Atlantic Coast Line R. Co. v. Shouse
| Decision Date | 02 February 1922 |
| Citation | 83 Fla. 156,91 So. 90 |
| Parties | ATLANTIC COAST LINE R. CO. v. SHOUSE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Alachua County; B. A. Thrasher, Judge.
Action by L. B. Shouse against the Atlantic Coast Line Railroad Company for personal injuries. Judgment for plaintiff, and defendant brings error.
Motion to direct dismissal of the cause denied, and judgment affirmed on condition of filing remittitur.
On the Issue of Damages.
Syllabus by the Court
Purpose of hypothetical question stated; in stating hypothetical question, only facts which evidence proves or tends to prove should be included. The purpose of a hypothetical question and the reason for its allowance is to obtain the opinion of an expert witness as to probabilities under a given case, the facts of which recited in the question are supposed to be established. The case submitted in the question must consist of such facts only as the evidence proves, or fairly tends to prove, or that accord with a reasonable theory of the effect of the evidence.
Propriety and form of hypothetical question stated. A hypothetical question should not be framed in such way as to require or permit the witness to draw conclusions of fact from the evidence, or to exercise his judgment as to the weight which should be given the testimony of other witnesses. Nor is the question permissible whenever the subject-matter of the inquiry is of such character that it may be presumed to lie within the common experience of men of common education moving in ordinary walks of life.
Hypothetical question must be answered without recourse to facts within witness' knowledge not included in question. The answer of an expert witness to a hypothetical question must be given upon the basis of the facts stated in the question, and without recourse to other facts within his own knowledge.
Objection to evidence should be specific, and, when confined to one ground, other grounds will not be considered. When objection is made to the admission of evidence, the grounds of the objection should be specific, and when the objection is based upon and confined to particular grounds no other grounds of objection will ordinarily be considered.
Remedy for improper answer to proper question is motion to strike. Where improper testimony is given is answer to a proper question, the remedy is by motion to strike.
Where objection is erroneously sustained to question, and witness' answer is not stricken, error is harmless. Where an objection to a question propounded to a witness is erroneously sustained, but the witness answers notwithstanding the court's ruling, and the answer is not stricken from the record, the error is rendered harmless.
Whether light on switch engine would shine on car moving in certain direction may be stated by experienced witness. Where the information as to whether a light from a railroad locomotive operated as a switch engine in a railroad yard at night would shine upon a car moving in a certain direction upon the same track as that on which the engine was moving is material, a witness who is familiar with the location of the yard tracks may testify from his experience of such matters whether such would be the case.
Witness may not give his opinion as to plaintiff's negligence. When the subject of inquiry is whether the plaintiff's conduct upon the occasion of the accident was prudent or incautious, it is not permissible for a witness to give his opinion upon the question.
Error in excluding testimony is rendered harmless by later permitting it to be given. Where evidence is erroneously excluded, but afterwards permitted to be given, the error may be rendered harmless.
Statement by party to transaction made long thereafter inadmissible as res gestae. When a statement is made by a person to a transaction sufficiently long after the event to exclude the idea that the statement was made under its influence and as a part of the transaction, but, on the other hand, appears to be a mere narration of a part transaction, the statement is not admissible in evidence as part of the res gestae.
Where objection is sustained to question, party should proffer the proposed testimony for determination of its competency. Where objection to a question propounded to a witness is sustained the party against whom the ruling is made should make a proffer of the proposed testimony in order that the court may be enabled to decide upon its competency.
Instruction announcing the correct principle is not rendered misleading because the construction of its sentences is subject to criticism. An instruction to the jury which announces a correct principle of law, but is amenable to some criticism in the matter of the construction of the sentences, is not rendered misleading and harmfully erroneous because of such defect, where the meaning the court intended to convey is reasonably clear.
