Atlantic Coast Line R. Co. v. Chancey

• Citation: 76 So.2d 871
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY, a corporation, Appellant, v. H. D. CHANCEY, Appellee.
• Decision Date: 21 December 1954
• Court: Florida Supreme Court

Page 871

76 So.2d 871

ATLANTIC COAST LINE RAILROAD COMPANY, a corporation, Appellant, v. H. D. CHANCEY, Appellee.

Supreme Court of Florida, Special Division A.

Dec. 21, 1954.

Rehearing Denied Jan. 27, 1955.

Howell & Howell, Jacksonville, for appellant.

Bedell & Bedell, Jacksonville, for appellee.

BIRD, Associate Justice.

The appellee was plaintiff in the Circuit Court of Duval County and recovered a judgment against the appellant therein. He was the lead switchman on the switching crew No. 2 of the Atlantic Coast Line Railroad Company. His duties consisted of switching the industrial tracks of Wilson & Toomer Fertilizer Company.

Shortly after dark on February 12, 1952, the appellee and a fellow crewman, Lee, in line of duty, entered upon the loading platform of Wilson & Toomer Company. Lee waited on the platform while Chancey, the appellee, entered the box car then being unloaded by employees of Wilson & Toomer Company. He entered the car for the purpose of ascertaining whether the car was ready to be moved, and entered by way of a steel gangplank which had been placed upon the platform, slanting upward into the door of the car, by the employees of Wilson & Toomer Fertilizer Company. It was the duty of said employees of the fertilizer company to nail or secure the gangplank for safety as they had done over a period of years.

While Chancey was in the car making his inspection his co-worker, Lee, noticed that the gangplank was not secure. Lee notified the employee of Wilson & Toomer Company, who was about to enter the car with a hand truck, of the insecure condition of the plank and told him to fix it. Before the man could secure it, the plaintiff, who had completed his inspection, came out of the car, stepped upon the insecure gangplank and fell between the car and the platform, receiving injuries for which he sued both the Atlantic Coast Line Railroad Company and Wilson & Toomer Fertilizer Company.

After the suit was filed Wilson & Toomer Company paid the plaintiff $12,500 for a covenant not to sue and was dismissed and the suit continued against the Railroad Company. It is not contended that this covenant is a release or settlement of plaintiff's claim.

The gangplank and the platform belonged to the Wilson & Toomer Fertilizer Company and the men unloading the car were all its employees and they usually nailed or secured the gangplank. The plaintiff had never, to his knowledge, been over the gangplank when it was not fastened down and he did not know that it was not secure on this occasion. It appears that both he and his co-worker had flash lights at the time.

The action is brought under the Federal Employers' Liability Act; Title 45 U.S.C.A. § 51, the germane part of which reads as follows:

'Every common carrier by railroad while engaging in commerce between any of the several State or Territories, or between any of the States and Territories or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then the next of kin dependent...