195 So. 2d 596 | Fla. Dist. Ct. App. | 1967
This is an appeal by Atlantic Coast Line Railroad Company, defendant below, from a judgment for the plaintiff, Roy C. Plil-born. The judgment was based upon a jury verdict of $200,000.00 returned in plaintiff’s favor in an action against the defendant brought by the plaintiff under and pursuant to the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq.
Plaintiff’s complaint alleges that on November 6, 1963, while he was engaged in working on defendant’s railroad at or near the St. Petersburg yards, a train then being operated or controlled by the defendant ran over him. It is further alleged that the defendant negligently maintained, operated or controlled its equipment, track and road bed, or that said equipment, et cetera was negligently defective or insufficient; or that defendant failed to make reasonable inspection of its equipment, track or road bed; that a car was operated with defective or insecure equipment, or that a locomotive was not in proper condition and safe to operate; that defendant operated a train without air or power brakes, or proper brakes operated by or under the control of the engineer of said train, in violation of 45 U.S.C.A. § 9. It was also alleged that the negligence of defendant’s officers and agents or employees proximately caused plaintiff severe and permanent injury.
The plaintiff was injured while he was engaged in the performance of his duties as
The jury heard the evidence during the four and one half days of trial and resolved the conflicts in favor of the plaintiff by its verdict in the amount of $200,000.00. From our review of the record, we have concluded that the evidence is sufficient to support the verdict of the jury.
Prior to trial, the deposition of A. J. Douberly of St. Petersburg, defendant’s general yard master, was taken by plaintiff. Plaintiff and defendant had Douberly under subpoena to testify at trial but plaintiff did not call him as a witness. Defendant called Douberly who testified that he was not present at the yard at the time of the accident, but that he was present when five or six post-accident tests were run. He testified that the train was backed up and stopped, and the slack action was measured at three to six feet. On cross examination plaintiff elicited the fact that the tests were run with all forty-three cars coupled together. The trial court then asked plaintiff if he had any further questions and received a negative response. The defendant responded that he had no redirect examination. The court then asked, “Are you through with the witness?”, to which plaintiff’s counsel replied, “As far as we are concerned.” The court then released Douberly from any subpoena which he might have.
Subsequently, the defendant examined a police officer who had investigated the accident. He testified that he found blood at the “1 o’clock position” on the S.L.S.F. hopper’s southwest wheel which was “clear” and did not “have any debris in
The defendant contends that it was error to permit the plaintiff to read from the deposition of Douberly.
Rule 1.21(d) (3), Florida Rules of Civil Procedure, 30 F.S.A.
In the case before us, the testimony was-merely cumulative of other evidence-demonstrating that the engine moved the-train south about twenty feet. It was the-testimony of the general yard master of the • defendant who was previously called as a. witness by the defendant and excused presumably to return to St. Petersburg where • he lived and worked.
Considering the testimony and the circumstances we do not think that the action of the trial court requires a reversal of the judgment.
The defendant’s remaining points on appeal fail to clearly show reversible error.. See Florida Power & Light Co. v. Robinson, Fla. 1953, 68 So.2d 406; Ratner v. Arrington, Fla.App.1959, 111 So.2d 82.
Accordingly, the judgment appealed is-, affirmed.
Affirmed.
. Booker v. Lima, Fla.App.1966, 182 So.2d 642; Bowser v. Harder, Fla.App.1957, 98 So.2d 752.
. “(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
1. That the witness is dead; 2. that the ■witness is at a greater distance than one hundred miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or 3. that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment ; or 4. that the party offering the deposition has been unable to procure the attendance of the witness; or 5. upon application and notice, that such exceptional circumstances exist as to make it desirable in the interest of justice and with due regard to the importance .of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.”