Atlantic Coast Line R. Co. v. Mcintosh
| Decision Date | 04 October 1940 |
| Parties | ATLANTIC COAST LINE R. CO. v. McINTOSH. |
| Court | Florida Supreme Court |
Rehearing Denied Nov. 4, 1940.
En Banc.Error to Circuit Court, Duval County; Bayard B. Shields, Judge.
Action under the Federal Employers' Liability Act, 45 U.S.C.A §§ 51-59, by Menardie L. McIntosh against the Atlantic Coast Line Railroad Company for personal injuries resulting from alleged negligent operation of a train. To review an adverse judgment, defendant brings error.
Affirmed.
John B. Sutton, of Tampa, and Charles Cook Howell of Jacksonville, for plaintiff in error.
Evan Evans, of Jacksonville, for defendant in error.
In this case Mr. Justice BROWN has written an opinion in which the controlling principles of law involved herein are discussed and we concur in the reasoning and conclusions reached in that opinion, except as to requested charge No. 5 given as instructions to the jury by the court on request of plaintiff. The charge is fully quoted in Mr. Justice BROWN'S opinion and it is not necessary to re-state it here.
Our conclusion is that the charge correctly stated the rule of law and that although it appears that the same principle was enunciated in the general charge of the court, it did not constitute reversible error for the court to give the requested charge.
We know of no rule which precludes a trial judge from instructing the jury concerning a particular legal principle and in doing so stating the correct principle in two or more different phrases.
It appears to us that the cases sighted in the opinion by Mr. Justice BROWN sustain our view in this regard. Therefore, we reach the conclusion that the judgment should be affirmed.
It is so ordered.
Affirmed.
TERRELL, C.J., not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
This action was brought by the plaintiff, Menardie L. McIntosh against the Atlantic Coast Line Railroad Company, to recover damages for personal injuries resulting from the alleged negligent operation of a railroad train belonging to the latter, operated by its servants, and engaged in interstate commerce, the plaintiff being then employed by defendant in such commerce. It is admitted that the provisions of the Federal Employers' Liability Act govern, 45 U.S.C.A., § 51-59.
The pleas were the general issue and assumption of risk. The argument presents five grounds insisted upon as error to reverse: (1) The verdict is contrary to the weight of evidence; (2) the jury could not presume both that the engineer backed the train and that he backed it negligently; (3) question of assumption of risk was not fairly presented to the jury; (4) the jury did not take into consideration the plaintiff's contributory negligence; and (5) the giving of erroneous instructions to the jury, and the refusal of certain instructions requested by the defendant.
The plaintiff, who was the only witness who took the stand in behalf of the plaintiff, testified briefly to this effect:
The accident occurred in the switchyard of the defendant railway company at Palatka. The night was dark and there was a slow drizzling rain. The plaintiff was conductor, the crew consisting of the conductor in charge, a brakeman, engineer, fireman and flagman. They were engaged in removing a 'cut' of cars from a siding. The conductor informed the engineer and brakeman of the train orders to remove 31 cars of sand from the Palatka siding. There were 32 gondola cars on the siding, one of which was to be left. The engineer pulled the cars slowly out to the main track, the brakeman stationed himself back in position to relay to the engineer the conductor's signals, and the conductor checked the cars against a switch list as they moved slowly past him. The last of the 32 cars on the siding was the undesired car. In response to the proper signal, given by the conductor and relayed by the brakeman to the engineer, the train was stopped for the purpose of uncoupling the undesired car. The plaintiff went between the cars, jerked the lift rod of the car he was cutting off and turned the angle cock on the car ahead of the one he was uncoupling. The train was 'pulling off easy,' so he parted the air hose to prevent it being pulled apart. The train pulled off about four feet. Air was leaking from the train line from the engine because the angle cock on the back car of the cut of cars was not completely closed. The angle cock was hard to turn, so the conductor set his lantern between the rails and took both hands to turn the angle cock to shut off the air completely. While so engaged, the train backed suddenly, catching the conductor's arm between the drawheads, so injuring it that it had to be amputated between the elbow and shoulder. Unable to reach his lantern, the conductor gave a 'pull ahead' signal with his flashlight.
By rule of the company, it was the duty of the engineer to have his train remain stationary after a stop signal until a further signal was given. The plaintiff conductor testified that he gave no signal after the stop signal until the one given with his flashlight. Both the engineer and brakeman testified that the train was not backed, that the train stood still and did not move until the conductor gave the go ahead signal to the brakeman which he relayed to the engineer. It was uncontroverted that when a car was uncoupled, the brakes set automatically and therefore the jury could infer that the last car could not roll ahead on to the conductor. However, the engineer and brakeman testified that about an hour later, they went to the hospital to see plaintiff, who had been placed on the operating table, and that in reply to the engineer's question, 'Mack, how in the world did it happen,' the plaintiff replied: Plaintiff testified that he had no recollection whatever of their visit or of any conversation whatever with them.
All of the crew knew of the conductor's purpose to uncouple the undesired car. They further knew of the duty on the part of the engineer to keep the train stationary after a stop signal until he received a further signal.
It is contended by the appellant that the court should have instructed the jury that the plaintiff could not recover, if the jury found that the train was backed, unless the jury found that the engineer and brakeman knew, or reasonably should have known, that McIntosh had gone between the cars. Under the facts here, it would have been gross negligence to back the cars, or move the train in any way, without a signal from the conductor. It would be a dangerous rule of law to make the duty to obey orders coming from a proper source turn on whether the person violating the rule had knowledge, or reasonably should have known, that such disobedience might be dangerous to a co-employee, especially where, as here, the engineer and brakeman knew that the conductor intended to cut off one of the cars, and had given a stop signal for that purpose. Such instruction was properly refused.
There was a sharp conflict between the testimony of the plaintiff and that of the engineer and brakeman as to the backing of the train, which was sufficient to present to the jury a question as to the credibility of the plaintiff's testimony as opposed to that of the engineer and brakeman. The trial judge who saw and heard the witnesses approved the verdict by denying a motion for a new trial. Under these circumstances the appellate court is not warranted in reversing the judgment solely on the facts, in the absence of some showing that the jury must have acted on considerations outside the evidence, in returning the verdict that they did. The fact that the plaintiff below relied solely on his own testimony to support his contention in this case does not per se render the evidence insufficient as a matter of law to support the verdict; there being nothing in the record to suggest that in thus accepting the plaintiff's testimony the jury were actuated by passion or prejudice or other considerations outside the evidence. Jacksonville Traction Co. v. Greene, 113 Fla. 316, 151 So. 523; Southern States Power Co. v. Pittman, 122 Fla. 758, 165 So. 893.
Plaintiff in error contends that 'a trier of fact legitimately and properly can make only one presumption from proven facts.' The generally accepted rule is that presumptions must be based on facts and not upon inferences or upon other presumptions. However, there is sound authority to the effect that inference may rest on inference to the extent that reason and the necessities of the case require it in the interest of justice. This is more apparent when the primary inference or presumption has the standing of approved fact. If an inference or presumption is based on such evidence that it may reasonably be regarded by the jury as a proved fact then although the evidence on which it is based may be circumstantial, such inference or presumption of fact may itself form the basis for another inference of fact. Virginian Ry. Co. v. London, 148 Va. 699, 139 S.E. 328; 1 Jones on Evidence, 4th Ed., page 181. Here the plaintiff below testified that the train backed on him after he uncoupled the last car. In this he was contradicted by the engineer and brakeman. He also testified, and was not contradicted, that the brakes on the uncoupled car would be set by the uncoupling and it could not roll down on him. ...
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