JOHN WILKINSON, APPELLANT,

v.

PENSACOLA & ATLANTIC RAILROAD COMPANY APPELLEE

Mabry, C. J.:

Counsel for appelfant contends that under the demurrer to the evidence the company admitted enough to fasten liability on it for the injuries alleged in the declaration to have been received. The rule as to the effect of a demurrer to the evidence stated in Pawling vs. United States, 4 Cranch, 219, is approved by this court in the case of Higgs vs. Shehee, 4 Fla.

382. It is, that the party demurring admits the truth of the testimony to which he demurs, and also those conclusions of fact which the jury may fairly draw from that “testimony. Forced or violent inferences he does not admit, but the testimony is to be taken most strongly against him. and such conclusions as a jury might justifiably draw, the court ought to draw. The established rule is, that the party demurring to evidence-must admit on the record, not only that all the facts-proven are true, but that every fact is also true that may fairly and reasonably be inferred from or deduced out of the evidence, or that the evidence reasonably tends to establish. Hanover Fire Insurance Co. vs. Lewis, 23 Fla. 193, 1 South. 863; Duncan vs. State, 29 Fla. 439, 10 South.

815. By demurring to the evidence-- and joining therein in a proper case, the duty devolves upon the court to apply the law applicable to the case-to the evidence, and this consists of every fact that the testimony reasonably conduces to prove, or that a jury might fairly and legally draw therefrom. The law applicable to the case is for the court to determine under all conditions, and its duty in this respect is not-altered by the demurrer to the evidence and the imposition of the further duty of applying the law to the facts admitted.

Before stating our conclusion as to the ruling of the-trial court on the evidence, reference will be made to the rules of pleading under our system as affecting the right of recovery under the allegations of the declaration before us. The action is to recover damages for personal injuries to the plaintiff, caused by the alleged negligence of a servant of the defendant. The right of recovery must be confined to the cause of action alleged in the declaration, and, according to the settled rule of this court, there can be no recovery upon a cause of action, however meritorious it may be, or however satisfactorily proven, that is substantially variant from the one alleged by the plaintiff. If a plaintiff 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 in the declaration, he must fail in his suit. Having-alleged the grounds upon which a recovery is based and called upon the defendant to meet it, if the plaintiff fails on the grounds stated he can not be permitted to recover upon any other not alleged. Jacksonville, T. & K.

W. Ry. Co. vs. Neff, 28 Fla. 373, 9 South. 653; Parish vs. Pensacola & Atlantic R. R. Co., 28 Fla. 251, 9 South. 696; Jacksonville, T. & K.

W. Ry. Co. vs. Galvin, 29 Fla. 636, 11 South. 231; Chicago, Burlington & Quincy R. R. Co. vs. Morkenstein, 24 Ill. App.

128. The allegations of the declaration as to the cause of action is substantially that while the plaintiff. was traveling along the right-of-way of the defendant company, and about twelve or fifteen feet from the road-bed, the fireman on a passing train, in the employment of the company and in the regular discharge of his duties, carelessly and negligently threw from the train a piece of wood which struck plaintiff and caused him serious injury. The gist of the action here alleged is that a fireman, while in the discharge of his regular employment, negligently and carelessly threw from a train, when passing the plaintiff on the right-of-way some twelve or fifteen feet, a piece of wood which struck plaintiff and caused him serious damage. We have carefully examined the evidence demurred to, and giving to it all the scope to which it is entitled under the rule applicable to demurrers to evidence, we do not see that the Circuit Judge erred in the ruling that he made. Appellant in company with another party had been walking on the railroad track, and stepped off about fifteen feet on the right-of-way to. avoid an approaching train. The place where they left the track was about sixty steps from a public road crossing. Appellant saw only the engineer on the en gine or tender, and the other witness, Martin, saw rwo men, but could not say whether they were in the cab or on théjjjtender. As the train passed, a piece of wood descendedffrom the tender, struck the ground about four feetjjjfrom the track, bounded and struck appellant. Neither of the witnesses saw the piece of wood leave the tender, and they could not -say whether it was thrown off or fell off, but they saw it in its descent and when it struck appellant. There is no showing here that the fireman threw the wood from the tender, or that he had anything to do with its leaving the tender. That the wrood came from the tender is reasonably certain, but the cause of its leaving does not appear. The plaintiff placed his cause of'action against the company on the alleged ground that the fireman negligently and carelessly threw the wood from the train, and there is no fair or legitimate inference growing out of the evidence to sustain the allegation. Under the authorities cited we are confined to the cause of action alleged in the declaration, and considering the testimony with reference to the allegations made, we think there was a failure of proof on the part of the plaintiff.

We do not see how the provisions in Section one of Chapter 3744, acts of 1887, can be of any aid to the appellant under the facts of this case. As we have seen, there is a total failure on his part to show the negligence or fault of the company alleged, and no other can be relied upon in this action with the declaration as it is. Negligence is the basis of the action in this case, and if the negligence alleged is not susstained by proof, there is nothing upon which to predicate fault on the part of the agents of the company. The statute provides “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.” This statute does not relieve the plaintiff of the necessity of showing a -cause of action against the company. It may enable a plaintiff who is guilty of contributory negligence to still recover damages against a railroad company caused by its own negligence or fault, but in such case’ the negligence or fault of the company must be alleged and proven. A failure to prove the negligence or fault alleged against the company as a cause of action, terminates the plaintiff’s right of recovery entirely.

We do not deem it necessary to consider the question, whether the presence of the appellant on the right-of-way of the company, under the circumstances disclosed, would deprive him of the right to recover under allegations in a declaration less restrictive than the one before us.

What has been said disposes of the case, and the result is, that the judgment must be affirmed, and is so ordered.