83 Fla. 156 | Fla. | 1922
The defendant in error who ivas the plaintiff in the action in the Circuit Court was injured on April 5th, 1920, in the yards of the Atlantic Coast Line Rail'road Company at High Springs, Florida, through the negligence so it is alleged of an employee, a locomotive engineer, in the reckless and careless manner in which he .discharged his duties as such employee, which at the time of the injury consisted of shifting cars from one track to another. The plaintiff was an employee of the company, about fifty-eight years of age, had been furnished with employment by the company for many years in different positions in the operation of trains, and at the time of the injury was employed as “caller of engineers and firemen” when directed by other agents and employees of the company to do so. The duties of this position seemed to be that of a messenger, who when directed to do so would search in the town or among the shops and houses of the company for a, particular engineer or fireman scheduled to go on duty at a certain hour, and remind him of his duty, or inform him of the “call.”
The injury'occurred so it is alleged about nine o’clock at night, the plaintiff had been directed to “call” a certain engineer. He was discharging that duty, that is to say he was going upon or returning from that errand and ivas in the act of crossing the tracks of the company a little westward of the depot when he was run down by a ‘ ‘ car ’ ’ which was being switched from one track to another by' the method knoAvn as “shunting” or the “flying
The plaintiff was injured in April, 1920, the car struck him in the right side of his body and knocked him down. The injuries which he actually sustained seem to have been serious and painful. Several ribs were broken, and other internal derangements caused. It incapacitated him from work of any kind, and according to the testimony of a physician witness he would never recover. At the time of the injury the plaitniff was earning about one hundred and eight dollars per month, was fifty-eight years old, and according to his statement was in “good normal health.”
According to plaintiff’s theory the injury occurred in the following manner: The plaintiff was crossing the track at the point in defendant’s yard mentioned, about ten minutes past nine o’clock at night. A switch engine came toward him at high speed. At the place where he was standing there were several railroad tracks running parallel to each other and some connected by ‘ ‘ switches. ’ ’ The plaintiff stood where he was waiting until he could decide which track the engine would take, before proceeding upon his errand. . The engine passed, but a car which -was being switched by the engine by the method known as “snatching” was switched to the track upon which the plaintiff
The assignments of error argued by counsel for plaintiff in error may be grouped in four classes: The admission and rejection of evidence; the giving and refusing of instructions to the jury; the insufficiency of the evidence to support the verdict, and the excessiveness of the verdict.
Dr. M. H. DePass, a physician called by the plaintiff was asked by plaintiff’s counsel the following question: “The testimony is that this man was injured in a railroad collision in April, 1920, and that he was crushed and injured in and through his chest and back, and that he remained in bed from those injuries for a number of weeks, practically totally disabled for six weeks. He testified or admitted that some twenty years ago some question had arisen about his having some affection of the lungs, tuberculosis, by some physician of the Atlantic Coast Line, but that he never did have any consumption or affection in the lung; that he had a gravel or stone in his kidney or bladder some years ago. Taking that all in connection with the question as to the injuries, that he testified a number of his ribs had been broken at that time, and the resulting disabilities, to what, in your opinion, would the condition which you discovered be attributable?” Counsel for the defendant objected to the question upon the grounds:
His reply to the hypothetical question was as follows: “If this man whom I examined was a perfectly well man to all intents and purposes, able to do his work of labor, or whatever it might be, up to the time that he was injured, if he received a severe injury of the chest, thorax and spine, Avhich was immediately and continuously followed by bad health, confinement to bed and hospital treatment, without any intermissions or remissions, then I would naturally, as a physician, conclude that his present condition was very like and most probably a result of the injury. From my examination of him I conclude that he will never get well. From the conditions I have mentioned it is impossible for that lung to recover.”
