(after stating the facts.)
ThiiSs case was referred by the count to its commissioners, a majority of whom report in favor of affirming the judgment. A majority of the court is of that opinion. *380In view of the existence of a difference of opinion as to the result both among members of ’the court and the commission, it is deemed advisable, contrary to the usual custom of the court in cases of aiffirmance, to, file a written opinion.
One of the errors assigned and insisted on is that the court erred in overruling the demurrer to the amended declaration, exhibited by the abstract andl shown by the statement. Several general propositions of law are stated as grounds of the demurrer that have ho special application to the allegations, of the declaration, and are out of place.
Counsel for plaintiff in error argues that the declaration is defective in its failure to sufficiently allege negligence on the part of the defendant company in causing the injury, and there are specific grounds of the demurrer that present the objection urged. The rule established by this court, in actions where negligence is the basis of recovery, is that it is not necessary for the declaration to set out the facts constituting the negligence, but an allegation of sufficient acts causing the injury, coupled with an averment that they were negligently and carelessly done, will be sufficient. Walsh v. Western Ry. Co. of Florida, 34 Fla. 1, 15 South. Rep. 686; Jacksonville, T. & K. W. Ry. Co. v. Jones, 34 Fla. 286, 15 South. Rep. 924; Jacksonville, T. & K. W. Ry. Co. v. Garrison, 30 Fla. 557, 11 South. Rep. 929. The declaration in this case is not based upon the theory of this isimple rule of pleading, but it proceeds to set forth certain acts which are relied on as constituting a 'cause of action without alleging in terms that they were negligently done. After stating that the defendant company owned1 and operated a street railroad upon a certain highway or street in the *381■city of Tampa, and drove a certain street car upon said highway up to and across another named street crossing, it is alleged that it- was the duty of defendant to so run and operate its said street railroad as not to endanger persons or vehicles traveling upon on across any of the streets of the said city upon which said street railroad was operated, and when necessary for the protection of persons and vehicles traveling upon or across any of said , streets to stop the same. Other facts are stated showing acts on the part of defendant resulting in injury to the plaintiff caused'by the running of a certain street car which muist be considered, though they are not in terms alleged, to have been negligently done. The mere allegation of a duty without sufficient facts to support it wi’l not be sufficient. It must appear from the direct averments of the declaration that the acts of the defendant causing the injury were negligently done, or, as is at-, tempted by the declaration before us, it must appear from a statement of such facts as certainly raise the presumption that the injury was the result’of defendant’s negligence. Seymour v. Maddox, 16 Ad. & El. N. S. (Queen’s Bench) 326; Angus v. Lee, 40 Ill. App. 304; Pennsylvania Co. v. Marion, 104 Ind. 239, 3 N. E. Rep. 874. Do the facts alleged meet this requirement? The act of 1891, defining the liability of railroad companies in certain cases (Chapter 4071, Appendix R. S. p. 1008), has been regarded by this court in unwritten opinions as applicable to street railroads, but it has not been considered as changing the rule of alleging negligence in such cases to the extent of requiring only an allegation of injury or damage by the running of locomotives, cars or other machinery of the dtefendant company. The istat.ute does not undertake to fix arbitrarily liability for an *382injury dome, but there is a presumption of negligence under it arising from the injury or damage.»
