50 Fla. 190 | Fla. | 1905
The defendant in error, hereinafter referred to as the plaintiff, sues the plaintiff in error, hereinafter referred to as the defendant, in an action on the case for personal injuries resulting from alleged negligence, in the Circuit Court of Osceola county and recovered judgment for $5,000, from which the defendant takes writ of error here. The declaration in the case is as follows: “For that whereas the plaintiff on the 2nd day of September, A. D. 1903, was in the employ of the defendant, the Atlantic Coast Line Railroad Company, a corporation doing business in the State of Florida, and was engaged in the performance of his duty as assistant fore
SECONP COUNT.
And for that, whereas, on the 2nd day of September, A. D. 1903, the plaintiff was a servant and employee of the defendant, the Atlantic Coast Line Railroad Company, and held the position of assistant foreman of a section force; that in the performance of his duties as such assistant foreman, it was necessary to use a hand-car propelled by machinery, worked by hand, and the plaintiff says it was the duty of the defendant to supply a hand-car reasonably safe, and with its machinery in reasonably good order, but the plaintiff says that the defendant, regardless of its duty in this regard, furnished and supplied to the plaintiff a certain hand-car whose machinery was defective, in that the running gear was loose and caused the car to sway violently when it was propell
The defendant demurred to this declaration on the following grounds: First, that each count in said declaration is argumentative, and not certain.
Second, that neither count in said declaration states a cause of action.
Third, That the plaintiff shows by each count of the declai’ation that any injury received by him was caused from risks assumed by said plaintiff in his employment.
Fourth, the said plaintiff shows by his declaration that he was in charge of his‘co-laborers at the time of the alleged injury and was responsible for their acts, and that it was through his own fault he was injured.
This demurrer was overruled by the trial judge and such ruling is assigned as error.
At the common law the employer or master was not responsible in damages to an employee for injuries sustained through the negligence of a co-employee or fellow servant. This rule, however, was changed in Florida in the year A. D. 1887, when the Legislature enacted Chapter 3744, the second section of which Chapter of the laws was incorporated in the Revised Statutes of 1892 as Section 2346 thereof which is as follows: “If the person injured is himself an employee of the company, and the
This provision of law was adopted here totidem verbis, from the statutes of the State of Georgia, Section 2828, 'Yol. 2, Georgia Code, compilation of 1895. Besides our adoption of the terms of the statute itself, we also adopted, as an integral part of the same, any known and settled construction that had been placed thereon by the courts of the State from which it has been adopted, in so far as that construction is not inharmonious with the spirit and policy of our own general legislation on the same subject. Duval Receiver v. Hunt, 34 Fla. 85, 15 South. Rep. 876; Florida Cent. & P. R. Co. v. Mooney, 40 Fla. 17, 24 South. Rep. 148.
The quoted section of Chapter 3744, Laws of 1887, brought forward as Section 2346 of the Revised Statutes seems to have been repealed by Chapter 4071, Laws of 1891, enacted at the same session of the Legislature that, adopted the Revised Statutes, and the following section three of the last mentioned Chapter substituted in place thereof: “If any person is injured by a railroad company by the running of the locomotives, or cars, or other machinery of such company, he being at the time of such injury an employee of the company, and the damage was caused by negligence of another employee, and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to a recov-. ery. No contract which restricts such liability shall be legal or binding.” The only apparent material change affected by the last quoted section in the law as it was
In construing this statute our own court, and the Supreme Court of Georgia in numerous cases adjudged prior to the adoption of the statute here, have held that according to the express terms of the statute an employee, in order to recover from the master for an injury sustained through the negligence of a fellow-servant, must himself be entirely free from fault or negligence. Duval Receiver v. Hunt, supra; Florida Cent. & P. R. Co. v. Mooney, supra, and numerous Georgia cases there cited.
In Johnson v. Western & Atlantic R. R. Co., 55 Ga. 133, it was held that: “Where an employee of a railroad company knowingly uses defective machinery, he cannot recover damages for injuries resulting therefrom.”
In Central Railroad & Banking Co. v. Lanier, 83 Ga. 587, 10 S. E. Rep. 279, it is held that: “The servant of a railroad company injured by the negligence of fellow-servants must, to recover. damages from the company,show that he was in the exercise of ordinary care and diligence and without fault or negligence; that he did nothing to contribute to his injury, and neglected to do noth
In Georgia Railroad & Banking Co. v. Hicks, 95 Ga. 301, 22 S. E. Rep. 613, it is held that: “Negligence of the plaintiff, however slight, which contributes in an appreciable degree to the cause of the injury, defeats a recovery.”
In Bell v. Western and Atlantic R. R., 70 Ga. 566, it is held that: “Where a railroad employee sued the company for damages resulting from a defective hand-car, and the evidence for the plaintiff showed that he knew of the dangerous condition of the car, but nevertheless made use of it, such fact was fatal to his recovery.” The same case holds that it does not alter the case that the employee knowingly undertook to use a dangerously defective tool under the immediate command of a superior employee.
In Central Railroad and Banking Co. v. Kenney, 58 Ga. 485, it is held that: “A section-master in temporary charge of a hand-car must note such defects in it as are discoverable in the reasonable and ordinary exercise of diligence in the course of his duty, and decline or cease to use it if it be obviously unsafe; otherwise, he cannot recover for an injury to himself which his declaration alleges to have been caused, in part, by the defective character or condition of the car. If the defect in the car was such as to deceive human judgment, the company, as well as the plaintiff stands excused. And whatever diligence lie exercised in seeing to the apparent safety of the vehicle, goes to the credit of his employer, as well as to his oAvn credit.”
In Kenney v. Central Railroad, 61 Ga. 590, Judge BLECKLEY, delivering the opinion of the court, said:
The facts in the case last quoted from are quite similar to those alleged in the declaration before us, and, under those facts the court held that the plaintiff employee could not legally recover.
Applying the principles thus adjudicated to the case as made by the two counts of the plaintiff’s declaration we think that the declaration shows on its face that the plaintiff employee of the defendant company was at fault, and negligent in the discharge of the duties devolving upon him as foreman or assistant foreman in charge of the laborer on the hand-car whose alleged negligence caused the derailment whereby the plaintiff was injured. The first count bases the right of recovery upon the alleged negligent propulsion of the car by a co-employee who, according to the allegations of the declaration, was subject to the orders of the plaintiff as assistant foreman in command of the car. If he permitted such negligent propulsion of the car without promptly putting a stop to it, he was at fault for not so stopping it, and cannot recover for the resultant injurious consequences to himself.
The second count of the declaration bases the claim to recovery conjointly upon the alleged negligent propulsion of the car by the co-employee and upon the alleged
The judgment of the Circuit Court in said cause is hereby reversed, and the cause remanded with directions to sustain the defendant’s demurrer to the plaintiff’s declaration. The costs to be taxed against the defendant in error.