The fact which counsel sought to ascertain by the hypothetical question was whether the plaintiff’s physical condition at the time he was examined by Dr. DePass was caused by the accident which occurred to the plaintiff in the month of April previous. The accident occurred on April 5, 1920. The witness testified in January, 1921, and said that he recently examined the plaintiff, whose condi
The answer of an expert witness to a hypothetical question must be given upon the basis of the facts stated in the question and without recourse to other facts within his own knowledge. See Fuller v. City of Jackson, 92 Mich. 197, 52 N. W. Rep. 1075; City of Wichita v. Coggshall, 3 Kan. App. 540, 43 Pac. Rep. 842; Link v. Sheldon, 136 N. Y. 1, 32 N. E. Rep. 696; Burns’ Ex’r. v. Barenfield, 84 Ind. 43. But the witness in this case not only declined to answer the question upon the basis of the facts stated, but had recourse not to facts within his own knowledge, but to an imaginary case of his own construction built in part from some of the facts embraced in the question, his deductions from conflicting evidence referred to in the question and in part from his imagination, and a case which had no basis
It is true that the facts recited in the question were not admitted, but it is not correct to say that it did not state a case applicable to the evidence which was then before the court, the case hypothesized in the question might be said to be one which accorded with a reasonable theory of the effect of the evidence although it did contain a defect which if it had been urged might have prevented the question being put to the witness and prevented what was no doubt a misleading answer and a hindrance rather than an aid to justice.
The rule which obtains in this State as to objections to the admission of evidence, is that the grounds of the objection must be specific and when objection is based upon and confined to particular grounds no other grounds of objection will ordinarily be considered. Again, where improper testimony is given in answer to a proper question, the remedjr is by motion to strike. See Carter v. Bennett,
No motion was made to strike the answer of the witness, but defendant’s counsel proceeded to cross-examine him. He was asked if the plaintiff had lung trouble as a matter of fact but not sufficiently advanced for him to be fully cognizant of it, would that fact affect the witness’ opinion as to the cause of the plaintiff’s lung condition? Objection was interposed to this question upon the ground that there was no testimony that the plaintiff had “lung trouble before the accident.” The objection was sustained and the ruling made the basis of the fourth assignment of error. The ruling was erroneous because, there was both in the evidence and the hypothetical question references to a physician’s statement testified to by the plaintiff, that he had “consumption” and that he was rejected as a member of the “Relief Department on account of lung trouble. ’ ’
The question was most pertinent and clearly within the rights of the defendant. The opinion of an expert is valuable only so far as it rests upon a given condition, the facts are assumed to be true. It is perfectly proper to ask
The first, second, fifth and seventh assignments of error are abandoned.
E. J. Bryson, a witness called for the defendant, was switch engine foreman and on duty when the plaintiff received his accident. This witness threw the swith when the car was shifted. He testified that the engine which was pulling the car had a headlight on each end. The engine passed over the switch into what was called the cut off. Immediately after its passage the switch was thrown so that the car following might be diverted toward another track referred to by the witness as track three. The witness stated that his attention was concenrated upon the switch so that he migh throw it at the proper time after the engine passed so as to divert the car which was following, and he could not say whether at that time one of the headlights of the engine was shining on the car, because his attention was concentrated at the switch. He was asked the following question: “Independent of that, from your knowledge of the track, and knowledge of the effect, would the headlight of the engine be obliged to be shining on the car?” The plaintiff’s counsel objected to the question upon the ground that the witness had answered that he
The witness had testified that the engine was backing toward the east with a ear attached to the front end of the engine on which there was a headlight. Two maps had been introduced in evidence showing the location of the switches at the point where the plaintiff was injured and these maps showed that the track lying between switch H and switches D and E ran in a straight line for the distance of approximately one hundred feet. The purpose of the question was to elicit information as to whether the headlight on the front end of the engine as it backed into the loop would necessarily shine upon the car which was following.
