American District Elec. Protective Co. v. Seaboard Air Line Ry. Co.

• Decision Date: 25 July 1939
• Citation: 190 So. 820,139 Fla. 451
• Court: Florida Supreme Court
• Parties: AMERICAN DIST. ELECTRIC PROTECTIVE CO. v. SEABOARD AIR LINE RY. CO.

190 So. 820

139 Fla. 451

AMERICAN DIST. ELECTRIC PROTECTIVE CO. v. SEABOARD AIR LINE RY. CO.

Florida Supreme Court, Division B.

July 25, 1939

Rehearing Denied Sept. 12, 1939.

Error to Circuit Court, Duval County; DeWitt T. Gray, Judge.

Action by the Seaboard Air Line Railway Company against the American District Electric Protective Company for damages sustained by the plaintiff as the result of liability to an employee who was injured as the result of the alleged negligence of the defendant in failing to properly maintain wires of a signal system. To review a judgment for the plaintiff, defendant brings error.

Affirmed.

COUNSEL

Julian Hartridge, of Jacksonville, for plaintiff in error.

Fleming Hamilton, Diver & Jones, of Jacksonville, for defendant in error.

OPINION

PER CURIAM.

The declaration in effect alleges that plaintiff Railway Company and defendant Protective Company entered into a contract in writing under the terms of which, defendant was to inspect and maintain in good order and repair and to operate what is known as Central Station Manual Fire Alarm and Night Watchman's Signal Box Service, consisting among other things, of certain boxes and wire connections on the premises of plaintiff Railway Company; that it then became and was the duty of defendant to inspect and maintain such system, including said wire connections, and keep such system in such condition as to avoid injuring persons in or upon the premises of plaintiff Railway Company, and to indemnify and save plaintiff harmless from any damages growing out of failure to carry out any of the duties aforesaid; that defendant utterly disregarding and neglecting its duties aforesaid, did on May 25, 1926, carelessly and negligently allow the said system to become in disrepair and allowed one of the wires comprising such system to sag, of which it knew or in the exercise of ordinary care ought to have known whereby and as a proximate result of which, one of plaintiff's employees, W. E. Haskins, was knocked from the top of a freight car and injured, by reason whereof plaintiff has become liable to, and did on December 1, 1926 pay to the said W. E. Haskins $4,112.50, and the defendant thereupon became liable to pay plaintiff Railway company the said sum with interest from said date.

This is the third writ of error in this cause. The action is for a negligent breach by the plaintiff in error here of a contract between the parties herein, resulting in injury to the railway company's employee because of the sagging of defendant's wire stretched over the plaintiff's railroad tracks, the amended declaration being filed April 11, 1928. On the first writ of error it was held that:

'1. Generally, one joint tort-feasor cannot have contribution from another.

'2. Exception to rule prohibiting contribution among joint tort-feasors exists where they are not in pari delicto as to each other.

'3. Where contractor negligently failed to perform duty to maintain signal system located on railroad's premises, railroad could recover from contractor amount collected from railroad by virtue of master and servant relationship to one injured.' Seaboard Air Line Ry. Co. v. American Dist. Electric Protective Co., 106 Fla. 330, 143 So. 316, Headnotes 1, 2, 3.

On the second writ of error it was decided that:

'1. Res ipsa loquitur held applicable in action by railway company against protective company for breach of contract wherein the protective company assumed duty of installing, operating, and maintaining for railway company a watch and fire alarm signal system in good order, where it was established that wire over railway company's tracks was under exclusive control of protective company, that wire sagged, and that because it sagged it caused injuries to railway company's employee for which railway company was compelled to pay damages. * * *

'4. Where res ipsa loquitur was applicable in favor of plaintiff, but jury returned verdict on merits in favor of defendant, trial court properly entered order granting plaintiff a new trial. (Comp.Gen. Laws 1927, § 4615).' Headnotes 1, 4, American Dist. Elec. Protective Co. v. Seaboard Air Line Ry. Co., 129 Fla. 518, 177 So. 294.

On the last trial on the same amended declaration there was a plea of not guilty and a plea, filed January 10, 1934, averring:

'That the plaintiff carelessly and negligently propelled a freight car under the wire described in the declaration at a time when such wire had sagged and was in disrepair, of which fact plaintiff knew or in the exercise of ordinary care ought to have known, whereby and as a proximate result of which, one of the employees of plaintiff was injured, and whereby plaintiff became liable to and did pay to such employee the sum of $4112.50.'

The record proper shows that on November 18, 1937, prior to the last trial which was begun February 4, 1938, the defendant made a motion for permission to file the following additional plea:

'That this action is based upon a contract which is made a part of the Declaration as Exhibit 'A' and that this contract contains the following provision, to-wit:

"It is agreed by and between the parties hereto that the contractor is not an insurer, and that the rates hereinbefore named are based solely on the value of the service in the operation of the system described, and in case of failure to perform such service and a resulting loss, its liability hereunder shall be limited to and fixed at the sum of fifty dollars as liquidated damages, and not as a penalty, and this liability shall be exclusive.'

'That this Defendant now brings the said sum of Fifty ($50.00) Dollars together with interest from the beginning of this action and Court costs, the total amount being $100.00, into this Court and tenders and offers to pay the same into the registry of this Court for the use and benefit of Plaintiff and be paid to Plaintiff if it will accept the same.'

On November 18, 1937, the plaintiff objected 'to the proposed filing of the additional plea tendered by the defendant herein, on the following * * * grounds:

'1. * * * plea is not timely.

'2. * * * plea sets forth no defense to the cause of action herein sued upon.

'3. * * * Plea sets forth a provision of the contract existing between plaintiff and defendant which is not applicable to the cause of action herein sued upon.

'4. * * * Plea sets forth a portion of the contract between plaintiff and defendant which relates only to defendant's liability for failure of its wiring system to properly transmit messages, whereas the theory of plaintiff's case as set forth in the amended declaration...