Seaboard Coast Line R. Co. v. McKelvey

• Decision Date: 28 March 1972
• Docket Number: 71--3,Nos. 70--1207,s. 70--1207
• Citation: 259 So.2d 777
• Parties: SEABOARD COAST LINE RAILROAD COMPANY, Appellant, v. Ross J. McKELVEY, Jr., and Dade County, Florida, Appellees.
• Court: Florida District Court of Appeals

Page 777

259 So.2d 777

SEABOARD COAST LINE RAILROAD COMPANY, Appellant, v. Ross J. McKELVEY, Jr., and Dade County, Florida, Appellees.

Nos. 70--1207, 71--3.

District Court of Appeal of Florida, Third District.

March 28, 1972.

Rehearing Denied April 18, 1972.

Smathers & Thompson and Earl D. Waldin, Jr. and Harry L. Durant, Miami, for appellant.

Nichols & Nichols, Knight, Peters, Hoeveler, Pickle, Niemoeller & Flynn, Miami, for appellees.

Before BARKDULL, C.J., and PEARSON and CHARLES CARROLL, JJ.

BARKDULL, Chief Judge.

By this appeal, we are called upon to review the propriety of a trial court proceeding which resulted in a verdict of $500,000.00 and final judgment thereon in favor of the appellee, McKelvey, for the loss of a right arm midway between the shoulder and the elbow.

The plaintiff brought his action pursuant to the provisions of the Federal Employees Liability Act against the Railroad (as his employer) and against the appellee, Dade County. He alleged that his injury was caused by the joint negligence of the defendants; that his employer failed to provide him with a safe place to work; and that the County, upon whose premises the train was traveling at the time of the injury, failed to properly maintain a gate across the roadbed.

At the time of the injury, the plaintiff was acting as a conductor on a freight train, which was shifting several box cars on property owned by the County. The train was made up of two box cars with an engine in the rear pushing the cars. As the train approached the County's property, the plaintiff got off the train, caused a metal gate that crossed the track to be opened by a Dade County guard, reboarded the train and it moved forward; he was positioned on the left front side of the lead box car. As the train neared the opening in the fence, the left gate began to swing towards the track. The engine to the rear did not have a fireman and the plaintiff was not possessed of a walkie-talkie to communicate with the engineer, who was on the right side of the engine. Rather than stepping off the train (which the plaintiff could have done because of its slow movement) he elected to move around in front of the box car in order to notify his co-employee (who was riding on the right front side of the box car and who could signal the engineer) of the potential danger ahead. In attempting to make the move from the left front side to the front of the box car, he lost his grip and fell beneath the train approximately 50--75 feet before it reached the fense, causing his arm to be severed.

The Railroad cross-claimed against the County, contending that if it were held liable to the plaintiff the County was liable over to it, upon an express contract of indemnity or upon the common law theory of contribution from an active tort feasor (the County) to the passive tort feasor (the Railroad).

After approximately a two-week trial, the matter was submitted to the jury on the issues made by the pleadings. The jury returned a verdict in favor of the plaintiff against the Railroad and in favor of the County on the plaintiff's claim against the County and the Railroad's cross-claim against the County. This appeal ensued.

The appellant has preserved and properly presented ten points on appeal, among which are the alleged unconstitutionality of the F.E.L.A. statute, the excessiveness of the verdict, error in the trial court's instruction relative to liability on the cross-claim. The other points urged for reversal have been examined and found to be without merit.

As to the alleged unconstitutionality of the Federal F.E.L.A. statute, we first note that this point was not raised in the trial court. The appellant concedes this, but contends that this court should consider the unconstitutionality of this statute at this time as fundamental error. We do not concur in the appellant's position for several reasons: (1) It is apparent, from a review of the trial proceedings, that the appellant relied on the benefits of this statute and, therefore, should not now be heard to complain of its unconstitutionality. Carlton, for Use of Duval County v. Fidelity & Deposit Co. of Maryland, 113 Fla. 63, 151 So. 291, 154 So. 317; McNulty v. Blackburn, Fla.1949, 42 So.2d 445; State ex rel. Watson v. Gray, Fla.1950, 48 So.2d 84. (2) Even if the matter had been presented to the trial court or was a proper matter for fundamental consideration by this court, this statute has been held constitutional by the Federal courts, including the Supreme Court of the United States. In Re Second Employer's Liability Cases (Mondou v. New York, N.H. & H.R. Co.), 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327; Michigan Central Railroad Company v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417; Norfolk & Western Railway Company v. Earnest, 229 U.S. 114, 33 S.Ct. 654, 57 L.Ed. 1096; Seaboard Air Line Ry. Co. v. Moore, 5th Cir.1912, 193 F. 1022. Counsel for the appellant urges that the opinion of the Supreme Court of the United States upholding the constitutionality of this statute was rendered in 1912, and that time and events which have transpired in the past sixty years now render the operation of this statute unconstitutional under the equal rights provision of the United States Constitution. We do not find facts in the record, nor have sufficient facts been called to our attention of which we could take judicial notice, to warrant this court at this time holding this statute unconstitutional. Atlantic Coast Line R. Co. v. Ivey, 148 Fla. 680, 5 So.2d 244; Caldwell v. Mann, 157 Fla. 633, 26 So.2d 788; Georgia Southern and Florida Railway Company v. Seven-Up Bottling Company of Southeast Georgia, Inc., Fla.1965, 175 So.2d 39.