There was a plea averring that the plaintiff was familiar with the railroad yards, and familiar with the various tracks thereon and the movements and operations of cars from one track to another as circumstances might require, and that he carelessly and negligently attempted to pass over and cross one of the tracks in the railroad yard immediately in front of an approaching car which was in full view of the plaintiff. Upon this plea of contributory negligence the plaintiff presumably joined issue. The record does not disclose whether issue was joined upon that plea, but the presumption is that issue was joined upon it as the parties went to trial, which they could have done upon a joinder of issue. See Carlton-Moore Co. v. Vanderipe, 80 Fla. 512, 86 South. Rep. 346. It is perfectly evident that if the plaintiff had stepped off the track to avoid the engine and then stepped back upon the track in front of an
The plaintiff had testified that the car had no lights on it and that no warning or signal of any .kind was given, that he saw the engine approaching and that he stopped to see where it was going; whether it was coming on the track he was on, or whether it was going into the cut-off or one of the other tracks, and when he discovered that the engine was not coming on the track on which he was standing he stood there for a few moments and was struck by the car which was following the engine. Between this testimony and the testimony of the witness Bryson, there was an irreconcilable conflict because if after the car passed, the body of the plaintiff was seen at the point where the witness Bryson, who threw the switch saw it, that is to say about twenty feet west of that switch, the plaintiff must have been struck at a point at least seventy feet further west after he had stepped upon the track over which the engine had passed and upon which the car was following' because, if as he said, he was standing upon a track watching the approaching engine and was not hit by the engine, he could not possibly have been hit by the following car unless he stepped upon the track on which the engine passed, because at the point where he was struck the car followed upon the same track on which the engine passed. According to the testimony of the witness Bryson, therefore, the plaintiff must have stepped upon the track on which the engine passed, and almost immediately after it had passed. If the light from the engine shone upon the approaching car so that it was in full view of the plaintiff his act in stepping upon the track
The witness was an employee of the defendant corporation, was on duty at the time of the accident, as flagman and switch foreman, was familiar with the yards and location of the tracks, and was competent to testify whether a headlight on the front of the engine would be thrown upon an approaching car under the circumstances. It was shown that he had such special knowledge concerning the location of the tracks as to qualify him to testify as an expert upon the question of whether a headlight located upon the front of an engine backing eastward would be thrown upon a car following the engine upon the same track. The question was not excluded by the court in the exercise of a discretion as to whether the witness had or had not shown such special knowledge of the circumstances as to qualify him to testify as an expert, and under the circumstances we are not able to say that he did not have the requisite experience to answer the question. See Florala Saw Mill Co. v. Smith, 55 Fla. 147, 46 South. Rep. 332; Atlantic Coast Line R. Co. v. Crosby, 53 Fla. 400, 43 South. Rep. 318. We are of the opinion that the exclusion of the question was error.
The eighth and ninth assignments of error rest upon the court’s ruling sustaining objections to questions propounded by defendant’s counsel to the witness Gr. W.
This witness testified that he was operating the switch engine and made the flying switch in which operation the plaintiff sustained his injury. He testified that headlights were burning on both ends of the engine, one on the rear and one on the head. That the headlight on the front of the locomotive would have shone on the back of the box car at any point as it followed the engine between certain switches, and-that it did shine on the car all the way from where it was cut off between switches G and E to where the engine passed into the cut-off, and that any person standing on the side of the track could have seen the car following the engine. The testimony of this witness was the very information that was sought' to be elicited by the question propounded to the witness Bryson,, and which question and ruling thereon was made the basis of the sixth assignment of error. While we think there was error in the court’s ruling upon the question propounded to the witness Bryson, we think that the error was rendered harmless by the subsequent testimony of the witness Kelley, which was received without objection. See Chapter 6223, Laws of Florida, 1911, Sec. 2812, Revised General Statutes, 1920.
