Atlantic Coast Line R. Co. v. Moore

• Decision Date: 21 October 1938
• Citation: 135 Fla. 485,186 So. 210
• Parties: ATLANTIC COAST LINE R. CO. v. MOORE.
• Court: Florida Supreme Court

186 So. 210

135 Fla. 485

ATLANTIC COAST LINE R. CO. v. MOORE.

Florida Supreme Court, Division A.

October 21, 1938

Extraordinary Petition for Rehearing Denied December 1, 1938.

Error to Circuit Court, Alachua County; H. L. Sebring, Judge.

On rehearing.

Former opinion modified and amended.

For former opinion, see 181 So. 374.

On Extraordinary Petition for Rehearing.

COUNSEL

W. E. Kay and Thomas B. Adams, both of Jacksonville R. A. Burford, of Ocala, and Fred D. Bryant, of Gainesville for plaintiff in error.

Fielding & Duncan, of Gainesville, for defendant in error.

OPINION

BUFORD Justice.

We granted a rehearing in this case because it appeared that the court had been led into error by the contention that 'the court erred in overruling objections to interrogatories propounded to District Superintendent Hansard, seeking to show that defendant was an interstate carrier and that the train in which the car in question was handled carried interstate commerce'.

On considering these contentions we said:

'The federal acts can have no application unless the train on which plaintiff was injured was at that time engaged in interstate commerce. The declaration in this case has been examined, and we fail to find anything to suggest that the Federal Safety Applicance Act [45 U.S.C.A. § 1 et seq.] or other federal act was relied on for recovery.' 181 So. 376.

We overlooked and failed to consider the force and effect of Sections 12, 13, 14 and 16, Title 45 U.S.C.A., which are as follows:

'12. Safety appliances, as designated by commission, to be standards of equipment; modification of standard height of drawbars. The number, dimensions, location, and manner of application of the appliances provided for by section 4 and 11 of this chapter as designated by the Interstate Commerce Commission shall remain as the standards of equipment to be used on all cars subject to the provisions of this chapter, unless changed by an order of said Interstate Commerce Commission, to be made after full hearing and for good cause shown; and failure to comply with any such requirement of the Interstate Commerce Commission shall be subject to a like penalty as failure to comply with any requirement of this chapter. Said commission is hereby given authority, after hearing, to modify or change, and to prescribe the standard height of drawbars and to fix the time within which such modification or change shall become effective and obligatory, and prior to the time so fixed it shall be unlawful to use any car or vehicle in interstate or foreign traffic which does not comply with the standard now fixed or the standard so prescribed, and after the time so fixed it shall be unlawful to use any car or vehicle in interstate or foreign traffic which does not comply with the standard so prescribed by the commission. (Apr. 14, 1910, c. 160, § 3, 36 Stat. 298.)'

'13. Penalty for using car not equipped as provided; hauling car for repairs where equipment becomes defective; liability for death or injury of employee; use of chains instead of drawbars. Any common carrier subject to this chapter using, hauling, or permitting to be used or hauled on its line, any car subject to the requirements of this chapter not equipped as provided in this chapter, shall be liable to a penalty of $100 for each and every such violation, to be recovered as provided in section 6 of this chapter: Provided, That where any car shall have been properly equipped, as provided in this chapter, and such equipment shall have become defective or insecure while such car was being used by such carrier upon its line of railroad, such car may be hauled from the place where such equipment was first discovered to be defective or insecure to the nearest available point where such car can be repaired, without liability for the penalties imposed by this section or section 6 of this chapter, if such movement is necessary to make such repairs and such repairs cannot be made except at such repair point; and such movement or hauling of such car shall be at the sole risk of the carrier, and nothing in this section shall be construed to relieve such carrier from liability in any remedial action for the death or injury of any railroad employee caused to such employee by reason of or in connection with the movement or hauling of such car with equipment which is defective or insecure or which is not maintained in accordance with the requirements of this chapter; and nothing in this proviso shall be construed to permit the hauling of defective cars by means of chains instead of drawbars, in revenue trains or in association with other cars that are commercially used, unless such defective cars contain livestock or 'perishable' freight. (Apr. 14, 1910, c. 160, § 4, 36 Stat. 299.)'

