Florida Cent. & P.R. Co. v. Mooney

• Decision Date: 13 June 1898
• Citation: 40 Fla. 17,24 So. 148
• Parties: FLORIDA CENT. & P. R. CO. v. MOONEY.
• Court: Florida Supreme Court

24 So. 148

40 Fla. 17

FLORIDA CENT. & P. R. CO. v. MOONEY.

Florida Supreme Court

June 13, 1898

Error to circuit court, Levy county; William A. Hocker, Judge.

Action by John W. Mooney against the Florida Central & Peninsular Railroad Company. Judgment for plaintiff. Defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. In actions for negligence, any evidence tending to prove knowledge on the part of the person alleged to have been negligent of those circumstances and surroundings which enter into the question as to whether such person has failed to exercise proper care is admissible.

2. To entitle an employé to recover damages from his employer for personal injuries caused by the negligence of another employé, under the provisions of chapter 4071, Acts 1891, the plaintiff must himself have been free from fault, as the provisions of section 2 of that act relating to the apportionment of damages have no application to such cases.

3. In an action by an employé under the provisions of chapter 4071 Acts 1891, to recover damages from his employer for injuries alleged to have been inflicted by the negligence of another employé in performing some act in the defendant's service, in the performance of which plaintiff as a co-employé was participating, the plaintiff must show either that he was free from fault himself, or that there was negligence on the part of his co-employé. Upon proof that plaintiff was free from fault, the statutory presumption arises that the servants of the defendant were at fault; and it thereupon devolves upon the defendant to 'make it appear' to the contrary.

4. If the act resulting in injury to plaintiff, an employé, was one being performed by other employés in the defendant's business, but in the performance of which plaintiff was not participating, then the presumption of negligence on the part of the agents of the defendant, and that plaintiff was free from fault, arises under the statute (chapter 4071, Acts 1891) to the same extent as if plaintiff was not an employé and it devolves upon the defendant to relieve itself either by showing that plaintiff was at fault, or that its servants were not negligent.

5. Where a statute is adopted from a sister state, any known and settled construction placed thereon by the courts of that state prior to its adoption, not inharmonious with the policy and spirit of the general legislation of the adopting state on the subject, will prevail in construing the statute in the latter state.

6. A servant in the performance of his duties is bound to exercise ordinary care for his own safety, or that degree of care which prudent persons usually exercise under similar circumstances; and, if he is injured by failure to exercise such care, his master is not liable.

7. If in the performance of his duties, the servant has no instructions to pursue a particular method, and two or more methods are open to him, he cannot be said to have been negligent if he in good faith adopts that method which is more hazardous than another, if the one adopted be one which reasonable and prudent persons would adopt under like circumstances.

8. Shifting cars by means of the 'kicking back' process is not necessarily at all times an act of negligence per se even though there may be a safer method of shifting them.

9. In actions for negligence, where there is no evidence tending to show negligence of so gross and flagrant a character as to evince a reckless disregard of human life, or of the safety of those exposed to its dangerous effects, or that entire want of care which would raise the presumption of a conscious indifference to consequences, or to show wantonness and recklessness, or reckless indifference to the rights of others equivalent to an intentional violation of them, exemplary damages cannot be awarded.

COUNSEL

Fletcher & Wurts, for plaintiff in error.

The defendant in error recovered judgment against plaintiff in error for $5,000 in the circuit court of Levy county, on November 28, 1894, from which this writ of error was taken. The declaration, filed February 22 1894, claimed damages for personal injuries sustained by plaintiff March 1, 1893, upon defendant's railroad at Cedar Keys. It alleged that plaintiff was employed by defendant as train shifter at that point, to take charge of incoming trains, and, in accordance with instructions from its depot agent, to place cars on the side track, take others therefrom, rearrange cars in and make up outgoing trains; that, in discharging such duties, plaintiff performed the same kinds of labor ordinarily performed by conductors, brakemen, and flagmen on freight trains, and had as a co-laborer a shifting engineer who had charge of the engine, and whose duty it was to watch for plaintiff's signals, and at once obey them; that while plaintiff, on said day, was with reasonable care faithfully discharging his duties in the most accustomed and practicable manner, his leg and fingers were crushed and mangled by defendant's train; that the injuries were caused by defendant's negligence in not providing necessary, suitable, and practicable arrangements and conveniences for plaintiff to safely discharge his duties, and by the negligence of defendant's shifting engineer in failing to obey plaintiff's signal to stop the engine and cars in time to have prevented the injury.