Mose Smiley, a witness for the defendant, testified that he was a switchman working in the yards of the defendant company the night that the plaintiff was injured, and that at the time of the injury he was at the switch*at No. 3 track. He saw the car in the headlight of the engine and. stood at his switch waiting for the car to arrive at No. 3 track. It stopped before it came to the track and the witness went up to where the plaintiff was injured. Both Mr. Bryson and Mr. Kelley were there supporting the plaintiff, who was on his feet. The witness was asked if Mr. Shouse made any statement at that time in the witness’ hearing. His reply was “yes.” Then followed the question: “As to how the accident occurred?” Objection to this question was interposed by counsel for the plaintiff, and the objection was sustained. The witness was then asked if Mr. Shouse made any statement as to a desire to continue the performance of his duties that night. Objection t.o
It is contended that any statement made by Mr. Shouse at that time immediately after the accident occurred and before he had moved away from the' spot where he was lying after having been struck by the engine constituted a part of the “res gestae” and was evidence original in its character. There is no merit in these assignments because it affirmatively appears from the record that whatever statements the plaintiff may have made under these circumstances, it was sufficiently long after the transaction as not to include the idea that they were not made under its influence. It does not appear from the record that his statements were made simultaneously with the injury, or that they occurred so quickly afterward as to exclude the presumption that they were the result of thought or design. See Lambright v. State, 34 Fla. 564, 16 South. Rep. 582. In that case this court speaking through Mr. Justice Mabry said that the tendency of the courts, seems to be in favor of applying the liberal rule upon the subject of what constitutes the res gestae; and said, however, that each case must of course depend upon its facts, and the trial court must exercise a sound discretion in determining whether the facts bring the offered evidence within the rule. No error is made to appear in this ruling of the court, who under the circumstances, deemed that the statement made by the plaintiff to the witnesses Smiley and 'Williams was a mere narration of a past transaction, without sufficient connecting. circumstances to characterize it as a spontaneous utterance or necessary incident of the transaction. If the statement made by the plaintiff at that time had been, as intimated
J. A. Watson was called as a witness in behalf of the defendant and testified that he was the general yard master of the Seaboard Air Line Railway Company at Jacksonville, and had been in that position for about ten months, before which time he was general yard master of the Jacksonville Terminal Company, and before that served in the same capacity with the St. Johns River Terminal Company. That he knew what a flying switch was and had seen cars switched in that manner. He was asked the following question: “State from your knowledge and experience, whether or not it was customary to make flying switches in the yards of the Seaboard Air Line, Jacksonville Terminal Company and St. Johns Terminal Company during the period of time that you mentioned you have been working in these several capacities.” Objection to this question was sustained. He was then asked the following question: “Are you acquainted with the usual and customary method of railroad companies in the matter of making up trains in their yards, with making up of trains, the shifting of cars in the yards, from one track to another, and if so, state what that custom is.” Objection to that question was sustained, and the two rulings constitute the bases of the fourteenth and fifteenth assignments of error. The record discloses that counsel stated
There was no error in the rulings made the basis of these assignments, because the issue presented was whether the defendant was guilty of negligence in making the switch under the circumstances alleged in the declaration and whether the plaintiff was guilty of contributory negligence. Whether it was the custom of railroad companies in making up trains and shifting cars to use the method known as the flying switch was therefore of no relevancy whatsoever, because the plaintiff was confined to the case made by his declaration, which was that the flying switch was made in a negligent and careless manner, and not that the making of the flying switch was per se negligence on the part of the defendant.
The twenty-second assignment of error - attacks the first charge given by the court upon the plaintiff’s request. It •is contended by counsel for plaintiff in error that certain language in the charge assumed negligence in the act of detaching the car, and that the jury could have gotten no other idea from the language of the instruction. We do not believe that the instruction given is obnoxious to the criticism made. It is true that the language might have been a little clearer, but it cannot be said that it was so involved as to mislead the jury. The court instructed the jury that if they believed from the evidence that the plaintiff in the discharge of his duties was crossing a track of the defendant and that while doing so “he was struck by a certain car of the defendant that had been carelessly and
We do not consider such to be the effect of the language. Juries are supposed to give to the words used in a charge their ordinary and usual meaning. They are not supposed to measure the language of the. court by those rules of grammar by which purity of diction, elegance of, speech and clearness of expression are tested, nor are they expected to parse every sentence in order to ascertain the exact relation of one word to another and draw from the language used the delicate distinctions which such analysis might develop, but they are supposed in a liberal and broad way to apply the language used to the case which they are considering, and the evidence offered in support of it. If they did this, they must have necessarily understood the court to mean that if the evidence showed that the car was negligently detached from the engine and that there was upon it no light and no warning or signal of its approach was given, that in such case the plaintiff was entitled to recover. That was the case presented by the first count of the declaration. The parties went to trial upon the issue tendered by the plea of not guilty and upon the issue of contributory negligence presented by the other plea. These were the questions which the evidence was offered to support and to refute, and it is reasonable to suppose that the jury so understood the ease, and so understanding it, they could not have supposed that the court
The charges numbered two and three are made the basis of the twenty-third and twenty-fourth assignments of error; and are attacked upon the same ground as that upon which the first charge was attacked. It is also argued that these charges were deficient in that they adopted the plaintiff’s theory of what constituted negligence on the defendant’s part as averred in the declaration. This argument is not very clear; nor can we perceive any merit in it. The case was tried upon the theory that the acts alleged in the declaration constituted negligence on the defendant’s part. The defendant conceded that the declaration was sufficient, because after assigning as error the court’s order in overruling the demurrer to the declaration which attacked its sufficiency, it abandons that assignment in this court, and we are not prepared to say that the declaration wholly failed to state a cause of action.