'14. Liability for using car with defective equipment, except as specified. Except that, within the limits specified in the preceding section of this chapter the movement of a car with defective or insecure equipment may be made without incurring the penalty provided by the statutes, but shall in all other respects be unlawful, nothing in sections 11, 12, and 13 of this chapter shall be held or construed to relieve any common carrier, the Interstate Commerce Commission, or any United States attorney from any of the provisions, powers, duties, liabilities, or requirements heretofore set out in this chapter; and, except as aforesaid, all of such provisions, powers, duties, requirements, and liabilities shall apply. (Apr. 14, 1910, c. 160, § 5, 36 Stat. 299)'

'16. Application of provisions to common carriers and vehicles subject to 'Safety Appliance Acts.' The provisions of sections 11, 12, 13, 14, and 15, as to the equipment of cars with the designated safety appliances apply to every common carrier and every vehicle subject to what are commonly known as the 'Safety Appliance Acts' set out in the first nine sections of this chapter. (Apr. 14, 1910, c. 160, § 1, 36 Stat. 298.)'

[135 Fla. 498] Note 13 under section 13, supra, says:

'Switching operations.--The proviso was not intended to exclude switching operations or the use of defective equipment while cars were being operated within the yard limits. U.S. v. Chesapeake, etc. R. Co. (Va.1914) 213 F. 748, 130 C.C.A. 262, wherein the court said: 'It is a matter of common knowledge that the danger incident to coupling cars is as great, if not greater, in switching yards than on the line between stations. The fact that the statute provides that 'such car may be hauled from the place where such equipment was first discovered to be defective or insecure to the nearest available point where such car can be repaired' clearly shows that it was the purpose of Congress not to permit unnecessary delay in making repairs of defective equipment by keeping such cars on side tracks and moving them from place to place unless it should be for the purpose of hauling them to the nearest available point for the purpose of making needed repairs. District Judge Sessions, in the case of U.S. v. Pere Marquette R. Co. (D.C.Mich.1913) 211 F. 220, in referring to the contention that in that case the movement of the train in question was what is known as a switching movement, and that under this proviso did not apply, said: 'The name given to the movement is of no importance, and its character is not controlling. That the use of a car whose coupling apparatus is inoperative upon the tracks of a railroad company engaged in interstate commerce and in connection with such commerce, either in a switch yard, or in actual road service upon the main line, is a violation of the Safety Appliance Act (embodied in this chapter), is no longer an open question.' To hold that this proviso applies only to trains operated on lines between stations would in a large measure deny protection to those for whose benefit the law was passed and give a narrow and artificial construction to the statute.”

Note under section 16, supra, says:

'Construction.--Sections 1-16 of this chapter are mandatory, and embrace cars used on any highway of interstate commerce whether then employed in such commerce or not, and includes employés injured through failure to comply with its terms, though engaged in duties not connected with interstate commerce. Ewing v. Coal & Coke Ry. Co. (1918) , 96 S.E. 73, certiorari denied (1918) 247 U.S. 521, 38 S.Ct. 583, 62 L.Ed. 1246.'

So we necessarily arrive at the conclusion that the allegations of the declaration were sufficient to state a cause of action, unless we hold that because of the failure to allege that the defendant was engaged in railroading 'in interstate commerce' constituted a fatal defect. We do not so hold. See Jacksonville Terminal Co. v. Alston, 113 Fla. 423, 152 So. 14. In that case the declaration alleged:

'Comes now the plaintiff in the above entitled cause Edgar Alston, and pursuant to order of court made and entered herein, files this his amended declaration against the defendant, Jacksonville Terminal Company, a corporation, defendant, for this, to-wit:

'1. That at all times hereinafter mentioned the defendant was a corporation engaged in railroading in the State of Florida; that on or about the 21st day of February, 1931, at defendant's depot or station in the City of Jacksonville, Duval County, Florida, plaintiff was employed by defendant as, to-wit, mail porter, in its said business.

'That at said time and place, plaintiff acting in the course of his said employment, was engaged in loading a sack of mail upon an electric truck or tractor, commonly called a 'Butt Head', which was then and there provided by defendant for said purpose and which was then and there operated by another agent, servant or employee of defendant who was then and there acting in the...