The defendant's pleas, filed November 28, 1894, upon which issue was joined, alleged: (1) That it was not guilty. (2) That plaintiff had for years been in defendant's employment as train shifter at Cedar Keys, was well acquainted with all dangers incident to shifting cars in and around defendant's track at that point, and with the condition and location of the switch, platform, and tracks, which were then in the same condition as they had been for years prior thereto; that, on the date alleged, defendant's train, on its arrival at Cedar Keys, was turned over to plaintiff; that one N. F. Launt acted as hostler in charge of the engine; that plaintiff took charge of the train to shift same, and, while it was backing, plaintiff jumped off a car to a switch platform which was wet; that he fell under the car, and it passed over him, causing the injury; that the accident was due wholly and entirely to plaintiff's negligence, and not to any negligent act of the defendant or any of its servants or agents. (3) That plaintiff's injury was not due to the negligence of defendant's servant who had charge of the engine that was backing the train, but was entirely the result of an accident, for whick defendant was in nowise responsible.

It appears from the evidence that the injury occurred on March 1, 1893, shortly after 7 o'clock, about three-quarters of an hour after the train arrived; that defendant's warehouse and depot at Cedar Keys was located on a wharf some distance from the shore; that about 60 feet from the shore out on the trestle, a side track ran into the main track, and the switch for this side track was operated on a platform about 12 or 15 feet square, situated about 10 feet from the ground underneath; that on this occasion the ground underneath was dry, though at high tide it was always covered with water. In shifting cars and making this switch, certain signals were in use between the plaintiff and Launt, the shifting engineer; and previous to this time the signals had always been understood and obeyed by the engineer in shifting cars in the same position on the same tracks. On the evening in question, plaintiff had to use a lantern to see what he was doing, on account of the darkness. The train was composed of the engine, a box car, a flat car, an express car, and passenger coaches, in the order named. Plaintiff was required to run the express car and coaches down on the main track, towards the shore, past the switch, and the remainder of the train, with the engine, out on the side track, towards the shore, for a car to be brought back upon and backed down the main track, and attached to the express car and coaches. The train backed out from the depot. Plaintiff was on the platform of the express car next to the engine, and, when the platform of the express car was about three car lengths from the switch, plaintiff pulled the pin, disconnecting the flat car and express car, and signaled the engineer, with his lantern, to stop. The flat car and express car parted company. The engineer slowed up, but did not stop. When the platform of the express car was opposite the platform of the switch, plaintiff stepped to the switch platform, and fell. The express car and passenger coaches passed on, and the cars attached to the engine passed over plaintiff's limbs, and dragged him along the switch platform until he fell on the ground underneath. This process of shifting cars, known as 'kicking cars,' was very dangerous, though, according to plaintiff's testimony, it was universally practiced on all railroads, and he had no instructions not to shift cars in this manner. Plaintiff had all night in which to perform this work; had the entire control of the work, the engineer being subject to his orders. There was another and less dangerous, but less expeditions, method of shifting these cars in the manner desired, but it had never been practiced by plaintiff at this point. The following printed rules of the company, known to plaintiff prior to the injury, were in evidence: 'Stepping upon the front of approaching engines, jumping on or off trains or engines moving at a high rate of speed, getting between cars while in motion to uncouple them, and all similar imprudences, are dangerous, and in violation of duty. * * * The company does not wish or expect its employés to incur any risks whatever from which, by exercise of their own judgment and by personal care,...