, is a matter resting within the sound judicial discretion of the trial court, since such court must determine whether or not the pleading so sought to be reformed is "so framed as to prejudice or embarrass or delay the fair trial of the action," and the ruling of the trial court thereon will not be disturbed by an appellate court, unless it is plainly made to appear *Page 324 that there has been an abuse of this judicial discretion. Seaboard Air Line R. Co. v. Scarborough, 52 Fla. 425,42 South. Rep. 706; Sec. 2630, Rev. Gen. Stats. 1920; Hildreth v. Western Union Tel. Co., 56 Fla. 387, 47 South. Rep. 820; N. U. Tel. Co. v. Merritt, 55 Fla. 462, 46 South. Rep. 1024; Seaboard Air Line Ry. v. Rentz Little, 60 Fla. 429, 54 South. Rep. 13; Williams v. Peninsular Grovery Co., 73 Fla. 937, 75 South. Rep. 517.
The declaration herein alleges that the defendant did so negligently and carelessly run and operate its street car on a stated public street of the city, that said street car was run and propelled violently and forcibly upon, into and against the decedent who was then and there and thereby thrown and knocked into and against the decedent who was then and there and thereby thrown and knocked to the pavement and was then and there and thereby fatally injured. The ultimate fact that caused the injury, viz., the running of the street car violently and forcibly upon the decedent is alleged and it is alleged that it was negligently and carelessly done. Such allegations are sufficient upon which to make a definite issue for trial and to advise the defendant of the particular negligent act complained of; and the allegations cannot justly be said to prejudice or embarrass a fair trial of the issue that is sufficiently stated in the declaration, therefore, no error was committed in denying the motion for compulsory amendment. It being alleged that the defendant did negligently and carelessly run its street car upon the decedent, thereby causing his death, it was not necessary to allege that the car was being operated at excessive speed, or that no signals of approach were given or that the brakes were not applied or were defective or other particular act or facts that entered into or constituted the ultimate negligent act or fact that is alleged to have proximately caused the injury. The particular *Page 325 facts in the premises are or should be within the knowledge of the defendant street railway company, and it is not prejudiced or embarrassed in making its defense because the plaintiffs do not allege particular facts that are not essential in stating a cause of action and that are known to the defendant and not to the plaintiffs.
Where the facts are, or reasonably should be, within the knowledge of the plaintiff, the declaration should contain sufficient statements of facts to apprise the defendant of the particular acts or circumstances upon which the action is based, in order that there may be no embarassment in preparing a defense. If the particular facts or circumstances upon which the ultimate facts constituting the cause of action depend, are particularly within the knowledge of the defendant, only the necessary ultimate facts need be alleged by the plaintiff. Warfield v. Hepburn, 62 Fla. 409, 57 South. Rep. 618.
The plaintiffs are required to allege a negligent injury by the running of the street car and to prove that the injury was caused by the running of the street car as alleged and the extent of the injury, whereupon a presumption of negligence arises under the statute and recovery follows unless the defendant proves that it exercised all ordinary and reasonable care and diligence to avoid the injury. Sec. 4964, Rev. Gen. Stats. 1920. When the presumption of negligence against the defendant railway company is overcome by evidence, the plaintiff then has the burden of proof in showing a right to recover.
If negligence of the injured party proximately contributed to the injury, such contributory negligence should be pleaded and proven by the defendant, unless such contributory negligence appear in the case made by the plaintiff or is without objection shown by the defendant though not pleaded, Warfield v. Hepburn, 62 Fla. 409, *Page 326 57 South. Rep. 618; Tampa Gulf Coast R. Co. v. Lynch and Seaboard Air Line R. Co. v. Myrick, decided at the last term; and under the statute (Sec. 4965, Rev. Gen. Stats., 1920) where an injury is caused by the running of railway cars when contributory negligence is duly made to appear, it does not bar recovery as at common law, but the amount of the recovery should be such a portion of the entire damages sustained by the defendant's negligence bears to the combined negligence of both the party injured and the defendant in the premises, Seaboard Air Line Ry. v. Callan, 73 Fla. 688, 74 South. Rep. 799; or as the rule is otherwise stated under such a statute, where the casual negligence is attributable partly to the defendant railway company and partly to the injured person, the plaintiff shall not recover full damages but only such a diminished sum bearing the same relation to the full damages that the negligence attributable to the defendant bears to the negligence attributable to both; the purpose being to abrogate the common law rule completely exonerating the railway company from liability when the injured party was also negligent, and to substitute a new rule permitting recovery, but excluding from the recovery a proportional part of the total damages sustained corresponding to the injured party's contribution to the total negligence. Seaboard Air Line Ry. v. Tilgham, 237 U.S. 499,35 Sup. Ct. Rep. 635; Norfolk W. R. Co. v. Earnest, 229 U.S. 114,33 Sup. Ct. Rep. 654.
Negligence of the decedent clearly appears. Secs. 4960, 4965, Rev. Gen. Stats. 1920. *Page 327