Atlantic Coast Line R. Co. v. Whitney

Decision Date04 February 1913
PartiesATLANTIC COAST LINE R. CO. v. WHITNEY.
CourtFlorida Supreme Court

Error to Circuit Court, Alachua County; J. T. Wills, Judge.

Action by John A. Whitney against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Additional Syllabus by Editorial Staff

Syllabus by the Court

SYLLABUS

The views of this court heretofore expressed are repeated, with reference to the proper preparation of bills of exceptions so as to facilitate the work of this court in passing upon the materiality and relevancy of matters excepted to, and also with reference to an unnecessarily large number of assignments of error, and of requested instructions to the jury.

In an action for damages for personal injury, pain, and suffering where the plaintiff's foot was amputated, evidence that he suffered great trouble with the stump of his leg in trying to wear an artificial limb, that his nervous system was injured, and other sufferings, the direct and proximate result of the injury he received, is competent evidence.

Where it is not shown that the answer of a witness of plaintiff was injurious to defendant, no error is shown.

It is not erroneous for the court to strike out the answer of a witness is which he undertakes to give the understanding of the crew of one train as to the movements of another train. This was merely opinion evidence.

The question of permitting a view by the jury is one which addressess itself to the discretion of the trial judge; and to reverse his ruling denying a view, it must appear that injury resulted to the party applying therefor.

Where an action for damages for personal injury is based on the Employer's Liability Acts of Congress of April 22, 1908 c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322), and the Safety Appliance Acts of Congress of 1893 (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 3174]), and amendments, there is no occasion for the trial judge to charge the jury upon the question of 'assumed risks.'

Where matters discussed in a brief have no relation to the subject-matter of an assignment of error, and there are no page references in the record or brief to guide this court in discovering what is intended to be presented, the assignment will not be considered.

Where several assignments of error are grouped in the brief of plaintiff in error, and one assignment fails, they all fail.

When the evidence is conflicting, this court cannot reverse a judgment, unless it appears that the jury were influenced by bias, prejudice, or other improper motive.

COUNSEL R. A. Burford, of Ocala, and C. R. Layton, of Gainesville, for plaintiff in error.

A. H. King, of Jacksonville, and W. S. Broome, of Gainesville, for defendant in error.

OPINION

HOCKER J.

This case was formerly before this court, and its opinion, on reversing the judgment below, is found in 62 Fla. 124, 56 So. 937. After this a second trial was had on the first count of the declaration alone, as amended since the former trial. The count alleges, in substance, that the Atlantic Coast Line Railroad Company, at the time Whitney was injured, was a common carrier in Florida, engaged in interstate commerce by railroad, owning, maintaining, and operating cars and steam locomotives for the transportation of freight and passengers in Florida, and into other states, a portion of which system extends from the town of High Springs to the city of Gainesville, Fla., through the town of Burnetts Lake therein; that on the 19th of August, 1908, Whitney was employed by the defendant upon and in the operation of one of its passenger trains upon its line aforesaid, and that about noon on Sunday, at Burnetts Lake, being so employed and engaged, Whitney, while in the performance of his duties to the railroad company, proceeded to make a coupling between two passenger trains; that the defendant company had failed and neglected to equip the approaching engine so it could be coupled with an automatic coupler, which would couple by impact, without the necessity of men going in between the engine and the car to be coupled, as by law it was required to do; and that, while so engaged, as aforesaid, in making said coupling, the plaintiff, while attempting to adjust with his hand the knuckle of the said coupler on the end of the engine to effect the coupling, was thrown down and under the engine, whereby he was then and there injured by the defendant, by and through the negligence of the defendant company in using the engine without having it equipped with a coupler which would couple automatically by impact, as required by law. By reason of the said negligence of said company, it is alleged the plaintiff was thrown between the engine and train, his right foot was crushed, and he was wounded, broken, and bruised that his life was despaired of; that then and ever since he has suffered great pain and anguish in body and mind; that his injuries are permanent; that he was rendered incapable of performing his service and duties then and since; that he was obliged to expend large sums of money in endeavoring to have himself cured, to wit, $500, to the damage of plaintiff $25,000. The declaration was amended, alleging that the plaintiff and defendant were then and there engaged in interstate commerce, and that the engine was then and there used in connection with such commerce in moving interstate traffic. The foregoing is a summary of the first count of the declaration, as amended.