An act in 1887 made the killing of stock by a railroad company prima facie evidence of • negligence, and it was said in Jacksonville, T. & K. W. Ry. Co. v. Garrison, supra, that it operated upon the-remedy and did not change the basis of liability in isuch cases; that negligence was the basis of the action and must ¡still be alleged in the declaration. And in the case Of Wilkinson v. Pensacola & A. R. Co., 35 Fla. 82, 17 South. Rep. 71, which was an action for personal injury under Chapter 3744, act off 1887, it was held that negligence was the basis of the action and that the statute did not relieve the plaintiff from alleging it. If the pleader, however, departs from the ¡rule of stating sufficient acts and alleging that they were negligently done, and undertakes to state facts that certainly show a duty unperformed from which injury results, the rule of liability recognized by the statute in cases coming under it should be kept in mind in determining the sufficiency of the facts. Tike first section of the act provides that “a railroad company shall be liable for any damiage done to persons, stock or other property, by the running of the locomotives, or*cars, or other machinery of isuch company, or. for ¡damage done by any person in the employment and service of such company, unless the company shall m'ake it appear that their agents have exercised all ordinary and (reasonable care and diligence, the presumption in all cases being against the company.” The second section contains the provision 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. *383The words in this statute1, “all ordinary and reasonable eare and diligence,” are relative terms. It was held in the case of Morris v. Florida Cent. & P. R. Co., 43 Fla. 10, 29 South. Rep. 541, that under the provisions of the section quoted what will constitute the amount or kind of diligence that will he required as “ordinary and reasonable” must necessarily vary under different circumstances. It can not be measured or ascertained by any fixed and inflexible .standard, because the words are themselves relative terms, and what, under some conditions, would be ordinarily and reasonable diligence, might under other conditions amount to even gross negligence.
The doctrine, based upon principle and the great weight of authority, is that street cars, regardless of the power by which they are impelled, have no superior rights to other vehicles or pedestrians at regular crossings, but their respective rights are simply equal. In the absence of a specific grant to that effect it must not be presumed that the State has given a street railroad company any exclusive right to a highway. The use of rails and cars in a street is considered only as a more convenient way of using the street without imposing any new burdens upon it. State ex rel. v. Jacksonville Street R. R. Co., 29 Fla. 590, 10 South. Rep. 590. Pedestrians must cross at street crossings or cease to walk the streets, and they have the right to the ordinary use of the same; and likewise an authorized street cair company must use the street in order to carry passengers), and it has the right to propel cars over its tracks in. the street. The rights of both are equal and in common, and impose certain correlative duties which must be observed by each party. All ordinary and reasonable care is the measure of duty dim-*384posed, and it means care proportionate to the danger to be avoided. It will vary, of course, according to the circumstances and the exigencies of the situation, in view of the ¡relationship of the parties, as held an Morris v. Florida Cent. & P. R. Co., supra, and must be such as may reasonably he expected of persons of ordinary prudence under like circumstances. A railroad company having the right to operate its tracks can not from the nature of its construction deviate therefrom as persons can, and hence it is the duty of a pedestrian in approaching the track to use ordinary and reasonable care to ascertain the approach of cars and to. avoid injury therefrom: The employes of the company in control of a car have the right to presuma that a pedestrian will exercise such care and are' not required to stop the car until it becomes evident to a person of ordinary and reasonable care and prudence that the pedestrian has failed in his duty, and has placed, or - is about to place, himself in a perilous situation. The duty, however, devolves upon the company’s emiployes to keep a vigilant lookout for persons on or approaching the track, especially at street crossings, and when they are discovered to be in danger or going into danger on the track to use every effort consistent with the safety of passengers to avoid injuring such persons. 2 Shearman & Red field on Negligence (5th ed.) section 485a; Booth on Street Railways, section 304; Bunyan v. Citizens’ Railway Co., 127 Mo. 12, 29 S. W. Rep. 842
In addition to the allegations of the declaration stated above, it ais further averred that the plaintiff with nuimlerous persons, constituting a large crowd that had just come: out of the church situated near the intersection of Florida avenue and Zack street, was crossing said *385avenue and the track of defendant’s street railroad at a regular crossing thereof while one of defendant’s cars was approaching said crossing, and that the conductor and miotorman of the ear was at sudh a point on said avenue that they could see the crowd crossing the track at least two hundred feet from said crossing This is ¡sufficient to show that the employes of the defendant could have seen, and therefore it was their duty to isee, plaintiff and the crowd of people in a isituation of danger by approaching and going across the track in front of the car at a reigular street crossing, and it then became the duty of the employes to use every effort consistent with the safety of passengers to avoid injuring plaintiff or the crowd of people.'-Conceding that the car could have approached the crossing under the assumption that plaintiff and the crowd would leave the track, still the presence of human beings thereon and the apparent situation of danger to them, imposed upon the agents of the company the duty *to so approach the crowd as to avoid injury if possible, even to the stopping of the car i'f necessary. The -company has no right, of course, to ¡run into a crowd of people though they disregard their duty and do not leave the track.