Fellow-servant doctrine limited by statute. Chapter 6521, Laws of 1913 (Rev Gen. St. 1920, § 4971), narrowed the fellow-servant doctrine, and renduced its scope from the common employment in which the injured employee may be engaged to the act causing the injury. Under that act a corporation engaged in the hazardous occupation named in the act is liable in all cases of injury to its employees caused by the negligence of a fellow servant, except where the injured employee was jointly engaged with his negligent fellow servant in performing the act causing the injury, and is himself guilty of negligence.
Instruction announcing erroneous proposition of law, when considered with other correct instructions upon the point, held harmless. When an instruction announces an erroneous When an instruction announces an erroneous connection with other instructions upon the subject the entire charge upon the point is free from error and removes the error contained in the first instruction, the error is not sufficiently harmful to cause a reversal.
Refusing inapplicable instruction held not error. A requested instruction not applicable to the case is properly refused.
Refusing instruction on matter covered by others given not error. A requested instruction, presenting a proposition of law already covered by the court in other instructions, in properly refused.
Refusal of instruction, announcing applicable proposition of law in harmony with defense theory not otherwise covered, is error. An instruction requested by the defendant, which correctly announces a proposition of law applicable to the case and in harmony with the theory of the defense, and which is not adequately covered by other instructions given by the court, should be given, and its refusal is error.
Contributory negligence of employee reduces damages. Under sections 4971-4973, Revised General Statutes of 1920, where a plaintiff employee of a railroad company who was engaged in railroading was not 'jointly engaged in performing the act causing the injury' to the plaintiff, he may upon a prima facie showing of negligence of the company as alleged recover 'damages for injuries inflicted upon' him, unless the defendant company shall make it appear that its employees exercised all ordinary and reasonable care and diligence to avoid the injury. If the plaintiff was also negligent, the damages otherwise recoverable for the injury should be appropriately reduced.
Doctrine of assumption of risk held not available under statute. The doctrine of assumption of risk does not obtain in actions under sections 4971-4973, Revised General Statutes of 1920, for negligent injuries to employees engaged in certain hazardous occupations.
Contributory negligence available in reduction of damages. A plea of contributory negligence is not a plea in bar, but in reduction of damages, in actions for negligent injuries by railroad companies.
Contributory negligence may be shown under general issue. In an action against a railroad company for negligent injuries, a plea that the injuries were caused solely by the plaintiff's own negligence is immaterial, as that may be shown under the general issue.
Where award is excessive in view of plaintiff's contributory negligence, a remittitur may be permitted as an alternative to new trial. Where liability appears and no harmful errors are shown, and in view of plaintiff's contributory negligence the award of damages is excessive, in an action against a railroad company for negligent injuries in running a train, a remittitur may be permitted as an alternative to granting a new trial.
R. A. Burford, of Ocala, and Robert E. Davis, of Gainesville, for plaintiff in error.
W. S. Broome, of Gainesville, and A. H. & Roswell King, of Jacksonville, for defendant in error.
The defendant in error, who was the plaintiff in the action in the circuit court, was injured on April 5, 1920, in the yards of the Atlantic Coast Line Railroad Company at High Springs Fla., through the negligence, so it is alleged, of an employee, a locomotive engineer, in the reckless and careless manner in which he discharged his duties as such employee, which at the time of the injury consisted of shifting cars from one track to another. The plaintiff was an employee of the company, about 58 years of age, had been furnished with employment by the company for many years in different positions in the operation of trains, and at the time of the injury was employed as 'caller of engineers and firemen' when directed by other agents and employees of the company to do so. The duties of this position seemed to be that of a messenger, who when directed to do so would search in the town or among the shops and houses of the company for a particular engineer or fireman scheduled...
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...147 So. 897. Third, he contends that said decision is in direct conflict with the decision of this Court in Atlantic Coast Line Ry. Co. v. Shouse, 1922, 83 Fla. 156, 91 So. 90. These points will be discussed in reverse In this case, as set forth in the opinion of the District Court, Mr. Ros......
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