To the count the defendant interposed the plea of not guilty, and a special plea to the effect that Whitney carelessly and negligently attempted to jump on the engine while it was in motion, and, in so doing, carelessly and negligently placed his foot on the pilot of said moving engine, which slipped, and by misstep or otherwise came in contact with the rail below, and was run over by the wheel or wheels of said moving engine, which carelessness or negligence on the part of Whitney either caused or contributed to his injuries. On the trial there was a verdict and judgment for the plaintiff for $20,000, which the railroad company has brought here for review on writ of error.

Fifty-five errors are assigned; the last one being based upon the overruling of the motion for a new trial, which motion itself contains 23 grounds. It is true that all of the assignments are not insisted upon, but many of them are; and in several instances a number of them are grouped together, and we are invited to examine and pass upon all that are so grouped. Again and again we have expressed our disapproval and condemned the practice of assigning a large number of errors, and stated why such a course was reprehensible, and wherein it tended to hinder, delay, and make difficult the administration of justice. We shall not repeat what we have already so frequently said, but content ourselves with referring to the following cases: Seaboard Air Line R. Co. v. Scarborough, 52 Fla. 425, text 431, 42 So. 706, text 708; Atlantic Coast Line R. R. Co. v. Crosby, 53 Fla. 400, text 476, 43 So. 318, text 341; Hoopes v. Crane, 56 Fla. 395, 47 So. 992; Padgett v. State, 64 Fla. ----, 59 So. 946. Also see the discussion and the authorities cited in the dissenting opinion of White v. State, 59 Fla. 53, text 60, 52 So. 805, text 807. We would also refer to our discussion in Seaboard board Air Line Ry. v. Rentz, 60 Fla. 429, 54 So. 13, as to the respective duties and relations of the members of the bench and bar, and as to the necessity of their co-operation in order that justice may be administered--the purpose for which courts of justice exist. We shall treat such of the assignments as are properly presented to us that we think merit it, and that we deem necessary for a proper disposition of the case. Before taking up any of the assignments for consideration, we wish to call attention to the fact that we are confronted with the same difficulty which we encountered in Rentz v. Live Oak, 61 Fla. 403, 55 So. 856, and Padgett v. State, supra. We refer to the manner in which the bill of exceptions is prepared. For the reasons which we therein pointed out, it is difficult, if not in some instances impossible, to intelligently pass upon some of the assignments. We would also refer to what we said in McKinnon v. Lewis, 60 Fla. 125, 53 So. 940, as to the function performed by a writ of error and the duty devolving upon the plaintiff in error. There is yet one other matter which we think should be mentioned. An unnecessarily large number of instructions were requested both by the plaintiff and the defendant. We have also frequently expressed our disapproval of this practice, and pointed out wherein such course is inadvisable. In addition to the authorities already cited, in some of which this matter is discussed, see Gracy v. Atlantic Coast Line R. Co., 53 Fla. 350, 42 So. 903; McCall v. State, 55 Fla. 108, 46 So. 321; Farnsworth v. Tampa Electric Co., 62 Fla. 166, 57 So. 233; Dunnellon Phosphate Co. v. Crystal River Lumber Co., 63 Fla. 131, text 135, 58 So. 786, text 788.

The assignments of error from 1 to 12, inclusive, assignments 15 and 16, as well as assignments 17 to 20, inclusive, are grouped and argued together by the plaintiff in error, and relate to the admission of what is alleged to be irrelevant testimony. The following question and the answer to it are selected by the plaintiff's attorney as examples and illustrations of the principles involved in these several assignments. The plaintiff was asked this question by his attorney: 'After you had left Atlanta, Ga., please state to the court and jury what the condition of your limb was from time to time.' This was objected to, and the court was moved to strike out the...

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