Florida East Coast Ry. Co. v. Lassiter

• Decision Date: 11 June 1910
• Citation: 59 Fla. 246,52 So. 975
• Court: Florida Supreme Court
• Parties: FLORIDA EAST COAST RY. CO. v. LASSITER.

52 So. 975

59 Fla. 246

FLORIDA EAST COAST RY. CO. v. LASSITER.

Florida Supreme Court

June 11, 1910

In Banc. Error to Circuit Court, St. Lucie County; M. S. Jones Judge.

Action by Charles O. Lassiter against the Florida East Coast Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Syllabus by the Court

SYLLABUS

Where a witness is called to testify as an expert or skilled witness upon a question pertaining to railroading, his qualifications are determined by considering the particular branch of the business in which he has been engaged, the length of time that he has served in a particular capacity, his opportunities for obtaining the requisite knowledge, skill and experience, and the relationship between the branch of the service in which he has been engaged and the question upon which he is called to give testimony.

A motion to strike testimony is available only when the testimony admitted is inadmissible, irrelevant, or immaterial.

The usual conduct of employés required or permitted by railroad companies in the ordinary operation of trains is not wholly inadmissible or irrelevant upon a question of the care and diligence required in the proper conduct of the business.

Evidence that as a general custom it is usual for a switchman to ride on a car being switched when a duty is to be performed at the point of destination, and the car is going faster than a man usually walks, is not contrary to, but comports, with common knowledge, and the act is not so obviously dangerous as to be manifestly inconsistent with safe railroad operation.

A mere showing that boys had access to the yard, and that mischievous persons have meddled with cars, is not relevant to an issue of due care in providing safe machinery and appliances.

There was no reversible error in permitting a witness on cross-examination to state that the doctor who attended the plaintiff when he was injured was the defendant's local surgeon, as such testimony did not go to the question of the liability of the defendant, and the effect of the court's charge was to exclude injury to the defendant in increased damages on account of such testimony, even if the previous mention of the doctor and his attentions to the plaintiff did not justify the question on cross-examination.

Where the evidence is conflicting, it is not error to refuse an affirmative charge.

It is the duty of the master to exercise such ordinary and reasonable care as prudence and the exigencies of the situation require, in providing the servant with safe machinery and suitable instrumentalities for his work, and in notifying the servant of any defects or risks of which the servant does not know. If the duty is not performed the master is liable for injuries resulting proximately from such failure of duty.

Where it cannot be said as matter of law that the plaintiff's negligence in part caused his own injury, the question of contributory negligence should be submitted to the jury.

If two or more ways or methods were open to the plaintiff in the performance of his duties as switchman, and he had no instructions to pursue one in particular, he necessarily must choose between them, and he cannot be held to have been negligent if he in good faith adopted that way or method which is more hazardous than another, provided the one pursued be one that reasonable and prudent persons would adopt under like circumstances, or provided the plaintiff was reasonably prudent in adopting the way or method used. In all cases the employé is bound to use ordinary care for his own protection.

Charges that are not technically accurate will not cause a reversal where correct charges are given on the point and it appears that no injury could reasonably have resulted from the technical inaccuracy.

Where damages allowed are not clearly excessive, an appellate court will not disturb a finding sustained by the evidence.

COUNSEL George M. Robbins, for plaintiff in error.

Beggs &amp Palmer, for defendant in error.

OPINION

WHITFIELD C.J.

The defendant in error recovered judgment for damages against the railroad company for personal injuries received by the running of a train while acting as yard switchman. A former judgment was reversed. Florida East Coast Ry. v. Lassiter, 58 Fla. 234, 50 So. 428. A grab iron on a freight car broke while the plaintiff was holding on by it, and he fell under the car, which passed over his left foot, crushing it.

The negligence alleged to have proximately caused the injury is that the railroad company 'carelessly and negligently permitted one of the grab irons and its fastenings and appliances on said car to become defective and out of repairs.' Pleas of not guilty, and that the alleged injury was caused by the negligence and improper conduct of the plaintiff, and not otherwise, were filed.