The court gave the'following charge: “A railroad corporation is liable in damages for injuries inflicted upon its employee, the plaintiff, caused by the negligence of the defendant, its agents and servants, as alleged in the declaration, unless the defendant shall make it appear that the defendant, its agents and servants have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the defendant.” The giying of this charge was made the basis of the twenty-fifth and twenty-sixth assignments of error. This charge was given under the authority of Section 2, Chapter 6521, Laws of Florida, 1913, Sec. 4972, Revised General Statutes, 1920, the language of which was modified in the charge to apply to the case being tried. The purpose of the Act and its effect was to narrow the fellow servant doctrine and re
The charge given contains two defects: First, it seems to assume that the plaintiff’s injuries were the result of negligence on the part of the defendant as alleged in the declaration, and dispenses with proof on the part of the plaintiff of any acts on the part of the defendant or its agents showing or tending to show at least a prima facie case of negligence; second, the charge asserts that the pre
At the request of the defendant’s counsel the court instructed the jury that “railroad-companies are not responsible for accidental injuries not resulting from their own negligence, and when an accident occurs, which is not caused by failure to exercise all ordinary and reasonable care on the part of the defendant, its agents or servants, then no liability exists.” The court also instructed the jury that an “employee, in the performance of his duties, is bound to exercise ordinary care for his own safety, or that degree of care which prudent persons usually exercise under similar circumstances; and if he is injured solely by failure of himself to exercise such care, the railroad company is not liable, and you should find the defendant not guilty.” In the first, second and third charges given by the court at the plaintiff’s request the court definitely instructed the jury that if they believed from the evidence
Following the order in which the assignments of error are discussed in the brief of counsel for .plaintiff in error, we recur now to the sixteenth assignment, which rests upon the refusal of the court to give to the jury a charge upon the doctrine of the assumption of risk. The charge was not applicable to the case, because, as stated above, it was controlled by Chapter 6521, supra. See Atlantic Coast Line Ry. Co. v. Holliday, supra; Charlotte Harbor & N. Ry. Co. v. Truette, supra.
The seventeenth assignment of error rests upon the court’s refusal to give a charge embracing the doctrine of the assumption of risk, and undertakes to point out that under the peculiar circumstances under which the accident occurred, the place being in the yards of the railroad company, the defendant was not required to give the same warnings of the movements of trains or cars as it would be required to do at places where the general public have a right to pass, and that employees having knowledge of the manner and method of the movement of cars in the yards of the defendant, would assume the risk of their employment incident to their duties which required them to pass over the tracks of the company in the yard, and to the business of the company which required the use of such tracks.
