South Florida R. Co. v. Weese

• Decision Date: 19 June 1893
• Citation: 13 So. 436,32 Fla. 212
• Parties: SOUTH FLORIDA R. CO. v. WEESE.
• Court: Florida Supreme Court

13 So. 436

32 Fla. 212

SOUTH FLORIDA R. CO. v. WEESE.

Florida Supreme Court

June 19, 1893

Error to circuit court, Orange county; John D. Broome, Judge.

Action for personal injuries by Edward D. Weese against the South Florida Railroad Company. Plaintiff had judgment, and defendant brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. Defective service of summons ad respondendum is cured by the personal appearance and pleading to the merits of the cause by the defendant.

2. Actions for injuries to the person, caused by a railroad company, are transitory in their nature, and may be brought in any county through which such road runs.

3. It is not necessary, in order to bring a case within the rule that an employer is not responsible to those in his employ for injuries caused by the negligence or misconduct of a fellow servant, that the servant who causes and the one who suffers the injury should be at the time working together in the same particular work. It is sufficient if they are in the employment of the same master, engaged in the same common enterprise, and both employed to perform duties tending to accomplish the same general purpose.

4. It is error for the court to submit a case to the jury on the theory that the relation of vice principal existed between the defendant company and the servant whose negligence produced a personal injury to the plaintiff, when there is no testimony tending to show that such relation existed, or that the negligent servant was at the time performing any duties devolving upon the principal. Whether or not the rule in felation to vice principals exists in this state is not decided.

5. The rule is well settled that among the positive duties resting upon the master to the servant is the obligation to exercise such reasonable care as prudence and the exigencies of the situation require in providing the servant with safe machinery and suitable instrumentalities. and a reasonably safe place in which to work. The negligence of the master in this respect is not one of the perils or risks assumed by the employe in his contract of employment, and he has the right to insist that the master shall strictly comply with his obligations in this respect. But, while this rule is clearly established, it is also well settled that it is a complete answer to the claim for damages resulting from a failure to furnish suitable instrumentalities and a safe place to work that the injured servant has full knowledge of the situation and voluntarily engaged in the employment or continued therein with such knowledge without objection or protest, and without any assurance on the part of the employer to provide better.

COUNSEL

S. M. Sparkman and E. K. Foster, for plaintiff in error.

Hammond & Jackson, for defendant in error.

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

Weese, the defendant in error, sued the plaintiff in error for personal injuries received by him while in the employment of the company. The essential averments in the declaration as to the cause of action are as follows: That on the 5th day of October, A. D. 1886, the defendant company plaintiff in error here, was a corporation owning and running a railroad from Sanford, in Orange county, to Tampa, in Hillsborough county, and that plaintiff, Weese, was employed by said corporation as a laborer on said road to wipe and clean the engines that were brought into the town of Tampa at night from service on said road, his term of service being 10 hours each night when there were engines requiring the same, at the compensation of $40 per month. That on the night of the 4th day of October, A. D. 1886, an engine of said corporation was placed on the main track of its road in the town of Tampa, by the order of Thomas Landrum, the then acting yard master in the said town of Tampa; and plaintiff, Weese, being an employe of said corporation, under duty to clean said engine, and being instructed by William Coleman, an engineer, and an agent of said corporation in this department, to wipe off and clean the same, proceeded to do so as instructed. That no pit was prepared in which to stand in the process of cleaning said engine, and no signal lamp was furnished said plaintiff to hang upon said engine as notice and warning to others employed on said road while said engine was being cleaned. That, in order to clean said engine, plaintiff was compelled to get under it, and in order to get under it, it was necessary to go between the wheels, and when under it there was no way of escape except between the wheels; and that while under said engine no damage could ensue unless from gross neglect on the part of said corporation or its agents.

It is also alleged that said plaintiff went under said engine to clean it about 9 o'clock on the night of the 4th day of October, A. D. 1886, with a lightwood torch, which gave abundant light and notice of his locality and employment, and that he remained at work cleaning said engine until about 4 o'clock on the morning of the 5th day of said month, when William Coleman, the engineer aforesaid, who had placed said engine upon said track, and instructed plaintiff to clean it, carelessly and negligently ran a train of cars belonging to said corporation back against said engine, and by great force and violence drove it out of its place; and plaintiff, being forced to escape from under said engine or be crushed by it, was caught while trying to escape therefrom by the wheel of said engine, and the muscles of the calf of his left leg were entirely crushed off from the bone; and that said injury was inflicted without any negligence on the part of plaintiff.

The declaration then alleges that said plaintiff suffered great pain and sickness from said injury, and has been wholly disabled bodily and mentally from performing labor and attending to business since the same was received, and also that by reason of said injury said plaintiff has been permanently disabled physically and mentally. Other sources of damages resulting from said injury are stated, but it does not become necessary to set them out here. The total damage alleged is $20,000.

To this declaration the defendant company demurred on the grounds that it sets up no sufficient cause of action; that the relation of fellow servant existed between plaintiff and those in charge of defendant's engine which it is alleged caused the injury; that, as shown by the declaration, it was plaintiff's own negligence that caused said injury, and not that of defendant or its agents; and for other causes apparent upon the face of the declaration. This demurrer was overruled, and the defendant company filed four pleas. The first one was the general issue, not guilty. The second plea alleged, in substance, that plaintiff's injury was caused by his own negligence, and not by the fault of defendant, or of its servants or agents. The third, that, if the plaintiff was injured as he has alleged in his declaration, said injury was caused by the negligence and lack of care on part of plaintiff contributing thereto. And, fourth, that if plaintiff was injured by the negligence or lack of care of any of the agents or employes of defendant, as he has alleged in his declaration, said negligence was that of the fellow servant or fellow servants of the plaintiff.

Some two months and a half after issue had been joined upon defendant's pleas, its counsel asked leave to file a plea to the jurisdiction of the court to the following effect, viz.: That plaintiff's cause of action, if any he has, occurred in the county of Hillsborough, in the sixth judicial circuit of Florida, and that no sufficient service has been had upon defendant to give this court jurisdiction of this cause; said service, according to the return of the officer who undertook to make the same, having been made on one Rudolf, who was not the president, secretary, general manager, general solicitor, superintendent, or resident business agent where the cause of action occurred. This application was refused, and the cause tried upon the issues presented, resulting in a verdict for plaintiff in the sum of $5,000. A motion in arrest of this judgment was made by defendant below on the grounds that no such service was had in said cause upon defendant as to give the court jurisdiction thereof, and the court had no jurisdiction to try and determine said cause, and the same should have been tried, if at all, in the county of Hillsborough, sixth judicial circuit of the state of Florida. This motion was overruled. Upon a motion for a new trial, made by defendant, plaintiff remitted the sum of $2,000, and thereupon the court overruled this motion for a new trial, and awarded judgment in favor of plaintiff for $3,000 and costs of suit, and from this judgment the defendant has brought the case here by writ of error.

On the point of the company's liability, including the plaintiff's relation to the company and its employes operating at the railroad yard in Tampa, and the cause of the injury to the plaintiff, the effect of the testimony is as follows: Weese, the plaintiff, was employed by the defendant company some time about the 28th of July, 1886, to wipe and clean engines that went into Tampa, and to fire them up before leaving time on out-going trips. During his employment this service was performed at night, between 6 o'clock in the evening and 6 o'clock in the morning, as the engines went into Tampa in the early part of the night, and left early next morning. When Weese was first employed the railroad was narrow gauge, and he worked on the engines in wiping and cleaning them while standing over pits on side tracks, where they were placed for this purpose. A pit is a dug-out place between the tracks deep...