Jacksonville, T. & K.w. Ry. Co. v. Galvin

• Decision Date: 28 May 1892
• Citation: 11 So. 231,29 Fla. 636
• Court: Florida Supreme Court
• Parties: JACKSONVILLE, T. & K. W. RY. CO. v. GALVIN.

11 So. 231

29 Fla. 636

JACKSONVILLE, T. & K. W. RY. CO. v. GALVIN.

Florida Supreme Court

May 28, 1892

Appeal from circuit court, Duval county; JAMES M. BAKER, Judge.

Action by Joseph Galvin against the Jacksonville, Tampa & Key West Railway Company for personal injuries. Verdict and judgment for plaintiff. Defendant appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. A declaration against a railroad corporation, alleging that the defendant company unsafely and negligently loaded a certain car upon its railroad with railroad iron, so that the bars projected a considerable distance over the end of said car and that it was negligently accepted by defendant company for transportation when in an unsafe condition and unfit for the purpose of coupling, which was known to defendant, but of which plaintiff, a brakeman employed on defendant's train to couple cars, was ignorant, and by due care could not have known, and by means whereof said plaintiff was injured while attempting to couple said car, is not amenable to a demurrer on the ground that the injury was caused by the acts of fellow servants of plaintiff.

2. A brakeman employed by a railroad company to couple cars on its railroad assumes the hazards of the ordinary perils which are incidental to such employment, and in a suit by such brakeman against the company to recover damages for injuries received in attempting to couple cars on account of alleged negligence in loading a car to be coupled, and in negligently accepting a car to be coupled when the same was in an unsafe condition a charge of the court to the jury that excludes the right to consider such a coupling as coming within the ordinary hazards and risks of his employment is errorneous.

3. The instructions of the court must be confined to the issues made by the pleading, and it is error for the trial court to instruct the jury that they may base their verdict in favor of plaintiff upon a cause of action, however meritorious or satisfactorily proved, that is substantially different from that which he has alleged.

COUNSEL

J. R. Parrott, for appellant.

Frank W. Pope, for appellee.

OPINION

The other facts fully appear in the following statement by MABRY J.:

The appellee, Galvin, sued the appellant, a railroad corporation, in the Duval circuit court, for personal injuries received by the alleged negligence of said corporation. The allegations of the declaration, as to the cause of action, are as follows:

'That the plaintiff [appellee here] was employed by the defendant [appellant] as brakeman to couple cars for the defendant upon its said railway; and upon the 26th day of November, 1885, at Palatka, in Putnam county, said state, on defendant's said railway being so employed, a certain one of said cars was coupled, or attempted to be coupled, by plaintiff, which, by the negligence and default of defendant had been loaded unsafely and negligently, and was so received and accepted by defendant for coupling and transportation, and was in an unsafe condition and unfit for the purpose of coupling, which the defendant well knew, but of which the plaintiff was ignorant, and by due care could not have known; and by reason of the premises, while the plaintiff was so employed as such brakeman as aforesaid upon said railway at said place, defendant's railroad locomotive engine and train of cars attached thereto, driven and conducted by their servants, was driven to said car, to be coupled thereto, when the said car so negligently and unsafely loaded as aforesaid, being so negligently and unsafely loaded with railroad iron that the bars projected a considerable distance over the end of said car, thereby leaving so little space between said car sought to be coupled and the engine and train of cars to which said car was sought to be coupled that plaintiff was mashed and squeezed between said cars so sought to be coupled and said engine and train of cars attached thereto, to which said car was sought to be coupled, and his collar bone was broken, and one of his hands broken, and he was permanently injured and rendered unfit for work, to the damage of plaintiff $10,000, and therefore he brings suit and claims damages in the sum of $10,000.' The summons was served upon the superintendent of the defendant company in Duval county, Fla.