While it is undoubtedly true that a person incurs a greater risk in undertaking to cross the tracks of a railroad company in the latter’s yards where the business of shifting cars must necessarily be carried on, and should therefore exercise a greater degree of prudence and eau
The eighteenth assignment rests upon the court’s refusal to give the fifth instruction to the jury requested by the defendant. This instruction in substance advised the jury that while it would constitute negligence on the part of the company to move its detached cars across public streets or highways where the general public have a right to pass, by the process known as shunting or flying switches, without giving due warning, such method does not constitute negligence on the company’s part when the movement of .cars is made by such methods in the company’s yards, and in the latter ease the company would not be required to put a light on the car, or a man upon it, to handle such detached cars, or to take such other precautions as would be required in moving the cars across public streets or highways where the traveling public
The defendant went to trial upon the plea of not guilty, and the further plea that the plaintiff by his own carelessness in attempting to pass Over the defendant’s tracks in front of an approaching car which was in his full view, or which he could have seen or heard by the exercise of the proper care and caution on his part, brought the injury upon himself, or contributed to such injury. The charge was also misleading in view of the evidence in the case, and of very, doubtful applicability to the evidence, even if it announced a correct proposition of law, because it is not disputed that the point at which the defendant was injured was a place over which several hundred of the defendant’s employees passed to and fro daily. In so far as it was a point of ingress and egress to and from the defendant’s shop yards, and was so used with the defendant’s knowledge, it was to thg,t extent a place where the people who so used it had a right to pass. The charge practically amounted to a direction to the jury to return a verdict for the defendant because it in substance declared that the defendant was without negligence in shifting the ear which resulted in the plaintiff’s injury. See Atlanta & St. A. B. R. Co. v. Kelley, 77 Fla. 479, 82 South. Rep 57; Stinson v. State, 76 Fla. 421, 80 South. Rep. 506; Clark v. United Grocery Co., 69 Fla. 624, 68 South. Rep 766. ¥e are not prepared to say that the declaration
The court was requested by defendant’s counsel to instruct the jury that as a matter of law a railroad track is, of itself, a warning of danger, and that it is the duty of a person, before crossing the same, to look and listen for approaching engines or ears, to ascertain whether or not any were coming upon the railroad track, before attempting to cross the same, and that it is negligence not to do so. That if the jury believed from the evidence that the plaintiff attempted to cross the track without looking, and that by so looking he could have observed the approaching car in time to have avoided the accident, that such failure to look was the proximate cause of the accident, and the jury should find for the defendant. There was no error in the refusal to grant this charge-, because it was in substance covered by a charge given to the jury at the defendant’s request, to the effect that the plaintiff was bound to exercise ordinary care for his own safety, or that degree of care which prudent persons usually exercise under similar circumstances, and that if the plaintiff was injured solely by his failure to exercise such care, the defendant would not be liable. The requested charge was
The seventh charge requested by the defendant and refused by the court was as follows: ‘ ‘ The court further charges you that if you believe from the evidence, that the detached car could have been observed by the plaintiff as it was approaching the place where he attempted to cross over the track, either by a light in the yard or from the headlight of the engine, or otherwise, by looking in the direction from which such car was coming, that he failed to so look in that direction, and heedlessly attempted to cross the track immediately in front of such moving car, and that such attempt to cross the track was the proximate cause of the accident, he is not entitled to recover, and you should find the defendant not guilty.” The refusal to- give this charge is the basis of the twentieth assignment of error.
The charge definitely and clearly stated the defendant’s case of contributory negligence on the plaintiff’s part as averred in the second plea. It was applicable to the evidence and covered by no other instruction given by the court. The plea averred that the plaintiff with full knowledge that cars might be expected to be found moving over the tracks in the railroad yards, recklessly, carelessly and negligently attempted to pass over and across .one of the tracks in the said yard immediately in front of an approaching and moving car in full view of the plaintiff, or which he could have heard or observed by the exercise
The refusal to give this charge was a refusal to submit the defendant’s case to the jury as it had been made by the second plea and supported by evidence offered in its behalf. The refusal to give this charge was more than prejudicial error; it was the denial of a fair trial to the defendant; it was a refusal to submit its side of the case to the jury for consideration; it was a denial of the equal protection of the laws. It needs no citation of authority to support the proposition that the defendant’s caseras made by its second plea, which was a valid one and supported by evidence, should have been submitted to the jury. The averred carelessness of the plaintiff in attempting to cross the track under the circumstances, was the defendant’s principal defense. Evidence was offered in support of it. The defense found its justification in the testimony of "numerous witnesses, the blue prints showing the location and plan of the yards, and the tracks and switches of the defendant company, and in a large part in the testimony of the plaintiff himself. In behalf of the defendant in error it is contended that the charge was not warranted by the evidence. In this regard the plaintiff’s counsel is mistaken. It is contended by the defendant in error that the charge would tend to give the jury a wrong impression of the law applicable to the case, that is to say, ‘ ‘ overlooking the precautions and care required of defendant in running its trains over a crossing used by the general public.” The answer to that criticism is that the plea expressly set up the defense of contributory negligence by the plaintiff which was the proximate cause of his injury, and upon that plea the plaintiff took issue and went to trial. See Seaboard Air Line Ry. Co. v. Tomberlin, 70 Fla. 435, 70 South. Rep. 437; Western Coal & Mining Co.
