Seaboard Air Line R. Co. v. Gentry

• Decision Date: 26 May 1950
• Citation: 46 So.2d 485
• Parties: SEABOARD AIR LINE R. CO. v. GENTRY.
• Court: Florida Supreme Court

Page 485

46 So.2d 485

SEABOARD AIR LINE R. CO. v. GENTRY.

Supreme Court of Florida, Special Division A.

May 26, 1950.

Rehearing Denied June 16, 1950.

Fleming, Jones, Scott & Botts, Jacksonville, for appellant.

Bedell & Bedell, Chester Bedell, Jacksonville, and Thomas J. Lewis, Atlanta, Ga., for appellee.

TERRELL, Justice.

Appellee as plaintiff brought an action against appellant as defendant under Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for personal injuries alleged to have been caused by defendant's negligence in providing plaintiff a safe place to work. A demurrer to the declaration was overruled, a trial resulted in a verdict and judgment for the plaintiff in the sum of $3,500 from which defendant has appealed.

The pertinent part of the declaration is as follows: 'the defendant negligently failed to provide plaintiff a reasonably safe place in which to perform his said duties in this, to-wit: that the ground along which plaintiff was obliged to run to overtake and board said caboose was approximately 30 inches below the level of the track so that it was necessary in boarding the caboose to step upon the ballast upon which the track was constructed and at that place the ballast was coarse and loose and insecurely packed and did not afford plaintiff a secure footing for boarding the said caboose.'

At the time of the accident that resulted in the injury, plaintiff was employed as a flagman by the defendant. He alighted from a slowly moving freight train to close a switch. When he threw the switch as the train cleared, it was traveling from two to five miles an hour. He ran and overtook the train and as he was about to take hold of the grab iron on the rear of the caboose to get aboard, the ballast gave way under his feet, threw him to the ground, skinned both hands and knees badly and dislocated his knee cap.

It is admitted that at the time plaintiff was injured the train was being operated without negligence, that the accident took place in clear daylight and that the plaintiff was on duty at the time. It is also admitted that the plaintiff ran about 30 feet to overtake the train, after he closed the switch, that the berm or ground traversed by plaintiff to overtake the train was about 30 inches below the level of the track and that the step on the caboose was 22 to 24 inches above the rail. The slope in the ballast from the head of the ties to the berm was 53 inches.

It is first contended that the declaration failed to state a cause of action under the Federal Employers' Liability Act, the part pertinent to this case being as follows: 'Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, * * * shall be liable in damages to any person suffering injury while he is employed by such carrier * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.' § 1.

Since it is admitted that the train was being operated at the time of the accident without negligence, the question is reduced to that of whether or not defendant exercised such care as the Federal Employers' Liability Act requires to furnish plaintiff a reasonably safe place to work. In other words, did the declaration allege such a duty and was the evidence sufficient to show that it was violated.

The rule is well settled that an employer is not required to warrant an employee absolute safety under every condition. He is required to exercise such...