RAILWAY EXPRESS AGENCY, INC., а Corporation, Petitioner, v. Haskell V. FULMER, Respondent.
No. 38091.
Supreme Court of Florida
November 12, 1969
227 So. 2d 870
S. Perry Penland, Jacksonville, for respondent.
BOYD, Justice.
This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, First District, reported at 215 So. 2d 48.
Petitioner wаs defendant below in a suit for personal injuries received by plaintiff, respondent herein, while working at a conveyor belt sorting packages. The cause of action came within, and was governed by,
Defendant on pre-trial conference moved the trial court to exclude any testimony at the trial regarding “the occurrence of other accidents on othеr conveyor systems on defendant‘s premises not at the precise place at which plaintiff‘s accident occurred * * *” on the ground that such evidence was irrelevant, immaterial and hearsay. Thе trial court granted the motion.
At the trial, defendant was permitted to elicit evidence from plaintiff and other witnesses that no one else had been injured at the particular place where plaintiff‘s injury occurred. Plaintiff testified that he had been doing the same type of work at the same place where he was injured for more than seventeen years without prior injury.
“The persons mentioned in
§ 769.01 [persons engaged in hazardous occupations] shall not be liable in damages for injuries to their agents and еmployees, or for the death of such agents and employees, where same is done by their consent, or is caused by their own negligence. If the employees or agents injured or killed, and the persоns mentioned in§ 769.01 , or their agents and employees are both at fault, there may be a recovery, but the amount of the recovery shall be such a proportion of the entire damages sustained, as thе defendant‘s negligence bears to the combined negligence of both the plaintiff and the defendant; provided, that damages shall not be recovered for injuries to an employee injured in part thrоugh his own negligence and in part through the negligence of another employee, when both of such employees are fellow servants, where the former and latter are jointly engaged in performing thе act causing the injury and the employer is guilty of no negligence contributing to such injury.” (e.s.)
The italicized portion of the above-quoted statute was inadvertently omitted by the trial court when the instructions were read to the jury.1 Thus, the comparative negligence feature of the statute allowing apportionment of damages was not read to the jury. The jury retired and the following colloquy occurred between the Court and Mr. Penland, attorney for the plaintiff:
“THE COURT: Any objections to the charges as given, Counsel?
“Mr. PENLAND: Your Honor, I believe you noted an objection to each charge —
“THE COURT: Oh yes. I said any additional objections.
“Mr. PENLAND: None other than what I made before.”
The jury returned a verdict for defendant. Failurе to charge on the complete statute and the exclusion of evidence relating to other accidents, were grounds of plaintiff‘s motion for new trial, which was denied.
On appeal; the District Court rеversed and remanded for new trial, holding: (1) that it was error for the trial court to exclude evidence as to other accidents happening “at other places on the conveyor line“; and (2) that plaintiff was prejudiced by the failure of the Court to give an instruction covering the complete statute.
Defendant‘s petition to this Court alleges conflict between the decision of the District Court and a numbеr of cases, particularly Butler v. Watts.2 In Butler, a suit for personal injuries under the Federal Employer‘s Liability Act, the trial court inadvertently omitted the last sentence in reading a charge to the jury. The charge in question dealt with comparative negligence and the omitted sentence was: “However, you must reduce any award you may make by the amount that the negligence, if any, of the plaintiff contributed to his injury.” On appeal, the District Court held that defense counsel‘s objection after the charges were read to the jury did not sufficiently inform the Court of its error and the judgment was affirmed.
Under the Butler holding, plaintiff in the instant case would be unable to аssign as error the trial court‘s omission of the last
We recognize the general rule requiring error be preserved by proper objection made at the time the error occurs.3 Exceptions have been recognized, however. An inаpplicable charge on res ipsa loquitur was given in Tampa Transit Lines v. Corbin.4 This Court held that the rule requiring objection at the time a charge is given did not apply where the party had no prior knowledge that the charge had been requested and no opportunity to object because conference on instructions was not held.
In Louisville & Nashville Railroad v. Flournoy,5 the trial court, without prior notice to the parties, erroneously charged the jury on the statutory presumption of liability of a railroad. The District Court of Appeal, First District, hеld that under the circumstances, failure of counsel to object at the time the charge was given did not prevent assignment of the charge as error on appeal.
The case of Wofford Beach Hotel, Inc. v. Glass,6 involved an instruction inadvertently given after the trial Court indicated that it would not be granted. The District Court stated:
“Objection to the inadvertently given instruction was not preserved which would usually preclude review of the matter on appeal * * * Nevertheless, we hold that an errоneously given instruction based upon the introduction of an inapplicable ordinance was such fundamental error that a fair trial could not have resulted and a new trial must be granted.”
The Corbin, Flournoy and Glass cases all support the holding of the District Court herein, since they involve fundamental errors in instructions made by the Court without prior notice to counsel.
In the instant case the Court and parties had a conference on instructions at which time objections were made and the Court announced what charges it would give. This is the extent of the procedure contemplated under
The District Court in the instant case also ruled that on remand evidence of “other accidents of a similar nature happening at other places on the conveyor line” should be admitted. This holding must be modified. The evidence proffered of an alleged prior accident involving a woman employee was
Evidence of the occurrence or nonoccurrence of prior accidents is admissible only if it pertains to the use of the same type of appliance or equipment under substantially similar conditions.8 In Chambers v. Loftin9 plaintiff injured his hand while оperating a power saw in defendant‘s shop. This Court held admissible “[evidence of] prior accidents at the identical saw table in the same shop and not remote in time.”10 stating the rule as follows:
“It is well settled that evidence of prior or subsequent similar accidents at or near the same place are admissible if they are not too remote in time, for the purpose of showing the dangerous character of the place and defendants’ knowledge thereof.”
Plaintiff in the instant case seeks to recover for the alleged negligent failure of the employer to provide adequate safety devices on the сonveyor at which he was injured. There was evidence that the belt on the conveyor system in question was chain propelled, that rectangular slats formed part of the conveyor and that the roller part of the conveyor had one dead roller between each two live rollers. These facts distinguished the conveyor where plaintiff was injured from the other conveyor systems on defendant‘s prеmises. The differences may be immaterial to the particular hazard here involved. Plaintiff, however, has failed at this point to establish substantial similarity between the conveyors in question and has not profferеd direct evidence of any prior accident. If on retrial, these deficiences can be corrected, the evidence should be admitted.
Accordingly, the decision of the District Court is affirmed as modified and the cause remanded for further proceedings consistent herewith.
It is so ordered.
ERVIN, C.J., THORNAL and CARLTON, JJ., and WALDEN, District Court Judge, concur.