It is alleged that at the time plaintiff was struck by the car she was -crossing the track at a regular crossing with all due care and diligence, and this is inconsistent with the view that the agents -of defendant were- at the time exercising a like care and diligence in ¡running the car a,gainst her. The distance at which plaintiff and the crowd could have been seen on the track excludes the idea that the employes could not have avoided a collision by the exercise of ordinary and reasonable ¡care and *386diligence, and they were under such duty .in view of the alleged conditions and attending circumstances. Tiie declaration clearly shows that defendant injured plaitiff by the act of running a car against her on a regular street crossing where she was passing' with" all the c^te care and diligence, and it also shows, we think, fault on part of defendant under the circumstances stated in running the car against her. .
It is alleged that in consequence of the default and neglect of the employes of defendant in not .stopping the car it ran against and struck plaintiff. Under our system of pleading, special demurrers are abolished and mere indefimiteness can only be reached by motion. We are inclined to hold that in substance the declaration alleges enough to show liability on part of defendant, and that the demurrer was rightfully overruled On the objection urged.
The grounds of the motion to* strike out the second, third and fourth pleas are not stated in the abstract, nor is there anything shown in the order of the court striking out the pleas to indicate the basis of the ruling. It is admitted in the -brief of counsel that- the ruling of thei cuort may be regarded as harmless so far as- defendant is concerned, as its entire defense: was permitted under the plea upon which was joined- and the trial was had. We are of opinion thkt the pleas, so far as they attempt to set up a defense to the action, amounted to the general issue, and were properly stricken -out on motion. Little v. Bradley, decided at this term. The fourth plea is an argumentative 'denial of liability on the part of defendant and seeks to set up the same defense as the others.
The court gave several, charges at the request of counsel for plaintiff, and some 'of them' were excepted to in a *387motion for a new trial and have been assigned as error, but counsel has expressly abandoned these assignments in the argument here.
The court refused to give eight o.f the . numerous requests to ebarge made by counsel for the defendant, and the refusals are properly assigned for error. ■ The assignment on the refusal to give the first refused request .is abandoned in the argument, and the second of the rejected! requests was properly refused because lit is , erroneous. It is as follows: the plaintiff can not recover unless the motorman of the car, a'fter becoming aware of the danger of plaintiff, by the exercise of reasonable care and prudence could have prevented the accident. This instruction seeks to limit the duty of defendant’s employe to avoid the: injury to the tinte when be baeame aware of plaintiff's danger without reference to whether he had observed all ordinary and reasonable care before that time to discover the dangerous situation of plaintiff, it is not error to refuse a request that ignores the duty of the company’s servant in that respect.
We have examined the other six requests refused and find no error in their refusal on tire abstracts submitted. Some of them contain statements of law that are not correct,' and portions of some are fully covered by the charges given to the jury. The facts hypothesied as "a basis for these 'charges are very meager and amount to no more as a statement of facts than that when the street car was1 approaching the crossing the plaintiff was also going towards the track. Upon1 this showing it does not appear that the court erred in declining to give the requests, independent of other abjections that might be urged agaibst them.
