Atlanta & St. Andrews Bay Ry. Co. v. Pittman

• Decision Date: 14 January 1938
• Citation: 130 Fla. 624,178 So. 297
• Parties: ATLANTA & ST. ANDREWS BAY RY. CO. v. PITTMAN.
• Court: Florida Supreme Court

178 So. 297

130 Fla. 624

ATLANTA & ST. ANDREWS BAY RY. CO. v. PITTMAN.

Florida Supreme Court, Division A.

January 14, 1938

Error to Circuit Court, Jackson County; E. C. Welch, Judge.

Common law action by Henry Pittman against the Atlanta & St. Andrews Bay Railway Company to recover damages for personal injuries sustained by plaintiff while employed by defendant. Judgment for plaintiff, and defendant brings error.

Affirmed on condition of remittitur.

COUNSEL Arthur G. Powell, of Atlanta, Ga., Carter &amp Pierce, of Marianna, and Thomas Sale, of Panama City, for plaintiff in error.

John H Carter and John H. Carter, Jr., both of Marianna, for defendant in error.

OPINION

TERRELL, Justice.

Henry Pittman, the defendant in error, brought a common-law action against Atlanta & St. Andrews Bay Railway Company to recover damages for personal injuries. The declaration was in one count and alleged in substance that the plaintiff was a common laborer in the employment of the defendant, that while so employed he was riding in a gondola freight car loaded with steel rails and pulled by a locomotive driven by an employee of defendant who so negligently and carelessly operated said train that the car in which plaintiff was riding was given a sudden and unexpected stop and violent jolt, thereby jarring and throwing one of the steel rails on plaintiff's right foot, holding it pinned underneath until said rail could be lifted from his foot by the other workmen, by reason of which plaintiff became permanently disabled and incapacitated in his right foot, besides having his foot crushed and suffering great pain and agony of body and mind.

A demurrer to the declaration was overruled, pleas were filed and a demurrer thereto was sustained except as to the first and fourth pleas, and on the issue made by them the cause went to trial resulting in a verdict and judgment for $750. Motion for new trial was denied, and final judgment was entered to which writ of error was prosecuted to this court.

It is first contended that the plaintiff should not be allowed to recover because he was a fellow servant 'jointly engaged in performing the act causing the injury' with the engineer on the work train and that there was no negligence on the part of the railway company contributing to the injury. Ingram-Dekle Lumber Co. v. Geiger, 71 Fla. 390, 71 So. 552, Ann.Cas.1918A, 971; Parrish v. Pensacola & A. R. Co., 28 Fla. 251, 9 So. 696; and Duval v. Hunt et al., 34 Fla. 85, 15 So. 876, are relied on to support this contention.

Fellow servant are those jointly engaged in performing the act causing the injury. The fellow servant rule as applied under the common law was modified and restricted by section 7060, Compiled General Laws of 1927, to provide that damages may not be recovered for injuries to an employee caused in part by his own negligence and in part through the negligence of another employee when both are fellow servants and are jointly engaged in performing the act causing the injury and the employer is in no way guilty of negligence contributing to the injury. The cases relied on by appellant are not all together harmonious on the question of who are fellow servants. In Ingram-Dekle Lumber Co. v. Geiger, supra, the majority opinion very much limited the scope of this doctrine.

In Ingram-Dekle Lumber Company v. Geiger, supra, we were concerned with a steam railroad owned and operated by a sawmill, but we held that it was not a railroad as contemplated by the hazardous occupation statute, chapter 6521, Acts of 1913, section 7058 et seq., Compiled General Laws 1927. The interpretation of ...