Butler v. Smith, 57-332
| Decision Date | 22 July 1958 |
| Docket Number | No. 57-332,57-332 |
| Citation | 104 So.2d 868 |
| Parties | J. Turner BUTLER and William A. Hallowes III, Trustees of the Property of Florida East Coast Railway Company, a Florida corporation, Appellants, v. Bert SMITH, Appellee. |
| Court | Florida District Court of Appeals |
Scott, McCarthy, Preston, Steel & Gilleland, and Dwight Sullivan, Miami, for appellants.
Nichols, Gaither, Green, Frates & Beckham, and Sam Daniels, Miami, for appellee.
This was an action for personal injuries brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. Final judgment in favor of the appellee was entered after a jury verdict. The appeal is from the final judgment.
Smith, 61 years of age, had been in the employ of the appellant railroad for approximately 37 years. For the last five or six years of his employment, Smith had been a flagman on passenger trains. His duties as a flagman were relatively few unless the train made an emergency stop or was otherwise delayed, in which event, he was required to set flares and place other warning signals at least one mile down the track to avert possible danger from oncoming trains.
For some time, Smith had suffered from arthritis and obesity. In the early part of 1956, a trainmaster of the appellant observed Smith's handicapped condition and questioned his ability to perform the duties of a flagman. An attempt was made to persuade Smith to retire but he declined. The appellant then authorized a 'field test' to determine if Smith was capable of performing the duties of flagman. This test consisted of walking a mile along the railroad track from one mile post to another, since this would coincide with the duties Smith would be required to perform under emergency conditions. After traversing some 3,000 feet of the mile walk, Smith fell in exhaustion and injured his knee. He was hospitalized, returned to his home but never returned to work. Smith attributed his fall and injuries to two factors, i. e., walking on gopherberry leaves which caused the soles of his shoes to become slippery, and becoming entangled in wire lying along the track.
The negligent acts or omissions charged in the complaint were:
(1) Requiring the appellee to participate in a field test;
(2) Allowing agents of appellant to conduct a field test;
(3) Furnishing a dangerous and unsafe location to conduct a field test;
(4) Furnishing a dangerous and unsafe place in which to work;
(5) Failure to use ordinary care in providing a safe place of work;
(6) Failure to provide a reasonably safe place to work;
(7) Failure to provide proper equipment and safeguards in the performance of duties and participation in a field test; and
(8) Failure to provide adequate supervision and instructions in conducting the field test.
The appellant's main point for reversal is the prejudicial manner in which the trial was conducted on behalf of the appellee. There was no justiciable issue, at least under the Federal Employers' Liability Act, that could be raised as to the propriety or right of the appellant to give the test. If the appellee were agrieved, he had a remedy for such grievance under the Railway Labor Act, 45 U.S.C.A. § 151 et seq. Consequently we do not consider that items 1 and 2 under the charge of negligence, supra, constituted triable issues. The real issue in the case, which was apparently forgotten, was whether the appellant provided a reasonably safe place for appellee to work or perform the duties assigned him. Seaboard Air Line R. Co. v. Gentry, Fla.1950, 46 So.2d 485; Seaboard Air Line R. Co. v. Hardee, Fla.1951, 54 So.2d 809.
We have carefully reviewed the record in this cause, including the opening statements of counsel to the jury prior to the trial and the statements of counsel to the jury after the close of all the testimony, and are impelled to the conclusion that this case was tried upon an immaterial issue tending toward and resulting in an unfair trial to the appellant. A...
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Smith v. Florida East Coast Ry. Co.
...which culminated in a jury verdict in favor of the appellant. On appeal this court reversed and remanded for a new trial, Butler v. Smith, Fla.App.1958, 104 So.2d 868, 'There was no justiciable issue, at least under the Federal Employer's Liability Act, that could be raised as to the propri......
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Bullock v. Branch, C-167
...Fla.1956, 88 So.2d 519. To the same effect, the District Court of Appeal for the Third District of Florida held in Butler v. Smith, Fla.App.1958, 104 So.2d 868, that, when the cause is tried on immaterial issues that implant in the minds of a jury prejudice or bias against one of the partie......
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Smith v. Butler, 313
...a verdict for the petitioner. The Florida District Court of Appeal, Third District, reversed and remanded the case for a new trial. 104 So.2d 868. On remand counsel for both parties and the trial judge discussed at length what it was the Court of Appeal held. There was agreement that the op......
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Smith v. Butler, 59-384
...and Dwight Sullivan, Miami, for appellees. PER CURIAM. This cause appeared before this court upon a prior appeal. See Butler v. Smith, Fla.App.1958, 104 So.2d 868. Upon the return of the cause to the trial court pursuant to our mandate, the plaintiff elected to stand exclusively upon his cl......