Charlotte Harbor & N. Ry. Co. v. Truette

• Decision Date: 11 February 1921
• Citation: 81 Fla. 152,87 So. 427
• Court: Florida Supreme Court
• Parties: CHARLOTTE HARBOR & N. RY. CO. v. TRUETTE.

87 So. 427

81 Fla. 152

CHARLOTTE HARBOR & N. RY. CO. v. TRUETTE.

Florida Supreme Court

February 11, 1921

Error to Circuit Court, De Soto County; John S. Edwards, Judge.

Action by Florence Truette against the Charlotte Harbor & Northern Railway Company. Judgment for plaintiff, and defendant brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Assignment of error grouping rulings on validity of more than one plea will fail unless ruling erroneous as to all pleas. Where one assignment of error groups the court's ruling upon the validity of more than one plea, the assignment will fail unless the ruling was erroneous as to all pleas so passed upon by the court.

Under statute risk of negligence of railroad or its servants not assumed. In a cause in which damages are sought against a railroad company for personal injuries under chapter 6521 Acts of Florida 1913, the doctrine of assumption of risk does not obtain where the injury is attributable to the negligence of the employer, his agents or servants.

Admission of irrelevant and prejudicial evidence constitutes miscarriage of justice. In the trial of a cause during the taking of evidence before a jury, if evidence is permitted which is irrelevant, but nevertheless operates to give an unfair advantage to one of the parties over the other placing the latter in an unfavorable light and embarrassing his defense, a miscarriage of justice may reasonably be said to have occurred.

In determining whether charge contains prejudicial error, it should be construed as a whole. In determining whether charges to the jury contain erroneous propositions rendering them harmful error, the charges should be considered as a whole in so far as they bear upon a particular proposition assailed.

Recovery can only be had on case made by declaration. In an action for damages for personal injuries alleged to have resulted from the negligent act of a railroad corporation through its employees, the recovery can be had only upon the case made by the declaration.

Charges should be confined to the case. Charges of the court to the jury should be confined to the issues made by the pleadings and applicable to the evidence.

Court need not state reasons for giving or refusing requested instructions. In giving and refusing requested instructions it is unnecessary for the trial court to do more than merely give or refuse the instruction. To undertake to give a reason for giving the instruction or refusing it, such as that it expresses the law or does not, or that it is appropriate or applicable or not, as the case may be, may under some conditions operate to unjustly embarrass one of the parties.

Railroad employee must prove injury and negligence. In an action brought against a railroad corporation under chapter 6521 Laws of 1913, for damages for personal injuries to a railroad employee while in the discharge of his duty, the burden is upon the plaintiff to prove the injury and the negligent act causing it.

Where employee injured in interstate commerce, federal law is paramount and excludes all conflicting state regulations. In a cause in which damages are sought from a railroad corporation for alleged injuries to an employee resulting from the negligence of the corporation's agents or servants, where the facts disclose that the injured person was at the time of the injury engaged in interstate commerce then the federal law (U. S. Comp. St. §§ 8657-8665) regulating the plaintiff's right is paramount and excludes all conflicting state regulations.

COUNSEL

McKay & Withers, of Tampa, and Treadwell & Treadwell, of Arcadia, for plaintiff in error.

Leitner & Leitner, of Arcadia, for defendant in error.

OPINION

ELLIS J.