The only other assignment of error to be considered is that the court erred in overruling the motion for a new *388-trial on the ground that the verdict was not supported b'by the evidencie. The statement gives that part of the " testimony hearing on the liability of the company for the -injury, and! after a careful examination of it we are inclined to hold that the court did not err in overruling the motion. That the plaintiff was guilty of contributory negligence is shown by the evidence, but this alone does not debar her of a recovery under the statute if the employes of the company were also at fault in proximately causing the injury. There was a presumption under the -statute against the exercise of ordinary and reasonable ■‘care on the part iof the company in consequence of the ■damage that had to be overcome. The testimony of some -of the witnesses introduced by the defendant, notably that of the motorman Paramore and the transfer agent Williams, exonerated the company from any blame, but 'there was other testimony tending to show a failure to ‘ exercise ordinary and reasonable care on the part of the 'employes under the circumstances. That the employes ■saw, or could have seen„by the exercise of ordinary care, 'for a distance of two. hundred feet in front of the car a • crowd of people' coming, out of the church and crossing 'the can track at a regular street crossing is sufficiently shown by the evidence. There is also evidence tending to show that when the car was forty or fifty feet away from the crossing, the plaintiff who came out of the church and was in the crowd could have been seen approaching the track without observing the car, with an umbrella between her and the car. One o£ the witnesses for the defendant, who was standing by the motorman, says that while the bell kept ringing and people hollowed to plaintiff to stop, she paid no attention to it but kept right on with her umbrella over her head between her and *389the car, and that she was looking ¿t a hook with the umbrella over her face. This witness does say that plaintiff walked onto the track a short distance] ten or fifteen feet in front of the car, but there is other evidence tending to show that when plaintiff reached the track with her umbrella over her the car was forty or fifty feet away. She says herself that when she: got t-o the track and then first saw the car it Was forty or fifty feet away. Julia Norris says that when she first saw plaintiff she was about five or six feet of the car track, and the car was about 'the middle of the street. The exact width of the street is not given, thought it is clearly inferable from other testimony that the middle of the street was forty or fifty feet from-the crossing. The motorman admits that -the car might have been stopped in twenty feet, but he says the car was-only ten or twelve feet from. plaintiff, and not in the-middle of the street when, she -stepped out on the track.. There i-s a conflict in the evidence on this point. There is evidence to show that plaintiff had an umbrella over her head and was warned -of the approach of the -car of which she seemed to be oblivious at the time. This condition was observed by persons on .the car, and it may be assumed that the motorman was aware of it.- It was his-duty to see‘it if he did not. It. is clearly shown that he isaw the cro-wd come out of the church, and it appears that there was crossing of the track up to the approach of the car. One witness ’says he -did not get over any too quick. In view of the crowd in proximity to and on the-track the mo-torman should have had the car under suc-hcontrol as to avoid' the'injury if it could have been done by the exercise of ordinary care. If the plaintiff was discovered- or could have been discovered by reasonable care, in a perilous -situation, the employes should have *390avoided injuring her if they could 'have done so. .On this point we think there is room for difference of opinion among fair minded mien and was proper for the consideration of the jury. As said by Judge Cooley in Detroit and Milwaukee R. R. Co. v. Van Steinburg, 17 Mich. 99, “when the question arises upon a state of facts on which reasonable men may fairly arrive at different conclusions, the fact of negligence can not be determined until one or the other of those conclusions has been drawn by the jury. The inferences to be drawn from the evidence must either be certain and incontrovertible, on they can not he decided upon by the court. Negligence can .not be conclusively established by a istate of facts upon which fair mji'ndled. men may well differ.” The same view is annouiiccd in Boss v. Providence & W. R. Co, 15 R. I. 149, 1 Atl. Rep. 9, as well as in other cases. See, also Cooke, v. Baltimore Traction Co., 80 Md. 551, 31 Alt. 327, where it was held that where the nature of the act relied on to show negligence contributing to the injury can only he determined by considering all the circumstances surrounding the transaction, it should be passed upon by the jury, and it is not for the court to determine its quality as matter of law. •
Without further special comment on the evidence we think it is of such a character, as to render it beyond our think it is of such a character as to mender it beyond uor province, after being approved by the trial judge, to declare it insufficient to sustain the verdict. The judgment must, therefore, he affirmed, and it is so ordered.