Stager v. Florida East Coast Ry. Co.
| Decision Date | 07 April 1964 |
| Docket Number | No. 63-346,63-346 |
| Citation | 163 So.2d 15 |
| Parties | Earl L. STAGER, Appellant, v. FLORIDA EAST COAST RAILWAY COMPANY, a Florida corporation, Appellee. |
| Court | Florida District Court of Appeals |
Frates, Fay & Floyd, Miami, for appellant.
Bolles, Prunty, Martin & Goodwin and Kenneth L. Ryskamp, Miami, for appellee.
Before BARKDULL, C. J., and TILLMAN PEARSON and HENDRY, JJ.
Appellant, plaintiff in the trial court, appeals from a favorable final judgment in an F.E.L.A. action against the appellee, wherein and whereby he secured a verdict in the sum of $15,000.00. In and by his complaint, the appellant sought damages for an injury allegedly sustained while lawfully engaged in his occupation as an engineer on the railroad, which injury occurred because of an unnecessary jar or jolt to the car or cab in which he was riding, occasioned because of the failure of a fellow employee to give an appropriate signal. The alleged injury was to the plaintiff's lower back. Between the date of the injury and the trial, the plaintiff underwent several operations by two doctors and was examined by several other doctors of his own choosing and by a court-appointed physician. The appellant has preserved the following points for review, upon which he contends the trial judge erred in the conduct of the proceedings, entitling him to a new trial, to wit:
1. That the court erred in limiting the number of doctors who could testify.
2. That the court erred in refusing to permit into evidence a letter allegedly containing certain admissions against interest.
3. That the court erred in refusing to direct a verdict for the plaintiff on the issues of contributory negligence.
4. That the court erred in refusing to instruct the jury that the defense of assumption of risk is not available in an F.E.L.A. case.
5. That the court erred in instructing the jury that any damages awarded were not subject to Federal Income Tax.
6. That the court erred in charging the jury on proximate cause.
7. A cumulative point that the acts of the trial judge, above enumerated, denied the plaintiff due process of law.
As to the first point [limiting the medical testimony to two doctors, pursuant to Rule 1.16(4) F.R.C.P., 30 F.S.A.], a trial judge is charged with the conduct of a trial and only such conduct on the part of the trial judge as would result in an abuse of discretion, depriving a party of due process of law, would warrant an appellate court directing a trial judge as to the manner of conducting his courtroom. See: Rose v. Yuille, Fla.1956, 88 So.2d 318; H. I. Holding Company v. Dade County, Fla.App.1961, 129 So.2d 693; 32 Fla.Jur., Trial, § 16; 35 Fla.Jur., Witnesses, § 154. The limiting of a number of witnesses for a given side has long been recognized as appropriate. See: Southern Pacific Co. v. Marquez, 9th Cir.1930, 44 F.2d 286; Montrose Contracting Co. v. Westchester County, 2nd Cir.1938, 94 F.2d 580; Redondo Beach School District of Los Angeles County v. Flodine, 1957, 153 Cal.App.2d 437, 314 P.2d 581; Swope v. City of Seattle, 1904, 36 Wash. 113, 78 P. 607; Rule 1.16(4), F.R.C.P. With the exception of the court-appointed physician [whose testimony will be commented on later], the plaintiff failed to proffer what evidence he would have sought to elicit from the witnesses he was prevented from calling and, without such a proffer in the record, it is impossible for an appellate court to determine whether the refusal to permit the additional witnesses constituted error. See: Green v. Hood, Fla.App.1960, 120 So.2d 223; Musachia v. Terry, Fla.App.1962, 140 So.2d 605; Seaboard Air Line Railroad Company v. Ellis, Fla.App.1962, 143 So.2d 550. As to the court-appointed physician, this cause was before the trial court on two occasions. The first trial resulted in a mistrial. Prior to the first trial, the judge announced his two-witness limitation as to medical evidence. Also prior to the first trial a court-appointed physician had been appointed and had examined the plaintiff. During the interval between the first and second trials, the plaintiff visited the court-appointed physician [not pursuant to any court order or agreement of counsel] and was treated by said doctor. Upon the second trial, the trial judge concluded that to permit evidence of the subsequent examination by the court-appointed physician [which examination was in the nature of that of a treating physician] would violate his previous adminition that only two medical witnesses would be permitted. No error in excluding the doctor's testimony on this ground has been made to appear. What he would have testified to was proffered in the evidence and its effect was that the plaintiff was unable to continue in the occupation of a railroad engineer. However, this evidence would merely have been cumulative to that testified to by the two treating physicians. Lastly, the appellant urges that he was entitled to cross-examine the court-appointed physician because, on direct examination, said physician was asked questions concerning his examination during the visit between the two trials. An isolated reading of one question may indicate such a question on direct examination. However, a full reading of the direct testimony and a full reading of the questions propounded on direct examination indicates that the court-appointed physician was examined only as to results of the examination which he conducted pursuant to the court order. Therefore, there is no merit found in the contention that plaintiff's counsel was not permitted to cross-examine.
As to the second point, the letter in question reads, in pertinent parts, as follows:
'For your responsibility in connection with your failure to be in proper position and pass signals when making movement on...
To continue reading
Request your trial
-
Atlantic Coast Line R. Co. v. Braz
...the amount of any award. As authority they rely on Poirier v. Shireman, Fla.App.1961, 129 So.2d 439, and Stager v. Florida East Coast Railway Company, Fla.App .1964, 163 So.2d 15. In opposition thereto, the plaintiff refers us to Rhodes, Inc. v. Knowles, Fla.1957, 99 So.2d 302, and Florida ......
-
Webb v. Priest, 80-1091
...witnesses is a matter of discretion for the trial court, Ritter v. Jimenez, 343 So.2d 659 (Fla.3d DCA 1977); Stager v. Florida East Coast Railway Co., 163 So.2d 15 (Fla.3d DCA 1964), cert. denied, 382 U.S. 878, 86 S.Ct. 162, 15 L.Ed.2d 119 (1965); Fla.R.Civ.P. 1.200(a)(4). Under the facts o......
-
Gold, Vann & White, P.A. v. DeBerry By and Through DeBerry
...to one expert per side. See also Maler v. Geraldi, 502 So.2d 973 (Fla. 3d DCA 1987). As postulated in Stager v. Florida East Coast Railway Company, 163 So.2d 15, 17 (Fla. 3d DCA 1964), "a trial judge is charged with the conduct of a trial and only such conduct on the part of the trial judge......
-
Utianski v. Ewing, s. 88-1706
...(Fla. 3d DCA), rev. denied, 392 So.2d 1373 (Fla.1980); Jennings v. Stewart, 308 So.2d 611 (Fla. 3d DCA 1975); Stager v. Florida East Coast Ry., 163 So.2d 15 (Fla. 3d DCA 1964), cert. discharged, 174 So.2d 540 (Fla.1965); § 90.104(1)(a), (b), Fla.Stat. ...
-
Untangling taxes from personal injury damages.
...decisions considered the propriety of instructing the jury that its award would not be taxable. In Stager v. Florida East Coast Railway, 163 So. 2d 15 (Fla. 3d DCA 1964), the Third District Court of Appeal followed Poirier with little discussion and held that it was not error to give the in......