Turning next to the propriety of the trial court's ruling relative to the jury instructions on the cross-claim between the Railroad and the County, we have examined the requested charges which the trial court declined to give on behalf of the Railroad and find that the substance of these charges was covered in the general charge given by the trial court. ¹ Therefore, no error has been made to appear in this ruling. Further, upon examination of the charges, as proposed by the Railroad, it is doubtful as to whether they were appropriate to be given because of the difference in defenses available to the respective defendants, to wit: contributory negligence being a complete defense in the action against the County, whereas it is not a complete defense in the action brought against the Railroad under the Federal Employers' Liability Act. Ft. Worth & Denver Railway Company v. Threadgill, 5th Cir.1955, 228 F.2d 307; Kennedy v. Pennsylvania Railroad Company, 3rd Cir.1960, 282 F.2d 705; Wallace v. New Orleans Public Belt. R. Co., D.C.La.1948, 78 F.Supp. 724 (rev'd. on other grounds, 5 Cir., 173 F.2d 145); Lawrence v. Great Northern Ry. Co., D.C., D.Minn., 4th Div.1951, 98 F.Supp. 746.

Turning now to the question of the excessiveness of the verdict, we are faced with a most difficult decision. The plaintiff was a young man of twenty-seven years of age, who was shown to be (prior to the injury) a very industrious, outgoing and likeable person, who supported his widowed mother and his sister, worked his way through college, and had a life expectancy of 45 1/2 years at the time of the injury. The evidence was that his earning capacity was ultimately $9,000.00 a year in his employment at the time of the injury, and that his earning capacity as now handicapped would be approximately $3,000.00 a year, leaving a total loss of earnings over a period of life expectancy of $228,000.00 which, reduced to today's worth, would be approximately $92,335.00. This, coupled with past loss of earnings of $8,665.00, results in a total loss of earnings of $101,000.00. Deducting this amount from the total verdict of $500,000.00 would leave $399,000.00 to compensate the plaintiff for pain and suffering and the loss of the arm. In this connection, see Renuart Lumber Yards v. Levine, Fla.1950, 49 So.2d 97; Loftin v. Wilson, Fla.1953, 67 So.2d 185.

We have been pointed to a number of authorities throughout this country on the amount of damages approved by appellate courts during the preceding twelve years for the loss of one or more limbs. In none of these opinions, and in none we have been able to find, has a verdict been sustained of an award of $399,000.00 for pain and suffering. A review of the cases indicates that an appellate court should not disturb a verdict as excessive, unless it shocks the conscience of the court. The burden is on the appellant to establish that the verdict is wholly unsupported by the evidence or that it was the result of passion, prejudice, or other improper motive. Bartholf v. Baker, Fla.1954, 71 So.2d 480; Handel v. Rudnick, Fla.1955,78 So.2d 709; Sproule v. Nelson, Fla.1955, 81 So.2d 478; Little River Bank & Trust Company v. Magoffin, Fla.1968, 100 So.2d 626; Florida East Coast Railway Company v. Stewart, Fla.App.1962, 140 So.2d 880; Rite Rate Cab Company v. McGee, Fla.App.1963, 159 So.2d 663; Sinclair Refining Co. v. Butler, Fla.App.1965, 172 So.2d 499; Talcott v. Holl, Fla.App.1969, 224 So.2d 420. No ascertainable test or standard is provided in these decisions as to what is necessary to jar or shock the judicial conscience of an appellate court. It is...