The remaining assignment of error rests upon the refusal of the court to grant the motion for a new trial. The first ground of which was that the verdict of the jury was against the evidence and without sufficient evidence to support it, and the second ground discussed was that the verdict of the jury was excessive in amount.
While there was perhaps sufficient evidence to justify the jury in finding that the defendant was not without negligence in shifting the car which resulted in the plaintiff’s injury, yet the evidence is almost convincing beyond the point of controversy that the plaintiff was also negligent, if not solely responsible for the injury which he sustained, and although we would not, upon the first ground of the motion for new trial, set aside the verdict, we would, if there were not other errors in the case, hold that the verdict was excessive. Mr. Justice Taylor and the writer are of opinion that the judgment should be reversed for the error pointed out. The other members of the court do not concur on this point.
On December 5, counsel for plaintiff in error moved the court to order and direct that the judgment of the court below be set aside and vacated, and the plaintiff’s action in the lower court be dismissed upon thé ground that the defendant in error had departed this life since the suing out of the writ of error and the filing of the briefs by the respective parties. The information of the death of the defendant in error was contained in no other document
An injury caused by tbe running of a railroad locomotive and car is not controverted. Tbis case appears to come within tbe purview of tbe Act of 1913, Section 4973, Revised General Statutes, 1920. While tbe plaintiff and tbe persons who operated the engine and car that did the injury, were all employees of tbe defendant railroad company, yet tbe plaintiff and such other employees were not “jointly engaged in performing tbe act causing tbe injury,” therefore upon a prima facie showing of negligence as alleged, tbe plaintiff was entitled to recover “damages for injuries inflicted upon” him, unless
If the second plea on which the requested seventh charge was predicated,' sought to tender an issue of assumed risk, it was forbidden by the statute, (Sec. 4, Chap. 6521, Acts of 1913, Sec. 4974, Rev. Gen. Stats. 1920), and if it tendered an issue of contributory negligence, it was not a plea in bar, but in reduction of recoverable damages.
The plea avers that with full knowledge of the stated
A plea that the injury was caused solely by .the plaintiff’s own negligence is immaterial as that may be shown under the general issue. Louisville & N. R. Co. v. Yarborough, 61 Fla. 307, text 308, 54 South. Rep. 462; Seaboard Air Line Ry. v. Rentz & Little, 60 Fla. 449, 54 South Rep. 20; A. C. L. Ry. v. Crosby, 53 Fla. 400, 43 South. Rep. 318.
If the refused requested charge No. 7 on the legal effect of plaintiff’s asserted negligence, if proven, is correct as matter of law and was not fairly covered by charge No. 3 or other charges given, the evidence as to the plaintiff’s negligence was not a proper predicate for the charge as framed; and even if it was error to refuse the charge, it was not necessarily harmful since there was affirmative evidence of negligence on the part of the defendant that proximately contributed to the injury, which under the statute warranted a recovery even though negligence of the plaintiff required the damages to be reduced in proportion as the plaintiff was negligent.
The errors pointed out go more to the damages than to the liability, and were not fundamental or necessarily harmful to the defendant. Conceding negligence by the plaintiff that appreciably and proximately contributed to his injury, yet as the plaintiff was not jointly engaged with other employees in operating the train, and as the defendant’s negligence as alleged and consequent liability in damages appeared prima facie and was not clearly negatived by the evidence, a proper disposition appears to be a privilege of remittitur.
Otherwise the judgment shall stand reversed.
It is so ordered.