29 Fla. 636 | Fla. | 1892
The first error assigned is the overruling of defendant’s demurrer to the declaration. There is no error in the decision of the court overruling this demurrer. The declaration in substance alleges that the defendant corporation unsafely and negligently loaded a certain car upon its railroad with railroad iron so that the bars projected a considerable distance over the end of said car, and that defendant negligently received and accepted said car for coupling and transportation ; that said car was in an unsafe condition and unfit for the purpose of coupling, which was well known to said
The defendant cannot under a demurrer to this declaration avail itself of an exemption from liability on the ground that it is not chargeable with the acts of plaintiff’s fellow-servants. The declaration does not disclose what class of servants of defendant performed the acts alleged to have caused the injury. The averment is that the defendant loaded and accepted the car, and not only so, but it is alleged that the defendant negligently loaded and accepted the car for coupling and transportation. The demurrer admits these allegations to be true, and if true, they show a cause of
Various assignments of error are predicated upon exceptions taken to instructions given for plaintiff, and refused to defendant, in the trial court. Before considering these assignments of error we will refer to the testimony on the point of defendant’s liability. The plaintiff, at the time of the accident, was employed by the defendant company as brakeman on one of its freight trains. His account of the occurrence is as follows : “On November 26th we were backing down on the side track to get at a car of. iron. They gave me the keys and told me to get out that car, and just as he gave me the keys he said ‘I will go myself.’ I was on one side and he on the other side ; we both came down to the switch, and when we came to the switch I jumped off to let the engine in, and we went back by the main line' and against the car to couple on. He hallooed to the engineer to come back, and the engineer came back very carefully, but being dark I could not see at all till I got up to the car. When I got up to the car, it came back and crushed me down and I did not know anything more.” The testimony shows that the defendant company, at the time of the injury, was engaged in extending its ráilroad beyond the point of the accident, and the freight train on which plaintiff was employed as brakeman was daily hauling cars loaded with lumber and iron to a point near where the road was being constructed. On the day of the accident a flat car was loaded with railroad
Among other charges for the plaintiff, the Circuit Judge instructed the jury as follows : “If you believe from the evidence that a car of railroad iron was loaded under the direction and supervision of a conductor of a construction train charged with that duty by the defendant railroad company, and that the same was loaded so that the bars of iron projected over the end of the car, and that with ordinary care in loading, such jjrojection would have been obviated, and that in such condition it was, under the direction of such conductor, placed on a track of defendant’s railway for the purpose of being transported by a freight train of defendant’ s railroad company, and that the plaintiff was a brakeman on said freight train, and that in obedience to the orders of the conductor of said train he proceeded in the night time with due care to couple said cars and was injured by said iron projecting over said car, without fault on his part, while attempting to couple said car, then your verdict should be for the plaintiff.”
By referring to the declaration it will be seen that plaintiff bases his cause of action upon the alleged negligence and default of defendant in loading a car with railroad iron so that the. rails projected over the end, and in receiving said car for coupling and transportation in an unsafe and unfit condition. If the declaration can be construed to allege any defect or imperfection in the car other than the way in which the iron was placed on it, it is clear from the evidence that no such defect was shown either in the car or any other machinery or implements with which plaintiff was em
There are two cases in Iowa which hold a different doctrine ; one is in the case of Hough vs. Chicago, R. I. & P. Ry. Co., 73 Iowa, 66 ; 35 N. W. Rep., 116, cited by counsel for appellee, and the other is reported in 36 Iowa. It appears that they have a statute in this State imposing liability upon railroad corporations for all damages sustained by any persons, including employes, in consequence of any neglect of its agents, or mismanagement of any of its employes. How far these decisions have been influenced by the statute does not appear, as the decision in Hough’s case makes no reference to any statute.
In the case at bar the plaintiff was twenty-eight years old, and an experienced brakeman. The train on which he was employed was engaged daily in hauling cars loaded with railroad iron and lumber for railroad construction. The conductor testified that it was very common for the iron and lumber to project over the ends of the cars. The plaintiff admits the train was daily hauling lumber and iron, but says he never saw any before the accident projecting over the ends of the cars. Under the charge of the coui't to the jury, they were precluded from finding that the injury re-
The second instruction was alsó calculated to mislead the jury in considering the real question involved in the case. • In so far as this charge can be construed as a direction to the jury that the coupling of a car loaded with iron projecting over the end is not such a danger and risk as ordinarily appertain to plaintiff’s employment, it would not differ from the first charge considered. In our opinion, however, the second charge changes the basis of a verdict from that presented in the first, and puts it upon the action of a superior officer with knowledge of an extra hazardous coupling, directing the plaintiff, who was a brakeman without knowledge of the extra danger, to make the coupling in the night time without informing him of this danger. This instruction directing the jury that if plaintiff was injured, without .fault on his part, by railroad iron jjrojecting over the end of the car which he was attempting to couple in the night, in obedience to the orders of a superior who knew the danger, and-which was not known to plaintiff, then the risk in coupling the car was one not ordinarily incident to plaintiff’s employment. The negligence of defendant, upon which plaintiff relied in his declaration, was in loading a car with railroad iron projecting over the end, and in receiving such car for transportation. The jury was directed to find for plaintiff if they believed
The judgment of the court below is reversed, and a new trial awarded.