Adams v. Seaboard Coast Line R. Co., Q-467

• Decision Date: 26 April 1973
• Docket Number: No. Q-467,Q-467
• Citation: 277 So.2d 578
• Parties: Alvin ADAMS, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY, a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 578

277 So.2d 578

Alvin ADAMS, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY, a corporation, Appellee.

No. Q-467.

District Court of Appeal of Florida, First District.

April 26, 1973.

Rehearing Denied June 7, 1973.

Alan R. Schwartz of Horton, Schwartz & Perse, and Beckham & McAliley, Miami, for appellant.

J. Edwin Gay of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellee.

POWELL, J., Associate Judge.

Appellant, as plaintiff below, brought and tried this action under the Federal Employers' Liability Act. At the conclusion of the plaintiff's case, defendant moved for a directed verdict and the trial judge reversed ruling permitting the cause to go to the jury. The jury found for the plaintiff. Subsequent thereto, the appellee, who was defendant below, moved for the entry of a judgment in accordance with its motion for directed verdict, or in the alternative for a new trial. The motion contained a number of grounds, three of which are material, namely: (1) The verdict is contrary to the law. (2) The verdict is contrary to the evidence. (4) The plaintiff was the sole cause of his own injury. The trial judge granted the motion and entered a judgment, notwithstanding the verdict, on the aforesaid grounds 1, 2 and 4 thereof.

This appeal ensued and the sole issue is whether or not the trial judge erred in granting the judgment notwithstanding the verdict. Inherent in this question is whether or not the evidence supports a conclusion that the appellee was negligent and if so, did this negligence, in whole or in part, contribute to appellant's injury. The basic facts are as follows.

The appellant had been employed by the railroad since 1924 and as a car inspector at the Albany, Georgia, yard since 1926. He was 63 years old and for several years prior to the accident had worked the 'graveyard shift.' When reporting to work, he usually parked between tracks 10 and 11 and walked across the tracks to the car inspectors' shack between tracks 7 and 9.

Track 9 is a 'repair' track and cars placed on this track at night were left coupled until separated for the daytime crew to make repairs; the purpose of separating the cars being to facilitate the work of the repairmen in moving their equipment and tools between and around the cars.

On January 23, 1971, appellant, upon arriving at work, parked his automobile between tracks 10 and 11 as usual. To reach the car inspectors' shack, he had the option of climbing between the coupled cars on track 9 or walking around the end of them which necessitated walking about 7 or 8 freight car lengths to the last car and back on the other side the lengths of the said 7 or 8 cars to the inspectors' shack. He elected to climb between the cars which he did without incident.

About 5:30 a. m. appellant and an apprentice-workman rode in appellant's car to a restaurant for a coffee-break. In going after his car, appellant climbed between two coupled cars on track number 9 to reach his automobile. Upon returning, he again parked in the customary place and he and the apprentice proceeded toward the inspectors' shack. Appellant again elected to climb between the cars on the repair track and in doing so, raised and struck his head on the brake platform and three days later suffered a stroke. Appellant testified that he had been climbing between cars in a similar fashion 35-40 times a week for 44 years without incident or injury of any kind. Appellant was aware that each car had a brake platform and stated that he did not slip, but explained the accident by stating that in climbing between the cars, he took hold of the hand brake rod, put his foot on the left lever and when he pulled up, he pulled up too hard and struck his head. Under the Federal Employers' Liability Act, an employer is liable to its employees '. . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.' 45 U.S.C.A. § 51.

Appellant strongly argues that there is absolutely no question that the jury was entitled, under the applicable law, to conclude that the defendant's negligence played a part in causing the injuries sustained by the plaintiff. The plaintiff is eminently correct in stating that proof of employer's negligence has been reduced almost to the vanishing point by recent decisions of the U.S. Supreme Court. Atlantic Coast Line Railroad Company v. Barrett, 101 So.2d 37 (Fla.1958); Rogers v. Missouri Pacific Railroad Company, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957).

The sole test in these cases has evolved to the issue of whether any negligence of the employer plays a part, however slight, in causing the injury. If the employer is free of negligence, he is free of liability. There can be no liability if there is no negligence.

We think the case of Loftin v. Joyner, 60 So.2d 154 (Fla.1952), is applicable to the case at bar. In that case the plaintiff had been a switchman for over 10 years and at the time of his injury, he was working in spotting cars along side of a shed. In climbing up a ladder on the side of a stationary freight car for the purpose of setting the hand brake, as he reached the top of the ladder, he struck his head on a gutter which ran along the edge of the roof of the freight shed. He had performed this duty on numerous occasions and was thoroughly familiar with the location of the roof and gutter and with the fact that the clearance between the top of the freight car and the gutter was close. In holding that the trial judge should have granted the defendant's motion for a directed verdict, our Supreme Court said:

'. . . We hold in this case that the Railway Company was not negligent because it did furnish a safe place in which the employee carried out his ordinary and customary duties and there was no unusual circumstance disclosed by the transcript of record which might reasonably be calculated to change an ordinarily safe place to work into a dangerous and unsafe one. Indeed, we are constrained to agree with counsel for appellant that 'the only thing abnormal about the particular movement in question was the manner in which Joyner performed it.' We hold that Joyner's negligence was the sole proximate cause of his injury for he rushed...