The railroad corporation interposed a demurrer to the declaration on the ground that the alleged injury was caused by the acts of fellow servants of plaintiff, and for which defendant corporation is not liable. The demurrer was overruled, and said defendant pleaded the general issue; that the alleged injury was caused by the acts of fellow servants; and that plaintiff, by his own carelessness and negligence, contributed to said injuries. A trial of the cause resulted in a verdict and judgment for plaintiff below for $2,472, from which an appeal is prosecuted to this court.

MABRY, J., (after stating the facts.)

The first error assigned is the overruling of defendant's demurrer to the declaration. There is no error in the decision of the court overruling this demurrer. The declaration in substance alleges that the defendant corporation unsafely and negligently loaded a certain car upon its railroad with railroad iron so that the bars projected a considerable distance over the end of said car, and that defendant negligently received and accepted said car for coupling and transportation; that said car was in an unsafe condition and unfit for the purpose of coupling, which was well known to said defendant, but of which the plaintiff was ignorant, and by due care could not have known; that plaintiff was employed by defendant to couple cars on its road, and while so employed, at Palatka, in Putnam county, Fla., on the 26th day of November, 1885, coupled, or attempted to couple, said car so negligently and unsafely loaded, and received and accepted by defendant for coupling and transportation; that defendant's locomotive engine, with a train of cars attached thereto, was driven by its servants to said loaded car to be coupled, and that the projection of said railroad iron over the end of said car left so little space between the said car sought to be coupled and the train of cars attached to the said engine that plaintiff was mashed between said cars, and received the alleged injuries. The allegation is that the defendant corporation negligently loaded the car in the manner specified, and negligently accepted it for coupling and transportation when in an unsafe condition, and that, in consequence thereof, plaintiff was damaged.

The defendant cannot, under a demurrer to this declaration, avail itself of an exemption from liability on the ground that it is not chargeable with the acts of plaintiff's fellow servants. The declaration does not disclose what class of servants of defendant performed the acts alleged to have caused the injury. The averment is that the defendant loaded and accepted the car; and not only so, but it is alleged that the defendant negligently loaded and accepted the car for coupling and transportation. The demurrer admits these allegations to be true, and, if true, they show a cause of action against the defendant. The demurrer was properly overruled.

Various assignments of error are predicated upon exceptions taken to instructions given for plaintiff and refused to defendant in the trial court. Before considering these assignments of error we will refer to the testimony on the point of defendant's liability. The plaintiff, at the time of the accident, was employed by the defendant company as brakeman on one of its freight trains. His account of the occurrence is as follows: 'On November 26th we were backing down on the side track to get at a car of iron. He gave me the keys and told me to get out that car; and just as he gave me the keys he said, 'I will go myself.' I was on one side and he on the other side. We both came down to the switch, and when we came to the switch I jumped off to let the engine in, and we went back by the main line and against the car to couple on. He hallooed to the engineer to come back, and the engineer came back very carefully, but, being dark, I could not see at all till I got up to the car. When I got up to the car, it came back and crushed me down, and I did not know anything more.' The testimony shows that the defendant company, at the time of the injury, was engaged in extending its railroad beyond the point of the accident, and the freight train on which plaintiff was employed as brakeman was daily hauling cars loaded with lumber and iron to a point near where the road was being constructed. On the day of the accident a flat car was loaded with railroad iron by a gang of men working with a construction train of defendant, and placed on a side track at Palatka for the freight train to pick up and haul to the work on the road. The construction train was under the control of a conductor, whose duty it was to have the cars loaded. The iron on the flat car projected over one end 18 or 20 inches, and the car was about the length of, or a little longer than, the iron. It appears from the testimony of the freight conductor, who was examined as a witness for defendant, that it was his duty to inspect the cars to be taken into his train, and that he received this car after he saw the iron projecting over the end. He states, however, that he was daily hauling lumber and iron for the construction of the road, and it was very common at this time to find cars loaded with lumber and iron projecting over the ends. A witness, who was at the time a brakeman on the construction train, and introduced by plaintiff, testified that he could not say it was a general thing for the company to load trains in that way, but that the flat cars had...