Atlantic Coast Line R. Co. v. Ryland

• Decision Date: 19 December 1905
• Citation: 50 Fla. 190,40 So. 24
• Parties: ATLANTIC COAST LINE R. CO. v. RYLAND. [*]
• Court: Florida Supreme Court

40 So. 24

50 Fla. 190

ATLANTIC COAST LINE R. CO. v. RYLAND. ^[*]

Florida Supreme Court, Division B.

December 19, 1905

Error to Circuit Court, Osceola County; Minor S. Jones, Judge.

Action by Harry L. Ryland against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

Under the provisions of chapter 3744, p. 117, Laws of 1887 (section 2346, Rev. St.), and chapter 4071, p. 113, Laws of 1891 authorizing recovery by one employé of a railroad company of damages for injury received by the running of its locomotives, cars, or other machinery through the negligence of a co-employé or fellow servant, the injured employé, in order to recover, must himself be entirely free from fault or negligence. He must do nothing to contribute to his injury and must neglect to do nothing to prevent the consequence of the negligence of the other servants. Any negligence of the plaintiff in such a case, however slight, that contributes in an appreciable degree to the cause of the injury, defeats a recovery.

Where an employé of a railroad company knowingly uses defective machinery, he cannot recover damages for injuries resulting therefrom.

Where a railroad employé sues the company for damages resulting from a defective hand car, and it is shown that he knew of the defective condition of the car, but nevertheless made use of it, such fact is fatal to his recovery, and it makes no difference that he made use of it under the immediate command of a superior employé.

A section master, or assistant section master, in temporary charge of a hand car, must note such defects in it as are discoverable in the reasonable and ordinary exercise of diligence in the course of his duty, and decline or cease to use it if it be obviously unsafe; otherwise, he cannot recover for an injury to himself which his declaration alleges to have been caused, in part, by the defective character or condition of the car. If the defect in the car was such as to deceive human judgment, the company, as well as the plaintiff, stands excused; and whatever diligence he exercised in seeing to the apparent safety of the vehicle goes to the credit of his employer, as well as to his own credit.

The commander of a hand car ought to see to it that the employés under his orders do their duty. If they operate the propulsive machinery of the car improperly, or move it at too high a rate of speed, or do anything else that endangers the safety of the persons on the car, he should interpose promptly and prevent it. If he fails to do so, then he himself is guilty of such negligence as will defeat his recovery for injury to himself resulting from such improper conduct of the employés under him. If the car is not in a condition to be run safely, he should not run it at all. He stands to the company in a relation of trust, and should be faithful to its interests, as well as his own safety. A most important part of his duty is to supervise the employés under him.

In a suit for damages for personal injuries against a railroad company resulting from the derailment of a hand car, where the declaration shows that the plaintiff was assistant section master or foreman in charge of such hand car and the other co-employés thereon, and that he permitted such other co-employés under him to so negligently or improperly operate such car as to derail the same, he cannot recover, and a demurrer to such declaration should be sustained; and where the declaration in such a case in a second count alleges the cause of the injury to have been the defective condition of the hand car, conjointly with the improper propulsion thereof by the co-employés under the command of the plaintiff, and such declaration, in describing the alleged defects in such hand car, shows that its defective condition must have been patent and obvious to the most casual observer, there can be no recovery, and a demurrer to such declaration should be sustained, even though such declaration alleges that the defects in the car were unknown to the plaintiff.

COUNSEL

Sparkman & Carter, for plaintiff in error.

Alex St. Clair-Abrams, for defendant in error.

OPINION

TAYLOR P.J.

The defendant in error, hereinafter referred to as the plaintiff sued the plaintiff in error, hereinafter referred to as the defendant, in an action on the case for personal injuries resulting from alleged negligence, in the circuit court of Osceola county, and recovered judgment for $5,000, from which the defendant takes writ of error here. The declaration in the case is as follows:

'For that, whereas, the plaintiff on the 2d day of September, A. D. 1903, was in the employ of the defendant, the Atlantic Coast Line Railroad Company, a corporation doing business in the state of Florida, and was engaged in the performance of his duty as assistant foreman on a section force; that on the said 2d day of September, A. D. 1903, the plaintiff, with other servants of the defendant, was on a certain hand car on the track of its railroad in the county of Osceola, said car being furnished by the defendant and in use by plaintiff in the performance of his duties, and said car being propelled by manual labor, and it was the duty of the plaintiff to keep a lookout for trains approaching the direction of the said hand car. And the said plaintiff further says that while in the performance of this duty, and looking in the direction opposite to which the said hand car was going, he observed that the said hand car swayed violently to and fro, and, turning around, observed that one of the servants of the defendant corporation, whose duty it was to work part of the mechanism which propelled the said hand car, was working the same with his back turned the way the car was going, and that the said servant would carelessly and negligently pull with one hand for awhile, then suddenly, carelessly, and negligently change to the other hand, thereby causing the said hand car to run unevenly and sway violently, and to threaten the said car with being derailed; that the plaintiff thereupon instructed the said servant, whose name is unknown, to change his position and to pull steadily with both hands, but the said employé, instead of obeying the order of the plaintiff, at once again negligently and carelessly changed from one hand to the other, pulling the mechanism violently and unevenly, and by reason of said carelessness and negligence caused the car to sway violently and to become derailed, and this plaintiff, by reason of the negligence aforesaid, was violently hurled to the ground (the plaintiff being entirely without negligence or fault on his part), and plaintiff sustained great and serious injury, to wit: Fracture of the large bone of the right leg, known as the 'tibia,' at the lower extremity thereof, further known as the 'internal malleolus'; the fractured portion being of considerable size, ununited, and displaced downward. Also fracture of the lower extremity of the small bone, known as the 'fibula,' on the outer side of the leg, the broken portion driven inward, union taking place with the formation of a large amount of callous or new bone between said bones and the first bone of the ankle, known as the 'astragalus,' rendering movement impossible and causing a total loss of the joint and consequent crippling of plaintiff for life. And the plaintiff was confined to the hospital for several months, and suffered great pain and anguish, and still suffers great pain, and was and is permanently injured, to the damage of the plaintiff in the sum of $10,000. Wherefore the plaintiff brings this his suit and claims $10,000 damages.

'Second Count.

'And for that, whereas, on the 2d day of September, A. D. 1903, the plaintiff was a servant and employé of the defendant, the Atlantic Coast Line Railroad Company, and held the position of assistant foreman of a section force; that in the performance of his duties as such assistant foreman it was necessary to use a hand car, propelled by machinery worked by hand. And the plaintiff says it was the duty of the defendant to supply a hand car reasonably safe, and with its machinery in reasonably good order; but the plaintiff says that the defendant, regardless of its duty in this regard, furnished and supplied to the plaintiff a certain hand car whose machinery was defective, in that the running gear was loose and caused the car to sway violently when it was propelled, and the wheels of said car were also not in reasonably good condition, the flanges being so worn as to cause the said car to become easily derailed. And the plaintiff says, at the time of and before the inflicting of the injuries upon him hereinafter mentioned, he did not know and was not informed of the defective condition of the said car; that on said 2d day of September, A. D. 1903, while in the county of Osceola, on the track of defendant's railroad on said car, as it was his duty to be, and while said car was being propelled by the other servants and employés of the defendant, and while this plaintiff was in the performance of his duty looking out for approaching trains of the defendant, one of the defendant's servants, propelling said car, carelessly and negligently propelled the same with one hand and then suddenly changing to the other hand, whereby the said car, by reason of the negligence and carelessness of the said employé, swayed violently to and fro, and the running gear of said car being loose and not in reasonably good condition, and the flanges of the

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