In view of the former decision in this cause and the finding of two juries the liability of the defendant railroad company should be regarded as established unless material errors of law were committed in submitting the issue of liability to the jury in the last trial.

The plaintiff produced a witness who testified as to whether in his opinion it was necessary for the plaintiff in the proper discharge of his duty to ride on the side of the car being switched by putting his foot in the stirrup and holding on, attached to the car for that purpose, instead of walking, when he was injured.

In order to qualify himself this witness testified that he had lived in Ft. Pierce, where the injury occurred, for 14 years, and was familiar with the switchyards of the defendant company at that point; that he had had 10 years' experience as a car inspector at Jacksonville, Palm Beach, and Ft. Pierce for the defendant; that he was familiar with the requirements of switchmen in the discharge of their duties, and was acquainted with the tracks and distances in the Ft. Pierce yeard, including those where the injury occurred, and had known the yard for eight years; that he had done switching, but never under regular employment. The defendant objected to the witness on the ground that he had not qualified as an expert. Exception was taken to the overruling of the objection. In admitting the witness, the court did not err and did not violate the rule contended for by the railroad company, that 'where a witness is called to testify as an expert upon a question pertaining to railroading, his qualifications are determined by considering the particular branch of the business in which he has been engaged, the length of time that he has served in a particular capacity, his opportunities for obtaining the requisite knowledge, skill and experience, and the relationship between the branch of the service in which he has been engaged, and the question upon which he is called to give testimony.' 5 Ency. of Ev. 543. The witness here was a skilled witness and was qualified as such. See Atlantic Coast Line Ry. Co. v. Crosby, 53 Fla. 400, text 439, 43 So. 318, and citations therein.

The branch of railroad business in which the witness was engaged and the capacities in which he acted at different times and his opportunities and experience sufficiently qualify him as an expert or a skilled witness as to the necessity for a yard switchman to ride on the car being switched in the proper discharge of his duties as switchman under given circumstances.

This expert or skilled witness testified that the plaintiff by walking instead of riding on the car as he did could not have gotten to the desired point in switching the car on which he rode in time to properly discharge his duty, and in answer to a question said to ride 'would have been the usual way.' The defendant moved to strike the last answer, but the court denied the motion and an exception was noted. A motion to strike testimony is available only when the testimony admitted is inadmissible, irrelevant or immaterial.

The usual conduct of employés required or permitted by railroad companies in the ordinary operation of trains is not wholly inadmissible or irrelevant upon a question of the care and diligence required in the proper conduct of the business. Evidence that as a general custom it is usual for a switchman to ride on a car being switched when a duty is to be performed at the point of destination and the car is going faster than a man usually walks, is not contrary to but comports with common knowledge, and the act is not so obviously dangerous as to be manifestly inconsistent with safe railroad operation. The evidence was admissible under the cirumstances here. See 29 Cyc. 609; Atlantic Coast Line Ry. v. Beazley, 54 Fla. 311, 45 So. 761.

The inquiry being made was not how the accident occurred, for there were eyewitnesses to that; but whether the plaintiff was negligent in riding on the car that he was engaged in switching, instead of walking in the discharge of his duties.

A witness for the defendant testified that he and others had inspected the car a few hours before the injury, and the hand grab was in perfect condition; that, if the nut had been off the top bolt to the hand grab or grab iron, he would have observed it. It was then offered to prove by the witness that boys had access to the yard and 'to show particular instances where they did such things,' as to meddle with the cars. The proffered testimony was rejected unless it was confined to the particular car. A mere showing that boys had access to the yard and that mischievous persons had meddled with cars is not relevant to an issue of due care in providing safe machinery and appliances.

There was no reversible error in permitting a witness on cross-examination to state that the doctor who attended the plaintiff when he was injured was the defendant's local...