William H. Truette was employed by the plaintiff in error, hereinafter referred to as the defendant, in October, 1914, as a lineman to keep up the telephone system operated by the defendant in connection with its railroad business. The defendant was a railroad corporation operating a line of road from Mulberry, in Polk county, to Boca Grande, in Lee county, both within this state. A large part of the defendant's business, both freight and passenger, was interstate. One witness said that about 75 per cent. of the business was of that character. On the 9th of October, 1914, Truette, who during the day had been at work somewhere between Arcadia and Mulberry, received instructions to go to Boca Grande and repair some telephones which according to the plaintiff had been damaged by a storm the night before. Truette left Arcadia about 5 o'clock in the afternoon. He used for his transportation a railroad motorcar, about eight horse power, driven by gasoline. Four persons constituted the party: Mr. Truette, who was going to repair the telephones; Mr. McAmos, master mechanic, who went to inspect and 'fix up' an engine belonging to the company at Boca Grande; Ike Peterson, a negro, who went with Mr. McAmos to come back on the engine which was out of commission; and Mr. J. L. Williams, the motorman who drove the car. In traveling over the line of road upon business of the company Mr. Truette was furnished with transportation by the company, either upon its trains or upon motorcars. The evidence is not clear as to who had charge of the motorcar that night. Mr. Williams said some one in authority ordered him out. Mr. McAmos could have done so. Peterson said in the direct examination that he did not know who gave the orders for the car to go. In the same examination he said Mr. McAmos said, 'Let's go.' Mr. McAmos said that he did not order the car out, but asked permission from Mr. Truette to go with him, but Mr. Truette had to get permission from Mr. Judge, the roadmaster, to use the car. Mr. Truette and Mr. McAmos sat upon the front end of the seat which ran longitudinally through the center of the car, the motorman, Mr. Williams, were in the center, and the negro was behind. There was no light upon the car, nor was there a railing in front. After traveling south from Arcadia toward Boca Grande about 1 hour and 10 minutes, during which time they had traveled about 30 miles and were within a mile of Myakka river, a cow attempted to cross the railroad track from the left side. The car struck the cow, throwing it to the right, killing it. Mr. Truette was thrown forward upon the track, the car passing over him, inflicting injuries from which he died within a few hours. The car was within 15 or 20 feet of the cow before Mr. Williams saw it. Mr. McAmos saw the cow when the car was within 25 or 30 feet of it. The rear wheels of the car left the track, and the car was stopped about 25 or 30 feet from the point of collision. At the time of the accident the car was traveling about 12 or 15 miles per hour.

Mrs. Florence Truette, the widow of William H. Truette, brought an action against the defendant for damages for the wrongful death of her husband. The amended declaration was filed in October, 1915. Mrs. Truette married again in May, 1916. Her name at the time of the trial was Mrs. Dorner.

The defendant pleaded not guilty. The second plea set up that deceased knew that cattle trespassed upon the right of way and tracks of the railroad company and thereby caused risks of collision between them and cars moving thereon, that the collision alleged in the declaration to have occurred was due to unavoidable accident, and not to any negligence of the defendant or its employees in the operation of the car, and that deceased assumed the risk of injury incident to riding upon the car under the circumstances. The third plea averred the same facts as to cattle straying upon the railroad tracks, and the deceased's knowledge of the circumstances, and averred that he voluntarily rode upon the car, was therefore not free from fault, and, if he was injured through negligence of any one, it was the negligence of a fellow servant. A demurrer to the second and third pleas was sustained, and the ruling is made the basis of the first assignment of error.

This assignment groups the court's ruling upon the validity of the two pleas; therefore, unless the ruling was erroneous as to both pleas, the assignment must fail. See Green v. Sansom, 41 Fla. 94, 25 So. 332; Daniel & Finley v. Siegel-Cooper Co., 54 Fla. 265, 44 So. 949; Cooney-Eckstein Co. v. King, 69 Fla. 246, 67 So. 918; Eaton v. Hopkins, 71 Fla. 615, 71 So. 922.

The declaration alleges that deceased was employed by the defendant as lineman to keep up its telephone system used in connection with its road, and it was the defendant's duty under its contract with deceased to 'carry' him from place to place over its road upon trains, cars, etc., while he was repairing and keeping up its 'said line of telephone'; that the deceased was on duty at Arcadia and was notified by defendant to come to Boca Grande as 'soon as possible,' and 'defendant would provide one of its said motorcars to carry' him to that place.

It is alleged that the motorcar was provided by defendant; that it was under the management of its employees; that deceased had no control over it, and that it was dangerous to persons riding thereon when carelessly operated; that the trip was made in the nighttime; that there was no light upon the car and it was driven at a reckless speed. The second count omits allegations as to there being no lights on the car and as to the collision occurring at night. Both counts allege that at the time of the injury the deceased was the employee of the defendant and was on duty. The second plea avers assumption of risk by the deceased. The third plea avers that the injury resulted from the negligence of a fellow servant, and that the deceased was not free from fault in that he knew the dangers incident to the method of transportation under the circumstances,...